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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 264
1989 February 25
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DEMETRIS M. PAPAGEORGHIOU AND OTHERS,
Applicants,
v.
THE AGRICULTURAL INSURANCE ORGANISATION, THROUGH
ITS ADMINISTRATIVE COUNCIL,
Respondents.
(Case No. 129/87)
Judicial control - Assessment of facts by administration - The Court will not interfere, so long as there does not exist a misconception of fact or law or abuse of power.
Judicial control - Appreciation of the weight of the real facts constituting the reasoning - Court will not interfere so long as there does not exist a misconception of fact or law or abuse of power.
Applying the aforesaid principles, the Court in this case dismissed the recourse, whereby the applicants had impugned the reassessment made by the respondents of damage sustained to their vineyards by reason of hail.
Recourse dismissed. No order as
to costs.
Cases referred to:
Republic v. Georghiades (1972) 3 C.L.R. 594,
Michaelides and Another v. Attorney general (1978) 3 C.L.R. 285,
Ieronymides v. Republic (1988) 3 C.L.R. 2657,
Eraclidou v. Republic (1968) 3 C.L.R. 44,
Geoighiou and Another v. Municipality of Nicosia (1973) 3 C.L.R. 53.
Recourse.
Recourse against the decision of the respondents to reassess the damage sustained by applicants to their vineyards in the area of Peya village.
K. Talarides, for the Applicants.
Ch. Kyriakides, Senior Counsel of the Republic, for the Respondents.
Cur. adv. vult.
A. LOIZOU, P. read the following judgment. The applicants in this recourse pray for a declaration that the decision of the respondent Organisation by means of which it re-assessed the damage sustained by the applicants to their vineyards in the area of Peya village, is null and void and of no legal effect whatsoever.
The facts which gave rise to this recourse are the following:
Applicants 2 and 3, are the owners of an area of land of an extent of thirty seven donums which is planted with vines, and which since 1984 has been leased to applicant 1, for a period of fifteen years; an area of twenty six donums is planted with vines of the "soultanina" variety. As a result of hail which fell on the 14th May, 1986, the said area of twenty six donums was damaged completely. Under section 20 of Law 19/77 in case of damage by hail, compensation is granted to the producers. The procedure for ascertaining the damage is governed by the Agricultural Insurance Regulations, 1977. Under these Regulations an assessment is first made by one valuer whose assessment is posted at a conspicuous place of the village concerned. As against this assessment an objection may be lodged and in such a case a reassessment is made by two valuers.
Applicants submitted their "Damage declaration" in respect of twentysix donums of vines of the "soultanina" variety on the 16th May, 1986. The assessment of the damage was made between the .30th May, 1986 to 11th July, 1986, and after the findings of the assessment had been completed they were posted on the 5th September 1986. The applicants submitted an objection against the assessment on the 13th November 1986 and within the time-limit of ten days as provided by the relevant Regulation 11. The re-assessment was carried out by two valuers. In the course of the re-assessment it was ascertained that the number of the existing vine-plants-was smaller than the one which corresponds to the area declared by applicants, with regular distances of planting 9X9 feet, i.e. 178 vines per donum.
For the estimation of the total production of a plot there is first estimated the average production per vine-plant, and thereafter is estimated the production of the whole number of vineplants.
In this way what is significant is the total number of vineplants instead of the area of the plant. The officers who made the re-assessment estimated, for purposes of uniformity of the assessment that the normal number of vine-plants per donum was one hundred and seventyeight plants. Therefore the extent of applicants' plot in .respect of "soultanina" variety was reduced from twenty six donums to twenty four donums.
Regarding the percentage of the damage the re-assessment arrived at the said percentage, having estimated a percentage of 10% as quantity damage, a percentage of 20% to .30%, that could be disposed to the local market as was done by the other producers who own vineyards the same area, and applicants could not be treated differently, as well as the value .of the remainder 60% to 70% of the produce which they disposed to the factories.
The main ground on which the recourse was founded was the inaccuracy of the findings of the re-assessment. In other words "misconception of fact". This misconception refers to three factors:
(a) the extent of the vineyard
(b) the quality of "soultanina"
(C) the percentage of the damage.
In effect the ground put forward by learned counsel for the applicants refers to the assessment of the facts by the administration. In Republic v. Georghiades (1972) 3 C.L.R. 594 (F.B.) at pp. 692-695, I held that the administration's assessment of facts is not subject to judicial control. The relevant passage appears at p. 695 and reads:
"In the present case extensive argument was heard regarding the existence or not of facts or the reasonableness of the inferences drawn therefrom. For the reasons given, I do not find it necessary to go into the details of the evidence. It is enough to say that there was ample material before the Commission on which it was entitled to arrive at the conclusions that it did. It has been said repeatedly that this Court will not interfere and substitute its view in the place of that of the Commission, having itself (the Commission) weighed the probative effect of same and having correctly arrived at the conclusion that those facts and circumstances, as its duty was to consider, amounted to the disciplinary offences for which the applicant was found guilty."
(See, also Michaelides and Another v. The Attorney General (1978) 3 C.L.R. 285).
Moreover in this case the material referred to in the written address of learned counsel for the applicant was not before the re-assessor. Such being the position, relevant is what I said in Ieronymides v. The Republic (1988) 3 C.L.R. 2657.
"The usefulness of the valuation submitted by the applicant, and which was for the first time brought to light in the course of the present proceedings, is as to whether in appreciating the facts of the case, the respondent Commissioner acted under any misconception of fact or law or in abuse of power, that is in circumstances in which this Court would be justified to interfere with his appreciation of the facts or the determination of the merits. Not being before the Respondent Commissioner when the sub judice decision was reached, it should otherwise be ignored as a review by the Court is confined to the evidence that was before the Respondent Commissioner at the time he reached the sub judice decision - vide Christofides v. Republic (1984) 3 C.L.R. 1454 at 1459-1460."
On this last point namely that the appreciation by the administration of factual allegations or elements and of the material in the file, is not subject to judicial control, so long as there does not exist a misconception of fact or law, or abuse of power, nor is subject to judicial control the appreciation of the weight of the real facts constituting the reasoning. Reference on this point may be made to Zacharopoullos, Sympliroma Nomologhias (1935-1952), Vol. 1. p. 42, paras, 264 and 288 and the Decisions of the Greek Council of State from which this principle is drawn.
Moreover on findings of a technical nature by the administration, as it is the situation in the present case, the Court can only examine whether in making such findings the administrative organ concerned has acted in a proper manner from the point of view of Constitutionality, legality and the principles governing excess or abuse of powers (See Eraclidou v. The Republic (1968) 3 C.L.R. 44, and Georghiou and Another v. The Municipality of Nicosia (1973) 3 C.L.R. 53.)
In view of all the above, I hold that the assessment of the facts as made by the administration cannot be made the subject of judicial control there being neither misconception of fact nor of law nor any abuse or excess of power and therefore the recourse must fail, and is hereby dismissed. There will be, however, no order as to costs.
Recourse dismissed. No order as
to costs.