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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 72
1989 January 21
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SPYROS PLOUSIOU,
Applicant,
v.
THE CENTRAL BANK OF CYPRUS.
Respondents.
(Case No. 457/84)
Recourse for annulment - Abatement — Death of applicant — Civil Procedure Rules not applicable — The question is whether a present legitimate interest of applicant's personal representatives or heirs is directly and adversely affected by the sub judice act.
By means of the sub judice act the respondents refused to recognise as pensionable the period that the applicant has served with the Government. Upon applicant's death the question of the abatement of the recourses arose. In the light of the fact that, if the sub judice decision is annulled, the pension payable to applicant's widow and orphans will be affected, the Court held that the Recourse had not been abated.
Order accordingly.
Cases referred to:
Chrysostomides v. Greek Communal Chamber through the Disciplinary Council of the Elementary School-Teachers (1964) C.L.R. 397,
Contoyiannis v. Greek Communal Chamber and/or Another (1966) 3 C.L.R. 313.
Preliminary Point.
Preliminary point as to whether the recourse has been abated as a result of the death of the applicant.
L. Crerides, for the Applicant.
A. Evangelou, Senior Counsel of the Republic, for the Respondent.
Cur. adv. vult.
STYLIANIDES, J. read the following judgment. The applicant was a civil servant as from 1st July, 1956. After the establishment of the Republic he continued to serve in the Ministry of Commerce and Industry until 30th November, 1963, when he joined the staff of the respondent bank. He applied to the Respondents to recognize as part of his pensionable service with them the years of service with the Government of Cyprus from 1st July, 1956, to 30th November, 1963. His such request was not acceded to by the Respondents and he filed this recourse.
The applicant passed away last August.
The Court invited addresses from counsel on the effect of applicant's death on this recourse.
Counsel for the applicant submitted that letters of Administration were granted to the wife of the applicant and his brother-in-law and that this recourse may be continued by the administrators, as the pension rights of the wife and the orphans will be affected by the determination of the recourse.
The question that falls for decision is whether the recourse was abated by the death of the applicant or can proceed.
The consequences of death of an applicant for the fate of a pending recourse, under Article 146 of the Constitution, were judicially considered in Kyriakos Chrysostomides and The Greek Communal Chamber through the Disciplinary Council of the Elementary School-Teachers (1964) C.L.R. 397, and Michael Contoyiannis and 1. The Greek Communal Chamber and/or 2. The Republic through the Attorney-General as Successor to The Greek Communal Chamber (1966) 3 C.LR. .313.
Our Constitution is silent on the matter.
Rule 18 of the Supreme Constitutional Court Rules provides that the Civil Procedure Rules:-
"... shall apply, mutatis mutandis, to all proceedings before the Court so far as circumstances permit or unless other provision has been made by these Rules or unless the Court or any Judge otherwise directs."
In this case, the relevant provisions of the Civil Procedure Rules are not applicable, in view of the difference between a recourse under Article 146 of the Constitution and a civil action.
A recourse is admissible by an Administrative Court only if the applicant possesses a direct present concrete legitimate interest. Paragraph 2 of Article 146 reads:-
"2. Such a recourse may be made by .a person whose any existing legitimate interest, which the has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission."
The jurisdiction of the Administrative Court is to inquire into the legality of the administrative act or decision challenged.
The recourse may be continued by the heirs or the personal representative of the deceased representing the estate and the heirs where, in relation to the subject matter of such recourse, an existing legitimate interest is vested in the heirs of an applicant as their own, which has been directly and adversely affected. Triantafyllides, J., as he then was, pronounced this principle in Chrysostomides (supra) at P. 403 as follows:-
"On the death of an applicant a pending recourse is continued by his heirs, so long as they possess an interest of their own in continuing the recourse; if, however, the subject matter of the recourse is personal to the deceased applicant only i.e. jus personalissimum, so that the successful outcome of the proceeding would lead the administration to a course of action concerning a right personally attached to the applicant, without any legitimate interest of his heirs being involved, or where there does not come forward any person seeking to continue the recourse, then it is abated."
In the Greek Case No. 574/36 (Decisions of the Council of State, 1936, Volume A, Part II, p. 463) the applicant, the head of a family, was dismissed from the service of the Municipality of Athens and he challenged his such dismissal. He died pending the recourse. The Greek Council of State said at p. 464 that the Council of State in its revisional jurisdiction decides on the legality of the dismissal and its annulment. The decision is not connected with the person of the deceased as presumably the heirs had an interest of their own in the validity of his dismissal in view of the pension being otherwise payable to them under the Greek Law.
In view of the above, do the heirs of the applicant in this case have a legitimate interest of their own which has been directly and adversely affected by the challenged decision?
The annulment of the sub judice decision will affect the period of the pensionable service of the applicant. This pensionable service of the applicant will directly affect the pension which is transferable to the widow and the orphans of the deceased. They, in their own right as widow and orphans, are entitled to pension from the service of the applicant. Therefore, they have a legitimate interest of their own, which is directly affected by the challenged administrative act.
The recourse has not been abated by the death of the applicant. It will proceed, but the title thereof has to be amended.
Order accordingly.