Demolition order against former plot owners upheld as statute applies to convicted persons regardless of current ownership.

[*703] 1982 October 7

(KALLIS, AG. D.J. )

IN THE DISTRICT COURT OF NICOSIA

District Officer, Nicosia,

v.

Alekos Miltiadous and Another,

Accused.

(Case No. 11570/82).

Demolition order - Accused no longer owners of plot on which building, subject matter of charge, erected - Whether a demolition order can be made against them.

Right to property - Interference with.

K. Manoullos, for the Prosecution.

L. Georghiadou (Mrs.), for the Accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS. AG. D.J.: The accused pleaded guilty [*704] to a count of the offence of erecting a building without a permit from the appropriate authority contrary to sections 2, 3 and. 20 of the Streets and Buildings Regulation Law, Cap. 96, and on a count of allowing the erection of a building contrary to the above same sections. Accused 1 was the Secretary and accused 2 the Chairman of the "Ethnikofrona Somatia" of Vyzakia village, and the plot on which the building was erected belonged to this club. After commencing the erection of the building the accused were prevented from further proceeding with the erection by means of an interim order, and they had constructed only the foundations before the interim order. The charge was filed on June 18, 1982, and some time between this date and the 30th June, 1982, the plot in question was transferred to another owner. Counsel appearing for the prosecution, in putting forward today the relevant facts, stated that in the way the erection of the building has started, it is impossible for a covering permit to be issued, and applied for a demolition order.

Counsel for the accused, along with putting forward various mitigating factors, submitted, that since the plot in question no longer belongs to the accused, no demolition order can be made against them in respect of the building [*705] standing thereon because if accused attempt to enter the plot and demolish the premises, they will be trespassing thereon, and, further, if they do not comply with the demolition order, they will face a charge of disobedience to a Court order contrary to s. 20(5) of Cap. 96.

Counsel for the prosecution, in reply to this last argument, submitted that if such argument is sustained, then would-be offenders would evade punishment by transferring the plot concerned.

The power to make a demolition order emanates from s.30(3)(a) of Cap. 96 which runs as follows:-

" (3) In addition to any other penalty prescribed by this section, the Court, before which a person is convicted for any offence under subsection (1), may order –

(a) that the building or any part thereof, as the case may be, in respect of which the offence has been committed shall be pulled down or removed within such time as shall be specified in such order, but in no case exceeding two months, unless a permit is obtained in respect thereof in the meantime from the appropriate authority . . . . . " [*706]

Section 20(4) and (5) of the same Law, provides:-

"(4) If any person against whom an order has been made under the provisions of subsection (3) or (3A) shall fail or neglect to comply with such order within the time specified therein, it shall be lawful for the appropriate authority to carry out such order and any costs incurred for the carrying out thereof shall be payable to the appropriate authority by the person against whom the order was made and such costs shall be deemed to be a penalty within the meaning of the Criminal Procedure law, and payment thereof shall be enforced accordingly.

(5) Any person against whom an order has been made under subsection (3) or (3A) who disobeys or fails to comply with such order shall, notwithstanding that the appropriate authority has proceeded to carry out or has carried out such order, be guilty of an offence and shall be liable to imprisonment not exceeding three months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine." [*707]

It is clear from the combined effect of the above-quoted provisions that a demolition order can be made against a person convicted of any offence under Cap.96.

The state of the law being as above, there arises the question whether a demolition order can be made against the accused in respect of buildings not belonging to them but to third persons who are not parties to these proceedings and have no notice thereof.

The offence to which the accused have pleaded guilty emanates from the absence of a building permit. In Lordos & Anastassiades Ltd. and Another v. District Officer of Limassol and. Another, (1976) 2 C.L.R. 145, Triantafyllides, P., in delivering the Judgment of the majority of the Court of Appeal, stated the following at p. 151:-

"Looking at our own legislation in Cyprus, and considering the relevant provisions in conjunction with each other, I am of the opinion that the proper Conclusion is that a building permit issued under section 3 of Cap. 96 is issued to the person applying for it not as a licence in personam, but as a licence in rem; in other words, it is issued, in relation only to the proposed building operations [*708] on the land concerned, in accordance with plans submitted for the purpose; and, therefore, it does not lapse upon transfer of the ownership of the land on which the building operations are to take place, or have commenced taking place, but it runs with the land; and my main reasons for this conclusion are, inter alia, the following:- . . . . ."

Since, therefore, a building permit runs with the land, it is reasonable to conclude that all obligations emanating from the existence or not of the permit run with the land and I so hold. Accordingly, no demolition order can be made against the accused.

Further, the demolition order against these accused cannot be made for the following reason: This order, as it is natural, if made will affect substantial property rights of third persons who are not parties to these proceedings, and have no notice thereof. And it would be unthinkable for this Court to make an order affecting property rights in the absence of the property owners. It should not be forgotten in this connection that the right to property is one of the fundamental rights and liberties guaranteed by the Constitution; and it is well-settled that there can be no interference with this fundamental [*709] right, save by a law of the House of Representatives (see Police v. Hondrou, 3 R.S.C.C. 82, and Spyrou and Others (No.2) v. Republic,

(1973) 3 C.L.R. 627). Moreover, in case of doubt as to the extent or effect of any statute involving interference with the right of property, such doubt has to be resolved in favour of the liberties of the citizen (see Chilimintri v. Municipality of Famagusta, (1969) 3 C.L.R. 159; Marangou and Others v. Municipality of Famagusta, (1970) 3 C.L.R. 7; Spyrou, supra: and Fina (Cyprus) Ltd. v. Republic, 4 R.S.C.C. 26.

Also, from the above-quoted provisions, it is clear that if the accused, though otherwise willing and prepared to comply with the order fail to do so because they will be prevented by the owners of the buildings, they will be liable to be prosecuted for the offence of disobedience to a Court order. Since the relevant provisions are silent on the issue, then these provisions have to be construed and applied "having in mind respectively the consequences of the possible alternative interpretations involved, and there should have been avoided that view which would have led to manifest public mischief, great inconvenience, grave hardship, unreasonableness, absurdity or injustice". (per Triantafyllides,

P. in the Lordos case supra). [*710]

In Arthur Hill v. The East and West India Dock Company, (1884) 9 A.C. 448, 456, it was said by Earl Cairns:-

"It appears to me that both of those constructions to which I have referred, the construction contended for by the appellant and the construction placed upon the section by James L.J. are possible constructions; and where there are two constructions, the one of which will do, as it seems to me, great and unnecessary injustice, and the other of which will avoid that injustice, and will keep exactly within the purpose for which the statute was passed, it is the bounden duty of the Court to adopt the second and not to adopt the first of those constructions."

In Simms and others, v. The Registrar of Probates, (1900) A.C. 323, 335, it was stated by Lord Hobhouse that:-

"It is quite true, as Bundey J. intimates when he is pointing out the severity of the law, that Courts must nevertheless construe it according to its true meaning. But where there are two meanings each adequately satisfying the language, and great [*711] harshness is produced by one of them, that has legitimate influence in inclining the mind to the other."

In Shannon Realties, Limited v. Ville De St. Michel, (1924) A.C. 185, 192, 193, Lord Shaw of Dunfermline said:-

"Where the words of a statute are clear they must, of course, be followed; but, in their Lordships' opinion, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system."

In Holmes v. Bradfield Rural District Council, (1949) 1 All E.R, 381, 384, Finnermore, J. said the following:-

"The mere fact that the results of a statute may be unjust or absurd does not entitle this Court to refuse to give it effect, but, if there are two different interpretations of the words in an Act, [*712] the Court will adopt that which is just, reasonable and sensible rather than that which is none of those things."

In Coutts & Co. v. Inland Revenue Commissioners (1953) A.C. 267, 281, Lord Reid said:-

"In general, if it is alleged that a statutory provision brings about a result which is so startling, one looks for some other possible meaning of the statute which will avoid such a result, because there is some presumption that Parliament does not intend its legislation to produce highly inequitable results."

The above dictum was cited with approval in Fry v. Inland Revenue Commissioners, (1959) Ch. 86, 105.

In Richard Thomas and Baldwins, Ltd. v. Cummings, (1955) 1 All E.R. 285, 290, Lord Reid stated:-

"The fact that the interpretation for which the respondent contends would lead to so unreasonable a result is, in my opinion, sufficient to require the more limited meaning of 'in motion' to be [*713] adopted unless there is some very strong objection to it, and none was suggested. It is true that the Factories Act is a remedial statute and one should, therefore, lean towards giving a wide interpretation to it, but that does not justify interpreting an ambiguous provision in a way which leads to quite unreasonable results,"

In view of the real possibility of serious consequences for the accused if they fail to comply with the order, even for reasons beyond their control, this Court is of the opinion that the prosecution of the accused for such failure would result to great inconvenience, hardship, unreasonableness, absurdity or injustice, and in the absence of express words in the statute, this Court holds that the legislature did not intend such results.

Also, looking at this case from the point of view of the principles of equity, we should bear in mind that "equity does nothing in vain; and will not issue decrees which it cannot be certain to enforce. Equity's view is that of a wise parent dealing with his children; it is best not to issue orders unless you can be absolutely sure of effecting compliance". (See Hanbury and Mandsley Modern Equity, 10th edn. pp. 43 - 44). [*714]

The submission of the prosecution that a demolition order must be made because otherwise accused will be transferring the land in order to evade the consequences cannot be sustained, because nobody can prevent bona fide dealings with property; if it is proved to the satisfaction of the Court that the transfer was made for the purpose of evading punishment, then this is an aggravating factor militating towards a heavy punishment of the original owners, but no such proof came in this case. Moreover, the prosecution does not remain without a remedy, for in its armoury there is an effective weapon. It is section 10 of Cap. 96, as amended by s.7 of Law 24/78, which makes possible the prosecution for occupation or use of premises without a certificate of approval, notwithstanding absence of building permit. So, therefore, the prosecution may prosecute any of the future owners of the buildings for contravention of the above section and obtain a demolition order.

In view of my above conclusions, I will decline to make a demolition order against the accused. Having regard to the nature of their offence, the stage the buildings reached, their personal circumstances and their interest in the building, I sentence them to pay a fine of £5 each on count 1 and a fine of £3 each on count 2.

Each accused to pay £5.- fine on

count 1 and £3.- fine on count 2.