Court dismisses appeal where driver knew children paid separate fares to a third party, not a lump sum.

[*649] 1972 June 13

(STAVRINIDES, L. LOIZOU, A. LOIZOU, JJ. )

APPELLATE JURISDICTION

Christodoulos Pounna,

Appellant-Defendant,

v.

Bus Company of Dhali "I FILIA" Ltd.,

Respondent-Plaintiff.

(Civil Appeal No. 5066).

Motor transport - "Carrying passengers at separate fare" - Section 2 of the Motor Transport (Regulation) Law, 1964 (Law 16/1964) - Carrying passengers for a particular journey at a lump sum - Under agreement with a specified person to carry his children and other children nominated by such person - Driver knowing that the other children were not to be carried free of charge but each one would be paying his fare, not directly to the driver, but to the said specified person - Is "carrying passengers at separate fare".

Findings of fact - Appeal turning on findings of fact - Principles on which Court of Appeal acts - Findings of fact, in the instant case, amply warranted by the evidence before the trial judge -No reason for Court of Appeal to interfere.

Construction and Interpretation of Statutes - Interpretation of "carrying passengers at separate fare" -Section 2 of the Motor Transport (Regulation) Law, 1964 (Law 16/64).

Words and Phrases - "Carrying passengers, at separate fare" - "Μεταφέρω επιβάτας επί κομίστρω κατ’ επιβάτην" - Section 2 of the Motor Transport (Regulation) Law 1964 (Law 16/1964).

F. Kyriakides with P. Demetriou and S. Papaleondiou, (Mrs.), for the Appellant.

L, Clerides with Ch. Kyriakides, for the Respondent.

JUDGMENT

STAVRINIDES. J.: The judgment of the Court will be delivered by Mr. Justice a. Loizou.

A. LOIZOU, J. : This is an appeal from the [*650] ruling of a District Court Judge of Nicosia, whereby the appellant was found guilty of disobedience to an Order of the Court dated 9.10.1971, and sentenced to £10 fine.

The facts of the case relevant to the determination of the issues before us are these. The respondents-plaintiffs are a transport company duly licensed under section 7 of the Motor Transport (Regulation) Law 16/l964, to carry passengers from Dhali to Nicosia and back. The appellant-defendant, who is a resident of Dhali, is the owner of a taxi, under registration No. TFH.990, which was not licensed under the aforesaid Law to carry passengers for reward at separate fares. The respondents had instituted an action praying, inter alia, for an injunction restraining the appellant-defendant, his agents and servants, from carrying passengers from Dhali to Nicosia or back.

On the 16th August, 1971, on the application of the respondents an interim order was issued restraining the appellant from carrying passengers from Dhali to Nicosia and back. It was in effect an absolute prohibition and on the 9th October, by consent, this order was varied and replaced by the following order:

"Ο εναγόμενος - καθ' ου η αίτησις δια του

παρόντος προσωρινού διατάγματος εμποδίζεται από του να εκτελή δρομολόγια από

Δάλι εις Λευκωσίαν και τανάπαλιν με το αυτοκίνητόν

του, αρ. εγγραφήςΤFΗ990 μεταφέρων επιβάτας επί κομίστρω κατ' επιβάτην". [*651]

"(The defendant-respondent by the present interim (order is restrained from maintaining a line from (Dhali to Nicosia and back with his vehicle, (registration TFH990, carrying passengers at (separate fares)."

In fact there is no dispute as to what this part of the order was intended to convey; it was, in effect, using phraseology to be found in section 2 of the aforesaid Law 16/1964, as amended by Law 45/1971.

On the 12th October, 1971, the applicants applied to the District Court for the imprisonment of the appellant alleging that on the 11th October, 1971, he did disobey the aforesaid order of the Court and that on that day he drove his car from Dhali to Nicosia and back

carrying at separate fares passengers "επί κομίστρω κατ’ επιβάτην". On that day the defendant, early

in the morning, had transported a number of pupils of the English School from Dhali to Nicosia and later on picked them up from their school and returned them to Dhali. This, the trial judge found, was not an isolated journey. There were a number of pupils of the English School residing at Dhali and at the beginning of the school year the parents of the pupils had agreed with the respondents to carry their children every day from their homes to their school and back and each parent was paying him a certain sum of money. After the order of the Court of the 9th October, 1971, i.e. on the 10th October, 1971, the appellant entered into a written agreement, Exhibit A, with [*652] one of those parents, a certain Haralambos Haralambous, to carry in the said taxi his children and any other pupils nominated by him, for a period of three months. The agreed fare was £54 for the whole period, payable in monthly instalments of £18 each. The trial judge found as a matter of fact that the appellant was well aware when he had agreed as above, that the other children were not to be carried free of charge but each one would be paying his fare, not directly to him, but to the said Haralambous. These findings of fact were amply warranted by the evidence before the judge and we see no reason to interfere with them. The principles upon which this Court interferes with the findings of fact of trial Courts have been repeatedly stressed and I need not go extensively into the matter; suffice it to refer to the latest of the decisions of this Court where the whole position is reviewed with reference to previous authorities. See Olga Charalambous Kousou v. Christodoulos Theodoulou and others, (1972) 2 J.S.C. p. 102.

The main ground upon which this appeal was argued, however, was that the finding that the agreement between the appellant and the said Haralambous is not an agreement for a lump sum but an

agreement for carrying passengers "επί κομίστρω κατ’ επιβάτην" (at separate fare), is erroneous in

law. Ancillary to this ground was the argument that the trial judge was erroneously guided by English authorities, which were not applicable to the facts of the present case, as being authorities interpreting a different statute. [*653]

The reference by the trial Court to the English authorities was due to the manner in which the case was presented by counsel for respondents and the reply thereto by counsel for appellant. These English decisions deal with the interpretation of the Road and Traffic Acts, 1930-1934, sections 72 and 25, where similar expressions are used. It is only fair to say that the trial judge after dealing with a number of these decisions and commenting upon them, pointed out the specific statutory provision which they were interpreting and concluded by saying that he considered that, though those English decisions were not quite decisive they were helpful, in arriving at a proper interpretation of it.

To our mind it is unnecessary to go into these English authorities as the wording of the order and the meaning and

effect of the words "μεταφέρων επιβάτας επί κομίστρω κατ΄επιβάτην" (carrying passengers at separate fares)

are clear and unambiguous. The only proper interpretation that could be given to them is the one which the trial judge gave them, independently of whether he was helped in that respect by those English authorities or not. The driver who enters into an agreement with a specified person for a particular journey for a lump sum, well knowing or contemplating that the person who has entered into the agreement will collect from other passengers their own shares of the fare, is carrying passengers at separate fares. The fact that the total fare was handed over to the appellant by one of the parents does not change the position, [*654] so long as the other parents are contributing for the other passengers. Payment per passenger does not mean that each one should pay direct; it is enough if he is providing his own share of the fare.

For these reasons we are satisfied that the ruling of the trial judge appealed from is a correct and proper one. In the result the appeal is dismissed with costs.

Appeal dismissed with costs.