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Colonial Cases

Georghiades v. Zia, 1888

[local government]

Georghiades v. Zia

Supreme Court of Cyprus
Bovill C.J. and Templer A.J., 21 May 1884
Source: (1888) 1 Cyprus Law Reports

 

[BOVILL, C.J., AND TEMPLER ACTING J.; 1888]

NICOLA L. GEORGHIADES AND OTHERS, Plaintiffs,

v.

YOUSSOUF ZIA, Defendant.

MUNICIPAL COUNCIL - DECLARATION OF MEMBER - UNAVOIDABLE CAUSE PREVENTING MAKING OF DECLARATION - PENALTY - APPLICATION OF PENALTY - MUNICIPAL COUNCILS' ORDINANCE 1882 SECTIONS 43 AND 99.

Section 43 of the Municipal Councils' Ordinance, 1882, provides that if any unqualified person shall act as president, Vice-President or Member of a Municipal Council he shall "for every such offence forfeit the sum of £20, such sum to be recovered with full costs of suit by any person who will sue for the same."  By section 99, when the application of any penalty is not otherwise provided for, any portion thereof not exceeding one-half may be awarded to the informer, etc.

   HELD: that the words of Section 43 do not impart any application of the penalty to be recovered there under; and that under section 99 not mire then one-half of such a penalty can be awarded to an informer.

   APPEAL from the District Court of Larnaca.

   Action to recover the sum of £20 as a penalty for having acted as Vice-President of the Municipal Council of Larnaca without having made the declaration required by Section 38 of the Municipal Councils Law, 1882, within seven days of the date of election as a Municipal Councillor.

   An election of members for the Municipal Council of Larnaca was held on the 22nd March, 1888, at which the Defendant was elected a member; and on the 30th March he made a declaration in the form required by Section 38 of the law.  That section provides that if any person elected a member shall neglect to subscribe the declaration within seven days from the date of his election, unless prevented by illness or other unavoidable cause, he shall cease to hold office.

   On April the 2nd the defendant was elected Vice-President of the Council.

   He admitted having done an act in his capacity of Vice-President of the Council on April 4th, and pleaded that he was a Government official and unable to leave his duties before March 30th and so was prevented by an unavoidable cause from making the declaration required by Section 38 within the seven days.

   The District Court gave judgment for the Plaintiff.

   The Defendant appealed.

   Rossos for the appellant contended that the defendant was bound as a Government official not to leave the work on which he was engaged at the salt lake near Larnaka, and that he was thus prevented by an unavoidable cause from making the requisite declaration within the time prescribed.

   Collyer, Q.A., for the respondents: (with regard to a question raised by the Court as to the application of the penalty under Section 99).  Section 43 says that the sum is to be recovered by any person who will sue for the same: and this means that the penalty is to be recovered and is applicable to him.  Section 99 does not refer to such a case as this but to such cases as is provided by Sections 103 and 104.

   Judgment: This is an action brought to recover penalties under the Municipal Councils' Law of 1882 from the defendant, who was elected a Member of the council in March last. There are several grounds put forward in support of the claim of the plaintiffs that the defendant shall be ordered to forfeit penalties, and the Court below has held that the defendant is liable to pay a penalty of £20 for issuing certain building permits, on the ground that having been elected a Member of the Municipal Council of Larnaka he failed within seven days from his election to make and subscribe the declaration required of him by law as a member; that he thereby ceased to be a member, and that in subsequently issuing building permits he wrongfully acted as a member of the Council when he was invested with no such office.

    The issuing of building permits is the only act alleged as a ground of forfeiture.  The Court has ordered the forfeiture of a penalty of £20 and against that there is no appeal on the part of the plaintiffs.

   It has been alleged by the plaintiffs, that the defendant in issuing these permits wrongfully acted as Vice-President of the Council.  We do not propose top go into that question.  It rests on entirely the same ground as the contention in an action brought by these plaintiffs against N. Rossos on which we have recently delivered a judgment setting out our views.

   Now as to whether defendant by failing within seven days of his election to make his declaration that he accepted office as a member of the Council thereby ceased to be a member.  As to that there can be no doubt, unless the defendant was, in the words of the ordinance, "prevented by illness or other unavoidable cause from so doing."  And it is alleged that he was prevented by unavoidable cause.  The unavoidable cause put forward is that he had official employment which kept him at work at the salt lake from morning till night from the 27th of March till some date in April.  We cannot see how this cause unavoidably prevented him from making his declaration.  The defendant was every morning and evening at Larnaca and might then have made his declaration before two members.  There is no evidence whatever that he attempted to do so.  He appears to have altogether neglected to make the declaration required of him and we are of opinion that he thereby ceased to be a member of the Council, and his subsequent acts as a member are therefore such as to bring him within the law.

   For these reasons we are of opinion that the judgment of the District Court is right and we must confirm it in so far as it orders the payment of a penalty by defendant.

   There is, however, one point on which we think the judgment needs correction.  The Law, Section 43, says that id any person shall act as Councillor without having made the declaration in that behalf required, or after he shall cease to be qualified, he shall forfeit the sum of £20, such sum to be recovered with full costs of suit by any person who will sue for the same within three calendar months; and Section 99 provides that when the application of a penalty is not otherwise provided for, any portion not exceeding one-half, may be awarded to the informer and the remainder to the Municipal Council; and it has been assumed that when the law says a penalty may be recovered by an informer it has thereby directed it to be allied for the benefit of the informer.  We are yourselves disposed to think that that was the intention with which Section 43 was framed; but we had at the time of the hearing of the appeal doubts whether the language of the clause has given effect to that intention, and on a consideration of that language we do not think it has.

   The language is taken directly from an English Law dealing with the affairs of Municipal Corporations.  The word recover is used in exactly the same way in that law, and in the same clause in which it is used directions are given as to the application of the sum recovered similar to those which we find ion Section 99.  We do not therefore think that the informer is entitled to take the full penalty; he is, in our opinion, entitled to only such part of it (not exceeding a half) as the Court may direct.  We are of opinion that this is not the intention with which Section 43 was framed, and we think it unfortunate that the law does not absolutely provide for the application of the penalty.  In this case the defendant has, through mere carelessness, rendered himself liable to this penalty.  He has not in any way acted in bad faith, with wrongful purpose, but he has acted with culpable carelessness, and it is perhaps no bad thing that persons taking upon themselves the responsibilities of the office of Municipal Councillor should understand that they are taking upon themselves responsibilities and not merely powers.  Our decision in this case proceeds on a bare statement of facts.  Whatever motives may have promoted them to initiate this action, and that is a matter we are not concerned to enquire into and which does not come under our notice in this action we are of opinion that the plaintiffs have done no bad thing from the point of view of the public in manifesting the fact that the assumption of office is an assumption of responsibility.  We shall therefore award half the penalty to the plaintiffs; the other half will go to the Municipal chest, and the defendants must pay the costs of the action.

   Judgment varied.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[BOVILL, C.J., AND TEMPLER, ACTING J.; 1888]

NICOLA L. GEORGHIADES AND OTHERS, Plaintiffs,

v.

NICOL.A ROSSOS, Defendant.

MUNICIPAL COUNCIL - ELECTION OF COUNCILLORS - DECLARATION MADE BY GOOD FRIDAY - MUNICIPAL COUNCILS' ORDINANCE, 1882, SECS. 38, 43 AND 107.

The defendant, who was duly elected as a Member of a Municipal Council, made the declaration required by section 38 of the Municipal Councils' Ordinance, 1882, on Good Friday.

   HELD: that the defendants declaration so made was valid.

   APPEAL from the District Court of Larnaca.

   Action to restrain defendant from acting as a member or as President of the Municipal Council of Larnaca, and to recover penalties for having acted as President of the Council without having made the declarations required by Section 38 and 39 of the Municipal Councils' Ordinance, 1882.

   The defendant was elected a member of the Municipal Council of Larnaca and made the declaration required by Section 38 of the Municipal Councils' Ordinance, 1882, on Good Friday.

   On the 2nd of April there was a meeting of the Council at which the defendant was elected President.  There was no quorum of the council present at that meeting.  The defendant made the declaration required by Section 39, but it was not clear on the evidence whether this declaration was made on the 2nd or the 4th April.  Subsequently to his election as a member of the council the defendant signed two building permits, but he alleged he did this in his capacity as a member and not as President of the council.

   The defendant pleaded that the declaration he made on Good Friday was valid, and alleged that he had never been elected and had never acted as President of the Council.

   The District Court dismissed the action on the ground that the declaration, though made on Good Friday, was valid, and that there was no evidence that the defendant had acted as President of the Council.

   The Plaintiffs appealed.

   Diran Augustin, for the Appellants: The defendant admits that his declaration was made on Good Friday and I contend that the declaration so made was invalid under Section 107 of the Ordinance.

   Respondent in person:  Section 107 is permissive and does not render invalid the acts done on holidays.  I am a member of the Eastern Church and 20th March was not Good Friday for me.  Good Friday for members of the Eastern Church fell in May 4th.  The proceedings of the meeting at which I was elected President were a nullity and I have never acted as President.

   Judgment: In this action the plaintiffs claim that the defendant may be restrained from acting as President or as a member of the Municipal Council of Larnaca, and that he may forfeit sums of £20 under section 43 of the Municipal Councils' Ordinance of 1882.

   The plaintiffs have stated the facts on which they rely in support of the claim as follows:

  1. That defendant, after his election as as councillor, made the declaration required by law to be made by members of the council on Good Friday. Hence it is argued that the declaration was made on a public holiday and is for that reason a nullity.
  2. That defendant, having been elected President of the Council, did not make the declaration required by law to be made by him on his appointment at the time and in manner by law appointed.
  3. That defendant was not elected at a meeting duly qualified to dispose of business.
  4. That notwithstanding these facts he has acted in the capacity of President by issuing two permits for building.

In reply to these allegations the defendant admits:

  1. That he made his declaration as a councillor on Good Friday and contends that his declaration made on that day is perfectly good.
  2. Admits that he was never lawfully elected President of the Council and contends that his declaration made in  consequence of that informal election  (whether that declaration was in itself formal or informal) is also a nullity,, and
  3. Admits signing the building permits, but contends that his signing them was not a presidential act.

   It would appear therefore that there were no material facts in dispute except whether the building permits were signed by the defendant as President of the Council, and on that point no issue was settled.

   There is one issue stated for the consideration of the court; which us, whether the defendant made his declaration as President on the 2nd or the 4th of April.

    This does not appear to be a matter worth considering for, on whatever date it was made, it was plainly not made at the time when defendant was appointed President, in the presence of the members then present.  Besides which, it is alleged by plaintiffs and admitted by defendant that the election was invalid, so that for the purposes of this action here can be no question on that subject, and we do not think that the defendant's declaration made in consequence of that admittedly invalid election could be of any effect.  If it could in any case operate as an estoppel to any contention on his part that he was never President, it certainly could not do so as between the defendant and the plaintiffs. Who have not been in any way induced by that act of the defendant to incur any responsibilities which they would not otherwise have incurred.

   On the facts alleged by the one party and admitted by the other there is therefore one legal question arising, viz: whether the defendant in making his declaration as a Councillor on Good Friday, in point of law failed to make an operative declaration.

   The parties were evidently also at issue as to the effect of the issue by defendant of the two building permits, but they did not technically go to trial on this question.

   As to the solution of the question of law above stated we have no doubt.  The making of a declaration is not one of those acts for the doing of which a specific day is named by the law, as is the case with the publication and revision of the voters lists, and Section 107 or the ordinance has nothing to do with the matter.

   As to the question of fact which, as we have mentioned, is distinctly raised by the parties but not put in issue, we cannot say that it is or ever has been properly before the Court for decision, but assuming that it has been put in issue and is submitted for the decision of the Court, as appears to have been the opinion of the Court below, then we cannot say that the plaintiffs have furnished any such evidence as would justify us in adopting their view of the matter.

   This disposes of all the questions of fact and law properly submitted for the decision of the court.  In saying this we do not overlook that fact that the plaintiffs have, both at the trial in the Court below and here, attempted to set up against the defendant other acts done by him as President besides the issuing of the two building permits.  There ahs been mention of a letter written by him as President on the 2nd of April, 1888, and it is now said that his declaration of acceptance of office after his admittedly invalid election  as President was a Presidential act.  Neither of these acts was originally alleged in this action against the defendant as an act in consequence of which he had rendered himself liable to the payment of any penalty.  Defendant asked for information as to the acts relied upon as rendering him liable to penalties, and was told that they were the issue of two building permits.  No other act was alleged, so far as this action is concerned, no other can be made us of.   Whatever might be the case in another action, this is not an action of such a nature as would incline us to allow the plaintiffs any opportunity of making good defects in their pleadings.  As to that part of plaintiff's claim which asks for an injunction, we do not see that any ground for relief is established.

   We are of opinion that defendant is a member of the council so he should not be restrained from acting in that capacity.

   As to his acting as President, There is no suggestion that the defendant either threatens or intends to act as President, indeed he entirely disowns any such intention.  Nor have we any evidence that he ever so acted.

   We must therefore confirm the decision of the court below and dismiss the plaintiff's appeal with costs.

   Appeal dismissed.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[BOVILL,  C. J, AND SMITH, J.; 1889, Feb 21 & Match 11]

CHACALLI AND LAKOVIDES, Plaintiffs,

v.
CHRISTODOULO PHILAKTO, NICOLA H. AND COSTANDINO PHILAKTI,

Defendants.

PROMISSORY NOTE - AGREEMENT IN NOTE FOR PAYMENT OF INTEREST - NEGOTIABLE INSTRUMENT - COMMERCIAL CODE, SECTION 145.

   A promissory note which in other particulars fulfils the conditions required by Article 145 of the commercial Code, does not lose its negotiable character simply because it contains an agreement for the payment of interest.

   APPEAL from the District Court of Kyrenia.

   Action on a promissory note made by defendant Christodoulo to the order off the two other defendants and endorsed by them to the plaintiffs.

   Amongst other defences to the action, it was contended by the defendants that, inasmuch as the note contained a stipulation for the payment of interest if it were not paid at maturity, it was not a negotiable instrument, and that the property in it could not be transferred by endorsement to the Plaintiffs.

   The District Court on other grounds gave judgment for the defendants.

   The Plaintiffs appealed.

   The Queen's Advocate, for the Appellants: The note is a promissory note within the meaning of Section 145 of the Commercial Code and defendants who endorsed it are liable as endorsers.

   The Court in giving judgment said that this note did not lose its negotiable character simply because it contained an agreement to pay interest.

   Appeal on other grounds allowed.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School