Republic of Cyprus not liable for military commander's seizure of bulldozer post-coup; claim dismissed under special provisions law.

[*31] 1978 September 15

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF FAMAGUSTA SITTING

AT LARNACA

Nicolas Cosma,

Plaintiff,

v.

The Attorney-General of the Republic,

Defendants.

(Action No. 132/77).

Officers or authorities of the Republic – Wrongful acts or omissions of - Liability of the Republic in tort - Article 172 of the Constitution - Republic liable for wrongful acts or omissions committed within the sphere of the officers' authority - Claim for return of machinery delivered to military commander, following the Turkish invasion of Cyprus in 1974 - Military Commander had no authority to requisition property - Act complained of beyond his sphere of authority - Republic not liable - Moreover claim could not be sustained because of the provisions of section 4 of the Coup d'etat (Special Provisions) Law, 1975 (Law 57/75).

Ratification - principles applicable

- Doctrine of ratification is a doctrine of private law having no application in the field of public Law.

Coup d’etat of the 15th July, 1974 - Implications of - Section 4 of the Coup d'etat (Special Provisions) Law, 1975 (Law 57/75).

A. Poetis, for the Plaintiff.

R. Gavrielides, Counsel for the Republic, for the Attorney-General, for the Defendants.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: In these proceedings [*32] the plaintiff seeks the return of a bulldozer delivered to the military authorities on 20th July 1974, at Yaloussa, or damages in lieu thereof. The action sounds in tort and can appropriately be described as an action for wrongful detention or conversion of movable property by the defendants. The defendants, the Republic of Cyprus,appearing through the Attorney-General, deny liability. When the pleadings were closed the parties followed a course commendable in the circumstances of this case and submitted a special case pursuant to the provisions of Order 29, rule 1 of the Civil Procedure Rules requesting the decision of the Court on four questions to be resolved in the light of a joint statement of facts set out in the first four paragraphs of the special case.

The vehicle of the plaintiff was delivered by the plaintiff to the military commander of Yaloussa at the latter's request on 20th July 1974, following the invasion of Cyprus by Turkish troops. The bulldozer was never returned to the plaintiff and so far as we can discern from the facts before us it was abandoned by the military in the wake of the second round of the Turkish invasion as the army retreated from the Karpass area. And the Court is, in substance, asked to decide whether the Republic of Cyprus is liable for the non return of the machinery in question to the plaintiff, its lawful owner. Learned counsel for the defendants aptly remarked in his address that no claim for negligence is raised nor is any specific fault attributed to the military for abandoning the bulldozer behind, on their retreat. [*33]

Counsel primarily, though not

exclusively, focussed their attention on the implications of the Coup d’etat Lawuss of 1975, namely Law57/75. In fact the Court is specifically, asked by questions (a) and (b) to resolve whether all

actions of the Coup D' Etat Government are rendered illegal by the provisions of the aforesaid law and if so whether this mantle of illegality is cast and viciates actions of the appointees or subordinates or organs of the coup d' etat Government. Thirdly in the event of deciding that the action of the military commander of Yalousa lacked legal effect the question is posed whether the Clerides Government could ratify the aforesaid acts. Lastly a global question is asked putting, so to say, everything in issue, whether the Government is liable in damages in the circumstances of this case.

1 . Liability of the Republic for Acts of its Officers and Organs.

Article 172 of the Constitution provides that the Republic of Cyprus may be held liable in tort for the wrongful acts or omissions of any officer or authority of the Republic committed in the exercise or purported exercise of their duties. The aim of this provision is not to render the Republic liable for any act of its servants, a position that would be both harmful and contrary to the public interest. The liability of the Government is limited to acts falling within the sphere of authority of its servant whose acts are impeached albeit wrongful either because of lack of proper authorization or for any other reason. Therefore we must examine in the first place whether [*34] the action complained of came within the sphere of authority of the officer in question. The notion of "purported exercise of duties" encompasses acts that fall, under the provisions of the law, within the sphere of authority of the officer in question and not every action of the officer that he personally or anybody else attributes to his office. As stated in Dendias On Administrative Law, volume A, p. 450-451, 5th edition, the State is answerable for the wrongs of public servants so long as the latter act within the sphere of their activities as defined by law. If so a correlative duty arises for the State to remedy the wrong. No law has been cited and no authority has been quoted conferring authority on an officer of the National Guard to commandeer property at times of war or hostilities. The power to requisition property is regulated by the provisions of Article 23.8 of the Constitution and provisions of the Compulsory Acquisition Law (Law 15/62) and the Requisition of Property Law (Law 21/62). I can end this discussion by mentioning that nowhere is authority vested on any officer of the National Guard, no matter what his rank, to requisition property nor is any exception made at times of war. In consequence of the above the action of the plaintiff against the Republic is doomed to failure for the acts complained were beyond the sphere of authority of the officer of the National Guard who commandeered the machinery of the plaintiff.

2. The Coup D' Etat Law - 57/75

In my judgment indepenently of the rulling above given the action of the plaintiff could not be sustained [*35] because of the provisions of Law 57/75. Section 4 of the aforesaid law invalidates and renders void ab initio every act of the coup d' etat Government carried out in purported exercise of a power or duty. It has been held, rightly in my view, if I can say so with respect, that not only collective acts of the coup Government or acts taken individually by members of it are invalided by Law 57/75 but also acts of its subordinates and appointees as well. (See Liassi and Others v. The Attorney-General & Another (1975) 12 J.S.C. 1889). Law 57/75 is an all embracing legislative provision intended to free the State of liability for the acts of usurpers of State power and extends to acts taken to implement decisions of the Coup Government. Air. Poetis argued that the provisions of Law 57/75 encompass only administrative acts of an executory nature as opposed to administrative actions (energhie) of a purely administrative content not productive of a change in a legal situtation or status (and cited in support Dendias On Administrative Law, 5th edition, volume 8 at pages 111, 125, 126 and 440.) The distinction between "executory" and "non executory acts" is well known and has been the subject of discussion in many decisions of the Supreme Court. (See, inter alia, Kasparian v. The Attorney-General

(1975) 1 J.S.C. 72 - Evagoras Pjtsiliides v. The Republic (1973) 3

C.L.R. 15 - Nicos Theocharides v. The Republic (1973) 3 C.L.R. 702.) Only administrative acts of an executory nature taken in the domain

of public law can form the subject matter of a recourse at the instance of a person whose interests [*36] were affected thereby, a present interest at that. The distinction referred to by Mr. Poetis between different kinds of administrative acts may be valid in other spheres but it is in no way warranted by the plain provisions of section 4, Law 57/75 that sweeps away in one spell all administrative acts of the coup Government and its subordinates independently of their nature. The expression "dhiikitikis fyseos praxin i apofasin" covers as a matter of literary interpretation of the plain words used both executory and non executory administrative acts of the coup Government and its organs. One may note that an act does not cease to qualify for the description "administrative" if it is not of an executory nature. The sweeping nature of the enactment under consideration was emphasized by the Supreme Court in R. v. Sampson (1977) 2 J.S.C. 108. What the law does not do is to free the usurpers of powers of personal liability for their acts. But that is not a matter that poses for consideration here. If we were to presume that the officer at Yaloussa acted on the instructions of the coup Government then the answer is that Law 57/75 renders his actions void ab initio and deprives the plaintiff of any right he might otherwise have for damages though in my view, for the reasons above given, he never enjoyed any such right.

Even if I were to acknowledge, though the matter has not been discussed before me, that the coup Government could lawfully take certain steps in the face of Turkish saggression the steps could only be taken by the organ of Government that had authority under the law [*37] to take the relevant

decision, in this case the Council of Ministers or perhaps the Minister of Interior & Defence. In Re Pantelis Vrakas and Another (1977) 4 J.S.C. 457, Triantafyllides, P. pointed out that even if we were to accept that emergency powers vested in the Government after the Turkish invasion this could not be construed as a total break down of lawful procedures authorizing any man on the spot to take a decision he judged appropriate; and that decisions could only be taken, unless this was factually immpossible, by the appropriate organ of the State.

3. Ratification

I was invited to rule on the implications of ratification particularly the possibility of the act of the officer in question having been subsequently ratified by the Government under Mr. Glafcos Clerides, the Chairman of the House of Representatives, who acted as President for a period of time. I can dismiss this submission without necessity arising for examining the status of the Government under Mr. Clerides for the following two reasons

(a) For ratification to operate there must be specific adoption signified by appropriate words or conduct. There is nothing to suggest that the seizure of the bulldozer was ever examined by the authorities at any time/ let alone be approved;

(b) to my comprehension the doctrine of ratification as ordinarily understood is a doctrine of private law having no application in the field of public law; Moreover its principal application lay in the the field of contract law. [*38]

We are not in these proceedings concerned with any contract having been entered into with the plaintiff albeit unauthorized so that a question for its ratification might conceivably arise. Here we are concerned with an act of seizures, unlawful in the circumstances and the liability of the Republic, if any,for the acts of the officer of the National Guard who commandeered the vehicle. (For a discussion of the subject of ratification see Bownstead On Agency, 13th edition, p.34 et seq.)

4. The Implications of the Coup d' Etat

I had on at least two previous occasions the opportunity to examine the implications of the coup d' etat and express my views on the subject, (See judgment in Civil Action No. 1098/1975 given on 7th January 1978 and judgment in Civil Action No. 1141/1975 delivered on 17th June 1978.) In accordance with English precedent and the common law theory on the subject of legality and the principles partinent to the preservation of the rule of law State power can only emanate from the Sovereign, that is the body competent under the law to invest a person or persons with governmental powers. In Cyprus the Sovereign is the people of the country and only they can confer authority to govern. The Privy Council in Madzimbamuto v. Lardner- Burke and Another (1968) 3 All E.R. 561 and Adams v. Adams (1970) 3 All E.R. 572, refused to acknowledge the existence of an implied mandate from the Sovereign to those de facto in power to deal with matters absolutely essential for the preservation of law and order and the running of [*39] essential services of the country. In so doing they were no doubt alive to the danger that the recognition of such a doctrine would pose to the preservation of the rule of law. Indeed any deviation from the doctrine of the rule of law threatens in the long run the foundations of civilization and undermines democracy. Hence the actions of the Coup Government were outside the realm of the law and therefore void of legal content.

Concentrating on the facts of the case, independently of the above, it would be risky to acknowledge power to the military to commandeer property without governmental authority. Such power, if abused, could lead to the total break down of government under the law.

For the above reasons the action is dismissed. In accordance with the agreement of the parties there shall be no order as to costs.

Action dismissed with no

order as to costs.