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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 602
1989 May 29
[SAVVIDES. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS KYRIAKIDES AND OTHERS,
Applicants.
v.
THE MUNICIPALITY OF LARNACA,
Respondent.
(Cases Nos. 673/87, 674/87, 675/87, 676/87)
Immovable property - Co-ownership - The Immovable Property (Tenure, Registration and Valuation) Law. Cap. 224, as amended by Laws 3/60-86/85. section 6 - The site on which a block of buildings stands is properly "owned, held and en enjoyed" by all the owners of the various storeys or parts thereof, in undivided shares - Therefore, no building permit empowering interference with the site by excavation and/or removal of soil can be granted, unless the relevant application is signed by all the co-owners - There is nothing to prevent the co-owners from regulating their rights among themselves as to the possession and enjoyment of jointly owned property by a general agreement which is part and parcel of their right of ownership - In the circumstances of this case and in accordance with the proper construction of such general agreement in force the respondents could not issue the building permit empowering excavation of the soil, unless the application had been signed by all the co-owners.
The applicants are owners of flats on a block of flats known as "Πολυκατοικία Παπαδοπούλου" erected on plot 979 at Larnaca at number 44 GrivasDigenis Avenue. The interested party is the owner of a shop on the ground floor of the said block. The interested party applied for a building permit to carry out certain alterations and additions to its shop. Such alterations would entail excavation of the floor of the shop to a depth of 120 cms. and the removal of the soil fromsuch excavation.
The application had not been signed by all the co-owners. As the application was finally granted, some of the owners of the hats filed the present recourse.
The Court annulled the sub judice decision because:
(a) The site is owned, held and enjoyed in accordance with the hereinabove section of cap. 224 by all the co-owners and, therefore, the application should have been signed by all the co-owners and, therefore, subject to any contrary provision in the general agreement among the co-owners, the application for the building permit should have been signed b all the co-owners, as it empowered the interested party to interfere with the site.
(b) There is nothing in the Law to prevent the co-owners from regulating the rights inter seas regards the common property held in undivided shares. However, the proper construction of this general agreement in force in the present case, should have lead to the conclusion that the matter falls within the expression "demolition of external or dividing walls or foundations, as well as the expansion of the building or the conversion of verandas into closed spaces", which is expressly prohibited. Therefore a decision by majority was not sufficient to empower the applicant to file the application. In an event the applicant did not succeed in getting the approval of the required 80% majority of the co-owners.
(c) In any event the Court reached the conclusions that in the circumstances the respondents failed to carry out a due inquiry.
Sub judice decision annulled. Costs
against the respondent.
Recourses.
Recourses against the decision of the respondent to grant the interested party a building permit foradditions and alterations to a shop belonging to them.
A. Iacovides, for the Applicants.
G. Nicolaides, for the Respondent.
A. Papacharalambous, for the Interested party.
Cur.adv. vult.
SAVVIDES. J. read the following judgment. By the present four recourses which were heard together as presenting common questions of law and fact and as directed against the same act, the applicants challenge the act and/or decision of the Municipality of Larnaca to grant to YiannakisSavvides Ltd., the interested parts, a building permit for additions and alterations to a shop belonging to it on the ground floor of a block of flats at Larnaca, which allegedly interfere with the property of the applicants.
The applicants pray for the following relief:
"A declaration of the Court that the act and/or decision of the Municipality of Larnaca under No. 373/87 for a building permit and/or covering permit and/or a permit for internal additions and alterations to an existing building by which application No. 432/86 of YiannakisSavvides& Co. Ltd., was approved is null and void and of no legal effect".
The legal grounds on which these recourses are based, as set out in the applications, are the following:-
(1) The sub judice decision of the Municipality of Larnaca violates Article 23, 1, 2, 3 of the constitution in that it interferes with the right of property and/or ownership and/or co-ownership of the applicants.
(2) The sub judice decision violates section 6 of The Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, The Streets and Buildings Regulation Law, Cap. 96 as amended, and section 29(1)(c) of The Courts of Justice law, 14/60, as amended.
(3) The sub judice decision is not duly reasoned.
(4) The respondent took the sub judice decision in abuseand/or excess of powers.
(5) The sub judice decision was taken under a misconception of fact.
The applicants are owners of flats on a block of flats known as "Πολυκατοικία Παπαδοπούλου", erected on Plot 979, Sheet/Plan XL/64 2 1 and 64 1. II at Larnaca at No. 44 GrivasDigenis Avenue.
The respondent is the appropriate authority for the grant of building permits under The Streets and Buildings Regulation Law for the town of Larnaca.
The interested party, a limited company carrying on business at Larnaca, is the owner of a shop on the ground floor of the said block of flats.
The interested party applied, by application No, 432/86, for a building permit to carry out certain alterations and additions to its shop. In fact and as it emanates from a letter of the interested party to the respondent dated 15th September 1986, (annex "T" to the written address of counsel for applicants), such alterations had already started being carried out before the application was submitted.
In the alterations mentioned and as appearing on the plans submitted (annex "B" to the written address of counsel for applicants) there was, amongst others, the excavation of the floor to a depth of 120 cms, and the removal of the soil from such excavation, with the effect that the ground floor would come down to a level of minus 120 cms, compared to its previous level.
When the interested party started carrying out the excavations, the applicants, together with a number of other owners of flats in the same block, reported the matter to the respondent by letter dated 18th September, 1986, objecting to the issue of a permit.
The fact that some of the owners were complaining and objecting to the issue of the permit appears also in the report ofthe Municipal Engineer dated 9th September, 1986. (annex "Θ" to the written address of counsel for applicants) addressed to the Mayor on which the mayor indorsed the following written remarks to the Municipal Engineer:
"The matter is a very serious one in the light of protests from 13 owners of flats in the same block.
The case should be discussed at the Technical Committee which you should inform of the results of your local inspection together with Mr. K. Nicolaides and finally you should discuss the matter with our legal adviser, so that he will be in a position to take a decision".
The opinion of the legal adviser of the respondent by which he was confirming his previous opinion of 29th August, 1986, appears in a letter dated 1st November 1986, addressed him to the Mayor (Exhibit "ET" the written address of counsel for the respondent) the contents of which read as folIows:
"I affirm my opinion dated 29/8/1986 and I repeat in other words that if the application concerns the building site or any other part of the building block which is commonly owned then the application should be signed by all co-owners.
Even in a case where minor works will be carried by one owner on his own tenement such as excavations of the floor (these are mentioned in the written report of the Technical Service in the case of Savvides) the application may be signed only by the owner of the particular tenement so long as the rights of the other co-owners are not affected.
If however, the case is for the excavation of one or one and a half metres under the level of the ground floor, as I have been informed ever since I expressed my previous opinion, and this concerns the building site itself and, even worse in case another engineer contents that the foundations of' the block of flats are affected, as the Municipal Engineer told me, then definitely the application has to be signed by all the co-owners.
I hope that this will clear any doubt in your mind".
The following written observations were recorded by the Mayor on the said letter:
"The Municipal Council will examine this matter at its meeting of 7.11.86 (it is one of the topics arising from the minutes of the Committee of Technical Services).
On the basis of the above opinion of our legal adviser it appears that we cannot issue the building permit unless the application is sighed by all the co-owners".
Further clarifications on the legal aspect of the case were asked by the respondent from its legal adviser to which the latter answered by letter dated 14th November, 1986 (Annex "E" to the written address of counsel for applicants) which reads as follows:
"As the situation has crystallized since long, there is no doubt that the application should be refused once it is apparent that the relevantworks affect in fact seriously the which is co-owned and the application was not signed by all the co-owners or at least their majority if such a provision exists in their General Agreement.
As a matter of fact the Committee of Technical Services took the same view on the basis of my original advice.
I am of the opinion that our recent idea to reply to the interested parties and the applicant that the application is under consideration, will serve no purpose except only the purpose of avoiding adverse comments that we delay our replies unreasonably.
If you decide to reply, then you should simply mention that the matter is under consideration.
I believe that the time has come for you to take a final decision and communicate same to me so that I shall prepare for you the wording of the replies to the parties concerned which must be in such case also very simple".
A fact which also came to the knowledge of the respondentauthority was that a number of co-owners concerned had already brought civil actions against the interested party alleging interference with their right of ownership. This appears in the letter of counsel for interested party to the respondent dated 29th December 1986, which embodies his legal opinion in support of the application of the interested party for a building permit. According to such opinion the alterations were a matter concerning exclusively the owner of the shop and they were not of such a nature as to affect in any way the whole block of flats or interfere with parts of the property which were jointly owned or for the common enjoyment of all the owners of the flats and were merely internal alterations which were carried out under the supervision of a civil engineer.
He further contented that the said alterations were within the provisions of the Immovable Property (Tenure Registration and Valuation) Law and in accordance with the requirements of the Technical Services of the respondent which in fact approved the issue of the permit. In his said opinion he made an extensive analysis of the law and the terms of the general contract regulating the rights and obligations of the owners of' fiats and shops in the said block of flats and concluded that the permit should be issued on the basis of the decision already taken by the appropriate Committee of' the respondent.
I need not prolong further the narration of facts which appear in a lengthy correspondence, opinions by technical experts, technical studies, and decisions or suggestions of the Committee of' the Technical Services of the respondent and I shall come straight to the final decision taken by the respondent which is being challenged by the applicants. Such decision was taken on 28th May, 1987, and according to the relevant extract from the minutes of the respondent authority (copy of which appears as annex I to the written address of counsel for the respondent) reads as follows:
"APPLICATION BY YIANNAKIS SAVVIDES & SONS LTD. NO. 432/86 FOR ALTERATIONS-REXAMINATION.
The Municipal Council discusses the above-mentioned building application on the basis of the minutes of theCommittee & Technical Services and Garage (Mi, No. 5) dated 17.9.86, which were approved by the Municipal Council at its meeting of 7.11.86 (Min, No. 599) and having taken into consideration the relevant report of the Senior Technical Assistant dated 19.5.1987 and 28.5.1987, in which mention is made that the majority of owners of flats has consented to the issue of the permit applied for and once according to the opinion of the technical experts the safety of the building has been re-inforced by the works carried out, unanimously approves the issue of a covering permit for alterations to the Block of fiats of Mr. YiannakisSavvides (Appl. No. 432/86)."
Reference is made in the above decision to the minutes of the Committee of Technical Services dated 17.9.86 (copy of which appears as Exhibit 5) which was one of the matters taken into consideration in reaching the sub judice decision. Before making any comments on such decision I find it necessary to make reference to its contents. It reads as follows:
"DECISION OF THE COMMITTEE OF TECHNICAL SERVICES AND GARAGE DATE 17.9.86 MIN. NO.5.
1. Application by YiannakisSavvides and Sons Ltd., No. 432/86, for alterations (reconsideration).
The Committee re-examines the subject-matter of the application for alterations No. 432/86 in the light of the opinion expressed by the legal adviser Mr. George Nicolaides, in connection with the question which arose as to whether Mr. YiannakisSavvides has the right to sign the application submitted alone, or whether it has to be co-signed by all the co-owners of the block of flats and unanimously decides to suggest to the Municipal Council the following:
1. To accept application 432/86 only in so far as it concerns the excavation of the floor of the shop and the construction of a mezzanine, because in such case the application does not have to be signed by the other co-owners, on condition that the applicant will repair any damage which may result due to such works, to adjoining owners of the block and will demolish the illegally erected hut and railing in the yard of theblock.
2. To refuse the application for all remaining works because the application in such case has to be signed by all the co-owners."
In the Minutes of the meeting of the respondent reference to which is made in the sub judice decision (Annex N to the written address of counsel for applicants) we read the following:
"Minutes No. 599/7.11.86.
Having discussed in depth this building case it is unanimously decided.
(i) that in the minutes No, 5 on this subject the following phrase is added at the end of the first paragraph and after deleting and substituting the full stop by a comma:'bearing in mind that with the proposed works the security of the building will be rein forced as pointed out by the Municipal Engineer and the Chairman of the Technical Services who have visited the building' and
(ii) that the case be referred back to the Committee of Technical Services after the legal aspect of the case is fully clarified."
Therefore, whereas by its decision No. 599/7.11.86 the respondent dealt with the decision of the Committee of Technical Services and decided t refer it back to the Committee after the legal aspect of the case is fully clarified nevertheless in taking the sub judice decision it adopted such decision, without any mention whether the case was re-examined by the Committee of Technical Services after the legal aspect of the case was so clarified.
The other material which the respondent had before it according to the minutes of the meeting of 28.5.1987 were the relevant reports of the Senior Technical Assistant dated .19th May, 1987, and 28th May, 1987. Both these reports are before me as annexes "A" and "M" of the address of counsel for applicants.
The contents of the first report refer to enquiries carried out by the Senior Technical Assistant concerning The requirement for the consent of the co-owners in view of the fact that in the General Agreement of the co-owners it is provided that for certain decisions a majority of 51% of the votes of the co owners is required whereas for others the majority required is 80% and to the fact that Mr. Saveriades, advocate for YiannakisSavvides& Sons Ltd., produced written consents of co-owners representing 60.5% of the votes and goes on as follows:
"Mr. M. Gavalas of the Lands office explained to me that the provision in the General Agreement refers to alterations to spaces jointly owned or for the common use of the co- owners but not to the grant of jointly owned space, to an individual. In such a case the Lands office demands the signature of all the co-owners.
Therefore for the issue of a building permit the matter rests on the question whether the ground which Mr. Savvides has excavated is jointly owned or for the common use, or private property belonging to him.
If it is private property we can issue the building permit with the signature of Mr. Savvides only. If it is jointly owned property then the application has to be signed by all the owners.
There is no precedent in this case and the opinions of lawyers are conflicting.
The Lands office (Mr. Gavalas) mentioned also to me that he does not recollect any similar previous case but in his opinion the natural surface of the building site should be considered as jointly-owned.
Mr. Saveriades supports the view that once the case does not concern space which was being used by any other co-owner and once no one has been deprived of anything and their rights and ownership have not been diminished then such space cannot be considered as jointly-owned property".
The second report reads as follows:
"In continuation of my letter dated 19.5.87 and after a visit of Mr. Savvides and his advocate at the Mayor's office they produced three more written consents of co-owners which raise the votes of those consenting to 1640. Also three other co-owners representing 260 votes are absent abroad. Therefore it appears from the above that out of 2280 votes 2020 belong to owners who are present in Cyprus and out of those Mr. Savvides has secured 1640 which represent 81.18% of those present or 71.93% of all the co-owners.
Please instruct."
Nothing appears in the said two reports to the effect that the Senior Technical Assistant was recommending the issue of the permit but on the contrary from what emanates therefrom they were reports about the enquiries made by him, which at least should have placed the respondent on its guard to inquire further both on the legal and factual aspect of the case.
The voting power of each co-owner of the block of flats in question appears in a list marked as Annex "Π" to the written address of counsel for applicants according to which there are 2280 votes distributed amongst the owners according to the type and size of their tenements. Out of such votes 260 belonged to persons who at all material times to the present cases were absent from Cyprus.
Having gone at such length to narrate the facts, which for all intends and purposes of this recourse I have deemed necessary, I shall embark on the merits of the case.
From the arguments advanced by counsel for the applicants, the respondent authority and the interested party the following issues pose for consideration:
(1) Whether the building site on which the block of flats stands belongs jointly to all the owners of flats and whether the ground under the surface of the ground floor shop of the interested party was in the circumstances his private property on which he could carry out the excavations in question and remove the soil.
(2) Whether under the law a permit such as the one issued by the Respondent could be legally issued on the application of the interested party alone or whether the consent of all the co-owners was necessary.
(3) Whether under the provisions of the general agreement the consent of the majority of the owners can defeat the provision of the law and, if so, what is the majority required for such purpose.
(4) Whether in the circumstances the respondent carried out a due inquiry in the light of conflicting legal opinions and the other material before it.
(5) Whether the sub judice decision duly reasoned.
I shall proceed to consider the first question.
The rights and liabilities of owners of flats of a block of flats erected on a building site are regulated by the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, as amended by Laws 3/60 - 86/85, which under s. 6 provides as follows:
"6.(1) When a building consists of more than one storey, each storey or part of storey which can properly and conveniently be held and enjoyed as a separate and self-contained tenement, may be owned, held and enjoyed separately as private property.
(2) The site on which the building is standing, the foundations thereof, the main walls supporting the whole building, its roof, the main staircase leading to the various storeys, the elevator if such exists, the main corridor thereof, and any other part of the ground or building which is of common use to the owners of the various storeys or parts thereof and any part of the ground or building which might be specified or is specified to be of such common use in the permit concerning the decision of the building which was issued by the appropriate authority on the basis of the provisions of the Streets and Buildings Regulation Law or the Regulations issued by virtue thereof, shall be owned, held andenjoyed by all of them in undivided shares.
(3) The owner of each storey or part of a storey may make any alterations, additions or repairs to his storey or part of a storey provided that they do not prejudice the rights of the owner of any other storey or part of a storey and they do not unduly interfere with the enjoyment thereof by the owner of such other storey or part of a storey.
(4) Subject to any agreement between themselves, the owners of the several storeys or part of a storey shall maintain, repair, or restore any part owned, held and enjoyed by them in undivided shares as in subsection (2) of this section provided and the cost thereof shall be borne by every such owner in proportion to the value of his storey or part of a storey as registered or recorded immediately before the need for incurring such cost had arisen:
Provided that, if any owner fails or neglects to comply with therequirements of this subsection, any other owner may do all such acts and incur such expense as may be reasonably necessary for the purpose and may recover the amount for which the owner in default may be liable, by civil action."
It is clear from the above provisions that the site on which the building stands is property "owned, held and enjoyed" by all the owners or the various storeysor parts thereof, in undivided shares. Therefore, any interference with the building site by excavation and removal of the soil amounts to interference with the right of ownership of the other owners of parts of the building standing on such site. In the circumstances of the present case, the groundunder the floor of theshop of the applicant was property jointly owned by all co-owners and could not be excavated and thesoil be removed withoutthe consent of all the owners. Once such unauthorized act amounts to trespass on the jointly owned building site, the respondent Municipality had no power to issue a covering permit authorizing such illegal operation without the written consent of all the co-owners. The legal consultant of the respondent very rightly advised it that, in the circumstances, the application for acovering permit, once it had not been signed by all the co-owners, should have been refused. The respondent, however, ignored such advice and elected to act on its own wrong interpretation and misconception of the law.
The above also answers the second question before me.
As to the third issue, as already explained, no interference with any part of the site which is jointly owned or with such parts of the building which are either jointly owned or for the common use of all co-owners can be made without the written consent of all co-owners and subject to the provisions of subsection (3) of s.6. There is nothing to prevent the co-owners from regulating their rights among themselves as to the possession and enjoyment of jointly owned property by a general agreement which is part and parcel of their right of ownership. In the present case such a general agreement does exist signed by all the co-owners.
The following provisions relevant to the present case are embodied in the said agreement:
5) ΚΟΙΝΟΚΤΗΤΑ ΠΡΑΓΜΑΤΑ ΚΑΙ ΚΟΙΝΟΧΡΗΣΤΟΙ ΧΩΡΟΙ.
Κοινόκτητα πράγματα και κοινόχρηστοι χώροι εν τω άνωθι οικοδομικώ συγκροτήματι, εάν και εφ'όσον τοιούτος χώρος ή τοιαύτα κοινόκτητα πράγματα υπάρχουν εις τα συνημμένα αρχιτεκτονικά σχέδια ή τους συναφείς τεχνικούς όρους είναι τα εξής:
Το οικόπεδον εφ'ού ολόκληρος η οικοδομή μετά των ακαλύπτων χώρων του περιτοιχίσματος, αι θεμελιώσεις, τα τοιχώματα των όψεων, παντός είδους διακοσμήσεις των όψεων, η κεντρική είσοδος, η ταράτσα άνωθεν του τελευταίου ορόφου, το κλιμακοστάσιον, οι σωλήνες διοχετεύσεως των ομβρίων υδάτων και της οικιακής χρήσεως, οι σηπτικοί βόθροι και απορροφητικοί λάκκοι μετά της αποχετεύσεως αυτών, ο εκ μπετόν αρμέν του όλου οικοδομικού συγκροτήματος μετά των θεμελιώσεων και γενικώς άπαντες, οι χώροι ή εγκαταστάσεις αίτινες διά του νόμου θεω ρούνται κοινά και εν γένει εκείνα ων η χρήσις ανήκει εις πλείονας του ενός διαμερίσματα, ή ών η φύσις και θέσις επηρεάζη αμέσως ή εμμέσως το όλον συγκρότημα του οικοδομήματος, ως και οι χώροι σταθμεύσεως.
7. ΜΕΤΑΤΡΟΠΗ ΚΟΙΝΟΚΤΗΤΩΝ Η ΚΟΙΝΟΧΡΗΣΤΩΝ ΧΩΡΩΝ.
Η εις τα ανωτέρω κοινόκτητα ή κοινόχρηστα μέρη ή εις παν όπερ έχει άμεσον ή έμμεσον σχέσιν με την όλην αρμονίαν και εμφάνισιν του ως άνω οικοδομικού συγκροτήματος ουδεμία μετατροπή, αφαίρεσις ή προσθήκη επιτρέπεται άνευ προηγουμένης εγκρίσεως υπό των συνιδιοκτητών κατά πλειοψηφίαν ογδοήκοντα τοις εκατόν (80%) τουλάχιστον ψήφων, βάσει ποσοστών ως εν τω επομένω άρθρω 8 αναφέρεται.
11. ΔΙΚΑΙΩΜΑΤΑ ΕΣΩΤΕΡΙΚΗΣ ΜΕΤΑΡΡΥΘΜΙΣΕΩΣ Ο ιδιοκτήτης εκάστου διαμερίσματος και/ή άλλου τμήμα τος του οικοδομικού συγκροτήματος έχει πάντα τα ανήκοντα εις τον κύριον δικαιώματα εφ' όσον η άσκησις αυτών δεν παραβλάπτη την χρήσιν των άλλων ιδιοκτητών ή δεν μειή την ασφάλειαν αυτών ή του όλου οικοδομήματος.......................................
Απαγορεύεται διαρρύθμισις διαμερίσματος συνεπαγόμενη διάρρηξιν τοίχων εξωτερικών η διαχωριστικών ή θεμελιώσεων ως επίσης απαγορεύεται και η επέκτασις της οικοδομής ή μετατροπή βεραντών εις κλειστούς χώρους.....
18. ΛΗΨΙΣ ΑΠΟΦΑΣΕΩΣ ΣΥΝΙΔΙΟΚΤΗΤΩΝ
Αι αποφάσεις των συνιδιοκτητών του ως άνω οικοδομικού συγκροτήματος λαμβάνονται, εκτός εάν άλλως πως προνοείται, κατά πλειοψηφίαν 51% των ψήφων των παρόντων και ψηφιζόντων ιδιοκτητών εις συνέλευσιν των συνιδιοκτητών δεόντως συγκληθείσαν, αι δε τοιαύται απο φάσεις θα είναι δεσμευτικαί διά τους τοιούτους συνιδιο-κτήτας είτε παρευρεθώσιν εις την τοιαύτην συνέλευσιν είτε μη.
A comparison of paragraph 7 with paragraph 18 clearly indicates that whereas for any decision of the co-owners on general matters a majority of 51% of votes of those present and voting at a general meeting of the co-owners is sufficient under paragraph 18 any alteration to jointly owned property or property to the common use of all co-owners requires a clear majority of 80% of such owners and not a majority of those present and voting as in paragraph 18.
Furthermore, a reading of paragraph 7 in conjunction with paragraph 11 leads to the following construction. Paragraph 7 clearly speaks of "alterations to jointly owned spaces or spaces to the common use of all co-owners", on which any alterations may be earned out by decision of a majority of at least 80% of votes, without, however, the right of joint ownership or right of common use of the co-owners on the parts so altered, being affected or diminished in any way or the co-owners be deprived of their joint ownership on such parts. This is made clear by the express provisions of paragraph 11 by which a right for internal alterations is given to the owners of each individual flat but any alterations involving "demolition of external or dividing walls or foundations, as well as the expansion of the building or the conversion of verandahs into closed spaces", is expressly prohibited.
The excavation of the ground under the surface of the ground floor shop of the interested party by 1-1.50 miters clearly amounts to an expansion of the shop and the increase of its dimensions by the area excavated. Such expansion which deprives any of the owners of his joint ownership or the part excavated and added to the shop is clearly out of the scope of paragraph 7 under which alterations may be carried out by a majority decision of at least 80%.
Assuming, however, that the agreement is construed to the effect that a majority vote as mentioned in paragraph 7 entitled the interested party, after obtaining the necessary permit fromthe appropriate authority to carry out the said excavations, in the present case it is clear that the written consent of the number of owners secured by the interested party did not satisfy the minimum of 80% required under paragraph 7 of the general agreement. In the calculation made by the advocate of the interested party he alleges that there was a majority of 80% on the basis of the votes of those present and excluding those absent, which is not in accord with the provisions of paragraph 7. In fact, on the figures supplied by him to the respondent, he had only secured the written consent of 71% only. The respondent, by accepting the contention of counsel for the respondent in this respect, clearly acted under a misconception of fact based on the wrong interpretation and apprehension of the relevant terms of the general agreement.
I shall now deal with the question as to whether a proper inquiry was carried out in the circumstances of the case.
As already mentioned the respondent in arriving at its sub judice decision relied on the decision of the Committee of Technical Services and the reports of its Senior Technical Assistant. I have already dealt with such reports. The decision of the Committee of Technical Services which had been examined at a previous meeting of the respondent led to a decision being taken by the respondent that a further inquiry was necessary after the legal aspect of the case was cleared and a reconsideration of the case by the Committee of Technical Services in the light of the clarification on the legal aspect. Furthermore, a perusal of the two reports of the Senior Technical Assistant clearly makes the need of further inquiry on the legal aspect of the case necessary. The advice of the legal consultant of the respondent in the circumstances of the case was against the issue of the permit as in his opinion the excavations carried out by the interested party amounted to interference with the joint ownership of the other co-owners of the building site. There was also the question of the construction of the relevant provisions of the general agreement which had to be considered in the light both of the reports of the Senior Technical Assistant of the respondent and the legal advice of respondents legal consultant.
Bearing in mind all the above I have reached the conclusionthat the respondent failed to carry out a due inquiry which in the circumstances of the case was necessary. The respondent failed to carry out such inquiry as a result of misconception of fact and law, to which he was led by accepting the opinion expressed in the letter of counsel for interested party both in respect of the construction of the general agreement and the interpretation of the law relevant to the case ignoring altogether the legal advice of their own legal consultant.
I have already given sufficient reasons which lead to the conclusion that the subjudice decision was taken in excess of power, under a misconception of fact and law and by failure to carry out a due inquiry. Therefore, I find it unnecessary to deal with any other grounds raised by counsel for applicants.
In the result the sub judice decision is annulled with costs against the respondent and in favour of the applicants.
Sub judice decision annulled with
costs.