Sometimes You Win by Losing: Reflections on the Supreme Court Decision in Application No. 46/2025

By Dr. Pavlos Neophytou Kourtellos – Advocate

The Supreme Court’s decision of 12 March 2026 in Application No. 46/2025 may initially appear to be nothing more than an unsuccessful attempt to refer a legal question to the Full Bench under section 9(3)(c) of the Administration of Justice Laws.

But the real significance of the decision lies elsewhere.

The issue concerned the interpretation of the word “land” in section 281 of the Criminal Code (Cap. 154). More specifically, the question was whether the provision — which criminalises the possession or use of land registered in another person’s name without the owner’s consent — extends beyond land strictly understood to include buildings or other forms of immovable property.

The Court of Appeal’s decision, which overturned the trial court’s acquittal, created the impression among some practitioners that a shift in the case law had occurred. It appeared to suggest that section 281 might apply more broadly to cases involving buildings or landlord–tenant relationships.

Such an interpretation would have significant practical consequences. It could allow registered owners to pursue criminal proceedings alongside civil remedies, potentially using criminal law as a mechanism to compel tenants to vacate premises following the termination of a lease.

However, the Supreme Court clarified something important.

It found that the interpretation of the word “land” had not actually been examined by the Court of Appeal. As a result, the issue could not be considered to “arise from the judgment of the Court of Appeal” — a prerequisite for referral to the Full Bench under section 9(3)(c).

The implication is crucial: where there is no appellate determination, there is no binding precedent. In other words, the perception that the Court of Appeal’s decision established a new doctrinal direction is misplaced. The question of whether section 281 applies to buildings or other forms of immovable property remains open.

This means that in future criminal proceedings where the defence challenges the applicability of the provision or the validity of the charge, the prosecution cannot rely on the Court of Appeal decision as binding authority on that issue.

The Supreme Court itself acknowledged the broader importance of the matter, noting that the legal status of tenants who remain in possession following the termination of a lease — whether of land or buildings — is a question that concerns many tenants, landlords, and society at large, and expressed the hope that the Court will soon have the opportunity to provide guidance.

And so, we return to a familiar legal paradox: Sometimes you win by losing. Although the referral application was dismissed, the central interpretative question – the meaning of “land” in section 281 of the Criminal Code- remains unresolved. It is likely only a matter of time before the issue returns to the courts.