Criminal court restitution order upheld where property registration cancelled due to false pretences.

[*1715] 1972 October 31

(TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU, HADJLANASTASSIOU, A, LOIZOU, MALACHTOS, JJ.)

APPELLATE JURISDICTION

Loukia Kyriacou Christou Marouletti,

Appellant,

v.

The Republic,

Respondent.

(Civil Appeal No. 4987).

Restitution Order - Section 171 of the Criminal Procedure Law, Cap. 155 Criminal Court empowered thereunder to direct cancellation of registration of immovable property during the pendency of an appeal, under s. 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, regarding the same property.

Restitution Order - Section 171 of the Criminal Procedure Law, Cap. 155 - Principles for exercise of discretion - Order to be made only in the plainest of cases - Immovable property found to have been registered by false pretences - Order cancelling registration a valid one.

Constitutional Law - Cancellation of registration of Immovable Property by Criminal Court - Does not contravene Article 30.1 of the Constitution in the sense that appellant has been denied access to the Court assigned to her by the said Article - Namely the District Court of Famagusta, on appeal under section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224.

Costs - Certiorari proceedings - Party successful in part thereto ordered to pay half of the costs of the other party - Trial Court’s discretion exercised in a manner with which Court of Appeal not prepared to intervene in view of the conduct of the appellant.

Criminal Procedure Law, Cap. 155 - Section 171 - See, under "Restitution Order".

Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - Section 80 - See under "Restitution Order" ; "Constitutional Law".

L. Papaphilippou, for the Appellant.

A. Frangos, Senior Counsel of the Republic, with C. Kypridemos, far the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES. P. This is an appeal from [*1716] an order* of certiorari, issed by a Judge of this Court, by virtue of which there was quashed part of an order made by the District Court of Famagusta in criminal case No.9093/68, on the 3rd October, 1969. The appellant contends that the whole of the said order of the District Court ought to have been quashed.

The District Court had ordered, under section 171 of the Criminal Procedure Law, Cap, 155, that registration No. 8257 (dated 20th April, 1960) of the Lands Office of Famagusta, in the name of the appellant, be cancelled and that the property to which such registration related (plot 92, Block B, Ayios Ioannis Quarter, Famagusta) be registered in the name of the Republic of Cyprus. By the order of certiorari the learned Judge who issued it quashed the part of the sub judice order directing registration in the name of the Republic, but kept in force the part of such order directing the cancellation of the registration in the name of the appellant; it is the contention of the appellant that this part of the sub judice order ought to have been quashed too.

The salient facts of this case appear sufficiently in the judgment appealed from and we shall refer to them only briefly:

The appellant was convicted in the said criminal case on three counts, as follows: (a) of conspiring with another person, namely the at the time District Lands Officer of Famagusta, to obtain registration of the property concerned in her name by false pretences: (b) of obtaining[*1717] registration of the said property by false pretences; and (c) of conspiring with the same Lands Officer to defraud the Government of Cyprus by obtaining registration of such property in her name.

The President of the District Court of Famagusta, who tried the criminal case, sentenced the appellant to pay a fine of £300 and proceeded then to make the order that was challenged by the application for an order of certiorari.

About two years before the trial of the criminal case, the Director of Lands and Surveys had sent a notice to the appellant, under the provisions of section 61 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, informing her that the registration in question (No.8257) had been made in her name erroneously and that, therefore, he intended to correct the error by cancelling the registration. The appellant objected to such correction. The Director decided to reject the objection and upon that the appellant lodged an appeal, under section 80 of Cap. 224, before the District Court of Famagusta, against the

decision of the Director. That appeal (No.6/68) was pending when the criminal case was tried, and is still pending, having been adjourned sine die.

The present appeal, in respect of the order of certiorari, was based on several grounds, but in the course of the argument a number of such grounds were abandoned and, so, we need not deal with them.

The main ground on which this appeal has been argued was that since the issue of the validity of registration [*1718] No.8257 in the name of the appellant was already the subject matter of proceedings under section 80 of Cap.224 it was not lawful or proper for the District Court to order, in the criminal proceedings, the cancellation of such registration.

In this connection it has been submitted by counsel for the appellant that the Judge of this Court, who, in dealing with the application for certiorari, refused to quash the part of the order of the District Court directing the cancellation of the registration, erroneously rejected the argument that section 80 of Cap. 224 makes special provision regarding a particular matter whereas section 171 of Cap. 155 is a provision of general application and held that sections 80 and 171 were provisions with entirely different objects.

We find ourselves unable to agree with this submission of counsel for the appellant. In our view the two provisions in question are distinctly different in nature: Section 80 provides for an appeal against administrative decisions of the Director of Lands and Surveys regulating, inter alia, private rights in property; section 171 provides for restitution after a person has been found guilty of a particular offence; therefore, no legal impediment exists preventing a criminal court from making an order of restitution of property under section 171 during the pendency of an appeal under section 80 regarding the same property.

Of course, a criminal court should not exercise its discretionary powers in order to make a restitution [*1719] order when difficult questions of law affecting title to the property concerned arise; such questions can be more suitably dealt with by a civil court. In Stamp v. United Dominions Trust (Commercial) Ltd. (1967) 1 Q.B. 418, Widgery J. said (at p. 428):

"I think it right to add, however, that justices should hesitate before exercising this jurisdiction if the value of the goods in question is substantial, or if the application for an order is likely to raise difficult questions of law. There are many cases, and indeed this case may have been one, where the civil courts are really better equipped to try an issue of this kind, and I would deprecate any suggestion in the future that justices should be too anxious to exercise their discretion to deal with such issues. However, in simple matters it is no doubt right that they should, and, there being no error of law in what was done in this case, I would not upset their decision on either of these grounds."

and, in the same case, Lord Parker C. J. said (at p.431):-

"It seems to me that whenever difficult questions of law affecting title are likly to arise as, for instance - and this is only an illustration - by reason of the Hire-Purchase Act, 1964, no criminal court, whether assizes, quarter sessions or magistrates, should embark on the consideration of making a restitution order." [*1720]

Also, in the case of Ferguson, 54 Cr.App. R.410, in which the Stamp case was applied, Salmon L.J. stated (at p. 413):-

"The principles which should be followed in considering whether or not the

discretion to make the order of restitution should be exercised are set cut in Stamp v. United Dominions Trust Ltd. (1967) 1 Q.B.418. It is true that that case was

decided under the Larceny Act 1916 which gave similar powers to make orders for restitution to those contained in the Theft Act, although no doubt the Theft Act extends those powers to some extent.

The same principles, however, apply as to how the discretion should be exercised. If there is any doubt at all whether the money or goods in question belong to a third party, a criminal court is not the correct forum in which that issue should be decided. It is only in the plainest cases, when there can be no doubt that the mony belonged to the convicted man, that the court would be justified in exercising its discretion in making an order for restitution. To do so in any case of doubt might cause the gravest injustice to a third party because the third party to whom the money may belong has no locus standi to appear before a criminal court. Nor is there any appropriate machinery available in the criminal courts for deciding the issue as to who is the true owner. Discovery is sometimes a very important part of the necessary machinery for resolving issues of that sort, and discovery for this purpose can be obtained only in the civil courts. A civil court is [*1721] the correct forum for deciding matters of this kind."

In the light of the above we think that the learned Judge, who has dealt with the application for certiorari, quite rightly refused to quash the cancellation of the registration of the property concerned in the name of the appellant, because it was plainly obvious that such registration was secured by false pretences; he proceeded however to quash the registration thereof In the name of the Republic, as in the relevant records the property appeared recorded in the name of the "Succession of John Langdon", and he thus left to a forum more appropriate than a criminal court the determination of the eventual fate of the property.

Another submission of counsel for the appellant has been that the part of the order of the criminal court, which has not been quashed by certiorari, results in a contravention of Article 30(1) of the Constitution, in the sense that the appellant has been denied access to the court assigned to her by or under the Constitution, namely to the District Court of Famagusta, on appeal, as aforementioned, under section 80 of Cap. 224.

We find no merit in this submission : The appellant is not being denied access to the District Court of Famagusta regarding her appeal under section 80. She is still at liberty to pursue such appeal; even if it were to be said - and we express no view in this respect - that as a result of her conviction in question by the criminal court, and of the part of the order made by such court under section 171 which has not been quashed by certiorari, the appellant’s [*1722] position in pursuing her said appeal under section 80 has been rendered more difficult, this does not amount to a denial of access to the District Court of Famagusta, in the sense of Article 30(1).

Lastly, we have to deal with the contention of counsel for the appellant that his client was wrongly ordered to pay half of the costs of the certiorari proceedings to the respondent. It is quite correct that she has been successful in obtaining an order of certiorari quashing part of the District Court order complained of by her; but, as stated by the Judge, the order as to costs was made "in the circumstances of this Case"; and we are of the opinion that, in view of the conduct of the appellant, he exercised his discretion in a manner with which we are not prepared to intervene.

The appeal, therefore, fails and is dismissed, with costs.

Appeal dismissed with costs.

* Reported in

(1971) 5 J.S.C. 662.