|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 342
1989 March 18
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHARLAMBOS PAPACHARALAMBOUS AND OTHERS,
Applicant,
v.
THE REPUBLIC CYPRUS THROUGH THE REGISTRAR OF COMPANIES,
Respondent.
(Case No. 121/88)
Acts or decisions in the sense of Art 146.1 of the Constitution - Partnership - Registration of rejection of application on the ground that proposed name was undesirable - Outside ambit of Art. 146 1 of the Constitution.
The applicant applied for the registration of a pa1tnership but the application was rejected by virtue of section 56(1) of the Partnership and Business Name Law Cap. 116. The Court, in dismissing the recourse, followed recent authorities that the registration of partnerships is in the domain of private law.
Recourse dismissed. No order as to costs.
Cases referred to:
Koupena v. Municipal Committee of the Municipal Corporation of Limassol and Another (1968) 3 C.L.R.496.
Photiades v. Photiades (1988) 3 C.L.R. 2084.
Recourse.
Recourse against the refusal of the respondent to register the applicants as a partnership under the name ''ΡΑΔΙΟ-ΑΥΤΟΔΙΑΘΕΣΗ''
A. Haviaras, for the Applicants.
L. Koursoumba (Mrs), Counsel of the republic B, for the Respondents.
Cur.adv. vult.
KOURRIS, J. read the following judgment. By the present recourse applicants pray for a declaration that the decision of the Registrar of Companies contained in his letter to the applicants dated 8.12.1987, whereby he refused the application of the applicants dated 2.12.1987 for their registration as a partnership under the name ''ΡΑΔΙΟ-ΑΥΤΟΔΙΑΘΕΣΗ'' is null and void and of no effect whatsoever.
The facts which gave rise to this recourse shortly are the following:
Applicants on 2.12.1987 filed Form O/El for the registration of the partnership under the name ''ΡΑΔΙΟ-ΑΥΤΟΔΙΑΘΕΣΗ'' with the object of operating a radio broadcasting business.
The respondent Registrar addressed a letter to the advocates of applicants dated 8.12.1987 whereby he rejected the application for the registration of the partnership under the name ''ΡΑΔΙΟ-ΑΥΤΟΔΙΑΘΕΣΗ'' by virtue of s.55 of the Partnership and Business Names Law Cap. 116. (See appendix 1 to the opposition).
Section 55 reads as follows:-
"No firm or business name shall be registered by a name which in the opinion of the Registrar is undesirable."
Applicants, feeling aggrieved, filed the present recourse and their main grounds are that the sub judice decision lacks duereasoning, respondents failed to carry out a due inquiry that they exercised their discretion in a defective manner and that they acted in abuse of power.
On the other hand, counsel for the respondents contended that the sub judice decision was lawfully taken in accordance with the provisions of the relevant legislation and the correct exercise of their discretion, having taken into consideration all relevant material.
Before I examine the substance of the decision, I propose to examine whether I have jurisdiction to entertain the sub judice decision although at the hearing of the case the question of the jurisdiction of this Court had not been raised by either side.
I am of the view that I have to consider this aspect ex propriomotu because the competence of this Court under Article 146 of the Constitution is a matter of public law and it should not be exercised unless the conditions enabling its exercise exist. This V is supported by the case of Kalliope K. Koupepa v. TheMunicipal Committee of the Municipal Corporation of Limassol and Another (1968) 3 C.L.R. 496, where Triantafyllides, J. (as he then was) stated the following at p.500:-
"At the hearing of the case the question of the competence of this Court to deal with the validity of the subject matter thereof has not been raised by either side. But, I have to consider this aspect, just the same, because the competence under Article 146 of the Constitution is a matter of public law arid it should not be exercised unless the conditions enabling its exercise do exist."
In the case of Photos Photiades of Nicosia etc. v. TakisPhotiades etc. (1988) 3 C.L.R. 2084; it was decided that the character of the act of registration of a partnership under s. 56(1) of the Partnership and Business names Law, Cap. 116, falls within the domain of the private law and it is not justiciable in the sense of Article 146.1 of the Constitution. It is a decision of the Full Bench of the Supreme Court and it is binding upon me because in the present case we are concerned with the refusal of the Registrar to register a partnership under the name ''ΡΑΔΙΟ-ΑΥΤΟΔΙΑΘΕΣΗ''by virtue of s.56(1) of the Partnership and
Business Names Law Cap. 116 and the decision of the Registrar of Companies in the present case falls within the domain of private law and as such is not justiciable in the sense of Article 146.1 of the Constitution.
Having decided this point, which disposes of the recourse, I do not propose to examine the substance of the case.
For these reasons, I dismiss the recourse, but with no order for costs.
Recourse dismissed. No order as to costs.