Supreme Court allows appeal against Director's decision to register land, declaring it invalid for lack of competence.

[*482] 1971 November 16

(TRIANTAFYLLIDES, P. L. LOIZOU, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

1. The inhabitants of the village of Karpashia,

namely Hadji Markos P. Hadji Markou and

sixty-one others,

2. The Turkish inhabitants of the village

of Dhiorios, namely Halil Fikret and

one hundred and thirty-eight others,

Appellants,

and

1. The Church Committee of Ayia Marina Church of Dhiorios,

2. The Director of Lands and Surveys,

Respondents.

(Civil Appeal No. 4098).

Immovable Property - Appeal against decision of the Director of Lands and Surveys - Section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - Application by religious Corporation for registration of immovable property in its name - Section 41(1) of the Law - Notice of Director’s decision, granting application, given to appellants 1 who have lodged an objection to the application - No notice to appellants 2 who have not lodged an objection - Both appellants held to be persons "aggrieved" by the said decision and are entitled to appeal against it under the said section 80.

Immovable Property - Application by religious Corporation for registration of immovable property in its name under section 41(1) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224 - And objection to registration by another party who claimed property by virtue of prescription -

Decision of Director granting application declared invalid as having been reached without competence - Parties should have been given full opportunity of vindicating their legal rights in a Court with all the safeguards as to proof and admissibility of evidence.

M. Houry, for the Appellants.

A. Triantafyllides with A. Christophides, for Respondent No.1.

S. Nicolaides, Counsel of the Republic, for Respondent No.2.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P.: The appellants appeal against [*483] a judgment of the Kyrenia District Court by means of which there were dismissed appeals which the appellants had made to the said District Court, under section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224, against a

decision of respondent 2, the Director of Lands and Surveys, which is to be found in a letter addressed to appellants 1 and dated the 19th April, 1969. It was stated in that letter that respondent 2 had decided to register an area of land at Dhiorios (plot 219 sheet/plan 11/35) in the name of respondent 1 and that appellants 1 had thirty days within which to obtain a Court Order to the contrary. As a result appellants 1, as well as appellants 2, who came to know of this

decision of respondent 2, appealed against it, as aforementioned, to the Kyrenia District Court.

The first issue which has to be decided is whether the appellants could, in the circumstances, have appealed under section 80 of Cap. 224 In dealing with this issue it is useful to refer to some salient facts of this case:-

The respondent 1, being a religious corporation, applied, under section 41(1) of Cap. 224, that the land in question be registered in its name.

When respondent 2 received the relevant application of respondent 1, he proceeded to examine the matter; appellants 1. found out about the application and they objected to the registration in the name of respondent 1, by a letter dated the 23rd March, 1968; it is to be derived [*484] therefrom that appellants 1, in effect, based their objection on rights of their own acquired by prescription; respondent 2 informed appellants 1, by his already mentioned letter of the 19th April, 1969, that, in relation to their objection, he had decided, after careful consideration of the matter, to grant the application of respondent 1.

Under section 41 (1) of Cap. 224 respondent 2 was empowered, but not bound, to grant the said application; and once he had received from appellants 1 a written objection thereto it was, in our view, lawfully open to him to communicate to them in writing his decision, as he has done.

In the light of the foregoing we have no difficulty in holding that appellants 1 were persons "aggrieved" by the decision of respondent 2 - in the sense of section 80 of Cap. 224 - and they were entitled to appeal under such section.

We see no sufficient reason to differentiate between appellants 1 and appellants 2, who did not lodge an objection and were, consequently, not informed by respondent 2 of his decision; appellants 2 were persons whose interests were allegedly affected by such

decision and once it came to their knowledge they were, also, persons "aggrieved" thereby and entitled to appeal against it under section 80.

We shall deal next with the merits of the appeal before us:

It is to be clearly understood from the contents of the letter of the 19th April, 1969, that respondent 2 reached [*485] his complained of decision after examination of the conflicting claims to the property concerned of respondent 1 and appellants i and that he decided, eventually, that respondent 1 was entitle d to such property.

It has not been seriously disputed, during the hearing before us, that it is not within the competence of respondent 2, under section 41(1), to decide on the validity of conflicting claims regarding rights in respect of immovable property; that being so we are of the view that the parties to these proceedings should have been given full opportunity of vindicating their legal rights in a Court, for example by a civil action for a declaration as to title or otherwise, with all the safeguards as to proof and admissibility of evidence. (See Hassidoff v. Santi and others, (1970) 7 J.S.C. 694)·

In the circumstances, this appeal, has to be allowed, the appealed from decision of the Kyrenia District Court has to be set aside and the sub judice decision of respondent 2 has to be declared to be invalid as shaving been reached without competence.

Regarding costs we are not prepared to make any order either in respect of the costs in the Court below or in respect of the costs of the appeal.

Appeal allowed; no order

as to costs.