(1975) 3 CLR 404
1975 September 30
[*404]
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
1. ERO ANGELIDOU,
2. CHRISTIANA ANGELIDOU, MARKITA ANGELIDOU
AND CHARIS ANGELIDES, MINORS THROUGH
THEIR MOTHER ERO ANGELIDOU AS NEXT FRIEND,
Applicants,
and
THE REPUBLIC OF CYPRUS, THROUGH THE
1. DIRECTOR OF THE DEPARTMENT OF SOCIAL
WELFARE SERVICES,
2. MINISTER OF INTERIOR,
Respondents.
(Case No. 150/72).
Administrative Law-Administrative decision-Issue of a decision by a subordinate authority, that falls within exclusive jurisdiction of a higher authority-Affords a cause for annulment of such decision-Decision withdrawing objection against grant of passport facilities under section 63 (5) of the Children Law, Cap. 352-And decision allowing departure of interested party-Taken by subordinate organs though falling within the exclusive powers of a higher authority-Annulled.
Children Law, Cap. 352-Objection against grant of passport facilities-Withdrawal-Section 63 (5) of the Law-Decision to withdraw taken by subordinate organ though falling within exclusive powers of a higher authority-Annulled.
Administrative Law-Composite, administrative action-Invalidity of part of a composite administrative action, leads to the invalidity of the said action as a whole.
Administrative Law-Executory act.
After applicant No. 1 had lodged a complaint with the Nicosia District Welfare Office to the effect that her husband was about to leave the territory of the Republic and that their infant children were running the risk to remain without any means of support [*405] and protection, the District Welfare Officer, acting under s. 63 (3) (4) and (5) of the Children Law, Cap. 352 (quoted in full in the judgment at p. 412 post), objected to the Migration Officer against the grant of passport facilities to the husband, to prevent his departure from Cyprus.
The District Welfare Office having investigated into the matter came to the conclusion that they had no serious reasons to insist on their objection against the grant of passport facilities to the husband.
On the 17th May, 1972, the husband visited the District Welfare Office and was informed of the result of the investigation of his case. He was then handed a letter signed by the District Welfare Officer and addressed to the Migration Officer to the effect that there was no further objection on their part for the departure of the husband from Cyprus. The husband was then asked to proceed to the office of the Migration Officer and deliver the said letter to him; but he proceeded straight to the Nicosia Airport and left Cyprus on the same day.
Counsel for the applicant submitted that he is challenging two decisions in this recourse. The first one is the decision of the Department of Welfare Services who raised the impediment on the husband and the second one is the decision of the Ministry of Interior to allow the husband to leave the country; and he contended that:
(a) The objection to the grant of passport facilities was not withdrawn by the Director of Welfare Services who was authorised under the Children Law, Cap. 352, section 63 (5) to act in that direction but by a subordinate officer.
(b) Likewise the second decision was faulty as the matter was not placed before the Minister of Interior or the Migration Officer; and the decision to allow the husband to leave the country was taken by a subordinate organ of the Ministry at the airport.
The respondents, besides contending that the decisions complained of were legally taken, alleged that the decision of the Department of Welfare Services to withdraw their objections does not constitute an executory act and therefore cannot be the subject matter of a recourse under Article 146 of the Constitution. [*406]
With regard to the action taken by the subordinate officers in question the Court observed that it has not been shown that these officers had by delegation of authority a right to act in the way they did.
Held, (I) As to whether the decision of the Welfare Department can be made the subject of a recourse:
(1) The decision of the Welfare Department to withdraw the objection against the grant of passport facilities to the husband as well as the decision of the Ministry to allow his departure, form together a composite administrative action.
(2) It is a fundamental principle of administrative law that the invalidity of part of a composite administrative action, leads to the invalidity of the said action as a whole because, the component parts of the action, in their nature, are not separate and independent of each other (See Nemitsas Industries Ltd. v. Municipal Corporation of Limassol and Another (1967) 3 C.L.R. 134 and Hji Georghiou v. The Republic (1974) 3 C.L.R. 436). Therefore the allegation on behalf of the respondents that the decision of the Director of Welfare Services is not of an executory nature cannot stand.
Held, (II) on the merits:
(1) It is clear that both the decision to withdraw the objection to the grant of passport facilities taken by the District Welfare Officer and the decision taken by a subordinate officer of the Ministry of Interior allowing the departure of the husband, were taken by subordinate organs in excess of their power and contrary to the formalities and the procedure prescribed by law. In other words, we are faced with a decision which falls within the exclusive powers of a higher authority taken by subordinate organs.
(2) The issue of a decision by a subordinate authority, that falls within the exclusive jurisdiction of a higher authority, affords a cause for annulment of such decision. (See Tsatsos Recourse for Annulment, 3rd edition p. 199). This is the case in the present recourse and for this reason the recourse is bound to succeed.
Sub judice decision annulled. [*407]
Cases referred to:
Nemitsas Industries Ltd. v. The Municipal Corporation of Limassol and Another (1967) 3 C.L.R. 134;
Hji Georghiou v. The Republic (1974) 3 C.L.R. 436.
Recourse.
Recourse for a declaration that the decision of the Director of Welfare Services to withdraw his objection to the Minister of Interior against the grant of passport facilities to loannis P. Angelides to proceed outside the territory of Cyprus and the decision of the Minister of Interior to afford passport facilities to loannis P. Angelides to proceed outside the territory of Cyprus are null and void.
K. Talarides, for the applicants.
L. Loucaides, Deputy Attorney-General of the Republic, for the respondents.
Cur. adv. vult.
The facts sufficiently appear in the judgment of the Court delivered by:-
MALACHTOS, J.: Applicant No. 1 in this recourse is a Greek Cypriot and is the lawful wife of loannis P. Angelides of Nicosia. Their marriage was celebrated in 1957 in Nicosia in accordance with the rites and ceremonies of the Greek Orthodox Church. Out of their marriage they have three children, namely, Christiana Angelides, who was born on 26/12/57, Markida Angelides who was born on 27/9/59 and Charis Angelides who was born on 25/11/61.
The children instituted the present proceedings as applicants No. 2., through their mother as their next friend.
The husband, a year after their marriage, proceeded to England where he was joined in 1960 by the wife. They lived together up to 1963 when all of a sudden the husband emigrated to the United States of America, where he has been living ever since. In 1967 applicant No. 1 went to the United States where she met her husband and found out that he was living with another woman. She went back to England where she stayed with her children till May 1972 when she returned to [*408] Cyprus after receiving information that her husband was in Cyprus on holiday staying at the Ledra Palace Hotel.
On the 12th May, 1972, applicant No. 1 lodged a complaint with the Nicosia District Welfare Office to the effect that her husband was about to leave the territory of the Republic and that their infant children were running the risk to remain without any means of support and protection. In view of the above the District Welfare Officer on the same day objected to the Migration Officer against the grant of passport facilities to Mr. Angelides, the interested party in this recourse, to prevent his departure from Cyprus.
On 14/5/72 the husband attempted to leave Cyprus for abroad but he was prevented to do so by the appropriate authority. In the meantime, legal proceedings which were taken under section 40 of the Courts of Justice Law, 1960 (Law 14/60), for maintenance of the applicants against the husband were fixed for hearing on 23/5/72.
On the 15th, 16th and 17th of May, 1972, members of the staff of the District Welfare Office had separate meetings with both applicant No. 1 and her husband, in order to investigate the original complaint of applicant No. 1. As it appears from the relative report which is red 35 of the file of the Case exhibit 6, it was found out that there is a separation agreement between applicant No. 1 and her husband signed on 14/6/65 by which he was bound to contribute for the maintenance and support of applicant No. 1 and their children 50 U.S. dollars weekly. The husband insisted that since the signing of the said agreement be was regularly paying the said amount to applicant No. 1. Applicant No. 1, on the other hand, alleged that she was not receiving the whole amount but in no case she received an amount of less than £50.- per month. Furthermore, it was found out that applicant No. 1 was the owner of two houses in the United Kingdom, one of which is valued at £8,500.- and she admitted that her income is £72.-per month. The said report then ends as follows:
“In view of the above I was convinced that Mr. Angelides is possessed of financial means to contribute for the maintenance of his children. Also that he was eager and willing as in the past, to continue the monthly payments to his children. [*409]
It was also found out that Mrs. Angelides had property by which she could add to the contribution of Mr. Angelides so that their children would not be rendered a charge on public funds.
From the above it is obvious that we had no serious reasons to insist on our objection against the grant of passport facilities to Mr. Angelides”.
On the 17th May, 1972 Mr. Angelides visited the District Welfare Office and was informed the result of the investigation of his case. He was then handed a letter signed by the District Welfare Officer and addressed to the Migration Officer under No. YKE 268/L and dated 17/5/72. This letter which is red 27 of exhibit 6 reads as follows:-
“I refer to our letter dated 12.5.72 on the above subject and I wish to submit the following:-
The circumstances of the case have been investigated and it has been ascertained that Mr. Angelides has made the necessary arrangements as regards the maintenance of his children. Therefore, there is no further objection on our part for his departure from Cyprus”.
It was asked from Mr. Angelides to proceed to the office of the Migration Officer accompanied by a messenger of the District Welfare Office and deliver the said letter to him. Later on it was found out that Mr. Angelides did not follow the above instructions and proceeded straight to the Nicosia Airport and left Cyprus on the same day.
On 26/5/72 the applicants filed the present recourse claiming:-
1. A declaration of the Court that the decision of the Director of Welfare Services to withdraw his objection to the Minister of Interior against the grant by the latter of passport facilities to loannis P. Angelides to proceed outside the territory of the Republic, is null and void and of no effect whatsoever; and
2. A declaration of the Court that the decision of the Minister of Interior to afford passport facilities to loannis P. Angelides to proceed abroad outside the territory of the Republic, is null and void and of no legal effect whatsoever. [*410]
The application, as stated therein, is based on the following grounds of law:
1. The decisions complained of were taken in excess of power;
2. the decisions complained of are inadequately reasoned;
3. the said decisions were issued after a wrong procedure, that is,
(a) the applicants were not invited in order to be heard as to whether the reasons for which originally the Director of Welfare Services had objected to the departure abroad of the interested party, no longer applied;
(b) no real enquiry was carried out in order to ascertain whether the reasons for which the interested party was prevented to proceed abroad no longer applied;
(c) the letter of the Director of Welfare Services addressed to the Minister of Interior, by which the objection was withdrawn, was delivered by the former in the hands of the interested party who, instead of taking it to the appropriate department of the Ministry for the taking of a decision, he used it irregularly and illegally at the Nicosia Airport and managed to proceed abroad inspite of the said prohibition.
4. The said decisions were taken contrary to the provisions of subsections 3, 4 and 5 of section 63 of the Children Law, Cap. 352, since:-
(i) The reasons for which originally the departure of the interested party from Cyprus was prohibited, had not ceased to exist;
(ii) were based on insufficient and wrong facts;
(iii) were based on wrong consideration of the facts;
5. The said decisions were taken in abuse of power as it appears from all facts and circumstances of the case.
The respondents in their opposition, besides their allegation that the decisions complained of were legally taken on the [*411] basis of all relevant factors of the case, they allege that the decision of the Director of Welfare Services to withdraw his objections does not constitute an executory act and therefore, cannot be the subject matter of a recourse under Article 146 of the Constitution.
One of the arguments of counsel for applicants is that there are two decisions challenged in this recourse. The first one is the decision of the Director of Welfare Services who raised the impediment on the husband and the second one is the decision of the Ministry of Interior to allow the husband to leave the country.
The objection in the present case was not withdrawn by the Director of. Welfare Services who was authorised under the law to act in that direction, but by a subordinate officer of his department. Likewise, the second decision was faulty as the matter was not placed before the Minister of Interior or the Migration Officer. The decision to allow the husband to leave the country was taken by a subordinate organ of the Ministry at the airport. The administrative procedure that was followed as regards both decisions was wrong and contrary to section 63 of the law. Unless it is shown that these subordinate officers had by delegation of power a right to act in the way they did, the said decisions are liable to.annulment.
Counsel for the respondents, on the other hand, argued that although the decision to withdraw the objection was taken by a subordinate officer, namely, the District Welfare Officer, nevertheless this officer acted in accordance with administrative arrangements and authority from the Director himself. There are standing instructions which are contained in a manual (exhibit 4), issued by the Director on 22/7/65.
Coming to the Migration Officer, counsel for the respondents submitted that after the objection is withdrawn, his role, as it appears from the wording of section 63 (5) of the Law, is only of a formal nature. Although as regards the objection he refuses passport facilities if he thinks the objection reasonable, which means that he is exercising his administrative discretion, yet in the case of withdrawal of the objection his role is of a formal nature and he is exercising no discretion at all in the matter.
Now, the relevant legislation by virtue of which the Director of Welfare Services and the Migration Officer were empowered [*412] to take action, is section 63 of the Children Law, Cap. 352, and, particularly, subsections 3, 4 and 5 which read as follows:
“(3). It shall be the duty of the Director if he is satisfied that a person legally liable for the care and maintenance of any child or children under the age of sixteen years intends to leave Cyprus without taking such child or children with him to object to the Administrative Secretary (now the Ministry of Interior) against the grant of passport facilities until the person concerned has satisfied the Director that the child or children are not likely before they reach the age of sixteen years to become a charge on public funds or to be exposed to moral danger or neglect by reason of lack of care and maintenance.
(4) The Administrative Secretary (now the Ministry of Interior) on receipt of such objection shall, if he thinks the objection reasonable, refuse passport facilities and notify the applicant of the Director’s objections.
(5) At any time when the reasons for an objection no longer apply the Director shall advise the Administrative Secretary (now the Ministry of Interior) accordingly and will also be responsible for providing written information to the applicant that the objection is withdrawn”.
It is clear from the above that in cases like the one in hand the Migration Officer in order to take the decision to refuse passport facilities or vice versa, must be moved by the Director of Welfare Services. So, the decision of the Welfare Department to withdraw the objection against the grant of passport facilities to the interested party in the present case as well as the decision of the Ministry to allow the departure of the interested party, form together a composite administrative action. It is a fundamental principle of administrative law that the invalidity of part of a composite administrative action, leads to the invalidity of the said action as a whole because, the component parts of the action, in their nature, are not separate and independent of each other (see Nemitsas Industries Ltd. v. The Municipal Corporation of Limassol and Another (1967) 3 C.L.R. 134 and Hji Georghiou v. The Republic (1974) 3 C.L.R. 436).”
Therefore, the allegation on behalf of the respondents that the decision of the Director of Welfare Services is not of an executory nature, cannot stand. [*413]
It is not in dispute that the subordinate officer of the Ministry of Interior at the airport who allowed the departure of the interested party had no delegation of power or authorization from the Migration Officer to do so.
Coming to the question as to whether the District Welfare Officer was authorised by the Director to take the decision complained of, I have carefully considered the contents of the manual, exhibit 4, and in particular the passage in which reference to section 63 of the Children Law, Cap. 352 is made, and I must say that I found nothing indicating expressly or by implication that such power was delegated to him by the Director. The particular reference is at page 82 of the said manual, exhibit 4, and reads as follows:
“Under section 63 (3)-(4) restrictions are imposed upon prospective emigrants to leave children behind and the Director is empowered to object to the issue of passports. It is the provisions of this section which the Departmet applies when investigating the arrangements which prospective emigrants have made for the maintenance of their children. Please read section carefully”.
As it is stated in the introductory note of exhibit 4, this manual has been prepared for the guidance of the officers of the Department of Welfare Services and is designed to contain the general policies of the department, the legislation and principles that apply in connection with the provisions of the various services and procedures that must be followed and nothing more.
It is, therefore, clear that both the decision to withdraw the objection taken by the District Welfare Officer and the decision taken by a subordinate officer of the Ministry of Interior allowing the departure of the interested party, were taken by subordinate organs in excess of their power and contrary to the formalities and the procedure prescribed by law. In other words, we are faced with a decision which falls within the exclusive powers of a higher authority taken by subordinate organs.
According to Tsatsos Recourse for Annulment, 3rd edition at page 199, the issue of a decision by a subordinate authority, that falls within the exclusive jurisdiction of a higher authority, affords a cause for annulment of such decision.
This is the case in the present recourse and for this reason the recourse of the applicants is bound to succeed. [*414]
In view of my decision on the above ground, I consider it unnecessary to consider all the other points raised by counsel for applicants.
In the result, this recourse succeeds with £20.- costs in favour of applicants.
Sub judice decision annulled.
Order for costs as above.
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