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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 214
1989 February 18
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
TAMASSOS TOBACCO SUPPLIERS AND CO.,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE REGISTRAR OF
COMPANIES THE DEPARTMENT OF OFFICIAL RECEIVER AND REGISTRAR OF COMPANIES.
Respondents.
(Case No. 345/87)
Acts or decisions in the sense of Art. 146.1of the Constitution -Rectification of application for registration of partnership -It is in the domain of Private Law.
The Registrar of Companies effected corrections in an application for the registration of partnership, following, as alleged by respondents,authorisation given over the telephone by one of the employees of one of the promoters of the company. The main correction was that the partnership would be bound by the signature of all the partners and not by anyone of them, as it had been stated in the original application. Following the registration of partnership, the applicants applied for rectification of the application in such a way as to restore the original application, alleging that there had never been an authorisation for amending the original application. The respondent Registrar rejected the application. Hence the present recourse.
In the light of the decision in Photiades v. Photiades(1988) 3 C.L.R. 2084 the Court held that, as this case concerns registration of a partnership, the recourse is not justiciable, because the sub judice act is in the domain of Private Law. The Court added, that the same conclusion would be reached, even if the case did not concern registration ofpartnership, but, simply, corrections in the form for the registration of a partnership.
Recourse dismissed. No order as to
costs.
Cases referred to:
Laoudhias v. Republic 2 R.S. C. C. 119,
Hellenic Bank v. Republic (1986) 3 C.L.R. 481,
York International Securities Ltd. v. Republic (1987) 3 C.LR. 834,
I. W.S. Nominee Company Ltd. v. Republic (1967) 3 C.L.R. 582,
Merck v. Republic (1972) 3 C.L.R. 548,
Antoniou and Others v. Republic (1984) 3 C.L.R. 623,
Photiades v. Photiades (1988) 3 C.L.R. 2084.
Recourse.
Recourse against the refusal of the respondents to rectify applicants' application dated 24.12.86 for their registration as a partnership.
R. Stavrakis with G. Cacoyannis, for the Applicants.
A. C. Evangelou, Senior Counsel of the Republic, for the Respondent.
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 letters to the applicants dated 16/2/1987 and 24/3/1987 whereby he refused to rectify the application of the applicants (on Form O/E. 1) dated 24/12/1986 for their registration as a partnership is null and void and of no effect whatsoever.
The facts which gave rise to this recourse shortly are these:-
24/12/1986 at about noon an employee of Καπνοβιομηχανία Γκαράνης και Πετρίδης Λτδ. (Garanis and Petrides Tobacco Industry Ltd.) filed form No. O/E. 1 for the registration of the partnership Tamasos Tobacco Suppliers and Co. which was wrongly described on this form as Tamasos Suppliers and Co.
The officer of the department of the Registrar of Companies who checked the form found out certain discrepancies requiring amendment and/or qualification.
The promoters of the said partnership were in great urgency to register same to Mrs. Anastassiou, the officer responsible for the registration of partnerships communicated over the telephone with Mr. LoucisPetrides who was one of the directors of Garanis and Petrides Tobacco Industry Ltd., and having received the necessary information and having received instructions to make herself the necessary corrections she proceeded and did these corrections. Had these corrections not been made the partnership could not be registered on the same day.
One of the corrections effected by Mrs. Anastassiou under the instructions and authorization of Mr. LoucisPetrides was the term as to who should sign on behalf of the partnership. She deleted in the form the words that anyone of the partners should bind the partnership and inserted therein that all the partners should sign in order to bind the partnership.
It is the allegation of the respondents that Mrs. Anastassiou made the alterations in the presence of another officer, bona fide and in an effort to assist in view of the great urgency in the matter.
On 31/1/87 the respondents received a letter signed by the lawyers Messrs. R. and Ch. Stavrakis and P.L. Cacoyannis and Co. asserting that the alterations made on the form O/E. 1 were not done under authorization of the applicants and that these were effected without them knowing and consequently invited the Registrar to rectify the alterations made concerning thepersons binding the partnership. They did not request that all other alterations made should be corrected.
On 16/2/1987 the Register of Companies replied to the above lawyers denying that the alterations made were unauthorized by their clients and refused to make the corrections applied for. On 23/2/1987 the same lawyers again wrote to the Registrar of Companies insisting on their position and the Registrar replied again on 24/3/1987 to applicants' lawyers and confirmed the original decision.
Applicants' main contention is that, even assuming that the facts were as alleged by the respondents, which is denied. it is still evident that in interpreting those facts the way they did the respondents acted under a material misconception of law to the effect that the Registrar misinterpreted the provisions of Section 51 of the Partnership and Business Names Law, Cap. 116. The contended that Mr. Petrides had neither the right nor the authority to make any alteration to the contents of Form O/E. 1and in any case, they deny that he ever authorized such alteration.
It is applicants' further contention that the respondents' decision was based on material misconception of facts, namely, that Mr. Petrides was a partner.
The other legal grounds on which applicants base their recourse are lack of due reasoning and abuse of powers on the part of the respondents.
Counsel for the respondents, in the opposition filed, contends that the act of the respondents is not justiciable. He contended that the sub judice decision does not constitute an act in the domain of the Public Law and consequently it is not justiciable in the sense of Article 146.1 of the Constitution. He relied on the cases SteliosLaoudhias v. Republic 2 R.S.C.C. 119, Hellenic Bank v. Republic (1986) 3 C.L.R. 481 and York International Securities Ltd. v. Republic (1987) 3 C.L.R. 834.
Counsel for the applicants contended that the refusal of the Registrar to make the correction in the form filed by theapplicants for the registration of the said partnership constitutes an "act" in the sense of Article 146.1 of the Constitution because the object of the corrections of the contents in the said form is the protection of the public and consequently concerns a matter of public interest. They relied on the cases of I. W.S. Nominee Company Ltd. v. Republic (1967) 3 C.L.R. 582, E. Merck v. Republic (1972) 3 C.L.R. 548, Antoniou and Others c Republic (1984) 3 C.L.R. 623. They also referred me to "General Administrative Law" by Daktoglou, 2nd Edition, paragraph 44.
I was impressed by the argument of learned counsel for the applicants which was very attractive, but in view of the decision of the Full Bench of the Supreme Court in the case Photos Photiades of Nicosia etc. v. TakisPhotiades etc. (1988) 3C.L.R. 2084. I am of the opinion that 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. In that appeal it was decided that the character of the act of registration of a partner under Section 56(1) of the Partnership 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 make corrections in the application of the applicants for the registration of their partnership. Again, if it were to be held that we are not concerned with the registration of a partnership but about corrections in the form for the registration of a partnership. I respectfully adopt the reasoning of the Photiades case (supra) and I also find that the sub judice decision falls within the domain of Private Law and as such is not justiciable.
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.