Trespass dismissed where land requisition entry was justifiable; plaintiff failed to challenge order within constitutional time limits.

[*662] 1982 September

(Fr.(NICOLAIDES, Ag.S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Savvas Patsalos,

Plaintiff,

v.

Anastassis Georghiou and Others, Defendants,

(Action No. 4534/80).

Trespass to land - Meaning - Section

43 of the Civil Wrongs Law, Cap. I48 - There is no trespass when entry on the land is justifiable - Plaintiff tenant of the Turkish Cypriot property - Which was requisitioned and given to defendants - Whose entry thereon justifiable - No trespass.

Requisition of land - Publication of requisition order in the Official Gazettes’- Time for purposes of Article I46.3 of the Constitution begins to run from date of publication - Fact that possessor of land not personally . notified or informed irrelevant.

A. Hadjioannou, for the plaintiff.

G. Korfiotis, for the defendants.

JUDGMENT

The following judgment was delivered by:

FR. NICOLAIDES, Ag.S.D.J.: In the present action [*663] the plaintiff olaims against the defendants the sum of £576·- being the value of lucerne belonging to the plaintiff and appropriated by the defendants, and another sum of £70,-, the value of timber and corrugated iron sheets, again belonging to the plaintiff and appropriated by the defendants.

The plaintiff since 1965 rented two-plots in Aglandjia village, the ownership of Turkish Cypriots.

In one of the plots he was cultivating lucerne. In his statement of claim the plaintiff alleges that on 1.3.1978 he. removed his sheep from his sheep-fold. When on the next day he returned to-his field he found out that the defendants unlawfully trespassed his property and cut the lucerne. The trespass continued until December 1979 when the lucerne was finally destroyed completely.

The plaintiff also alleges that in one of his fields he was keeping some timber and corrugated iron sheets, which the defendants unlawfully appropriated.

In their defence the defendants deny all the above allegations of the plaintiff and allege that they took possession of the immovable property in question when it was given to them by the appropriate Authority. They also deny that there was any lucerneoin the said fields or that they appropriated any timber or corrugated iron sheets that belonged to the plaintiff. [*664]

The plaintiff alleged that plots 27 and 376 were rented to him by the owners, who are Turkish Cypriots, since 1965, and produced the relevant lease deed (Exh-. 1). Plot No. 476 is a field in Aglandjia village of a total extent of 3 1/2donums. In the said plot, the plaintiff alleged that on 1.3.1975 he planted lucerne of an extent of I donum. In plot No.55 he was keeping some sheep and in plot 556 (also rented by him) he had timber valued at £60-£70.

In 1978 the Improvement Board of the village demanded that the sheep kept by the plaintiff ought to be removed and on 1.3.1978 the plaintiff complied. As he alleged, when he returned to his land he noticed that the lucerne had been cut. Some days later he saw the defendants cutting lucerne from his plot, He explained that he avoided entering his land in order to cut the lucerne because he was afraid. He alleged further that on 1.3.1978 the condition of the lucerne was such as it could be maintained and be profitably cultivated for another 2-3 years.

He also alleged that when the Turkish-Cypriot properties were requisitioned and given to refugees, defendants I and 2 were cultivating the adjoining fields, -He said that he did not receive notice of requisition for plot 476. [*665]

He estimated that from the sale of the lucerne he was making a profit of £1 per day. P.W.2, Gavriel Bvangelou, said that in March-1975 he planted for the plaintiff lucerne in an area of 2 evleks. He alleged that if the water used for irrigation is of good quality the lucerne can last for 8 years, but if -the water is brackish it lasts only for 5 years. Commentingon the quality of the soil of the land in question, he-alleged that in the area even if the lucerne is not irrigated at all, it can last for 5 years. He said further that the lucerne may be cut 10-12 times a year and from an area 'of l-j? donums one may receive £20 every time the lucerne is cut.

Prixos Kokkinides, another witness for the plaintiff, was not very useful. He only said that he saw defendants I and 3 cutting lucerne, but he could not tell from which field they were doing so. He said, with .uncertainty, that they were cutting lucerne from an adjoining plot of land. He could also remember nothing about the.existence in the area of timber or corrugated iron sheets. He estimated the area planted by the plaintiff to be 1-2 donums.

D. W.1, Savvas Stavrou, a refugee who at the material time was living in Aglandjia, said that the plaintiff had I evlek planted with lucerne. He remembered that in 1977 the lucerne was very thinly planted, and in 1978 when the witness left the area it was completely

dry because in April 1978, when the plot in question was requisitioned, [*666] the plaintiff turned loose his flock in the lucerne and the

lucerne was eaten. When the Improvement Board of Aglandjia demolished the, old house in which the plaintiff was keeping his sheep, the plaintiff sold his flock. Before vacating the old house the plaintiff removed from it a number of building materials.

D.W.2, Soteris Charalambous, a police constable, testified that in 1977 when he visited the area in order to investigate about a complaint of the plaintiff, he noticed that an area of 1 evlek to 1 donum was planted with lucerne. He also noticed that in the premises where the plaintiff was keeping a small number of goats there were some useless pieces of timber.

D.W.3, Andreas. Kazamias, is a farmer living in Aglandjia village. He said that the area planted by the plaintiff with lucerne was approximately 1 evlek. He had 5-6 strips (lasania) of lucerne. The witness also plants lucerne in the area. His evidence is that lucerne lasts 3-4 years although after a couple of years the lucerne becomes very thin and is not profitable. The soil in the area is suitable for the cultivation of lucerne. He remembered that in 1978 when the plaintiff left there was still lucerne_planted but in re-examination he added that in 1978 the lucerne was uprooted. [*667]

Iacovos Phessas, an agriculturistworking with the Ministry of Agriculture, said that if the conditions are favourable the lucerne can profitably be maintained for 4-5 years. He said further, that the soil in the area where the plaintiff’s lucerne was planted is not suitable for such cultivation and therefore the produce is less than normal and the life span of the lucerne limited. Under unfavourable conditions the lucerne after the third year becomes _very thin. The overall condition of the lucerne plantations in the Aglandjia area, if compared with the condition of other plantations kept in more suitable locations, would be found as much weaker.

Defendant 1 said that he is a refugee and in 1977 on his application to the District Officer, six donums from plot 555. were allotted to them, later on, another two donums from the same plot were allotted to them. As regards plot 476 he said that in it the plaintiff had planted lucerne in an area of one quarter of a donum. According to his evidence, the plaintiff was cutting lucerne from the said plantation until 1978, when he left. Before leaving he turned his flock loose in the plantation and the sheep ate the lucerne. When at the end of 1978 plot 476 was. allotted to the defendants, they uprooted the lucerne and planted barley. Defendant 1 further said that the soil of the said field is not suitable for lucerne cultivation and if planted there, [*668] it does not last more than three years. He alleged that defendant 2 is not his wife. He said that his wife is a certain Katerina Georghiou Anastassi, who is a housewife and who does not help him at all with his work as she has to look after their children.

Defendant 3 in giving evidence repeated the version of defendant 1. He also denied that he or any of the defendants took any building materials belonging to the plaintiff.

Finally Andreas Stavrinos, an Administrative Officer, in charge of the Department of Protection of Administration of Turkish-Cypriot Properties gave evidence. He said that all movable and immovable property belonging to Turkish- Cypriots had been requisitioned. The relevant order was published in notification Ho. 1218, Supplement No. III, of the Official Gazette dated 11.9.1975.

After the requisition the Department of Lands and Surveys prepared a record of condition for every plot belonging to Turkish Cypriots. Such record of condition was prepared for plot Ho. 476 as well.

Having examined the evidence before me as a whole and having the opportunity of watching the demeanour of the witnesses, I accept the evidence adduced by the defendants. [*669]

The plaintiff's evidence was completely unconvincing and gave me the impression that he instituted the present proceedings out of spite and revenge when the property he. used to occupy for so long was given to defendants 1 and 3.

There is no consistency in the sequence of events in the version of the_plaintiff. The plaintiff tried to give the impression that the defendants trespassed his property without any lawful right. One expects that when a person in lawful possession is driven out of his land or when his possession is interfered with in any way, he will take steps, the soonest possible, to terminate the interference. In the present case the plaintiff, who, according to his evidence, one day found out that the defendants entered his land, did nothing because, as he alleged, he was afraid. He could have resorted to the police or take immediate legal action against the trespassers,-instead of waiting some two years after the intervention to institute legal proceedings.

As regards P.W.2, I find that he came to Court with the sole purpose of helping the plaintiff. He alleged that a lucerne plantation in the area lasts for 8 years and if the water is salty it may last for 5 years.

On the contrary Mr. Phessas, an expert agriculturist, testified that the area is not suitable for planting lucerne and that the life span of the plants would be much less. [*670]

The same contradictions are found in the evidence regarding the extent of the plantation. P.W.1, Frixos Kokkinides, estimated the lucerne plantation to 1-2 donums, the plaintiff alleged that he planted 1 donum of lucerne and P.W.2, Gavriel Evangelou, alleged that he planted 2 evleks.

On the other hand, the witnesses for the defendants, two of them Government Officials, impressed me very favourably and I have no hesitation in accepting their version in toto.

Before proceeding further, I find it useful to refer to the legal position on the subject.

Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession. of another. Trespass is actionable at the suit of the person in possession of land, in spite of the fact that he is neither the owner nor does he derive title from the owners.

Section 43 of our Civil Wrongs Law, Cap. 148, provides:

"(1) Trespass to immovable property consists of any unlawful entry upon, or any unlawful damage to or interference with, any such property by any person.

(2) Where the acts complained of are permitted by local custom, such custom if established shall be a defence but in any action brought in respect [*671] of any trespass to immovable property the onus of showing that the act of which complaint is made was not unlawful shall be upon the defendant".

In Eleftheria Adamou v. Constantis Christofi (1974) 1 C.L.R. 100, Hadjianastassiou J., said at pp. 104-105:

"In our view, the slightest amount of possession would be sufficient to enable the plaintiff to bring an action against the defendant. In Bristow v. Cormican, (1878)

3 App. Cas. 641, Lord Hatherley said at p.657:

'There can be no doubt whatever that some possession is sufficient, against a person invading that possession without himself having any title whatsoever, as a mere stranger, that is to say, it is sufficient as against a wrongdoer. The. slightest amount of possession would be sufficient to entitle the person who is

so in possession or claims under those who have been or are in such possession to recover as against a mere trespasser’".

See also Wuta-Ofei v. Danquah (1061) 1 W.L.R. 1238, where the dictum of Lord Matherley in Bristow v. Cormian (supra) was follows and applied.

There is no doubt that a de facto possession gives, a right to retain the possession and undisputed employment as against all wrong-doers, except the lawful owner, because he who has such a possession may, just as may [*672] "the lawful owner, use a reasonable degree of force in the defence of the land which he possesses. He may sue in trespass anyone who disturbs his possession, and in such an action it is no answer for the defendant to show that such title and right of possession is in another person. In our view, jus tertii is no defence to the action, unless the defendant can show when trespassing that he acted under the authority of the true owner or of some person having such a right".

(See also Ismini Liasidou and Another v. Kyriacos Papademetriou etc. (1975) 1 G.L.R. 122, at pp. 127, 128).

In Halsbury's Laws of England, 3rd Edn. Vol. 38, p.744s we read:

"1214. Person in possession. Trespass is an injury to a possessory right, and, therefore, the proper plaintiff in an action of trespass to land is the person who was, or who is deemed to have been, in possession at the time of the trespass ... The type of conduct necessary to evidence possession varies with the type of land".

(See also Bristow v. Cormican (1878) 3 App. Cas. 641 H.L. at 657). [*673]

Possession means the occupation of physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another for by possession is meant possession of that character of which the thing is capable (Per Lord Fitzgerald in Lord Advocate v. Young (1887) 12 App. Cas. 544, 556).

Taking grass from land without buildings is an act of enjoyment of the land itself and therefore possession is shown (Harper v. Oharlesworth (1825) 4 B. &

C. 574; Jones v. Williams (1837) 2 M. & W. 326, 331).

A. de facto possession gives a right to retain the possession and undisturbed enjoyment as against all wrongdoers. Jus tertii

is no defence to the action, unless the defendant can show that the act complained of. was done by the authority of the true owner. (Graham v. Peat (1801). 1 East 244; Nicholls v. Ely Beet Sugar Factory (1931) 2 Ch. 84).

A bare possessor, however, who voluntarily abandons possession and goes away without any intention of returning, loses his possession for all purposes and is in the same position as if he had never been in possession at all. (Trustees, Executors and Agency Co.v. Short (1888) 13 App. Cas. 793).

It is no defence either, that the trespass was due to a mistake of law or fact, provided the physical act of entry was voluntary, as where for example the defendant in mowing [*674] his own grass by mistake mows some of the plaintiff’s (Basely v. Clarkson (1682) 3 Lev. 37).

A trespasser who enters and expels the person in possession does not obtain possession so as to enable him to maintain trespass unless the person expelled has submitted to the expulsion by delaying to re-expel the intruder within a reasonable time. In Browne v. Dawson (1840) 12 A. & E. 624, ten days., was considered to be a reasonable time.

In McPhail v. Persons Unknown (1973) 3 W.L.R. 71, Lord Denning M.R., referred to the right of self-help against trespassers who had not acquired possession by an unlawful intrusion, quoting with approval the following passage from Pollock on Torts 15th Ed., p.292;

"A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner".

But acquiescence may be inferred from delay, and self-help is a remedy to be safely employed only when the rightful owner acts with prompt response as soon as he is aware of the wrongful intrusion. One remedy then which a possessor has for an expulsion by a trespasser is at once to turn out the intruder and reinstate himself, and for this purpose the law sanctions a resort to force. [*675]

Not every entry upon the plaintiff’s land is trespass. An entry does not amount to trespass unless it be unjustifiable. Justification of the entry may be afforded either by operation of law, or by the act of the plaintiff or under a licence.

If plot No.

476 was requisitioned and given to the defendants, then obviously, the defendants did not trespass on the plaintiff’s land because their entry was not unjustifiable.

It has been contended by learned counsel for the plaintiff that there is no evidence that the said plot was requisitioned. With all due respect, I do not share this view. There is ample evidence from the testimony of D.W.4, Andreas. Stavrinos, that, all property belonging to Turkish Cypriots was requisitioned. There is also evidence that the particular plot, i.e. plot No, 476, Sheet/Plan XXl/56 W.2 situated at Kathari locality of Aglandjia Village, was included in the record of condition prepared by the Department of Lands and Surveys after the requisition of the Turkish Cypriot properties (see Exh.5). Therefore, there is no doubt that the said plot was, as all other Turkish properties, requisitioned,

What remains to be examined is the allegation that, such requisition was. unconstitutional as. done in contravention of Article 23(8) of the Constitution, as the plaintiff never received any notice of such requisition which would enable him to file a recourse promptly. [*676]

Learned counsel for the plaintiff laid stress on the, wording of the relevant order. In November 1975, a requisition order was made supplementary to the order made in September of the same year, providing for the requisition of all movable and

immovable properties belonging to Turkish Cypriots not personally used by them ("Μη προσωπικώς χρησιμοποιουμένων υπ’ αυτών").

In the recent case of Siret v. Constantinou (1981) 1 J.S.C. 11, (a District Court case), Pikis P.D.C., as he then was, held that the general object of the requisition order appears to be the requisition of properties abandoned by Turkish Cypriots who moved to the north and not the requisition of properties of Turkish Cypriots who remained in occupation of their properties personally, or through agents.

With all due respect, the facts of the above rase were completely different from the facts of the case in hand. In the present case the property in question is not occupied personally or by agent, A tenant cannot be considered as agent of the landlord.

Furthermore, the property, subject-matter of the present action, was requisitioned and the relevant order was published in the Official Gazette as provided by Section 4(1) of the Requisition of Property Law, No, 21 of 1962. [*677]

The presumption is that an administrative act is reached èfter a .correct ascertainment of relevant facts (see The Republic v. Nicos Ekkeshis (1975) 3 C.L.R. 548 at 5561 Koukoullis and Others v. The Republic 3 R.S.C.C. 134; Papallis v. The Republic (1970).3 C.L.R. 424 at 4.29; Kousoulides v. The Republic

(1967) 3 C.L.R. 438 at 447).

In Paraskevas Lordos Ltd. and Others v. The Republic (1974) 3 C.L.R.447, Triantafyilides P., has this to say at p.457:

"Of course, it might be argued that the above fasts tend only to show, but they do not establish with absolute certainty, that the cost entailed by the compulsory acquisition of the properties concerned was duly considered by the Government at the proper time; but the burden of establishing, as a matter of fact, such a reason for annulment lay with the applicants.(see, inter alia, Koukoullis and Others v. The Republic, 3 R.S.C.C, 134). Thus, in the absence of any concrete evidence to that effect and because of the presumption of regularity - Ommia preasumuntur rite esse acta' - ('All acts are presumed to have been done rightly’) - the only conclusion that I can legitimately reach is that the total cost of the compulsory acquisition was duly considered at the proper time, even if the detailed valuations’ of the properties concerned, [*678] for purposes of compensation, were prepared later, at the time of the publication of the order of acquisition. So, it has not been established to my satisfaction that any. abuse or excess of powers has occurred in this respect".

Paragraph 3 of Article 146 of the Constitution limits the time within which a recourse can be made. It reads as follows:-

"Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse".

Repeatedly it was held that the provisions of paragraph 3 of Article 146 are mandatory and have to be given effect to in the public interest in all cases (John Moran v. The Republic .(Attorney-General and Another),1 R.S.C.C, 10 at p.13; Joyce Marcoullides v. The Greek Communal Chamber (Director of Greek Education),

4 R.S.C.C. 7 at p.10; see also Irene Liveri v. The Republic.. (1981) 3 C.L.R. 398. at 407; Neophytou v. The Republic (1964) C.L.R. 280).

In cases of publication of the

decision or. act, time begins to run, for. the purposes of Article 146.3, from the date of publication, irrespective of when the act or decision in question came to the knowledge of the person concerned (Liveri v. The Republic (supra); Pissas (No.l) v. Electricity Authority of Cyprus (1966)

3 C.L.R. 634; see also Hadjicostas v. The Republic (1974) 3 C.L.R. 1). [*679]

In the present case the requisition order was duly published in the Official Gazette in-accordance with the provisions of the law. The time begins to ran from the date of publication and most certainly the plaintiff did not file a recourse within the described time limit of 75 days. The fact that he was not personally notified or informed is completely irrelevant. Therefore, as no recourse was filed and the order was not annulled by the Court, the presumption of regularity comes into play and the plaintiff cannot challenge its validity.

(For the principles governing the exercise of judicial control of legislative enactments on questions of the constitutionality of a statute, see The Board for Registration of Architects and Civil Engineers v. Kyriakides (1966)

3 C.L.R. 640; Saba, Kypris &Co. and Another v. The * Republic

(1980) 3 C.L.R. 149 at pp. 162, 163),

Anyhow, under the provisions of Article 146 of the Constitution the power to adjudicate finally in matters conterning a decision, act or omission of any organ, authority or person exercising executive or administrative authority is within the exclusive jurisdiction of the Supreme Court (see The Holy See of Kitium v. The Municipal Council of Limassol, 1 R.S.C.C. 15, at p.21). [*680]

For the reasons I endeavoured to explain the entry of the defendants upon the plots in question cannot be considered as trespass because it is absolutely justifiable. Consequently the plaintiff’s claim and the present action must be dismissed.

Before concluding, however, I will deal with the question of damages, in case I am held to be wrong on my above findings.

A plaintiff in trespass is entitled to recover damages, even though he has sustained no actual loss. The alleged trespass involved the severing and carrying away lucerne, i.e., things attached to the soil. The plaintiff could be entitled to the value of the things severed.

From the evidence before me, I find that the plaintiff had planted not more than 2 evleks of lucerne, Even the man who actually-planted it (P.W.2, Gavriel Evangelou), alleged that in 1975 he planted approximately 2 evleks of lucerne for the plaintiff. D.W.5, Iacovos Phessas, whose evidence I have already accepted as true, stated that in the area lucerne plantations could not last more than 4 years, but after the third year is thin and scarcely profitable. The lucerne was planted in 1975 and the plaintiff was "expelled" from the property in 1978. This means that by then the lucerne plantation was almost valueless. [*681]

Therefore, if the plaintiff was entitled to any relief, I would have not given him by way of damages more than £100.

In the result, action dismissed with costs against the plaintiff, to be assessed by the Registrar on the appropriate scale.

Action dismissed with costs

against the plaintiff.