Court allows claim for fire fighting services rendered during Turkish invasion under Forest Law, rejecting coup government orders.

[*99] 1981 November 30

(G. NICOLAOU, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Andreas Tsangari,

Plaintiff,

v.

The Attorney-General of the Republic,

Defendant.

(Action No. 1159/79).

Forest Law, 1967, section 17 - Fire fighting services rendered thereunder during the Turkish invasion of pursuant to a call made by the appropriate officials - Remuneration therefor - Plea that such services were rendered pursuant to an order for general mobilization of 20th July, 1974 and a decision of the Council of Ministers of 20th July, 1974, on forest fires, not sustained - Because the said order and decision were non-existent and of no effect - Section 4 of the Coup d’Etat (Special Provisions) Law, 1975 (Law 57/75).

Coup d’Etat of July, 1974 - Decisions of the “Coup d’Etat”Government relating to general mobolization and on forest fires - Non-existent and of no effect - Section 4 of the Coup d’Etat (Special Provisions) Law, 1975 (Law 57/75) - Said Government could not be recognised as “de facto”organ.

K. Melissinou, (Mrs.), for I. Avraamides, for the Plaintiff.

R. Karydha (Mrs.), for the Defendant.

JUDGMENT

The following judgment was delivered by:-

G. NICOLAOU, D.J.:- The plaintiff’s [*100] claim in the present action relates; to a period when the Republic of Cyprus had already been crippled by the bloody coup d’ etat of 15th July, 1974, and was in the process of being dismembered by the savage Turkish invasion which followed on 20th July. It is inextricably connected with that turbulent period for it arises from the plaintiff’s contribution to the efforts made at the time to save what was possible from destruction.

Owing to Turkish air bombings in the forests of the Troodos range on 20th July, 1974, huge fires were started and spread in a number of sites. There were, indeed, in the days prior to the Turkish invasion small fires in places but those posed no threat. The fires started by the Turkish bombings were quite a different proposition, transcending anything which might reasonably be contemplated in time of peace. Further, the bombings had frightened away people engaged in fighting the few existing smaller fires which in consequence spead to an alarming extent.

It was imperative to fight all these fires with whatever resources were available if total disaster involving the destruction of our entire forests in that part of Cyprus together with villages and private property, perhaps, was to be averted. The call came out for help and continued coming out while the forests in question were for days on end being ravaged by fire. Many people rallied to the call but apparently not nearly as many as were needed. Those were difficult times and some people may have been afraid of the bombings while others may have been so anxious for their families [*101] that they chose to remain with them to look after them.

The plaintiff was one of those who in the morning of 20th July, 1974, answered the call and went out to help contain and put out the fires. He worked to this end from the morning of 20th July until at least the 2nd August with little respite, for an agreed total of two hundred and seven hours. In the end, some eighty odd square miles of woodland were destroyed but the disaster which had at some stage loomed so large was successfully averted and though the loss was grievous the forests in question were as a whole saved. And the plaintiff now by this action seeks payment for his services on the basis of current wages in the area at the time.

One might, perhaps, in such circumstances, be tempted to rush to moral judgment of the plaintiff’s claim irrespective of its possible worth in legal terms; it must be pointed out, however, that the plaintiff has complained that others in a similar position have, in fact, been paid by the Republic, while it is in evidence that those employed in the public service save for casual labourers and others employed on a daily pay basis, have been paid their salaries for the same period, irrespective of other considerations, and the force of this complaint in terms of elementary fairness is immediately apparent.

The nature and other defining characteristics and aspects of the coup d’ etat of 20th July, 1974, including the course followed by the usurping power and the events leading to its collapse are matters which in all their [*102] essential respects are so notorious and. clear that the Court may take judicial notice of them. The subsequent Turkish invasion of Cyprus with its essential implications including the incumbent need to fight back, which involved a desperate effort to repulse or at least to contain the enemy, as well as the need to marshall all available resources for saving whatever could be saved in such unpropitious circumstances when the very existence of the country was at stake, are also, matters of which for the same reasons the Court can take judicial notice. See, inter alia, Re A Petition of Right. (1915) 3 K.B. 649 at 658, and R. v. Sampson, (1977) 2 C.L.R. I.

The effort to save our forests from the unprecedented fires which were both directly and indirectly the result of the Turkish bombings in the area, and which threatened, to the extent already described, the destruction of much valued natural wealth, in my view constituted an important contribution to the country in its defence against the enemy.

The plaintiff, who came from Yerakies village where he lived with his family, was a hawker mainly of nuts and dried fruits and sweets, travelling widely in this pursuit. He had previously, in more settled times, like other men from his own and surrounding villages, assisted in forest fire fighting when called upon. This, it must be pointed out, he did apparently in pursuance of the provisions of s.17 of the Forest Law of 1967 (No.14 of

1967). The local forestry officials, assisted by the local police and [*103] village officers would put out the call for help and

enlist the services of as many local males as were needed to meet the emergency. The men would then be conveyed to the points where their appointed task would begin. Lists were kept of the men thus employed, with the number of hours worked and the amount of the provisions supplied to them during the course of their work so that their value might be deducted from the wages to be paid to them. The remuneration paid to the men for such services was in accordance with the current rates of pay for casual labourers employed in the public sector. It would appear that those who were enlisted complained that those rates were low, and it may be that when called upon they went along grudgingly by reason of this grievance.

It is alleged in the plaintiff’s statement of claim that the plaintiff rendered services in fire fighting at the Paphos state forest from 19th July, 1974, until 8th August, 1974, pursuant to a call in that behalf made by the ‘‘Government” after a fire had broken out in or near the said forest on or about 12th July, 1974. What are alleged to be the current rates for such work in the area at the time are then set out by the plaintiff who seeks to recover compensation on that basis. It must be noted that the plaintiff does not plead expressly s.17 of the Forest Law of 1967. This is unfortunate, perhaps, but it does not in my opinion constitute an impediment in pursuing his claim there under. The rationalle, as I understand it, for pleading expressly a statutory breach is that this makes for clarity and serves to distinguish such claim from some other cause often under the [*104] common law. Otherwise law need not be pleaded. The plaintiff here pleads, as he should, all facts necessary to bring him within the statute, failing , merely, specifically to refer to or identify the statutory provision in question. But no prejudice at all has ensued to the defendant and no problem relating to issue estoppel might conceivably arise here. I would, therefore, consider the plaintiff’s claim on the basis of s.17 of the Forest Law of 1967. I should add, perhaps, that had I taken a different view of the position on this matter, I would myself have ordered at this stage an amendment of the endorsed statement of claim.

The amended defence which in reference to the various allegations contained in the statement of claim consists of simple traverses, further and in the alternative avers that the services of the plaintiff were rendered by the plaintiff in his capacity as member of the National Guard having been called-up by a general mobilization order and/or on the strength of a decision of the Council of Ministers proclaiming a mobilization to meet the situation created by the fires at the Paphos forest, and the Turkish invasion.

What must initially be examined are the circumstances in which the plaintiff has rendered his services in fighting the said fires, including the nature of the representation or call for assistance made in that regard and, in particular, whether it was made under the Forest Law of 1967 or whether it was made in pursuance of an order for general mobilization or of a decision of the Council of [*105] Ministers relating to a special mobilization for the limited purpose of putting out the said fires. It would next be necessary to examine the terms and the validity or otherwise of such order for general mobilization and of such decision for special mobilization, in connection with their possible interaction with a call made under s. 17 of the Forest Law of 1967 in case their validity were upheld. In other words it must be examined whether the said order for general mobilization or decision for special mobilization would, if valid, sweep away a basis under the Forest Law of 1967 upon which the services of the plaintiff may purportedly have been rendered, Further, it must be considered whether, in case the order for general mobilization and the

decision for special mobilization were held invalid or ineffectual, the plaintiff would, in any event, be bound to come to the defence of his country by rendering such services gratuitously. I have already indicated that I regard such services in the circumstances I have briefly sketched as falling within the domain of the general effort of defending the country at the time. The last matter that will have to be examined is the rate at which the plaintiff must be paid for his services should liability to make such payment exist but this matter presents little difficulty.

The plaintiff has testified in support of his case and has called as witnesses three other men who, like himself, answered the call for assistance to fight the fires. The defence has called a large number of witnesses most of whom were forestry employees and officials who [*106] testified as to the circumstances in which the services of the public were sought and rendered for the purpose in question at the time. The defence has also called a newscaster employed with the Cyprus Broadcasting Corporation (D.W.8) who made the announcement over the radio of the order for general mobilization in the morning of 20th July, 1974, and who has, by consent, produced its text which is exhibit 2; the secretary of the Council of Ministers (D.W.II) who produced a copy of a

decision under No. I3423, dated 24th July, which is exhibit 3, purporting to. effect a special mobilization in connection with the fires; the secretary of a mixed Government and trade union labour committee responsible for fixing the rates of pay for various kinds of work including casual labour in the public sector (D.W.3); and an official employed in the Accountant- General’s office who has testified that those employed in the public service, save for casual labourers and those employed on a day to day pay basis, were paid their salaries for the period in question covering the coup and the invasion irrespective of other considerations. It should be mentioned here that there is also in evidence a decision of the Council of Ministers under No.13.510 dated 19th September, 1974, which is exhibit 4, produced by consent after an intimation by the Court that it was itself minded to call evidence relating to the said decision which has never been published in the official Gazette of the Republic.

The factual aspect of the case is so simple that I do not propose to rehearse the evidence given. To say [*107] that the plaintiff was not completely frank or to say, just to give another example, that the forestry official Mr. Koupparis (D.W.2) though as a whole reliable, seemed at times rather anxious to tow the defendant’s line, in contrast to Mr. Kyprianou (D.W.4) who was, I believe, a disinterestedly objective witness, would not change the essential factual background against which the legal issues must be considered, for the same basic thread rune through the testimony of every witness who has testified as to the events of that period in so far as relevant here. Such differences as there were regarding those events between these various witnesses both for the plaintiff and for the defendant were, I believe, largely attributable to the difference in the manner in which they had perceived them and the degree to which they were able to recollect them but also, perhaps, to the difference in the evaluation and classification of those events according to the significance or otherwise that they may have attached to the at the time in the light of their own experience particularly in connection with forest fire fighting and the way in which those events may have affected them.

There is no doubt at all in my mind that in the morning of 20th July, 1974, at Yerakies village, the call that came out for help to fight the fires was made by the appropriate officials in the same manner and in the same terms as similar calls made in the past under a.17 of the Forest Law of 1967. There may, indeed, have

been expressed some reluctance by the plaintiff and others like him, who [*108] were after a higher rate of pay than they were wont to

get, but no definite representation on this matter was made by anyone having authority to do so.

In must be appreciated, of course, that the remuneration paid for services rendered under s.17 of the Forest Law of I967 is based on an objective test of current rates in the area for manual work and is quite independent of agreement. Regarding such rate of pay, the only clear and reliable evidence is to be found in the rates for casual labourers set out in exhibit I which I regard as a good and reliable basis. These rates may, indeed, have been slightly lower than the rates prevailing in the private sector but there is no firm evidence on this, and I certainly do not accept the rates suggested by the plaintiff’s evidence. According to the secretary of the mixed labour committee (D.W.3), the current rate at that time for casual labour was £0.218 miles per hour, and this I accept as the rate at which the plaintiff would, in the event that the defendant were held liable, be entitled to payment. I would further note here, that though there is evidence that the plaintiff was for the period in question provided with basic food items, at least for some of which he did not, as I believe, pay, yet there is no indication of their amount or value, and for present purposes such food items must, therefore, be ignored.

I must now deal with the validity or otherwise of the order for general mobilization of 20th July, 1974 and of the decision of the so-called Council of Ministers [*109] under No. 13.423 dated 24th July, 1974, entailing a special mobilization for fire fighting. Both were, as has been suggested by counsel for the defendant presumably made under the National Guard Law of 1964 as amended, and I find it convenient to deal with both of them together.

The National Guard Law of 1964 as amended, makes provision for the defence of the Republic. Under s. 16 of this law, the call-up of reservists is effected by a decision of the Council of Ministers and the publication of such

decision in the official Gazette of the Republic is not required. Under s.4 of the National Guard Law of 1964 as amended, subject to a number of exceptions enumerated therein, liability for national service begins as from the 1st January of the year in which a person has completed his 18th year of age and continues until the 1st January of the year in which the 50th year of age is completed.

It must be observed that under Art. 57(4) of the Constitution it is provided that every

decision of the Council of Ministers must be promulgated by publication in the official Gazette of the Republic unless the Council of Ministers itself in respect of any particular decision otherwise states in that decision. The effect, therefore, of a legislative provision that a certain result will only ensue upon publication of a decision of the Council of Ministers is to provide a specific safeguard in particular instances where this is considered necessary and such instances may be met with in other parts of the National Guard Law. In cases, however, where no express provision [*110] is made in legislation for the publication of such a

decision but there is in such decision no statement by the Council of Ministers that there shall be no publication, yet the decision is not in fact published in the official Gazette, this may pose a constitutional problem between the President of the Republic and the Council of Ministers but none that has any bearing here. I say this because neither the order for general mobilization nor the said decision of the so-called Council of Ministers under No.13.423 dated 24th July, 1974, contain any such statement regarding non-publication, yet they have not been published in the official Gazette - and if this could not be done immediately owing to the prevailing circumstances then at least on the first reasonably practicable opportunity. However, in so far as the question of publication is concerned, I would, accept, for present purposes that both the said order dated 20th July, 1974, and the said decision dated 24th July, 1974, were in the circumstances sufficiently published by being broadcast over the radio.

The said order for general mobilization of 20th July, 1974, purported to be a proclamation for the call up (a) of trained reservists both officers and men of the 1958 and subsequent classes; and (b) of persons with no military training irrespective of age who belonged to any of the following callings, namely, doctor, dentist, pharmacist and nurse upon service on any such person of a personal summons. The decision of the so-called Council of Minister under No.13423 dated 24th July, 1974, reads as follows:- [*111]

“Measures on the subject of forest fires.

Decision under No.13423. 3. It is decided to call up the residents of the surrounding areas to help put out the fires.”

The plaintiff in the present case has stated in cross-examination that he was born in 1927. Despite the obvious flaw in such statement which is in a strict sense hearsay, it might in the present context be relied on as an admission against interest by the plaintiff constituting the accepted premise upon which the respective positions of the parties rest in so far as the plaintiff’s age might be relevant: on the possible value of such statements see R.v. Turner, (1910) 1 K.B. 346 at p. 362

and R.v. Jones,(1933) 24 Cr. App. Rep. 55; cf Customs Comptoroller v. Western Electric Co,(1965) 3 All E.R. 599. The plaintiff will,

therefore, be deemed to have been during the relevant period, in view of his age, liable for call up for national service.

It is clear, upon perusal of the order for general mobilization of 20th July, 1974, that the plaintiff was not in any way caught by its terms for he could not, in view of his age, belong to the classes of trained reservists; and neither did he belong to any of the various callings specified in the order. However, the plaintiff would in the circumstances be caught by the terms of the decision under. No. 13.423 of the so-called Council of Ministers dated 24th July, 1974. [*112]

A more fundamental issue bearing on the validity of the said order and decision has, however, been raised in the present case. The coup d’ etat of 15th July, 1974 had ousted the President and the Council of Ministers of the Republic and by 20th July, 1974, the seat of Government was being occupied by the representatives of the usurping power. Mr. Nicos Sampson, a known figure on the scene since the struggle against the British, was assigned the role of President, and a number of other well known persons sadly took part in the show as Ministers of’ state. On 23rd July, 1974, amid the catastrophe, the uncertainty and the confusion, it was realized that some semblance of normality was necessary if the Republic of Cyprus was to stand any chance of survival. Mr. N. Sampson left the scene and Mr. G. Clerides took over under the provisions of the Constitution, as he himself stressed at the time, but the constitutional position of Mr. G. Clerides at that time is not in issue here.

What is of importance is that the group of persons which purported to act as Council of Ministers of the Republic under Mr. N. Sampson, remained essentially the same until 8th August, 1974, when Mr. G. Clerides himself appointed Ministers of State. In my opinion, the sufference by Mr. G.Clerides between 23rd July, 1974, and 8th August, 1974, of those persons who continued during that period to purport to act as Ministers, and who together purported to constitute a Council of Ministers of the Republic, could in no way clothe them with legality. Therefore, the so-called Council of Ministers which had been set up by the usurping power and which continued so to act up until 8th August, 1974, was in law nonexistent, and I so hold. [*113]

Could they not be recognized, however, as de facto organs? The decision of A. Loizou J. in Liasi & Others v. The Attorney General and Another, (1975) 3 C.L.R. 558 with which I respectfully agreed, provides the short answer which is in the negative and I see no useful purpose in reiterating here the principles applicable. However, the question has been raised whether actions or decision of the usurping power relating to the call-up may not be upheld since they were made under exceptional circumstances when the very existence of the country was at stake by reason of the Turkish invasion which rendered imperative the taking of such decisions in the general good and, further, since the lawful government itself could and would have taken them support for this proposition may be found in Odent’s “Contentieux Administratiff”, 1965-66 at p.188. To this, again there can be given a short answer which is that, in the absence of specific legislation, the point must revolve on the requirements of public policy as discerned by the Court. This means that the result might conceivably differ according to the view taken of the requirements of public policy: see on this the very interesting cases of Madjimbamuto v. Lardner-Burke, (1968)

3 All 561; Adams v. Adams, (1970) 3 All E.R. 572; and Re James (an insolvent) Attorney General intervening), (1977) I All E.R. 364 all of which

relate to the Rhodesian question of the 1965 U.D.I. Of course, the view that the executive takes of the matter is of particular importance as an indication of the requirements of public policy and the decision of the Council of Ministers under No. 13510 dated 19th [*114] September, 1974, (exhibit 4) which bears on this issue must be taken into account. This last decision which was considered and described at first instance in the case of Tsangarides & Others v. The Republic, (1975) 3 C.L.R.I; 3 C.L.R. 290, as an “ascertaining act” constitutes in essence a mode of sanctioning by the executive of that time, in point of public policy, the general mobilization proclaimed on 20th July, 1974. I do not accept this view of the executive.

In my opinion in the case of the coup d’ etat of 15th July, 1974, high policy would require that all acts and decision’s of the usurping power should be damned without saving grace. The Coup d’ Etat (Special Provisions) Law of 1975 (No.57 of 1975) was passed rather belatedly on 31st October, 1975, to confirm this. That law may, indeed, leave something to be desired in its definition of “coup d’ etat government” but it is otherwise couched in absolute terms. Section I4 provides that:-

“Any act by the coup d’etat government in purported pursuance of any powers or duties is non-existent and of no effect.”

No exception is created. Thus, the order for general mobilization of 20th July, 1974, and the said decision under No.13.423 of 24th July, 1974, are not saved. They are simply non-existent and of no effect.

In so far as the said order for general mobilization is concerned, it must be pointed out

that the case of Tsangarides & Others v. The Republic, (supra) both at first[*115]instance and on appeal, was decided prior to the

passing of the Coup d’ Etat Law of 1975 and the question of the validity or existence of the said order for general mobilization was not disputed and was, consequently, taken for granted by the Court. The decision in Tsangarides’ case (supra) on this point was, therefore, obiter. It must be stressed that the decision of the Council of Ministers under No.13510 dated 19th September, 1974 (exhibit 4) to which I have already made reference and with which the Court in Tsangarides’ case (supra) accepted as valid, would now, in the light of my conclusions regarding the said order for general mobilization of 20th July, 1974, cease to have any significance.

I have finally considered whether there might not exist under the common law some fundamental duty whereby it would be incumbent upon the citizen to come to the defence of the realm by helping to fight back in whatever way was necessary or possible in order to repulse an enemy attack which threatened its very existence. I am afraid I have found no authority for such a proposition. On this, the case of Burmah Oil Co. v. Lord Advocate, (1964) 2 All E.R.348 (H.L.) provides an example of the difficulties inherent in delving too far back into the past which is so necessary in the search for assistance in matters of this kind.

It will have transpired from what I have stated that the said services rendered by the plaintiff were rendered exclusively under the provisions of s.17 of the Forest Law of 1967 and that the plaintiff is entitled to be

compensated for those services. The plaintiff having worked[*116]for a total of 207 hours at £0.218 mils per hour as I

have already found, simple arithmetic would show that the remuneration owing to him by the Republic amounts to £45.126 mils.

In the result, judgment is given, for the plaintiff and against the defendant in the sum of £45.I26 mils with costs on the scale of the amount recovered to be assessed by the Registrar.

Judgment for £45.126 mils with costs.