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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1982) 1 CLR 426
1982 July 30
[L. LOIZOU HADJIANASTASSIOU AND MALACHTOS, JJ.]
CHRISTOS S. PITSILLIDES AND ANOTHER,
v.
ANDREAS A. NASIF AND ANOTHER,
Respondents.
(Civil Appeal No. 5097).
Immovable Property—Boundary disputes—Section 58 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224—Director of Lands and Surveys bound to determine the dispute and settle the boundaries—He cannot refuse to give a definite answer to a boundary dispute because of lack of material—Boundary dispute being a matter primarily in the domain of private law civil Courts may assume jurisdiction—And have power, under section 80 of Cap. 224, to require the Director to settle the dispute.
The appellants, as registered owners of a piece of land, applied under section 58 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, to the Director of Lands and Surveys Department ("the Director") to decide on their boundary dispute with the respondents. The Director, after visiting the land in question and looking into the various files, addressed a letter to the appellants informing them that in the absence of any material he was unable to arrive at a decision. The appellants appealed to the District Court, in exercise of their rights under section 80 of Cap. 224. The District Court dismissed the appeal having held that there was no decision that could form the subject matter of an appeal in accordance with section 80 of Cap. 224 and had, therefore, no jurisdiction to entertain the appeal.
Upon appeal to the Supreme Court.
Held, that section 58 casts a mandatory duty on the Director to determine the dispute effectively, employing the following phraseology: "... shall in the first instance, be determined by the director...."; that the Director is, therefore, in the first place bound to determine the dispute and settle the boundaries, as well as he can, in the light of the material available and the records of the Lands Department; that the law does not envisage any circumstances under which the director might conceivably be excused from giving a definitive answer to a boundary dispute; that, in consequence, he has a mandatory duty to decide the boundary dispute and nothing short will relieve him of his responsibilities; that this, he manifestly failed to do in the present case and the pertinent question is whether there is power vested in the court, under section 80 Cap. 224 to require him to do so; that the sub judice matter is primarily a matter in the domain of private law (see Valana v. The Republic, 3 R.S.C.C. 91); that, therefore, the civil courts may legitimately assume jurisdiction in any matter falling in the domain of private law; that such powers in the case of a boundary dispute, are defined by section 80 that empowers the court to make any order that appears to be just in the circumstances; that "just" in this context encompasses, inter alia, the power where appropriate to order the administrative organ to discharge the duties required by law; that given the facts of the case this is the only just course in the circumstances; and that, consequently, the Director is directed to examine the matter afresh and determine it, as required by law.
Appeal allowed.
Cases referred to:
Achilleas Hadjikyriacou and Theologia Hadjiapostolou and Others, 3 R.S.C.C. 89;
Stylli v. Andronikou, 1961 C.L.R. 324;
Valana v. Republic, 3 R.S.C.C. 91;
Republic v. M.D.M. Estate Developments (Revisional Jurisdiction Appeal No. 223, delivered on 17th May, 1982, still unreported).
Appeal.
Appeal by applicants against the judgment of the District Court of Limassol (Stylianides, Ag. P.D.C. & Hadjitsangaris, D.J.) dated the 15th June, 1972, (Appl. No. 90/71) whereby it was held that there was no decision that could form the subject matter of an appeal under section 80 of Cap. 224 and that the said Court had no jurisdiction to entertain the appeal under the said section.
G. Cacoyannis, for the appellants.
Chr. Demetriades, for the respondents.
Cur. adv. vult.
L. LOIZOU J.: The judgment of the Court will be delivered by Mr. Justice Hadjianastassiou.
Hadjianastassiou J.: This is an appeal against the judgment of the Full Court of Limassol in holding that there was no decision that can form the subject matter of the appeal under section 80 of Cap. 224; and that the said Court has no jurisdiction to entertain the appeal in accordance with section 80 of Cap. 224.
THE FACTS:
This is a case of boundary dispute and the applicants, the registered owners, applied under section 58 of the Immovable Property Law, Cap. 224, to the Director of Land Registration and Surveys to decide on their boundary dispute with the respondents. The dispute is related to a piece of land of 23 feet. The said Director, having visited the land in question and having also looked into the various files, addressed a letter to the applicants on 30th October, 1970, informing them that in the absence of any material he was unable to arrive at a decision.
On appeal to the Full Court, the trial Court in issuing its reasoned decision had this to say:-
"The difficulty arises in the present case because we are not confronted with a decision, but with what appears to be a refusal on the part of the Director to perform the duties entrusted to him by the Law. Any dispute between litigants concerning a decision of the Director is a matter that affects their private rights and such decision of the Director can be classified as falling in the sphere of Private Law even though the body taking the decision is an organ of the Public Administration".
Then, having quoted the case of Achilleas Hadjikyriacou and Theologia Hadjiapostolou and Others of Kivides, 3 R.S.C.C. at p. 89, the Court proceeded to state that "the matter acquires a different complexion where a Public Officer refused to perform his statutory duties. Any such conduct, in our opinion, touches the interest of the public as a whole, in the proper exercise of administration functioning and can legitimately be said to constitute an act in the domain of Public Law. Where a Public Officer refused to perform his public duties, it is not an individual litigant that may feel aggrieved but the interest of the public in securing proper administration."
It has been argued that we have power to direct the Director to perform his statutory duties; we are of the opinion that we have no such power. Only the Supreme Court can deal with such a matter either by means of a recourse under Article 146 of the Constitution or by such process of prerogative writs that have survived the changes incurred by the Constitution.
Finally, the Court concluded as follows:-
"As the matter was not expressly raised in the above appeal, it cannot be said that the dismissal of the Appeal entails, of necessity, that the District Court has power to order the Director to take a decision.
It is, therefore, our view that in so far as there is no decision that can form the subject matter of an appeal in accordance with section 80 of Cap. 224, this Court has no jurisdiction to entertain the appeal which is accordingly dismissed with costs to be assessed by the Registrar".
On appeal, Mr. Cacoyannis argued (a) that the Full Court was wrong in law in holding that there was no decision that can form the subject matter of an appeal under section 8 of Cap. 224; and (b) that the Court was wrong in law in holding that it had no jurisdiction to entertain the appellant's appeal from the refusal of the Director of Lands and Surveys to decide the dispute referred to him by the appellants, and to send the case back for his decision as it was done in the case of Dora Stylli v. Chrysoulla Andronikou, 1961 C.L.R. 324.
We think that it is necessary before dealing with the appeal to state that section 58 of the Immovable Property Law Cap. 224 reads as follows:-
"58(1) Where any dispute arises as to the boundaries of any registered land, such dispute shall, in the first instance, be determined by the Director after notice given to the parties at least fourteen days in advance informing them of the time when the boundaries in dispute will be inspected and no Court shall entertain any action or other proceeding relating to such dispute unless the same has been determined in the first instance as in this section provided.
(2) The Director may decide on the dispute in the absence of any party notified as in subsection (1) of this section provided.
(3) On deciding a boundary dispute the Director shall give notice of his decision to the parties to the dispute and shall place such land marks as he may think fit to show the line of the boundary as by him decided and make such measurements and notes as may be required for indentifying the position of the land marks".
With this in mind we turn to section 80 which enables an appeal to be filed against the Director's decision and provides:
"80. Any person aggrieved by any order, notice or decision of the Director made, given or taken under the provisions of this Law, may, within thirty days from the date of the communication to him of such order, notice or decision, appeal to the Court and the Court may make such order thereon as may be just but, save by way of appeal as provided in this section, ho Court shall entertain any action or proceeding on any matter in respect of which the Director is empowered to act under the provisions of this Law.
Provided that the Court may, if satisfied that owing to the absence from the Colony, sickness or other reasonable cause the person aggrieved was prevented from appealing within the period of thirty days, extend the time within which an appeal may be made under such terms and conditions as it may think fit".
Indeed, counsel for the appellants argued that from the provisions of section 58, it becomes apparent that that section imposes a positive duty on (he director to decide the boundaries one way or the other, and had no right to refuse or abstain or to claim that he was unable to arrive at a decision.
Counsel further argued that the said Director should have arrived at some decision and given the parties a chance to challenge his decision with whatever legal means are available to them, once from the wording of section 58 it is clear and it casts a duty on the Director to arrive at a decision. Furthermore, counsel argued that the emphasis is on "deciding" and not on failing to decide a boundary dispute, and that refusal to decide cannot amount to a decision.
Finally, counsel invited this Court to take the stand that once the Director has failed to exercise his duties and powers under the said section, the appeal should be allowed with a direction to the Director to determine the dispute one way or the other.
On the contrary, Mr. Demetriades on behalf of the respondent argued that in the present case there is no decision under section 58 once the Director did not determine the dispute. Indeed, he went further to add that his inability to reach a decision does not amount to a decision and this is also clear from the grounds of appeal.
The decision of the Court must, in the end, turn on the powers and duties of the Director adjudicating upon a boundary dispute, as defined by section 58(1) of Cap. 224 on the one hand, and on the other those of the District Court on appeal from a decision of the Director under section 80 of the same law. Section 58 casts a mandatory duty on the Director to determine the dispute effectively, employing the following phraseology:"........shall in the first instance, be determined by the director........". The Director is, therefore, in the first place bound to determine the dispute and settle the boundaries, as well as he can, in the light of the material available and the records of the Lands Department. The law does not envisage any circumstances under which the director might conceivably be excused from giving a definitive answer to a boundary dispute. In consequence, he has a mandatory duty to decide the boundary dispute and nothing short will relieve him of his responsibilities. This, he manifestly failed to do in the present case and the pertinent question is whether there is power vested in the Court, under section 80 Cap. 294 to require him to do so. The learned trial Judges concluded to the contrary, holding that the request of the appellant was in the nature of an application for a prerogative order, a matter over which the Supreme Court has exclusive jurisdiction, by virtue of Article 155.6 of the Constitution. We are unable to sustain this view of the law, for the following reasons: The sub judice matter is primarily a matter in the domain of private law. See, Savvas Yianni Valana v. The Republic, 3 R.S.C.C. 91; see also the recent decision of The Republic of Cyprus and M.D.M. Estate Developments Ltd., Revisional Jurisdiction Appeal No. 223 delivered on 17th May, 1982. Therefore, the civil courts may legitimately assume jurisdiction in any matter falling in the domain of private law. Such powers in the case of a boundary dispute, are defined by section 80 that empowers the court to make any order that appears to be just in the circumstances. "Just" in this context encompasses, inter alia, the power where appropriate to order the administrative organ to discharge the duties required by law. In truth, given the facts of the case, this is the only just course in the circumstances Consequently, we direct that the Director does examine the matter afresh and determine it, as required by law.
The appeal, is, therefore, allowed, with costs.
Appeal allowed with costs.