(1987) 2 CLR 112
[*112] 1987 June 22
[A. LOIZOU, LORIS, STYLIANIDES, JJ.]
IMPROVEMENT BOARD OF STROVOLOS,
Appellant,
v.
1. ANDREAS SOFOCLIDES,
2. SYLVIA AGAPIOU,
Respondents.
(Criminal Appeal No. 4859).
Streets and Buildings — The Streets and Buildings Regulation Law, Cap. 96 — Section 10(1) 20(1 )(a) and 3(a) — Tenant using a building without certificate of final approval—Principles governing the exercise of the judicial descretion in issuing a demolition order-— It is only in cases of minor technicalities and trivial violations that the non making of such an order may be justified.
The respondent, who was a tenant of certain premises at Strovolos, was convicted upon her own plea for using such premises without a certificate for approval from the appropriate authority, contrary to Sections 10(1), 20(1 )(a) and 3(a) of the aforesaid law.
The trial Judge did not make a demolition order on the following grounds, namely that the respondent was a tenant, that it would be difficult for her to comply with an order as she was not the owner and that, if such order is issued, she would suffer disproportionate hardships.
Hence this appeal against the aforesaid refusal to issue a demolition order.
Held, allowing the appeal: (1) This Court cannot subscribe to the approach of the trial judge. In the first place, there had been a demolition order against the owner of the premises, which makes the case stronger than the case of Municipality of Larnaca v. Madella (1980) 2 C.L.R. 177 and in the second place, the tenor of the authorities is that the judicial discretion should be exercised in a manner, which will not frustrate the very purpose of the law. It is only in respect of minor technicalities and trivial violations of the law that the non making of a demolition order is justified.
Appeal allowed.
£25 costs in favour
of appellants. [*113]
Cases referred to:
Municipality of Larnaca v. Madella (1980) 2 C.L.R. 177.
Golden Seasside Estate Co. Ltd. v. The Municipal Corporation of Famagusta, (1973) 2 C.L.R. 58;
Wine Products Boards v. Toutoula (1982) 2 C.L.R. 112.
Appeal against sentence.
Appeal against sentence by the Improvement Board of Strovolos against the sentence passed on Sylvia Agapiou who was convicted on the 27th February, 1987 at the District Court of Nicosia (Criminal Case No. 7528/86) on one count of the offence of using a building without a certificate of approval contrary to sections 10(1), 20(1)(a) and 3(a) of the Streets and Buildings Regulation Law, Cap. 96 and was sentenced by Papadopoulou (Mrs.) Ag. D.J. to pay £5.-fine, but without any demolition order being made.
P. Lysandrou, for the appellant.
Ph. Valiantis, for the respondents.
A. LOIZOU J. gave the following judgment of the Court. The appellant, the Improvement Board of Strovolos, as the appropriate Authority under the Streets and Buildings Regulation Law, Cap. 96, as amended, instituted criminal proceedings against the owner and the tenant - occupier of premises in Strovolos Avenue with four counts.
The first one were for making or suffering alterations to a building without a permit respectively, the third count for altering the approved use of the same building. The fourth and fifth counts for using or suffering the building to be used without a certificate of approval from the appropriate Authority. The part of the building in question in respect of which the aforesaid offences were claimed to have been committed was what was intended and authorised by the building permit issued to be a covered parking space and which by the building of walls et cetera was converted into a shop by the owner and lei to the tenant the respondent in this appeal by a contract of lease dated the 8th January 1982, to be used and indeed used as a ballet school.
The owner who may be referred to as ex accused 1, pleaded guilty to counts 1, 3 and 4, namely to making alterations to a [*114] building, altering the approved use of the said building and use of it without a certificate of approval from the appropriate Authority. He was sentenced accordingly and in addition he was ordered to demolish the part of the building in respect of which the offences in question had been committed.
The respondent was subsequently tried and found guilty on her own plea to count four, namely for using the building in question without a certificate of approval from the appropriate Authority, contrary to Section 10(1), 20(1 )(a) and (3)(a) of the Law.
The sole issue upon which emphasis was laid by her counsel in his plea in mitigation before the learned trial Judge was whether a demolition order should be or not made in addition to any other sentence.
The learned trial Judge, having referred to the line of authorities that deal with the question of the exercise of the judicial discretion in such matters or under similar legislation, to which we shall refer shortly, gave the relevant facts of the case, and after distinguishing the case of the Municipality of Larnaca v. Madella (1980) 2 C.L.R. 177, found that she was justified in not exercising her discretion to make a demolition order.
As against the part of the decision the present appeal was filed by the said Improvement Board with the sanction, - as it ought to have been obtained, - of the Attorney-General of the Republic, under s. 137(b) of the Criminal Procedure Law Cap. 155.
In effect, the grounds given by the learned trial Judge in justification of her not making the demolition order were that the respondent was a tenant; that it would be difficult for her to comply because she was not the owner; and there might be in the circumstances of the case disproportionate difficulties and hardships which she would suffer if a demolition order was made against her.
We do not subscribe to this approach. In the first place, there had been made a demolition order against the owner which makes the case even stronger than the Madella case (supra) where no demolition order had been made against the actual culprit of the offence; in the second place the tenor of the authorities which were summed up in Golden Seaside Estate Co. Ltd., v. The Municipal Corporation of Famagusta, (1973) 2 C.L.R. 58 and reiterated in Wine Products Board v. Demetra Toutoula (1982) 2 [*115] C.L.R. 112 and then the Madella Case (supra), is that the Court's discretion should be guided by the principle that such discretion should be exercised in a manner which will not frustrate the very purpose for which the law exists and for which the power to make such orders is contained in the laws so that under no circumstances the would-be offender or an offender should feel that he can or can continue to enjoy the spoils of his illegality, and that it is only in respect of cases of minor technicalities and trivial violations of the law that the non-making of a demolition order may be justified. We fully indorse these principles and abide by them.
For all the above reasons, the appeal is allowed and the order of demolition is made against the respondent that she does demolish part of the unauthorised premises within two months from to-day, and that a demolition order be made against part of the premises unlawfully constructed and referred to in count 4.
Respondent to pay £25 costs of this appeal.
Appeal allowed.
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