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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 83
1989 January 25
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
YIANGOS HADJIIOANNOU,
Applicant,
THE REPUBLIC OF CYPRUS, THROUGH THE REVIEW
LICENSING AUTHORITY,
Respondent.
(Case No. 232/87)
Practice - Recourse for annulment - Approach of Court -Looks at the substance - Formal defects should not defeat substance - Recourse directed at decision, which had never been taken - Court decided to deal with the decision intended to be attacked.
Motor transport - The Motor Transport Regulation Law- Suspension of licence of Rural Taxi - conversion of car to private use - Sale of same - Application submitted later on for its replacement with a new car to be stationed on the same village as the said Rural Taxi - Attempt to revise in an indirect way the suspended rural licence - Needs of village and non objection to the application Irrelevant - Application rightly dismissed.
The applicant's licence for a Rural Taxi was suspended in 1979. Ever since the car (Reg. No. JL171) was used as a private one In 1981 the applicant sold it to a third person. In 1985 the applicant, no longer the owner of the said car, submitted an application for its replacement with a new car. The Licensing Authority dismissed the application. The Review Licensing Authority dismissed the hierarchical recourse that followed.
By means of the present recourse, filed as a result, the applicant seeks the annulment of the decision refusing a Rural Taxi Licence as regards car JL17I. Such decision had never been taken. Despite this fact, the Court dealt with the substance of the case (see the first of the above Headnotes). The Court dismissed the recourse for the reasons indicated in the second of the above Headnotes.
Recourse dismissed. £50 costs in favour of respondent.
Recourse.
Recourse against the decision of the respondent to refuse to licence applicant's motor car JL171 as a rural taxi and to dismiss his hierarchical recourse against the decision of the Licensing Authority.
S. Karapatakis, for the Applicant.
M. Tsiappa. (Mrs), Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
SAVVIDES, J. read the following judgment. The applicant in this recourse prays for the following relief:
A declaration of the Court that the act and/or decision of the respondent dated 25th February, 1987 whereby it refused to licence his motorcar JL 171 as a rural taxi and its decision to dismiss the hierarchical recourse of the applicant against the decision of the Licensing Authority for the said vehicle are null and void and of no legal effect.
The facts of the case are briefly as follows:
The applicant in 1978 was granted a permit by the Licensing Authority for the use of his car under registration No. JL 171 as a rural taxi stationed at Xylotymbou village. After an investigation carried out in 1979 which led to a hearing before the Licensing Authority which was concluded on the 20th March, 1979, the licence in respect of the said car was suspended by the authority due to the fact that the applicant was using the said car contrary to the terms of the licence granted to him. As a result the applicant converted his car into one of private use and on the 15th May, 1980 he submitted an application for a road fund licence describing the said car as of private use and paid the relevant fees for a private car. In 1981 he sold the said car to Kypros Loizides Estates, Ltd. who in his turn applied for the renewal of the road fund licence for 1981 and continued so doing thereafter in respect of it as a car for private use.
On the 20th May, 1985, the applicant submitted an application to the Licensing Authority for the replacement of his car JL 171 with a new one of the same type, also to be stationed at Xylotvrnbou village and the transfer of the licence for a rural taxi from car JL 171 to the new car.
The Licensing Authority having carried out an inquiry into the matter as appearing in the relevant file, decided to dismiss applicant's application on the grounds that -
(a) The vehicle in question was not issued with a rural taxi licence and
(b) The needs of the village were sufficiently served by the existing taxis.
As a result the applicant filed on the 30th January, 1986 a hierarchical recourse to the respondent authority which held a hearing on the 11th February, 1987, at which the applicant and all interested parties were invited to attend. In fact the applicant appeared with his advocate but none of the interested parties on whom notice of the hearing was served attended.
After hearing the applicant as well as his advocate the respondent came to the following decision:
"The Review Licensing Authority bearing in mind the existing legislation and all the facts of the case which have been put before it and having studied all the material in the relevant files as well as what was said on behalf of the applicant decides to confirm the decision of the Licensing Authority."
As a result the applicant filed the present recourse.
It is evident both from the prayer and the facts set out in the recourse that there is a misconception as to the relief sought. The decision of the Licensing Authority which was challenged by the hierarchical recourse to the Review Licensing Authority and the decision of the latter have 'no relation at all with the prayer sought as the prayer refers to a refusal to grant to the applicant a licence for a rural taxi for car JL 171.
The application, as earlier mentioned was "for the replacement of taxi under registration TJL 171 with a new one" and the decision taken was on the substance of such application. Therefore, on the face of the prayer in the recourse, the proper decision is not being challenged. Nevertheless as it emerges from the written addresses filed and the arguments advanced by counsel for applicant and counsel for respondent they both argued the case on the assumption that the recourse was directed against the decision of the Review Licensing Authority refusing the transfer of a rural taxi licence from car JL 171 to a new one. Therefore, in the exercise of my discretion and bearing in mind the well established principles emanating from the case law of this Court that an administrative Court will look to the substance of a case and in the exercise of its discretion will not allow formal defects to defeat the substance I have decided to deal with the substance of this case ignoring the defect in the prayer.
It is common ground that the licence of car JL 171 as a rural taxi was suspended in the year 1979 after a decision of the Licensing Authority that the said car was being used in violation of the conditions of its licence and ever since such car has been used as a private one and its licence was renewed annually on that basis. It is also an undisputed fact that in 1981 the applicant sold car JL 171 to a third party and ever since the applicant had nothing to do with it.
When the applicant submitted his application for the replacement of car JL 171 with a new one he was not the owner of car JL 171. Therefore, the Licensing Authority was justified in refusing his application and for the respondent to affirm such decision in the hierarchical recourse as no car under such registration was registered as a rural taxi or was operated as such so that it could be replaced with another car.
The applicant, as already mentioned never challenged the decision of the Licensing Authority to suspend the licence of car JL 171 as a rural taxi and never applied for a licence in respect of a new car for use as a rural taxi. What the applicant tried to do was to revive in an indirect way a licence which was suspended without the decision for the suspension of such licence having been challenged and thus surmount the obstacle of lack of legitimate interest due to lapse of time to challenge such decision.
I find the contention of counsel for applicant that the sub judice decision was taken under a misconception of fact as entirely unfounded. The fact that there was no objection by the other licensed taxi owners of Xylotymbou village is not a matter which could be seriously taken into consideration in the circumstances of the case. Furthermore the allegation that there was no due inquiry as to the needs of the village of Xylotymbou for more taxis is again irrelevant because the authority was not faced with an application to issue a new licence but with an application for the transfer of a nonexisting licence from one car to another.
Concerning the allegation of violation of Article 28, such allegation has not been substantiated and in any event it cannot promote further the grievance of the applicant caused to him by his failure to challenge the decision for the suspension of his licence which deprived him of a legitimate interest to challenge such decision either directly or indirectly, as in the present case, after the lapse of the time prescribed by the Constitution.
Finally as to due reasoning I find that sufficient reasoning is given in the judgment itself which in any event, on the basis of the well established principles that the reasoning may be supplemented by the material in the file, is amply supplemented in the present case.
For all the above reasons this recourse fails and is hereby dismissed with £50.- costs in favour of the respondent.
Recourse dismissed with £50 costs against applicant.