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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V19) 1 CLR 140
1952 November 15
November 15,1952
[HALLINAN, C.J., AND ZEKIA, J.]
SAVVAS MANOUSHIOS AND OTHERS OF KALOGREA,
Appellants,
v.
THE FOREST DEPARTMENT,
Respondents.
(Case Stated No. 78.)
Grant of grazing right under Law 22 of 1879 section 5—Construction of letter from High Commissioner as a grant or licence—Prosecution for grazing in a main state forest under section 13 (3) (d) of Cap. 93— Bona fide belief of right not enough—Licence not transferable.
Appellants were convicted for grazing goats in a main state forest without licence. They relied on a lease of grazing rights from the Bishop of Kyrenia whose title derived from a letter of the 21st April, 1886, to his predecessor in office from the High Commissioner.
Held: (i) The letter could only be a defence if it amounted to a grant by Government under section 5 of Law 22 of 1879. If the letter were merely a licence, the permission thereby given to the Bishop of Kyrenia was not transferable and could not avail appellants.
(ii) The form of documents showed that it was intended to be a licence not a grant.
Conviction upheld.
Appeal by accused from the judgment of the District Court of Kyrenia (Case No. 248/52).
C. Constantinides for the appellants.
R. R. Denktash, Crown Counsel, for the respondents.
The judgment of the Court was delivered by:
HALLINAN, C. J.: The appellants in this case were convicted by the learned Magistrate for grazing goats in a main state forest without a licence contrary to section 13 (3) (d) of the Forest Law {Cap. 93). The first appellant has leased the lands of the Melandrina Monastery from the Bishop of Kyrenia and the other appellants are his shepherds. The appellants allege that they have a right to graze in this forest by virtue of a grant by the High Commissioner contained in a letter dated 21st April, 1880, to the Bishop of Kyrenia which is as follows : —
"Right Reverend Sir,
I have the honour to inform you that His Excellency the High Commissioner has been pleased to authorize the concession to you of the right of grazing as well as that of cutting timber for the repairs of the Monastery of Melandrina and also of that of collecting dry wood for fuel over the two small blocks of delimited forest situated in the immediate vicinity of the above mentioned Monastery and marked 1 and 2 on the tracing enclosed;
Such rights will be exercised under the supervision of the Forest Department and complied with only within the limits of the proper yield of the forest.
I have the honour, etc.,
(Sd.) S. M. GRANT."
Counsel for the appellants did not contend that it was a defence for the appellants merely to establish that they believed in good faith that they had a claim of right. In view of the decision in Rex v. Christos Vassili (13 C.L.R., 36) this defence is no longer open to a person charged with an offence of this kind. To establish their defence, the appellants had to satisfy the Court that in fact and in law they had a legal right to pasture cattle in this State forest. It is most unfortunate that the. Bishop of Kyrenia has not thought fit to apply to have the right he claims registered; if registration was refused the Bishop might have had the question determined by this Court. Adjudication upon an alleged civil right of this kind in criminal proceedings (especially upon a Case Stated) is unsatisfactory. The Court has to decide on the facts as found by the Magistrate ; this case merely decides the issue of guilty or not guilty between the Forest Department and the appellants; the judgment in this case cannot make the issue as to the alleged civil right a "res judicata".
At the time this letter was written, the law as to forests was that contained in the Statutes No. 22 of 1879 and No. 8 of 1881. By section 4 of the Law of 1879, forest land exclusive of such as belongs to private individuals was declared to be under the protection, control and management of the Government. Section 5 provides that no right shall be acquired in or over such land except under a grant or contract made or entered into by or on behalf of the Government; section 6 makes it an offence (inter alia) to pasture cattle without an authority in writing from the Commissioner of the District or of the Principal Forest Officer.
The question for determination in this case amounts to this : was the letter of 1886 a grant under section 5 of the Law of 1879, or merely a licence or authority in writing?
If the letter constitutes a grant, the right which it confers can be described in the terminology of the English common law as a profit-a-prendre which is defined in 11 Halsbury (2nd Edition) at p. 381 as "a right to take something off the land of another person". The power of the Governor under section 5 of the Law of 1879 to make such a grant might therefore be described as a statutory profit-a-prendre. A profit-a-prendre is distinguished from a mere licence in the following passage from Halsbury at p. 387: —
"Profits-a-prendre, though sometimes called 'licences' must be carefully distinguished from mere licences which are not tenements, and do not pass any interest or alter or transfer property in anything, but only make an act lawful which otherwise would have been unlawful. A licence is not transferable, nor can it be perpetual; it is not binding on the tenement affected, but is a personal matter between the licensor and the licensee. It is always revocable and merely excuses a trespass until it is revoked."
If on the other hand the letter is a mere licence, it is not transferable and does not give the appellants the right they are trying to establish.
At common law (which did not apply in Cyprus when the letter of 1886 was written) no particular form of words is necessary for the grant of an incorporeal hereditament, but it had to be made by deed, that is to say by a formal instrument under seal; (11 Halsbury, 2nd Edition, 387-8). In equity, a profit-a-prendre might be created by an agreement or contract. In Lowe v. Adams (1901, 2 Ch. Div. 598), the Court held that such a right might arise from agreement and appears to have added on the principle laid down in Walsh v. Lonsdale (1882, 21 Ch. D.9) that equity treats as done that which ought to be done so that an agreement is held to confer an interest over land. It is interesting to note that section 5 of the Law of 1879 empowered the Government to create a statutory profit-a-prendre by "grant or by contract".
Now there is nothing in the letter of 1886 to suggest that it was part of an agreement between Government and the "Bishop. Was it then a grant ? I t has been contended for the appellants that the word "concession" in the letter implies an intention to create a proprietory right; and further that the letter is written as from the High Commissioner although the proper officials to issue a licence would have been the Commissioner of the District, or the Principal Forest Officer. On the other hand it must be remembered that the word "a grant" used in a legal document such as a statute implies a formal creation or transfer of a right; moreover the Governor who was empowered to make the grant had legal advisers and it would be most unusual for Government to make a grant of a right over land without consulting its advisers and without the preparation of a deed or other formal instrument.
The letter of. 1886 is an informal document and its form is more what one would expect to find in a licence or letter Nov of authority rather than in a grant. The last sentence of the letter runs :—
"Such rights will be exercised under the supervision of the Forest Department and complied with only within the limits of the proper yield of the forest".
There are two things to notice about this sentence. First, the phrase, "such rights will be . . . . complied with . . . . "does not make sense. Probably the writer intended to say : "such rights will be exercised" . Too much weight cannot be attached to the word "concession" where language in the other part of the letter is so loosely used. The other thing to note in the sentence is the indefinite limitation which is p u t on the permission to graze and take timber given in the letter. Permission to do certain acts only under the supervision and orders of the Forest Department savours more of a licence to make lawful an act otherwise unlawful rather than to create a proprietory right which could not be revoked and which might be transferred. As for the letter being written on .behalf of the High Commissioner, it may have been thought necessary, where a licence was being issued to a Bishop who is an ecclesiastical corporation, to refer the matter to a level higher than the Commissioner of the District or the Principal Forest Officer.
For these reasons we are of opinion that the letter of 1886 was not a grant but a licence and therefore not assignable. The determination of the Magistrate was correct and the conviction is therefore affirmed.