[*522] 1986 June 20
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
In the matter of the immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, s.25 and of Law 16/80,s.27
Andreas Mesiouris,
Applicant
v.
The Director of Lands and Surveys Department,
Respondent.
(Application No. 9/83).
Immovable Property - Declaration of transfer by a co-owner of his interest in the land - Alleged non compliance of the Director with his duty to advertise under section 27(a) of the Immovable Property (Tenure, Registration and Valuation) (Amendment) Law, 1980 (Law 16/80) - Whether an appeal lies (section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 or whether the matter can only be reviewed by mandamus - An appeal lies.
E. Markidou (Mrs.),for the Applicant.
D. Papadopoullou (Mrs.), for the Respondent.
RULING
The following ruling was delivered by:-
KALLIS. D.J.:- By virtue of a declaration of transfer dated 1 1.5.1971, one Mehmet Salim then of Kato Lakatamla agreed to sell and transfer to the applicant the 19/24 shares of a building site at Kato Lakatamla and the said declaration was deposited with the D.L.O. Nicosia under No. P 3361/71. In respect of the said land there was a registered co-owner and the applicant undertook, on the [*advice of the L.R.O., to advertise a notice of the intended sale in a newspaper within 30 days from the above date or to produce the written consent of the co-owner, who is a Turkish-Cypriot, as provided by s.25 of Cap. 224. For various reasons applicant did nothing and the said declaration remained pending. By means of an application dated 15.1.83 - exh. B - applicant requested the respondent to comply with his statutory duty and proceed with the advertisement of the notice of the said declaration in a newspaper of his own choice. The respondent in his reply dated 25.1.1983 stated:
"(a) The Department recognises that it is its duty to advertise the sale P3361/71 in a Turkish-Cypriot newspaper as provided by s.27(a) of Law 16/80.
(b) Unfortunately for the same reason that rendered advertisement by you in a Turkish-Cypriot newspaper impossible, this Department too cannot proceed with the requisite advertisement”.
As against the above reply the applicant filed an appeal which he based on section 25 of Cap. 224, section 27 of Law 16/80 and on rules 5, 7 and 17 of the Immovable Property (Tenure, Registration and Valuation) Rules, 1956, and prayed for the following relief:
“(a) An order of the Court directing the respondent to perform his duties emanating from the law (section 27(a) of Law 16/ 80 and section 25 of Cap. 224) and proceed with the advertisement of the notice of declaration P 3361/71 in the daily Cyprus newspaper 'Cyprus Mail' and/or in any other Cyprus newspaper.
(b) An order of the Court directing the respondent to examine [*the sub judice matter afresh and decide upon it as provided by the law.
(c) An order of the Court directing the respondent to register the immovable property relating to the declaration of sale P 3361/71 in the name of the applicant charged with the expenses to be incurred by the respondent, by advertising as above the said notice, if the right granted by s.25 of Cap. 224 is not exercised".
The main grounds of appeal and the reasons therefore were:
1. The respondent contrary to section 27(a) of Law 16/80 wrongly considered that it was his duty under the Law to advertise the said notice only in a Turkish-Cypriot newspaper.
2. The respondent cannot be lawfully relieved from the fulfilment of his duty arising under the law by relying on the above cause namely inability to advertise in a Turkish-Cypriot newspaper.
3. Respondent is duty-bound by virtue of section 27(a) of Law 16/80 and section 25 of Cap. 224 to advertise notice of declaration P 3361/71 in a newspaper and he refuses until now to perform this duty”.
The respondent opposed the appeal contending mainly that applicant is not entitled to the remedies applied for and that the advertisement in the "Cyprus Mail" and/or in any other Cyprus newspaper does not serve the purposes of section 25 of Cap. 224.
When the appeal came up for hearing this court raised, as it was entitled to do, the question of its jurisdiction to take cognizance of the appeal; and heard argument from both counsel on [* the question whether an appeal lies under section 80 of Cap. 224 or whether a mandamus order lies under Article 155.4 of the Constitution, In which case the sub judice matter falls within the jurisdiction of the Supreme Court.
Learned counsel for the applicant contended that the appeal was brought by virtue of the provisions of sections 25 and 80 of Cap. 224 and of section 27(a) of Law 16/80 which make provision for a specific remedy; and that where there is express provision in the existing Law for a remedy and/or for the protection of the rights of the subject, the latter has to utilize this remedy and not to seek recourse to the Supreme Court in order to obtain the remedy sought by means of a prerogative writ. In support of this contention she relied on Halsbury's Laws of England, 3rd ed. Vol. II, p. 743, para. 51; and on the case of In re Christofi (1985) 1 C.L.R. 573 at p.577.
On the other hand learned counsel for the respondent submitted that what is sought by the appeal is akin to an order of mandamus which by virtue of Article 155.4 of the Constitution, falls within the jurisdiction of the Supreme Court. She relied on the case of In re Moschatos (1985) 1 C.L.R. 381 at p.383 in support of her contention.
Under section 25(1)(b) of Cap. 224 where "an owner of an undivided share in any immovable property makes a declaration before the District Lands Office that he has agreed to sell the same to a person who is not a registered co-owner in the same property, the transfer of such share shall not be registered unless the prospective purchaser advertises the proposed sale thereof or brings it to the knowledge of the other co-owner as In subsection (2) of this section provided within 60 days from the declaration of sale . . . ". [*
Further, under s.25(2) "the proposed sale shall be advertised in such form and in such newspaper or newspapers as the Director may require....". Finally, section 27(a) of the Immovable Property (Tenure, Registration and Valuation) (Amendment) Law, 1980 (Law 16/80) provides:
"Transitional 27. The following provisions should apply to provisions every sale declared prior to the coming Into opreration of this Law in relation to which there were applicable the provisions of section 24 or as the case may be, of section 25, as they read prior to their amendment by this Law:
(a) If the action provided by paragraph (a) or, as the case may be, by paragraph (b) of sub-section 1 of the relevant section, is not taken and no proof thereof is placed before the Director within sixty days from the date of the coming into operation of this Law, the Director proceeds with the advertisement of the notice provided by the said paragraph (b) of sub-section 1 of the relevant section as provided by subsection 2 of the relevant section".
Section 80 of Cap. 224 gives a right of appeal "to any person aggrieved by any order, notice or decision of the Director made, given or taken under the provisions of this law
Though a number of remedies are sought by means of the appeal the gist thereof is the performance by the Director of his duty envisaged by the afore-quoted s.27(a) of Law 16/80.
In Constantinou v. Police (1983) 1 C.L.R. 960, A. Loizou, J., [*delivering the judgment of the Court of Appeal cited a passage from Halsbury's Laws of England, 3rd ed., p.53 para. 109, and proceeded to add:
“...We would like to stress considering the availability of a right to appeal and the other procedural methods open to litigants to remedy situations and errors, that these powers of this Court should be sparingly exercised...".
In Leftis y. Police (1973) 2 C.L.R. 87, Triantafyllides, P. said the following at p.90:
"It is stated in Halsbury's Laws of England, 3rd ed., Vol. 11, para. 200, p.107, that 'the Court will as a general rule, and in the exercise of its discretion, refuse an order of mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective’ (and see, also, in this respect, R.v. Poplar Borough Council (No.1) (1922) 1 K.B. 72, at p.85)".
In the case of In re Moschatos (supra) the applicant "sought to transfer to a certain Aphrodite HadjiAnastassi, of Nicosia, immovable property of his at Kaimakli but the District Lands Office in Nicosia refused to deal with such transfer on the ground that there had been registered in relation to such property the judgment given against the applicant in an action in the District Court of Nicosia. Upon an application for an order of mandamus, Triantafyllides, P., said the following at p. 385:
“It is well settled that an order of mandamus is granted in order to enforce the performance of a public duty (see, inter alia, Leftis v. The Police (1973) 2 C.L.R. 87, In re S. & G. Colocassides Co. Ltd. and President of Industrial Disputes Court (1977) 1 C.L.R. 59, and Haritonos v. Chief of Police [*(1979) 1 C.L.R. 616).
In this case it was the public duty of the District Lands Office in Nicosia to deal with the matter of the transfer of the aforesaid property of the applicant in accordance with the provisions of section 8 of the Immovable Property (Transfer and Mortgage) Law, 1965 (Law 9/65); and it was mandatory, and not merely discretionary, to deal with the matter of the transfer of the property of the applicant under the said section 8 (see, inter alia, in re Malikides (1980) 1 C.L.R. 472).
The aforementioned public duty had to be performed in relation to a matter in the domain of private, and not of public Law (see, inter alia. The Republic v. M.D.M. Estate Developments Ltd. (1982) 3 C.L.R. 642) and, therefore, it cannot be said that the remedy for its enforcement is a recourse under Article 146 of the Constitution and not an order of mandamus under Article 155.4 of the Constitution (see, inter alia, In re Asdjian (1981) 1 C.L.R. 470, and in re Kalathas (1982) 1 C.L.R. 835).
Moreover, I am of the view that not only an order of mandamus can be made in the present instance but that, also, such order is the most effective remedy in the circumstances (see, inter alia, the Leftis case, supra).
I, therefore, grant an order of mandamus directing the officer in charge of the District Lands Office in Nicosia to deal with the matter of transfer of the property of the applicant in accordance with section 8 of Law 9/65; and, of course, in doing so, there should be borne in mind that it has been [*found by this judgment that there is no longer subsisting the registration, under section 53 of Cap. 6 of the Judgment in question which led the District Lands Office in Nicosia to refuse to deal with the transfer of the property concerned".
In Law 9/65 there is a provision for appeals - section 51 - which is similarly worded as s. 80 of Cap. 224.
In this case having considered the facts of this case, I hold that the refusal of the Director to proceed with the advertisement in question is a "decision" within the ambit of s.80 of Cap. 224 which can be made the subject of an appeal. Therefore, in respect of the grievance of the applicant there is a specific remedy at Law namely an appeal to this Court under section 80 of Cap. 224 and I therefore hold that I have jurisdiction to entertain this appeal. Though on the authority of Moschatos mandamus, also, lies I cannot hold that I am not vested with jurisdiction to entertain this appeal, the more so that mandamus, even if it lies, is a discretionary remedy.
In the result, I hold that I possess jurisdiction to entertain the appeal and I will proceed to hear same on its merits.
Order accordingly.