FESAS & OTHERS ν. REPUBLIC (1989) 3A CLR 63

Recourse for annulment - Abatement - Free and voluntary acceptance of sub judice act - Payment without protest of refuse fees and Public Health Rates - Recourse abated.

Practice - Recourse for annulment - Parties - Recourse directed against act, not against a party - Amendment of title by Court ex propriomoru - Review of case law - If the sub judice act was issued by an organ of Government the respondent should be described as the Republic of Cyprus through such organ.

The Public Health Law, Cap. 259. as amended by Law 81/63 and Regulations dated 3/4/1970 - Failure of Public Health Commission of a village to prepare list of occupiers for the purpose of imposing refuse fees and Public Health Rates - Regulation 106 sets as time limit the 1st of July of each year - Order under section 8(1) by District Officer dated 27/11/85 setting final time limit - Appointment of temporary Board upon expiration of such time limit, imposition of the refuse fees and rates by such temporary Board - Objections on grounds of irregularity of procedure and excess of power - District officer issued the aforesaid order and appointed the Temporary Board in virtue of his powers under section 8(2)(3).

Irregularity - When considered as material, leading to annulment - Testapplicable - If it is of such importance that can affect the contents of the act in question.

Composite administrative act - Recourse directed a final act - Puts in issue validity of any preparatory or intermediate act - Recourse against decision imposing fees and rates - Applicants not prevented from challenging validity of previous order limiting time within which a preliminary act should have been performed or the validity of the appointment of the members of the Board which issued the sub judice act.

The Public Health Board of Nikitari village failed until as late as November 1985 from compiling a list of occupiers for the purpose of imposing Refuse Fees and Public Health Rates.

The District Officer, as a result, issued an order, setting a time limit within which the Board should compile the list. As the Board, once again failed to make the list, the District Officer appointed a Temporary Board which made the list and imposed the fees and rates in question. The applicants filed objections with the District Officer on grounds of irregularity, wrong procedure and excess of power. The objections were dismissed. Hence the present recourses.

The recourses of several of the applicants, who had paved the fees and rates without protest or reservation were dismissed as abated. The Court refused to dismiss the recourses on grounds that the respondent was not the proper one. In this respect the Court proceeded ex propriomotu and amended the title of the recourse.

The Court having analysed the facts, in the light of the relevant sections of the Law and the regulations (vide the second of the hereinabove Headnotes) reached the conclusion that the District Officer did properly exercise his powers vested in him under the Law.

The Court considered any irregularity relating to the service of the order limiting the time for compilation of the list immaterial. Finally, the Court did not accept the contention that the recourses should have been dismissed on the ground that they were not directed at the said order or the temporary appointments.

Recourses dismissed. No order as to costs.

Cases referred to:

Christodoulou v. Republic 1 R.S.C.C 1.

Minister of Finance v. Public Service Commission (1968) 3 C.L.R. 691.

Cyprus Transport Co. Ltd. and .Another v. Republic and Another (1969)3 CL.R. 501,

Lambrakis v. Republic (1970) 3 C.L.R. 72,

HadjiPapasvmeou v. Republic (1984) 3 .L.R. 1182,

Peletico Ltd. v. Republic (1985) 3 CL.R. 1582,

Sekkides v. Republic (1988) 3 C.L.R. 2136,

Ierides. v. Republic (Public Service Commission) (1976) 3 C.L.R. 9.

Recourse.

Recourse against the dismissal of applicants' objection/appeal against the imposition of refuse fees and public health rates for the village of Nikitari for the year 1985.

M. Christofides, for the Applicants.

Cl. Theodoulou, Senior Counsel of the Republic, for the Respondents.

Cur.adv. vult.

STYLIANIDES. J. read the following judgment. Forty resident occupiers of Nikitari village filed this recourse. The relief prayed is a declaration that the act, whereby their objection/appeal against the imposition of refuse fees and public health rates for the village of Nikitari for the year 1985 was dismissed, is null and void and of no effect whatsoever.

Before the hearing of this recourse all applicants, except applicants Nos. 19, 25 and 39, paid the aforesaid fees and rates without any reservation and indeed they did not prosecute any further their such recourse. The recourse of the 37 applicants isthereby abated as they accepted the complained of act and they paid their due.

In the recourse Respondents appears: "The Republic of Cyprus through the Ministry of Interior". It was objected by counsel who appeared for the Respondents that the Ministry of interior has no locus standi and it could not be made a party as it did not take part in the sub judice decision and the recourse should be dismissed.

In Administrative Law a recourse is aimed at the particular administrative decision concerned with the view to bring it under proper judicial review, and not aimed at the organ responsible for it. The parties to the recourse are of a secondary importance, in the sense that they are only heard in support or against the validity of such act or decision. The process of judicial review cannot be frustrated by any secondary consideration, such as the exact title of the proceedings. In any case a. recourse made against an act, decision or omission of an organ of Government should be instituted against "The Republic, through such organ" - (see Miltiades Christodoulou v. The Republic of Cyprus, through The Collector of Customs, Nicosia 1 R.S.C.C. 1, 9; The Minister of Finance v. The Public Service Commission (1968) 3 C.L.R. 691, 696, 697; Cyprus Transport Co. Ltd and Another (No. 1) v. The Republic of Cyprus, through. 1. The Minister of Communications and Works, 2. The Permits Authority (1969) 3 C.L.R. 501.502; NicosLambrakis v. The Republic of Cyprus, through The Educational Service Committee (1970) 3 C.L.R. 72, 73; TheofanoThomaHadjiPapasymeou v. The Republic of Cyprus, through the District Officer of Nicosia (1984) 3 C.L.R. 1182). In Miltiades Christodoulou (supra) the respondent in the recourse was: "PolykarposGiorgadjis. Minister of the Interior". The Supreme Constitutional Court after hearing the case, before giving judgment, ex propriomotu, decided to order the amendment of the title of the proceedings so as to bring it into conformity with the true facts of the case. The record reads:-

".. The Court is of the opinion that such amendment at this stage does not prejudice either the parties concerned, or the interests of justice. The Court takes this opportunity of statingthat in proceedings of this nature the proper respondent should be the Republic, represented through the appropriate organ authority or person. The amended title, therefore, should read as follows:

"BETWEEN:

Miltiades Christodoulou of Tsada.

Applicant

AND

The Republic of Cyprus, through theCollector of Customs, Nicosia,

Respondent'"

In Peletico Ltd. v. The Republic of Cyprus, through The Ministry of Commerce and Industry (1985) 3 C.L.R. 1582, the sub judice decision was taken by the Council of Ministers and not by the Ministry of Commerce and Industry, which simply communicated such decision to the applicants. The Court, following Christodoulou case (above), in the course of delivering Judgment, directed the amendment of the title of the proceedings.

In the present case, the Respondents in the title are: "The Republic through the Ministry of Interior". The appropriate organ, however, is the District Officer of Nicosia. Counsel for the Republic was heard in relation to the validity of the challenged act. An amendment at this stage is not prejudicial to anyone concerned or the interests of justice. The amendment title, therefore, should read as follows:-

"BETWEEN:-

Costas Fesas and Others,

Applicants

AND

The Republic of Cyprus, throughThe District Officer of Nicosia,

Respondents"

The salient facts of the case are as follows:-

Nikitari is a village in the district of Nicosia in which the Public Health Law, Cap. 259, is applicable. Regulations were made under section 9 of the Public Health (Villages) Law. Cap. 259, and the amending Law 81/63 and published in the Official Gazette, No. 785, Supplement No. III, dated 3rd April, 1970, p. 244.

The Public Health Commission of Nikitari in 1985 was composed of five members, the Chairman, .the Vice-chairman and three members. The three members refused to proceed with the imposition of the public health rates and refuse fees for 1985 and the preparation of the occupiers' list. The Assistant District Officer at a meeting of the Public Health Commission of Nikitari held on 17th November, 1985, asked the Commission to prepare the list of occupiers as required by section 8 and Regulation 106. The three members of the Commission said that they would not do so until after the parliamentary elections, which would have been held on 8th December, 1985.

The District Officer on 20th November, 1985, issued an order under section 8(1), that the lists for occupiers' rates and refuse fees under the Law and the Regulations should be made until 27th November, 1985. The said order was communicated directly by letter addressed to the three members of the Commission of Nikitari namely Elias Charalambous, Costas Kleanthous and Panayiotis Katides, and copy thereof was sent to the Chairman and the Vice-chairman of the Commission. In the said letter he informed them that, if they failed to perform their duty within the time limit, he would appoint a temporary Board for the purpose and they would be required to pay any expenses incurred.

As the default continued, on 29th November, 1985, the District Officer of Nicosia appointed, under section 8(2) of the Law, a temporary Board consisting of KyriacosPatsias. a District Inspector, and DiomidesKyprianou, the Chairman of the Public Health Commission, to prepare the lists for the rates, under the Public Health Law, and the refuse fees for 1985 to perform that duty according to the Law.

The lists were prepared and posted at conspicuous places in the village.

Seventy-five occupiers appealed to the District Officer in writing on 3rd December, 1985, on the sole ground that the imposition of rates and fees was ''αντικανονική και παράτυπη και καθ'υπέρβασιν εξουσίας'' (irregular, contrary to procedure and in excess of power). Their such appeal was examined by the District Officer who rejected it and informed the objectors accordingly in writing on 27th December, 1985. (See Appendix D).

Hence this recourse.

Counsel for the applicants submitted that the act complained of was not valid in that:-

(a) There was no default by the Public Health Commission of Nikitari in the performance of their duty, and

(b)The order of the District Officer limiting the time for performance of such duty was contrary to the provisions of the Law.

Regulation 106 provides:-

"On or before 1st July, in each year the Commission prepares a list (referred as 'the list of occupiers') showing the name, occupation, place of residence of each occupier and the amount of the annual rate imposed on each one of them. The occupiers' list shall bear date and shall be signed by the Chairman of the Commission."

Certified copies of this list shall be posted at two conspicuous places in the village.

It is plain that the Public Health Commission of Nikitari was in default. As late as 17th November, 1985, when the Assistant District Officer visited their village, they have not prepared the occupiers' list. On 27th November, 1985, when the order limiting the time was made and the letter aforesaid was sent, they did not state that they refused to prepare the list but they would perform such duty after the parliamentary elections. Having regard to the plain provision of the Regulation that the lists must be prepared on or before 1st July, the Commission was in default in theperformance of their duties imposed by Law.

The relevant part of section 8(1) relating to the second complaint reads:-

"... The District Officer may make an order limiting the time for the performance of the duty in respect of which the default has been made."

The District Officer made an: order limiting the time until 27th November, 1985. He communicated his such order by a letter addressed to the three members of the Commission who were not collaborating and who were the cause of the default. Copy of such letter was sent to the Chairman and the Vice-chairman of the Commission.

The District Officer complied with the Law by making an order limiting the time for the performance of the duty in respect of which the default had been made.

The only forms and procedures which are material are those laid down hi a raw which expressly provides that in case of noncompliance with them, same will lead to annulment. (Andreas Sekkides and The Republic of Cyprus. (1988) 3 C.L.R. 2136).

With regard to irregularities, it was held in Charalambos Michael lerides v. Republic. (Public Service Commission (1976) 3 C.L.R. 9, confirmed on appeal by the Full Bench (1980). 3 C.L.R. 165, that only a material irregularity can lead to the annulment of the relevant administrative process. (See, also, Stassinopoulos, "The Law of Administrative Acts" (1951) pp. 229, 230). The test whether the irregularity is material or not is whether the omission or non-compliance was of such importance that can affect the contents of the administrative act or decision.

There is no provision in the Law how this order should be communicated.

In the present case, even if the communication to the members of the Commission of the order limiting the time wasirregular, again such irregularity did not affect either this order or the order made under section 8(2), whereby a temporary Board consisting of two persons was appointed and which prepared the lists, subject matter of the objection to the District Officer.

All the members of the Commission were informed of the time limit .ordered by the District Officer, thus the safeguards intended and the requirements necessary for the legality of the act were not affected. (M. Stassinopoulos "The Law of Administrative Acts"(1951) (supra).)

It was submitted by counsel for the Administration that this recourse is untenable as the applicants did not seek the annulment either of the order of 20th November, 1985, limiting the time, or the order of appointment of the temporary Board.

I do not agree with such submission. The final act is the decision of the District Officer whereby he determined the objection. The act challenged is a composite act and all previous preparatory or intermediate acts merge into the executory act impugned by this recourse.

In view of the foregoing, this recourse fails and is hereby dismissed.

With reluctance, I make no order as to costs.

Recourse dismissed. No order as to costs.

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