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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V22) 1 CLR 38
1957 February 25
[HALLINAN C.J. AND ZANNETIDES J.]
COMMISSIONER OF LIMASSOL,
Appellant,
v.
VASSOS PAPADOPOULOS AND OTHERS,
Respondents.
(Civil Appeal No. 4210).
Emergency Powers (Collective Punishment) Regulations 1955-Provisions of Regulation 5-Inquiry by Commissioner-Functions of Commissioner-Conduct of inquiry-Regulations intra vires the Emergency Powers Orders in Council, 1939 and 1952.
Certiorari-Inquiry by Commissioner under Regulation 5-Ministerial or Judicial act.
Practice-Ministerial acts-Failure to comply with statutory provisions-Action for declaration.
The District Commissioner of Limassol made an order imposing a collective fine of £35,000 on the Greek Cypriot inhabitants of Limassol under Regulation 3 of the Emergency Powers (Collective Punishment) Regulations, 1955. Upon an application for certiorari to quash the order it was submitted on behalf of the applicants (i) that the aforesaid Regulations were ultra vires the Emergency Powers Orders in Council, 1939 and 1952; and (ii) that the order of the Commissioner was bad because before making his order under Regulation 3 of the aforesaid Regulations he had failed to comply with the provisions of Regulation 5 as to the holding of an inquiry. On behalf of the Commissioner it was argued that an order made by him under the Regulations was final and not appealable and that, therefore, certiorari did not lie. Zekia J. made an order quashing the Commissioner's order.
On appeal it was further submitted by the Commissioner that the acts which the Commissioner was required to do when making an order under the Regulations of 1955 were ministerial and not judicial acts and that, therefore, certiorari could not issue to control them.
Held: (1) The Emergency Powers (Collective Punishment) Regulations, 1955, were not ultra vires the Emergency Powers Orders in Council, 1939 and 1952.
(2) The provisions of Regulation 13 of the EmergencyPowers (Collective Punishment) Regulations 1955, that anorder made by the Commissioner under Regulation 3 shall befinal and no appeal shall lie, did not preclude the SupremeCourt from quashing an order upon an application forcertiorari.
(3) (Per Hallinan C.J.) : (a) It is beyond question good law that certiorari does not issue to control ministerial acts, and in the present case the Commissioner when making an order under Regulation 3 was acting ministerially and not judicially.
(b) Where a power is given to an official to do a ministerial act and he fails to comply with the statutory provisions which are conditions precedent to the exercise of such power then his order may not be challenged by certiorari but by an action for a declaration.
(c) Consequently, the application for certiorari in this case was misconceived and the prerogative order of certiorari could not issue to control it.
(4) (Per Hallinan C.J.): (a) The trial Judge misconceivedthe nature of the enquiry. The Commissioner had a duty toenquire into the facts and circumstances giving rise to theorder. The confidential reports and information were partof his enquiry into the facts and circumstances, but therewas nothing in the Regulations which prescribed that theenquiry should be a public one. The very nature of theemergency which gave rise to the Regulations might wellmake it necessary for the Commissioner's enquiries to beconfidential.
(b) The phrase "subject matter of the enquiry" in Regulation5 (2) did not mean the same thing as "the facts andcircumstances giving rise to the order"; and the Commissionerwas not, therefore, bound to disclose to the inhabitants thefacts and circumstances giving rise to the imposition of thefine, but only to make a brief statement of the subject matterof the enquiry.
(c) What the Court was asked to say was not whether theprocedure of the Commissioner was contrary to naturaljustice but whether he did what was required of him by theRegulations; and the measures taken by the Commissionerto notify the inhabitants were sufficient to comply with theRegulations.
Consequently the order to bring up and quash the Commissioner'sorder should be set aside.
(5) (Per Zannetides J.): The Commissioner was bound to act judicially if he were to comply with what Regulation5 prescribed. His order under Regulation 3 was not aministerial act but a judicial or quasi-judicial act, andcertiorari could, therefore, issue to control it.
(6) (Per Zannetides J.): (a) The words "subject matterof the enquiry" in Regulation 5 (2) meant the facts andcircumstances giving rise to the making of the order;
(b) The enquiry under Regulation 5 need not be a publicenquiry or an enquiry at which all the inhabitants would have the right to be present.
(c) The Commissioner ought to give to the inhabitants sufficient facts and circumstances of the outrages committed and sufficient facts and circumstances showing that they 'were collectively liable. He failed to do so and he, therefore, failed to comply with the provisions of Regulation 5.
Consequently, the Commissioner's order was bad and it ought to be quashed.
As the Court stood evenly divided the decision of Zekia J. (1956) 21 C.L.R. 193 must stand.
[Editor's Note: The Judicial Committee of the Privy Council, after admitting further affidavit evidence, allowed the appeal of the Commissioner of Limassol (appellant) from the judgment of the Supreme Court of Cyprus in its appellate jurisdiction. The judgment of the Judicial Committee,delivered on the 17th March, 1958, will be reported in the nextvolume of the Cyprus Law Reports].
Cases referred to:
(1) R. v. Halliday (1917) A.C., 260.
(2) Liversidge v. Anderson (1942) A.C., 206.
(3) Errington v. Minister of Health (1935) 1 K.B., 249.
(4) Robinson v. Minister of Town and Country Planning
(1947) K.B. 702, C.A.; (1947) 1 All E.R. 851.
(5) Franklin and others v. Minister of Town and Country
Planning (1948) A.C. 87, H.L.; (1947) 2 All E.R.,289 H.L.
(6) Patterson v. District Commissioner of Accra and another
(7) Local Government Board v. Arlidge (1915) A.C. 120.
(8) Franklin v. Minister of Town and Country Planning
(1947) 1 All E.R. 612, C.A.
(9) Ezekias Papaioannou and others v. Superintendent of
Prisons (1956) 21 C.L.R. 134.
Appeal.
Appeal from a decision of Zekia J., dated the 15th December, 1956, quashing upon an application for certiorari (Application No. 16/1956), an order made by the Commissionerof Limassol on the 4th July, 1956, that a fineof £35,000 be levied collectively on the assessable GreekCypriotinhabitants of the area of the municipality ofLimassol under the provisions of Regulation 3 of theEmergency Powers (Collective Punishment) Regulations,1955, to (No.1) 1905.
The facts appear in the judgment of Hallinan C.J.
Sir James Henry, Q.C., Attorney-General, with R. R. Denktash, Crown Counsel, for the appellant.
Sir Panayiotis Cacoyannis, J. Potamitis and ChryssesDemetriades for the respondents.
Cur.adv. vult.
Mar. 8, 1957. The following judgments were read:
HALLINAN C.J.: This is an appeal from the decisionof Mr. Justice Zekia quashing; upon an application forcertiorari, an order made by the Commissioner of Limassolon the 4th July, 1956, that a fine of £35,000 be leviedcollectively on the assessable Greek Cypriot inhabitantsof Limassol.
The Commissioner made the order under the EmergencyPowers (Collective Punishment) Regulations, 1955. TheseRegulations were made by the Governor under theEmergency Powers Orders in Council, 1939 and 1952. Three issues were considered upon the hearing of theapplication for certiorari. The first two were submittedby the applicants and the third by the respondent. Thefirst issue was whether the Regulations of 1955 were ultravires the Emergency Powers Orders in Council, 1939 and 1952. The second issue waswhether the order of the Commissioner was bad because before making his orderunder Regulation 3 of the Regulations of 1955 he hadfailed to comply with the provisions of Regulation 5 asto the holding of an enquiry. And the third issue whichwas argued for the respondent was that under Regulation13 any order made under the Regulations is final and notappealable and, therefore, a certiorari does not lie.
The learned trial Judge held that the provisions ofRegulation 13 did not preclude the Supreme Court from controlling the order of the Commissioner by certiorari; and as regards the first and second issues he held that, although the Regulations of 1955 were not ultra vires theEmergency Powers Orders in Council, the Commissionerhad not held an enquiry in the nature of the one contemplated by Regulation (5) (1) and that, since this enquirywas a condition precedent to the making of this order, anorder of certiorari must issue to quash the Commissioner'sorder.
It is convenient to deal quite shortly with the firstand third issues and then to consider at some length the much more difficult issue as to whether the Commissionerfailed to hold the enquiry under Regulation 5 (1). In myview the decision of the learned Judge that Regulation13 is not a bar to proceedings for certiorari is correct. TheRegulation bars the right of appeal but does not precludethe Supreme Court from reviewing and controlling theorder of the Commissioner by certiorari if it was establishedthat he was acting judicially. I also consider that thelearned judge was correct in holding that the Regulationsof 1955 were not ultra vires the Emergency Powers Ordersin Council. Section 6 (1) of the Order of the EmergencyPowers Order in Council, 1939, provides: "The Governormay make such regulations as appear to him necessaryand expedient for securing public safety, the defence of thecountry, the maintenance of public order and the suppressionof mutiny, rebellion and riot and for maintaining suppliesand services essential for the life of the community".Sub-paragraph 2 provides that, without prejudice to thegenerality of the powers conferred by the preceding subsection,certain powers are expressly conferred on theGovernor to make regulations including in paragraph 6powers to provide for the apprehension, trial and punishmentof persons offending against the Regulations. It wassubmitted by Counsel for the applicants that no Regulationsunder the Orders in Council can be made by virtueof sub-section 6 (1) which are inconsistent with the powersconferred under section 6 (2) and that it is contrary to subsection2 (g) that the inhabitants of Limassol should bepunished without trial. I am unable to accept this submission.There is nothing in the paragraph which makesit necessary that the regulation must provide for trial aswell as punishment for, if this was so, logically no personcould be punished unless he was apprehended first as wellas tried. The argument ultimately rests not on theprovisions of paragraph (g) but on the fundamental rightsof the British subjects under the Magna Carta and theBritish Constitutional Law. This matter was consideredin R. v. Halliday, 1917 Appeal Cases, 260, where the powerto make a regulation for the detention of persons withouta charge or trial under the Defence of the Realm ConsolidationAct, 1914, was challenged as ultra vires. It washeld inthe House of Lords that the regulations were notultra vires and that Parliament had the undoubted rightto alter even the most fundamental laws of the constitutionand had done so for the safety of the State. UnderRegulation 7 of the Emergency Powers (Collective Punishment)Regulations, 1955, the proceeds of any fine must,under the Regulations, be paid to any person who sufferedinjury or loss or damage to his property unlawfully in thearea; and Regulation 4 provides that after the paymentof any such compensation the balance of the fine so leviedshall be applied to such purposes in the district as theGovernor may direct. The imposition of such a fine andthe way in which they are to be applied is a far less drasticinterference with constitutional rights than the deprivationof the personal liberty under a detention order.
Before considering the second issue as to whether the Commissioner complied with the provisions of Regulation 5,I shall discuss a very important matter argued on thisappeal which apparently was not argued before the learned judge.
The Attorney-General submitted for the appellant that the acts which the Commissioner is required to do when making an Order under the Regulations of 1955 are ministerial and not Judicial acts and, therefore,certiorari cannot lie to control them. It is beyond question good law that certiorari does not issue to control ministerial acts, and, in my view, the Commissioner when making an order under Regulation 3 was acting ministerially. The Regulations of 1955 are made to meet a grave threat to law and order occasioned by organized terrorism in Cyprus ; and the circumstances giving rise to the making of the regulations are the same as those which require the making of the principal regulations, namely, the Emergency Powers (Public Safety and Order) Regulations, 1955. Under Regulation 6 of these principal regulations if the Governor has reasonable cause to believe certain facts concerning a person, he may issue an order for that person to be detained. It has been already held by the Supreme Court that, following the decision in the House of Lords in Liversidge v. Anderson (J 942) A.C. 206, such detention orders made by the Governor are ministerial acts. Taking Regulation 3 of the Emergency Powers (Collective Punishment) Regulations, 1955, by itself, apart from the provisions of Regulation 5, I am clearly of opinion that an order made under this regulation is purely ministerial. I also consider that where a power is given to an official to do a ministerial act and he fails to comply with the statutory provisions which are conditions precedent to the exercise of such power, then this order may not be challenged by certiorari but by an action for a declaration. I note in 11 Halsbury, 3rd edition, at p. 54, para. 111, it is stated: "It is possible to bring before the Court by means of an action for a declaration the question whether any administrative or executive action or decision taken or given in purported pursuance of a power conferred by statute... was ultra vires." If the enquiry prescribed by Regulation 5 had been a lis between two parties, then the Commissioner might have to act judicially in considering the report of the enquiry before making his order. This is the type of case illustrated in Erringtonv. The Minister of Health (1935) 1 K.B., 249, referred to in 11 Halsbury, p. 56, para 114, note (c). But the present case is of the type of cases referred to in the following note (d). In this latter type of case there is no lis between a local authority and an objector but the minister himself is the proposer; to cite from Halsbury'snote: "The minister or other official who makes a decision in exercise of his statutory duty cannot be himself considered as 'quasi-Iitigant'vis-a-vis objectors." Since the Commissioner when making an order under Regulation 3 had not to consider judicially the report of the enquiryunder Regulation 5 his order remained ministerial in character.
The learned judge cites a passage from the judgment of Lord Greene in Robinson v. The, Ministerof Town and Country Planning (1947), K.B. 702, at p. 716 and 717: I was at first puzzled by the fact that in Robinson's case the making of the order was held to be a ministerial act and yet in the citation from Lord Greene's judgment underlined by the learned Judge it was suggested that the Court could nevertheless control the minister if he had not complied with the statute in exercising his powers. On reading this passage I assumed, as I think the learned Judge must have done, that the application in Robinson's case and in the case of Franklin and others v. TheMinister ofTown and Country Planning (1947) 2 All E.R. 289 was for certiorari. However, it is clear from Lord Greene's judgment that the application was under section 16 of the Town and Country Planning Act, 1944. This section provides that any person aggrieved by an order made under the Act, that any requirement of the Act or that any regulation made under it has not been complied with, may make an application to the High Court; and the Court, if satisfied that this is so, may quash the order. This section 16 was incorporated by reference into the New Towns Act, 1946, and again the application in Franklin's case was under that section. Upon an application under this section, even though the act was ministerial, the order could be quashed if same statutory provision under the Acts of 1944 or 1946 had not been complied with. But where the application is for certiorari, as I have already stated, this prerogative order cannot issue to control a ministerial act. The learned judge's failure to appreciate this distinction is all the more readily understood since the question of whether the Commissioner's order was a ministerial or judicial act does not appear to have been argued before him; nor indeed was it one of the grounds of appeal, but weconsider that it is an issue which should be argued and we are prepared to allow the grounds of appeal to be amended as we have allowed this matter to be argued upon hearing of the appeal.
For the reasons I have stated, in my view, the application for certiorari in this case was misconceived as theorder of the Commissioner under Regulation 3 was a ministerial act and the prerogative order of certiorari cannot issue to control it.
Although my conclusion that the order was a ministerial act disposes of the appeal, I am unable to agree with the learned judge that the Commissioner failed to comply with the provisions of Regulation 5 (1) as to his holding an enquiry, and would allow the appeal, also on this ground.
Regulation 3 provides inter alia that if an offence is committed within a certain area and the Commissioner has reason to believe that all or any of the inhabitants of the area are in some way responsible for the commission of such offences (and the ways in which they may be responsible are enumerated) the Commissioner with the approval of the Governor may inter alia order that a collective fine be levied on the inhabitants of the area. Regulation 5, which is the regulation most in question on the present issue, is as follows:-
"5 (1). No order shall be made under Regulation 3of these Regulations unless an enquiry into the factsand circumstances giving rise to such order has beenheld by the Commissioner.
(2) In holding enquiries under these Regulationsthe Commissioner shall satisfy himself that theinhabitants of the said area are given adequateopportunity of understanding the subject-matter ofthe enquiry and making representations thereon, and,subject thereto, such enquiry shall be conducted insuch manner as the Commissioner thinks fit.
(3) A written report of any enquiry shall be submittedto the Governor as soon as possible after thecompletion thereof, and shall contain a certificate that the requirements of this regulation have beencomplied with."
The applicants' ground for submitting that there wasnon-compliance with the provisions of Regulation 5 (1)is contained in paragraph 8 of the affidavit of Mr. Papadopoulosof Limassol dated 20th November, 1956:
"The defendant failed to hold such an enquiry intothe facts and circumstances giving rise to the aboveOrder as could reasonably satisfy the Commissionerthat the inhabitants of the area of the Municipalityof Limassol were given adequate opportunity of understandingthe subject-matter of such enquiry and makingrepresentations thereon. In fact the Commissionersummoned a meeting at the office of the Commissionerof Limassol to which only the Greek Members of theCouncil of the Municipality of Limassol and the GreekMukhtars and Azas of the Limassol town were invited to attend. Much meeting was held and attended by me,5 Greek Municipal Councillors and the Greek Mukhtarsand Azas of the town of Limassol to whom the Commissioner spoke about certain murders and otheroffences committed in Limassol and added that he wasdetermined to impose a collective fine unless cause wasshown to the contrary. Then all those present wereasked by the Commissioner to show cause why acollective fine should not be levied on the assessableinhabitants of the area of the Municipality of Limassoland the reply was that the imposition of a collectivefine would be unjustified, unwarranted and anachronistic. None of the above persons represented or claimed to represent the Greek-Cypriot assessable inhabitants of the area of the Municipality of Limassol in the above matter nor have they undertaken or accepted to communicate anything conveyed to them at the above meeting to the assessable inhabitants of Limassol nor have they done so.
Furthermore, according to information received from HaralambosHadjiArabis of Limassol, one of the said Mukhtars, the great majority of the said GreekMukhtars (including the said HaralambosHadjiArabis) and Azas of the Town of Limassol had resignedtheir office as such and ceased to exercise their powers and duties under the Village Authorities Law longbefore the said meeting."
What took place prior to the Commissioner's meetingwith the Mukhtars and Azas is narrated in paragraphs 3and 4 of the Commissioner's affidavit of the 4th December, 1956:
"In my official capacity I followed six murders, ten attempted murders and a great number of bomboutrages, causing two other deaths and damage toproperty, which took place in the Limassol town duringthe six or seven months prior to July, 1956,and came to know, through confidential reports andinformation, that a great many of the Greek inhabitantsliving and working within the municipal limits ofLimassol were in a position to identify the personscommitting these outrages, but were wilfully abstainingfrom doing so and that a great number of the remainingGreek inhabitants were either actively or passivelyencouraging others to abstain from giving usefulinformation to the Authorities. I was convinced thatwith the full co-operation of the Greek inhabitants ofthe town such outrages would not have taken placeor remain undetected.
4. After due consideration of the situation, Iinvited in writing the 6 Greek Municipal Councillors (including the Deputy Mayor) and 9 Greek Mukhtarsand 27 Azas of the various quarters of the town ofLimassol to attend a meeting in my office on the 11thof June, 1956, at 4 p.m., informing them that the enquiry would be under Regulation 5 of the Emergency Powers(Collective Punishment) Regulations, 1955. I shouldpoint out that these were the Greek authoritiesappointed and elected of the town of Limassol and therewere no other persons qualified to represent its Greekinhabitants. In reply to the last sentence of paragraph 8of Dr. Papadopoulos' affidavit I say that the resignation of the persons therein mentioned has never been accepted."
The Commissioner here refers to section 6 of the Village Authorities Law (Cap. 256) which provides that Mukhtars and Azas may resign their office with the consent in writing of the Governor. The opportunity given by the Commissioner to the inhabitants to understand the subject-matter of the enquiry and make representations thereon is described by the Commissioner in paragraphs 5 to 8 of his affidavit as follows:
"5. Publicity was given to the fact that such anenquiry was to be carried out on the 11th of June, 1956,through the local representatives of the Greek press.
6. On the 11th of June at the time and placeappointed the above-mentioned Councillors, Mukhtars and Azas appeared. All local representatives of theGreek press were also there.
7. I informed the meeting that I was holding thispublic inquiry with a view to deciding whether I shouldrecommend to His Excellency the Governor the levyingof a fine on the Greek inhabitants of the town in respect of a long list of outrages which had occurredwithin the town since January 1st, 1956. I invitedthem to show cause why a fine should not be imposed.After discussion I came to the conclusion that no causewas shown and I accordingly told them that I was notsatisfied with their representations and asked themto inform their co-inhabitants as widely as possibleof what had transpired at the meeting and suggested that if there was any person or group of persons wishing to make further representations they could do sothrough the elected Municipal Councillors.
8. The enquiry was fully reported in all Greekpapers and the invitation for further representationswas given full publicity. There is now produced and shown to me marked "A" the translation of an extractfrom the Greek paper ETHNOS dated the 12th June,1956."
The Commissioner, however, also gives particulars ofnumerous representations which he received from groupsof people representing localities, quarters and associations.
The decision and reasons of the learned Judge on thisquestion of compliance or non-compliance with theprovisions of the regulations are contained in the following passage of the judgment:
"Regulation 5 (1) read in conjunction with Regulation 5 (2) in my view leaves no room for doubt thatthe enquiry to be held under paragraph 1 of Regulation5 is intended to be a public one or at any rate an enquiryin which the affected assessable inhabitants of the particular area would have a right to be present and follow it and take part if they wish to do so at some time or other in the proceedings. In my opinion Regulation 5 (1) is not susceptible of another interpretation.
If it is desired-and I have no hesitation that it isso-that persons called upon to pay a fine under theseRegulations shall be given a fair chance to understandthe reason why they are to pay such a fine in orderthat they may be able to make their representations, surely the facts and circumstances giving rise to theimposition of fine should be disclosed to them. No evidence need be given. The facts and circumstancesshould be related to one or more of the grounds specified in Regulation 3. It is not sufficient and it does notamount to a statement of facts and circumstancesgiving rise to an order to simply mention that a numberof murders and outrages have been committed betweensuch and such a date and to invite the inhabitants to show cause why a fine should not be imposed on them."
The first question that arises in considering Regulation 5is whether this enquiry is a judicial act. Apart from the provisions requiring the Commissioner to give theinhabitants adequate opportunity of understanding thesubject-matter of the enquiry and making representationsI do not think he was discharging judicial functions. Thereis no lis between parties, and the enquiry requires a reportbut not a decision, for the decision is made under Regulation3 which as I have stated is a ministerial act. InPatterson v. District Commissioner of Accra and another(1948) A.C. 341, a Peace Preservation Ordinance of theGold Coast provided that the District Commissioner withinwhose district any portion of a proclaimed district is, shall,after inquiry, if necessary, assess the proportion in whichsuch cost is to be paid by the said inhabitants accordingto his judgment of their respective means. This was heldby the Privy Council to be a ministerial act even thoughPatterson had admittedly been deprived of part of hisproperty without having had the opportunity of beingheard. In the present case apart from the requirements of "adequate opportunity" already mentioned the Commissionerhad merely to enquire into the facts and circumstancesgiving rise to the order and conduct an enquiryin such a manner as he thought fit. I would agree thatwhen the Commissioner proceeds to give the inhabitantsthe adequate opportunity I have mentioned he is embarkingon a judicial act, were it not for the phrase "The Commissionershall satisfy himself". Unless this phrase isinterpreted as applying a subjective test of compliance, it is difficult to see what meaning it can have in paragraph 2;if the test is subjective then the Court cannot go behindthe Commissioner's own statement that he has satisfied himself. However, I am prepared to assume that the phrase should be interpreted according to the objective test and that it is for the Court to say whether he had in fact reasonable grounds for being satisfied that the inhabitants had the "adequate opportunity" required in that paragraph.
As I understand the learned judge's judgment, theCommissioner failed in two ways to comply with Regulation 5: First, because the enquiry should have been a publicone at which the assessable inhabitants had the right to be present and take part if they wished to do so; and, secondly, that he did not disclose to these inhabitants the facts and circumstances giving rise to the impositionof the fine.
As regards the first point I think the learned judge has misconceived the nature of the enquiry. The Commissioner had a duty to enquire into the facts and circumstances giving rise to the order. In my view the confidentialreports and information, to which the Commissioner refers in paragraph 3 of his affidavit, is part of his enquiry intothe facts and circumstances and these reports and informationneed not be given to him publicly before the inhabitants. There is nothing in the regulations which prescribes that the enquiry shall be public. The verynature of the emergency which gave rise to the regulationsmay well make it necessary for the Commissioner'senquiries to be confidential. The decision in the House ofLords in the Local Government Board v. Arlidge (1915)A.C. 120, is ample authority for the proposition thatnatural justice does not require an administrative officer when acting judicially to have the parties present beforehim. At page 138 Lord Shaw of Dunfermline said:
"But that the judiciary should presume to imposeits own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are "ex necessitate" those of Courtsof Justice is wholly unfounded."
As regards the second way in which the Commissioneris alleged not to have complied with Regulation 5, the learned Judge appears to have considered that the phrase "subject-matter of the enquiry" means the same thing as "the facts and circumstances giving rise to the order."With respect I do not think this somewhat vague phraseshould be stretched so wide. In the Shorter OxfordEnglish Dictionary under the word "subject" in its third meaning there appears the following: "That which formsor is chosen as the matter of thought, consideration orenquiry; at opic, theme". Commissioners and JudicialOfficers might differ as to what the brief statement of the subject-matter of an enquiry should contain but I amunable to hold that as a matter of law the Commissioner erred when he interpreted the phrase the "subject-matter of an enquiry" to mean that he was enquiring into a long list of outrages which had occurred within the town since the 1st of January, 1956, and that he proposed to hold the inhabitants of the town responsible and to levy a fine upon them under the Regulations of 1955, which had been published in the official Gazette and of whose provisions they presumably were aware.
In 25 Halsbury's Statutes, 2nd Edition, at p. 623, thereis a note under section 104 of the Town and CountryPlanning Act, 1947, setting out the procedure of localenquiries. The inspector opens the local enquiry by makinga brief statement as to the subject-matter of the enquiry.Where the minister is himself the promoter of the proposal,the inspector or the representative of the minister thenmakes a brief explanatory statement with reference to thedraft order after which the objectors and other interestedparties put their case. In 11 Halsbury, p. 65, paragraph122, under the rubric "natural justice" at note (f), casesare cited where it was held that there was no obligationon the minister in considering objections to disclose toobjectors the information obtained by him or materialwhich came to his possession prior to the making ofobjections including information regarding the views ofother Government departments. It must be rememberedalso that the Commissioner is complying with a specific statutory provision of a more restricted nature than thegeneral consideration of natural justice. The learnedjudge's interpretation of the phrase "subject-matter"may, I think, have been induced by the judicial conceptof natural justice which requires that a person actingjudicially should give the parties a fair opportunity tocorrect the prejudicial statements made against them;but here we are not asked to say whether the procedure ofthe Commissioner was contrary to natural justice butwhether he did what was required of him by the regulations.
The learned judge not only considered that the factsand circumstances that have given rise to the order shouldhave been disclosed but that these should have been relatedto one or more of the grounds specified in Regulation 3.Again I would respectfully say that I am unable to agree.The learned trial Judge appears to have assumed that thesubject-matter of the enquiry should have been statedto the inhabitants almost with the particularity of acriminal charge. This is certainly not what the regulationrequires and in fact, when stating the subject-matter ofthe enquiry to the inhabitants, the Commissioner need notin my view have made up his mind on which of the groundsspecified in Regulation 3 his order would be based.
It is not entirely clear from the affidavit before the Court as to what precisely the Commissioner told the Mukhtars and Azas. The affidavit of Mr. Papadopoulos merely states that "The Commissioner spoke about certain murders and other offences committed in Limassol and added that he was determined to impose a collective fine unless cause was shown to the contrary".Neither the notice of motion or the facts stated in what respect the information given by the Commissioner fell short of what was required under Regulation 5 (2) and it is not surprising that the Commissioner should give nothing more than a summary of what he said to the meeting in paragraph 7 of his affidavit. In Franklin v. The Minister of Town Planning (1947), 1 All E.R. 612, which was an application to quash an order made by the minister on the ground of bias, Tucker, L.J., at 620 states: "When applications of this kind are made to the Court, the notice of motion and the affidavits in support thereof should state with precision and particularity the matters which are going to be relied on as indicating bias". Moreover I think that if the inhabitants considered that the statement of the subject-matter of the enquiry was insufficient to give them an opportunity of making representations they should have asked the Commissioner for further information, which in his discretion he might have given.In this connection, I cite a passage from the judgment of Lord Oaksey, L.J., in Franklin's case at p. 617:
"Another point was raised before us. It was arguedthat the public inquiry which was held was not a properpublic local inquiry within the meaning of para. 3 of Schedule I to the Act of 1946 because there had been at the inquiry no representative of the Minister of Town and Country Planning and no witnesses had been called on his behalf and the case for the designation of Stevenage had not been put. It was argued that in all analogous cases it had been held that the case for both sides must be put forward before the inspector who held the public local inquiry. The point that theinquiry was not being properly held was not taken at the inquiry, as, in my opinion, it ought to have been taken if the point was going to be raised on appeal.All that was done was that it was suggested to the inspector at the inquiry that witnesses ought to be called in support of the draft order, but it was never suggested that, on the true construction of the New Towns Act, the inquiry was not being properly held".
It was also argued on behalf of the applicants forcertiorari that the inhabitants of the area had not been properly notified of their right to make representations.As he based his finding that the Commissioner had not complied with Regulation 5 on other grounds, the learned judge did not consider it necessary to go into this question.He was content merely to make the following comment: "I can only say that the Commissioner is entitled to a great latitude and unless in his methods he manifestly frustrates the object of the section under review his action cannot be challenged".
In my view the measures taken by the Commissioner as disclosed by his affidavit to notify the inhabitants were sufficient to comply with the regulation and the Greek Cypriot Mukhtars and Azas who attended the meeting were, in my view, if not under a legal duty, at least had a civic duty to communicate and make public to the inhabitants the information given to them by the Commissioner. They failed to do their duty as citizens when they obstructed him in his endeavours to comply with the provisions of Regulation 5.
For the reasons stated in this judgment I considerthat this appeal should be allowed, that the cross-appeal should be dismissed and that the order to bring up and quash the Commissioner's order should be set aside.
However, as my learned brother in his judgment, whichhe will now deliver, is of opinion that both the appeal andthe cross-appeal should be dismissed, this Court stands evenly divided, and the decision appealed against must stand. Therewill be no order as to costs.
ZANNETIDES J.: The points which fall for consideration and decision in these two appeals-the appeal and the cross-appeal-are the following three: Two in the appeal and one in the cross-appeal. The two in the appeal are: First, whether the order made by the District Commissioner of Limassol is final and it cannot be brought up by certiorari in the Supreme Court and questioned in view of Regulation 13 of the Emergency Powers (Collective Punishment) Regulations, 1955, which I will call hereafter "Regulations". Secondly, whether the District Commissionerin making that order complied with the requirements ofthe Regulations and particularly of Regulation 5 and, ifhe did not, what would be the effect of the non-compliance.The point raised in the cross-appeal is whether the wholeof the "Regulations" made by the Governor are ultra viresthe Governor having regard to the powers given to himby the Emergency Powers (Orders in Council), 1939 and1956, under which the said Regulations were made. Afourth point, although not taken before Zekia, J. and notcontained in the Notice of Appeal, was put forward andargued before us by the Attorney-General on behalf of theappellant, namely, whether the District Commissionerin acting under the Regulations and making the orderwas performing a quasi-judicial act or a ministerial act.
For the sake of convenience I will take the four points in the following order: First the point in the cross-appeal, i.e. whether the whole of the Regulations are ultra viresthe Governor. The answer to this point is given by the construction to be put and the scope of section 6 of the Emergency Powers (Order in Council), 1939 and 1956. Section 6 runs as follows:
"(1) The Governor may make such Regulations as appear to him to be necessary or expedient for securing the public safety, the defence of the territory, the maintenance of public order and the suppression of mutiny, rebellion and riot, and for maintaining supplies and services essential to the life of the community.
(2) Without prejudice to the generality of the powers conferred by the preceding sub-section, the Regulations may, so far as it appears to the Governor to be necessary or expedient for any of the purposes mentioned in that sub-section:-
(a) make provision for the detention of persons
......................
(b) provide for the apprehension, trial andpunishment of persons offending against the Regulations:
Provided that nothing in this section shallauthorize the making of provision for the trialof persons by Military Courts".
In my view sub-section 1 is comprehensive enough asto include the making of the Regulations under considerationwithin the powers given to the Governor by that sub-section. The only limitation to the powers of the Governor is the limitation by the proviso to the section,namely, that he is not authorised to make provision forthe trial of persons by Military Courts. The argument putforward by the respondents that the powers given in sub-section 1 are governed and limited by paragraph (g) ofsub-section 2 cannot stand: that paragraph, in my opinion,has nothing to do with and cannot help to construe nordoes it limit the powers given in sub-section 1: in my view the decision of the learned trial judge that the Regulations were not ultra vires the Governor is correctand the cross-appeal fails.
The second point is whether the order of the DistrictCommissioner is final and cannot be brought up by certiorariinto the Supreme Court and questioned in view of Regulation13. On this point too I am of the opinion that thelearned trial Judge came to the right conclusion thatcertiorari was not taken away by Regulation 13. It is correctthat the right of appeal is taken away by Regulation 13,but the common law right of certiorari is never taken away except by express negative words and there appeal, therefore,fails on that point too.
The third point is as to whether the Commissioner in acting under the Regulations and making the order complied with the Regulations and particularly with Regulations 3 and 5. Regulation 3 of the Regulations runs as follows:-
"If an offence has been committed or loss of, ordamage to, property has occurred within any area ofthe Colony (hereinafter referred to as "the said area")and the Commissioner has reason to believe that theinhabitants of the said area have....."
(and then it goes on to enumerate 7 acts or omissions bythe inhabitants and proceeds as follows):-
".... it shall be lawful for the Commissioner, withthe approval of the Governor, to take all or any of the following actions:-
(i) to order that a fine be levied collectivelyon the assessable inhabitants of the saidarea, or any part thereof;
(ii)................
(iii)...............
(iv)..............."
I need no mention the other actions because we areconcerned only in this case with the levying of a collectivefine. Regulation 5 is as follows:-
"(1) No order shall be made under Regulation 3 of these Regulations unless an enquiry into the facts and circumstances giving rise to such order has been heldby the Commissioner.
(2) In holding enquiries under these Regulations theCommissioner shall satisfy himself that the inhabitantsof the said area are given adequate opportunity ofunderstanding the subject-matter of the enquiry andmaking representations thereon, and, subject thereto,such enquiry shall be conducted in such manner as theCommissioner thinks fit."
The provision of these two Regulations must be read together. Regulation 3 gives power to the District Commissioner and enumerates the cases in which he can takea certain action and make an order and Regulation 5 prescribes what he is bound to do before he takes thataction. To my mind the proper approach to the questionis to try and give to these two Regulations their properconstruction and after doing that to try toapply themto the facts of the present case. For the District Commissioner to start taking action there must be first the commission of anoffence as defined in Regulation 2 or damage to property within his area. Then he must have reasonsto believe that the inhabitants of the area havecommitted any of the acts or omissions enumerated inRegulation 3, but he must under Regulation 5 hold an enquiry into the facts and circumstances giving rise to the making of the order. In holding this enquiry he must make sure than the inhabitants of the area are given adequate opportunity of understanding the subject-matter of the enquiry and making representations thereon and subject to this condition the manner of the enquiry is left to his discretion. It is obvious that the enquiry is not at an end until after the consideration by the Commissioner of possible representations. What are the facts and circumstances giving rise to the making of the order for which the Commissioner is bound under Regulation 5 (1) to hold an enquiry? To my mind they are: First, the fact of the commission of an offence as defined by Regulation 2 or damage to property and also the facts from which the Commissioner will infer and on the strength of which he will have reasons to believe that the inhabitants of the area are guilty of one or more of the acts or omissions enumerated in section 3. Going now to Regulation 5 (2), what do the words "subject-matter of the enquiry" mean? To my mind the words "subject-matter of the enquiry" mean the facts and circumstances giving rise to the making of the order. In other words the facts and circumstances of the commission of an offence or damage to property and the facts and circumstances fixing the inhabitants, in the belief of the Commissioner, with a collective liability; until the inhabitants are furnished with that information I fail to see how they will be able to make representations on the subject-matter of an enquiry as they are entitled to do by Regulation 5 (2). As to the manner in which the enquiry is to be held, that is left by Regulation 5(2) to the discretion of the Commissioner with one condition, that in holding the enquiry he shall be satisfied that the inhabitants are given adequate opportunity of understanding the subject-matter of the enquiry and making representations thereon. It is clear that the holding of the enquiry is a condition that must precede the making of the order.
Having thus endeavoured to construe the relevantregulation I must now see what the District Commissionerdid in the present case. I take the material from his ownaffidavit (paragraphs 3 to 7) and from the affidavit ofMr. Vassos Papadopoulos, one of the respondents, atparagraph 8.
In paragraph 3 of his affidavit the Commissionerstates:-
"In my official capacity I followed six murders, ten attempted murders and a great number of bomboutrages, causing two other deaths and damage toproperty, which took place in the Limassol town duringthe six or seven months prior to July 1956 and cameto know, through confidential reports and information, that a great many of the Greek inhabitants living and working within the municipal limits of Limassol were in a position to identify the persons committing these outrages, but were wilfully abstaining from doing so and that a great number of the remaining Greek inhabitants were either actively or passively encouraging others to abstain from giving useful information to the Authorities. I was convinced that with the full co-operation of the Greek inhabitants of the town such outrages would not have taken place or remainundetected".
In paragraph 4 he says that he invited in writing theGreek local and municipal authorities in the town to attend a meeting at his office on the 11th June, 1956, at4 p.m., informing them that there was to be held an enquiry under Regulation 5 of the Regulations. In paragraph6 he states that they all appeared at the appointed day and time and in paragraph 7 he goes on to give adescription of what had taken place at that meeting.
This paragraph runs as follows:
"I informed the meeting that I was holding thispublic inquiry with a view to deciding whether I should recommend to His Excellency the Governor the levyingof a fine on the Greek inhabitants of the town in respectof a long list of outrages which had occurred withinthe town since January the 1st, 1956. I invited them to show cause why a fine should not be imposed. Afterdiscussion I came to the conclusion that no cause was shown and I accordingly told them that I was notsatisfied with their representations and asked themto inform their co-inhabitants as widely as possibleof what had transpired at the meeting and suggested that if there was any person or group of persons wishingto make further representations they could do sothrough the elected Municipal Councillors".
It is clear from this paragraph that what the Commissionerdid was to inform them that he was holding apublic enquiry with a view to deciding whether to levya fine on the Greek inhabitants of Limassol collectively inrespect of a long list of outrages which had occurred andhe invited them to show cause why a fine should not beimposed. And he goes on to say that after discussions hecame to the conclusion that no cause was shown. It is notstated by the Commissioner what the discussions wereabout but it may be reasonably inferred from paragraph 8of Mr. Papadopoulos' affidavit that the discussion wasnot about the subject-matter of the enquiry but on thedisclaimer by them of any representative capacity of theGreek inhabitants and in fact they were unco-operative.They did not even undertake to convey to the Greekinhabitants what the Commissioner had told them at this meeting as it is stated in paragraph 8 of his affidavit.
With regard to the subject-matter of the enquiryMr. Papadopoulos states that "... the Commissioner spokeabout certain murders and other offences committed in Limassol and added that he was determined to impose acollective fine unless cause was shown to the contrary ...".It is clear from paragraph 7 of the Commissioner's affidavit and paragraph 8 of Mr. Papadopoulos' affidavit thatnothing was said about the facts and circumstances of theoutrages and the facts and circumstances of the acts oromissions of the inhabitants making them collectively liable. The Commissioner states in his paragraph 9 of hisaffidavit that after the enquiry he received some representationsfrom various people but there is nothing to showwhether they were representations regarding the subject-matterof the enquiry or whether they were complaints ofa general character, regarding the propriety and justiceof the Order. The Commissioner eventually submittedhis report with the statutory certificate and with the Governor's approval issued his order dated the 4th July,1956, in which he ordered that a fine of £35,000 be leviedcollectively on the Greek assessable inhabitants of Limassol. In this order he is fixing the inhabitants with a collectiveliability for having failed to take reasonable steps toprevent the commission of offence and as having failed torender all the assistance in their power to discover theoffenders, bringing them within paragraphs (c) and (d)of Regulation 3. These are the facts.
Having stated the facts, it is appropriate now to seewhether the Regulations and particularly Regulation 5as construed applies to the facts of the case. As to themanner of the enquiry I would not go so far as the trialJudge did to say that it should be a public enquiry or anenquiry at which all the inhabitants would have the rightto be present and follow it. The enquiry is to be conductedin the manner the Commissioner thinks fit. I would notalso say that the knowledge he obtained through confidentialreports and information as he states in paragraph 3 ofhis affidavit is not part of the enquiry; that would be the beginning of the enquiry. At a later stage the DistrictCommissioner, as he was perfectly entitled to do, calleda meeting of the local and municipal representatives of theGreek inhabitants at his office which he called a publicenquiry. It was not unreasonable for him to think thatthe Greek inhabitants were not inadequately represented.But where the Commissioner went wrong to my mind is that he failed at that meeting to enquire into the facts andcircumstances of the case and thus give to those gathered there and consequently to the inhabitants adequateopportunity of understanding the subject-matter of theenquiry and making representations thereon. It is true that in his affidavit, paragraph 12, he states that he did so. Had he been stating about the state of his own mind I may grant that this statement of paragraph 12 might be conclusive evidence as to the facts in the absence of mala fides, but here the Commissioner is stating about the state of mind of other people and the position is not analogous to the position of the Governor when making a detention order under Regulation 6 of the Emergency Powers (Public Safety and Order) Regulations, 1955, in which as it was decided by this Court, in Civil Appeals No. 4173-4176·that when the good faith of the Governor was admitted a statement by him that he brought his mind to bear on the circumstances of the case and that in his opinion a detention order should be made was the end to the whole thing and the facts and circumstances that made him act could not be enquired into.
As I said in dealing with the construction of Regulation 5 (2) I take the words"subject-matter ofthe enquiry" to mean the facts and circumstances giving rise to themaking of the order as provided in Regulation 5 (1). Herethe Commissioner did not tell them anything about it.What he told them is contained in paragraph 7 of hisaffidavit and paragraph 8 of Mr. Papadopoulos'affidavit.This is far from giving them adequate opportunity ofunderstanding the subject-matter of the enquiry. I do notpropose for a moment to hold that he was bound to givethem all details and disclose to them confidential informationand its source but I think that he ought to give themsufficient facts and circumstances of the outrages committedand sufficient facts andcircumstancesshowing thatthey were collectively liable. They would then, and thenonly, be able to make representations on the enquiry.This the Commissionerdid not do and I am of the opinionthat he did not comply with Regulation 5; and, thoughI am deeply sorry that my opinion will have to differ fromthe opinion of My Lord the Chief Justice on this point,I am of the opinion that the order of the Commissionerwas bad and the appeal must fail also on this point.
I will finally deal with the point raised by the Attorney-Generalbefore this Court for the first time, that is, whether the District Commissioner in acting under Regulations 3and 5 of the Regulations and making the order was performing aquasi-judicial ora ministerial act, it being conceded that if it was a ministerial act certiorarididnot lie. The proper approach of the question is, in my opinion, to consider the circumstances of the case and the construction of Regulations 3 and 5, assisted by the principleenunciated in numerous English cases that if a person has legal authority to determine questions affecting the rights of the subject and has a duty to act judicially his determination will be a judicial act.
In our case the District Commissioner had legalauthority under Regulation 3 to determine whether to levya fine collectively on the inhabitants, in other words, toimpose a penalty on them thus affecting not only theirproperty but also their character.
Before making the order for the fine he was duty-boundby Regulation 5 to hold an inquiry into the facts andcircumstances giving rise to the making of the order and,in holding the inquiry, give adequate opportunity to theinhabitants of understanding the subject-matter of theinquiry and making representations. He would then, and then only, make the order. The inquiry is a conditionprecedent to the order and throughout the process theDistrict Commissioner, in my opinion, was bound to actjudicially if he were to comply with what Regulation 5prescribes. His order under Regulation 3, which was tocome after the requirements of Regulation 5 had beencomplied with, cannot be regarded as a ministerial act doneas a matter of policy but it is a judicial act. The cases ofRobinson and others v. Minister of Townand CountryPlanning (1947) 1 All E.R. 851, and Franklin and othersv. Minister of Town and Country Planning (1948) A.C. 87,cannot help us in our case.
The Court of Appeal in the former and the House ofLords in the latter decided that the order of the Ministerwas a ministerial act made as a matter of policy but thewording of the relevant sections of the Town and PlanningAct, 1944, and the New Towns Act, 1946 was completelydifferent from that or our Regulations 3 and 5. The inquiryto be held under those statutes was not into the facts andcircumstances giving rise to the making of the order bythe Minister; the order was drafted beforehand as amatter of general policy and the inquiry was into possibleobjections.
The case nearer to our case is the case of Patterson v. the District commissioner of Accra (1948) A.C. 341, P.C.But in this case also the circumstances of the case and thewording of section 9 of the Peace Preservation Ordinance, which they were dealing with, were completely differentand the decision of the Privy Council that the assessmentby the District Commissioner was a ministerial act was mainly based on the wording of section 9.
Considering the circumstances of the present case andthe wording of Regulations 3 and 5, I have come to theconclusion that I will have to differ on this point too fromthe opinion of my Lord the Chief Justice and hold, as I have stated above, that the order made by the District Commissioner is a judicial or quasi-judicial act.
For all the reasons stated above both the appeal and the cross-appeal must, in my opinion, fail and must be dismissed.
As the Court stands evenly divided the decision of the lower Court must stand.