It may be ordered by applying for a writ of mandamus to the Supreme Court
Every person exercising public authority must properly apply the law for the benefit of the public and without interfering with a recognised right of any person. Indeed, such person is given a second opportunity to review their act for active compliance to make it lawful, upon a discrete demand by the person affected.
The public authority may be the lower courts, registrar of companies, director of the land registry office, district officer or any other authority if acting in the field of private law and subject to a duty under the act or regulations.
In the absence of any remedy offered for redress and to strengthen the law, the procedure of filing an application before the Supreme Court for a writ of mandamus to enforce performance of the duty is offered.
There are two recent judgments from the Supreme Court that are guiding, one from December, relating to a duty of the registrar of companies under the Companies Law, Cap.113, Article 192(4) and the other dated December 6 and related to an alleged failure of the director of the land registry to perform a duty pursuant to the Immovable Property Law, Cap.224, Article 61(1).
Changes in the corporate management structure of certain companies occurred and one of these changes involved the directors and the secretary. The company notified the registrar of the changes by submitting form HE4. Under Article 192(4) the registrar has a duty to record the changes, but because they also affected the secretary, he required that the form be accompanied by a signed certificate from both the previous and the new secretary. For reasons explained it was not possible for the previous secretary to sign and although he was requested by letter to perform his duty, the registrar refused to make the entry. The rights of the companies were therefore affected and they sought leave of the Supreme Court to file an application for a writ of mandamus to compel the registrar to perform his statutory duty.
The court stated that for a writ of mandamus the issue raised must fall within the sphere of private and not public law. Before resorting to the remedy of mandamus, the person concerned has to prove that they have demanded from the public body the performance of the duty and been refused. Having regard to the provisions of Article 192(4), the court held that a prima facie case was established so the registrar must respond.
Permission was also sought for a writ of mandamus to compel the land registry director to cancel the transfer of certain properties on the basis of an existing interim order of non-dispossession and transfer. The order, which was served to the land registry, was issued in the context of a dispute between seller and buyer due to the non-transfer of the properties because they were mortgaged.
The purchaser, who paid a substantial deposit, found that the mortgage lender proceeded to sell them and upon application to the land registry, the latter accepted the application to transfer them to the new purchaser. The vendor’s company demanded the director apply the provisions of Article 61(1-3), but in reply she advised that the disputed properties were acquired by the new purchaser in accordance with the provisions of Law 9/65 and therefore sought the permission of the Supreme Court to issue a mandamus order.
The Supreme Court after referring to the conditions laid down in the case law for issuance of mandamus, concluded that the petitioner did not have the necessary legitimate interest since it was the owner company that contracted for the sale of the properties. What is contained in Article 61(1) does not create a specific obligation on the land registry director, the breach of which is amenable to the issuance of a writ of mandamus. Consequently, the court refused to give leave and dismissed the application.
George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]