clr/1979/1979_3_227.pdf

(2)of the Births and Deaths Registrathn Law, 1973 (Law 85/1973). Administrative Law—Administrative organ—Inquiry—Principles go­ verning the duties of administrative organs regarding the holding of aproper inquirybefore arriving at adecision innon-disciplinary matters—Council of Ministers considering Public Officer's applicationfor determination of his date of birth—Discrepancies in the information submitted by applicant—Documents before the Council presenting a sufficiently clear picture to enable them decide the issue—Νon invitation of the applicant by the Council to furnish them with any further explanations before reaching their decisionnot open to any criticism—HadjiLouca v. Republic

(1969)3 C.L.R. 570 at pp. 574-575 and Constantinou v. Repu­ blic

(1972)3 C.L.R. 116at pp. .125-126 followed. The applicant was a pharmacist, 1st Grade, in the Medical Department. He first entered the Government service in 1942. Inhisapplication for appointment hegavehis dateof birth asthe 227 loannides v. Republic

(2)of the Births and Deaths Registration Law, 1973 (Law 85 of 1973), read in conjunction with Law 16 of 1895 and were, therefore, under a misconception with regard to the legal position. Counsel sumbittcd. in this connection,that the certificates of birth which showed applicant's date of birth as the 6th January, 1915, should not have been relied upon because they were based on hearsay evidence whereas the three certificates which showed applicant's date of birth as the 25.5. 1916, were based on information extracted from the Register of births and should, there­ fore, in the light of the provisions of section 34

(2)of Law 85 of 1973, be relied upon as proof οϊ the correct date of birth. (b) That the Council of Ministers came to their decision because of the doubts raised regarding the occupation of Applicant's father and the surname of his mother and that if they were really mindful of finding the truth they ought to have given a chance to the applicant to explain the discrepancies. Held,

(1)that under the provisions of s. 34

(2)o!" Law 85 of 1973 an entry or a certified copy of an entry of birth or death in a Register is not proof of the birth or death unless the entry ap­ pears to have been signed by a person alleging to be the inform­ ant and that he is a person who mighl have heen bound by the law, on the date of the entry, to furnish to the Registrar inform­ ation relating to the birth or death;that under the law in force at the relevant time (Law 16of 1895) it was the duty of the father or mother of the child, and in default of thefather or the mother, of 229 loannides v.Republic

(1979)the occupier of the house or premises in which the child was born, to give to the Registrar information of the particulars required to be registered concerning the birth, and in the presence of the Registrar to sign the Register; that in the relative entry of the Register the column relating to the informant is completely blank and in view of this, one could reasonably argue that in the light of the express provisions of s. 34

(2)the said entry is not proof of the date of birth therein stated and that, therefore, it would not be of much help to the Council of Ministers. 5

(2)That the documents which were before the Council of 10 Ministers presented a sufficiently clear picture to the Council to enable them to decide the issue; and that the course followed by the Council of Ministers in not inviting the applicant to furnish them with any further explanations before reaching their decision is not open to any criticism. (See HadjiLouca v. Republic 15

(1969)3 C.L.R. 570 at pp. 574-575 and Constantinou v. Republic

(1972)3 C.L.R. 116 at pp. 125-126).

(3)That on the material before them it was reasonably open to the Council of Ministers in the exercise of their discretion to reach the decision complained of and that in the circumstances this Court would not bejustified in interfering with such decision; and that, accordingly, the application must be dismissed. 20 Application dismissed. Cases referred to: leromonachos v. Republic, 4 R.S.C.C. 82; HadjiLouca v. Republic

(1969)3 C.L.R. 570 at pp. 574-575; Constantinou v. Republic

(1972)3 C.L.R. 116at pp. 125-126. 25 Recourse. Recourse against the decision of the respondents concerning the dates of birth and retirement of the applicant. 30 K. Talarides, for the applicants. V. Aristodemou, Counsel of the Republic, for the respondents. Cur. adv. vult. L. Loizou J. read the following judgment. By the present recourse the applicant seeks a declaration that:

(1)The decision of the Council of Ministers No. 13.724 230 35 3 C.L.R. loannides τ.Republic L. Loizou J. dated 16/1/1795 whereby they decided that applicant's date of birth was the 6th January, 1915 or any other date other than the25th May, 1916 is null and void and of r o effect and/or in excess of powers; and 5 10

(2)That the decision of the Director of the Department of Medical Services dated 24/1/1975 that the applicant should retire on the 1st February, 1975 and that the ap­ plicant's date of birth by decision of the Council of Mi­ nisters No 13.724 dated 16/1/1975 should be considered the 6/1/1915 is null and void and of no legal effect and/or unlawful and/or in excess of his powers. The application is based on a miscellany of grounds of law. I shall be dealing at a later stage with the grounds actually ar­ gued. 15 The decision of the Council of Ministers the validity of which is challenged by this recourse is exhibit 1 in these proceedings and I shall refer to it later in this judgment. The facts of this case, in so far as they are relevant for the purposes of this recourse, are briefly as follows: 20 25 30 35 The applicant was a pharmacist, 1st Grade, in the Medical Department. He first entered Government service in

1. His application for employment is exhibit
2. It is dated the 10th May,
3. In this application he gives his date of birth as the 6/1/1915 and the place of his birth Droushia village, his father's name as Loizos
4. Maratheftis and the occupation of his father as shoemaker. On entering the service he produced a birth certificate No.22997 (exhibit 2) which bears date the 15th January, 1942 and gives the date of his birth as the 6th January, 1915, the place of his birth as Droushia village and the name and surname of his father as Loizos loannides. This certificate is signed by the Commissioner of Paphos and as stated therein is based on a certificate issued by the Mukhtar and Azas of Droushia. It would appear that the applicant left the service some time at the end of 1944 but on the 6th November, 1952, he submitted another application for appointment to the civil service (exhibit 11). In this application he again gives the date of his birth as the 6th January, 1915, his place of birth as Droushia village, his 231 Η, \ V L. Loizou J. loannides v. Republic

(1979)father's name as Loizos Ioannou Maratheftis, the occupation of his father as shoemaker and his mother's name as Katerina Paraskeva Loizou. Together with this application lie submitted certificate of birth No.62544 (exhibit 3) issued by the Commis­ sioner of Paphos on the 3rd April,

1. This certificate is 5 almost identical with the birth certificate exhibit 2 and the date of birth stated therein is again the 6th January,
2. The only difference between the two certificates is that in paragraph (b) of exhibit 3 which relates to the source of information on which the entry in the certificate is based there is, in addition to the 10 village authority concerned, reference to a number and a file (red No 390file 26/35). Thisfile was never traced and as it was stated in Court it has been lost during the 1963-1964 troubles in Cyprus. He was reappointed to the civil service in October, 1961, 15 after he submitted yet another application for appointment. This application is exhibit 12 and it is dated 12th June,
3. In this application he gives the date of his birth as the 5th January, 1915, his place of birth Droushia village, his father's name Loi­ zos Maratheftis, his father's occupation as a shoemaker and his 20 mother's name Katerina Loizou. In a long series of other applications and declarations made by the applicant for a variety of purposes including matters relating to his service, the issue or endorsement of travel docu­ ments both during the period of the colonial administration and 25 after independence, social insurance, etc. he consistently states the 6th January, 1915, as the date of his birth. It is of some significance that an entry in the Register of births which relates to an elder brother of the applicant who was born on the 7th June, 1911, also gives the father's occupation as shoemaker and 30 the mother's name as Katerina Paraskeva. The applicant raised for the first time the question of his date of birth by letter dated 24th April, 1974, addressed by him to the Public Service Commission alleging that the certificate of birth in his personal file showing that the date of his birth was 35 the 6/1/1915 was wrong and that the correct date of his birth was the 25/5/1916 and requesting them to take the necessary actions for the purposes of his service. In this letter (exhibit 17) he enclosed a new certificate of birth to which Ishall refer presently. But as far back as 1971 the applicant did submit to the Medical 40 232 3 C.L.U. Ioaniiidei \. Republic L. Loizou J. Department together with his personal record form a new certi­ ficate of birth showing the date of his birth as the 25/5/1916 but he never raised this matter directly and nobody in the depart­ ment noticed that thecertificate submitted in 1971 was any differ5 ent to the certificates submitted previously. Subsequently to his application to the Public Service Com­ mission the applicant applied to the Council ot Ministers by letter dated 9th November, 1974 (exhibit 18). This application together with the submission to the Council ot Ministers pre10 pared by the Ministry ot Health (exhibit 4) and the Appendix thereto as well as all the other documents appended to the Op­ position in this case was considered by the Council of Mini­ sters at their meeting of the 16/1/1975 and as a result the sub judice decision No. 13.724 (exhibit 1) was taken. 15 As stated earlier on, the first occasion that the applicant submitted a certificate of birth to the Medical Department show­ ing the date of birth as the 25/5/1916 was in 1971 but without drawing attention to this fact until the 24th April, 1974 by his letter addressed to the Public Service Commission (exhibit 17). 20 . In all, three photocopies of certificates' of birth showing the 25/5/(916 as the date of birth, all issued by the office of the Di­ strict Officer of Paphos on the prescribed form (Form F.69), were produced. The first is under No.A 343139 and it was issued on the 9/7/
4. This is exhibit
5. and it contains the following particulars: 25 30 . 35 Name: · Xenophon loannides Date-of birth: 25/5/1916 Sex: Male Where born: Droushia Name and surname of father: Loizos Name, surname and maiden name of mother: Katerina Costi. There is a note on this exhibit which reads as follows: " Ύπόθεσις Ίωοννίδη ονυεττληρώθη βάσει ένορκου δηλ. ΰπ' άρ. 342 άρ. φοχ. 2/62/3 1971". But as stated by the Assistant District Inspector in his report to the Ministry of Health dated 12th December, 1974, (exhibit 20) the original of this certificate coloured blue was handed to 233 L. Loizou J. loannides v. Republic

(1979)the applicant and a copy thereof coloured white was kept at the Commissioner's office. Exhibit 7 is a photocopy of the original and was forwarded by the Ministry of Health to the District Officer. On the copy kept at the District Office of Paphos the name is given as Xenophon (without the surname loannides) 5 and also there is no note as to the addition of the surname Ioannides which was not in fact approved until the 16th Nove­ mber, 1971, i. e. after the issue of this certificate. The Assistant District Inspector expresses certain views with regard to these differences which need not concern this Court for the purposes 10 of this case. The second photocopy certificate is exhibit 8 under No.A 543585 issued on the 29/3/

1. This contains the following particulars: Name: Xenophon L. loannides Date of birth: 25/5/1916 Sex: Male Where born: Droushia Name and surname of father: Loizos Name, surname and maiden name of mother: Katerina Kosti. 15 20 The following note appears on this exhibit as to the surname loannides: *'Τό έπίθετον Ίωαννίδης οννεπληρώθη βάσει ένορκου δηλώσεως Otr' άρ. 342 άρ. φα. 2/62/3". The third photocopy certificate is exhibit 9 under No.A. 25 600569 issued on the 5/7/
2. it is in all other respects similar to exhibit 8 except that the name is given merely as Xenophon (instead of Xenophon L. loannides) and the father's name as Loizos loannides (instead of merely Loizos); but there is a note on the sheet of the Register made on the same date the certificate 30 was issued to the following effect: "On the basis of instructions from the District Officer dated 5/7/1974 at
3. 10 p.m. the name of the father to ie entered as Loizos loannides." In the Form Cc.nm. 50 (exhibit 5) which was forwarded by the Mukhtar of Dro"shia to the Commissioner and on the basis 35 of which the origin., is of certificates exhibits Ί, 8 and 9 were issued the occupalio ι of the father is given as Forest Guard (δασοφύλακας)and thecolumn "Signature and residence of infor­ mant and date of giving information" is blank; so also is the 234 3 C.L.H. loannides v. Republic L. Loizou J. column "Date of Registration". But with regard to the latter it is clear that the date of registration must have been between the 21st May, 1916, and the 28th May,
4. 5 10 15 20 25 The sub-judice decision of the Council of Ministers, (exhibit 1) reads as follows: " To Συμβούλιον εμελέτησεν αΐτησιν έκ μέρους τοΰ κ. Ξενο­ φώντος Ίωαννίδη, Φαρμακοποιού, 1ης Τάξεως, els το Τμήμα Ιατρικών 'Υπηρεσιών, περί καθορισμού ώ$ ημερομηνίας γεν­ νήσεωςαυτούτης25ης Μαΐου,1916, άντϊτης6ης Ιανουαρίου, 1915, ήτις έλογίζετο μέχρι προσφάτως ώς ημερομηνίαγεννή­ σεως αϋτοϋ είς διαφόρουςδηλώσεις γενομένας ϋπ' αΰτοϋ, και άφοΰ Ιλαβεν ΰπ* όψιν όλα τά συναφή μέ την Οπόθεσιν στοι­ χεία και έγγραφα, τά έπισυνημμέναείς την Πρότασιν, όττεφάσισεν όπως ή 6η 'Ιανουαρίου,1915, εξακολούθηση να θεωρήται ώς ή ημερομηνία γεννήσεως τού κ. Ίωαννίδη." ( " T h e Council considered an application from Mr. Xe­ nophon loannides, Pharmacist, 1st Grade, in the Depart­ ment of Medical Services for determining as date of his birth the 25th May, 1916, instead of the 6th January, 1915, which was considered as his date of birth recently in various declarations made by him,and having taken into considera­ tion all elements and documents relevant to the case, which are attached to the submission, decided that the6th January, 1915, should continue to be considered as the date of birth of Mr. loannides"). There is no doubt that in coming to this conclusion the Coun­ cil of Ministers invoked the provisions of G.O. 11/1.47 which reads as follows: 30 " The date of birth of an officer whose exact date of birth is not known will, for all official purposes including calcu­ lation of the date of retirement, be the date of birth stated by him on entering the Government service." It is abundantly clear from the wording of this General-Order and a line of authorities such as Panaretos leromonaclws v. The 35 Republic, 4 R.S.C.C, p. 82 that it is only applicable in cases where the exact date of birth of an officer is not known. Learned counsel for the applicant in effect based his case on 235 L. Loizou J. loannides v. Republic

(1979)two legal grounds the gist of which is as follows: Firstly, he argued, the Council of Ministers in coming to their decision failed to consider the issue in the light of the law applicable which, he submitted, is section 34

(2)of Law 85 of 1973 read in conjunction with Law 16 of 1895 and were, therefore, under a 5 misconception with regard to the legal position; and secondly, that they came to their decision because of the doubts raised regarding the occupation of applicant's father and the surname of his mother and that if they were really mindful of finding the truth they ought to have given a chance to the applicant to 10 explain the discrepancies. Jn an endeavour to align the identity of the applicant with that of the person named in exhibit 5 and consequently exhibits 7, 8 and 9 counsel for the applicant thought it necessary to call two witnesses. Quite apart from the impression that I formed 15 regarding the value of and weight that should be attached to their evidence, I do not think that the function of this Court in these proceedings is to ascertain applicant's date of birth and make any order in relation thereto but to decide the validity or otherwise of the decision of the Council of Ministers. In fact, 20 at some stage of these proceedings, the applicant himself gave evidence on oath not with regard to any matter relevant to the issue of his date of birth but in order to explain why in an application to the head of his department (exhibit 28) he stated that his place of birth was Pedhoulas village. Ido not feel that 25 I need sayanything about this because not only it does not help me to decide the issue which 1 have to decide in these proceedings but also because learned counsel appearing for him, very fairly and honestly, felt the need to invite the Court not to accept his client's evidence as true. 30 I now revert to the grounds of law argued on behalf of the applicant. In elaborating his first ground learned counsel submitted .hat he certificates of birth produced which showed applicant's date of birth as the 6th January, 1915, should not have been relied ,-pon because they were based on hearsay e- 35 vidence whereas th. photocopies exhibits 7, 8 and 9 were based on information extratfedfrom the Register of births and should, therefore, in the ligh' of the provisions of s. 34

(2)of Law 85 of 1973, be relied upon as proof of the correct date of birth. But even if we were to assume that this isso and further assume that 40 the Council of Ministers did not have in mind the section in 236 3 C.L.R. 5 10 15 20 25 loannides r. Republic L. Loizou J. question, it seems to me that the problem which they had to resolve was not the validity, authenticity or legal effect of the certificates in question and the relative entry in the Register on which they were based but the identity of the person to which they refer and this in view of the discrepancies mentioned above. But, be that as it may, under the provisions of s. 34

(2)of Law 85 of 1973 an entry or a certified copy of an entry of birth or death in a Register is not proof of the birth or death unless the entry appears to have been signed by a person alleging to be the informant and that heisa person who might have been bound by the law, on the date of the entry, to furnish to the Registrar information relating to the birth or death. Under the law in force at the relevant time (Law 16of 1895) it was the duty of the father or mother of the child, and in default of the father or the mother, of the occupier of the house or premises in which the child was born, to give to the Registrar information of the particulars required to be registered concerning the birth, and in the presence of the Registrar to sign the Register. Similar provision is in fact contained in all subsequent enactments relating to the registration of births. As stated earlier on, in the relative entry of the Register (exhibit 5) the column relating to the informant is completely blank and in view of this, one could reasonably argue that in the light of the express provisions of s. 34

(2)the said entry is not proof of the date of birth therein slated and that, therefore, it would not be of much help to the Council of Ministers. Regarding applicant's second ground of law the cases of HadjiLouca v. The Republic

(1969)3 C.L.R. p. 570 at pp. 574575 and Constantinouv. The Republic

(1972)3 C.L.R. p. 116 at 30 pp. 125-126 may be usefully cited as to the principles governing the duties of administrative organs regarding the holding of a proper inquiry before arriving at a decision in non-disciplinary matters. I consider it pertinent in this respect to refer again to the 35 later of the applicant addressed to the Council of Ministers (exhibit 18). It is abundantly clear from this letter that the applicant was not unaware of the discrepancies that existed between the details contained in exhibit 5 and the information furnished by himself on entering the Government service. In 40 fact the whole of his letter aimed at explaining the inconsistency with regard to his father's occupation. Furthermore the sub237 L. Loizou J. loannides v. Republic

(1979)mission to the Council together with its appendix, exhibit 4, and the other documents attached thereto which, according to the statement of counsel of the Republic appearing for the respondents which has not been denied or contradicted in any way, were all the documents attached to the Opposition in this 5 casepresented a sufficiently clear picture to the Council to enable them to decide the issue; and in the light of the pronouncements in the HadjiLouca and Constantinoucases cited above the course followed by the Council in not inviting the applicant to furnish them with any further explanations before reaching their de- 10 cision is not, in my view, open to any criticism. In the light of all the foregoing I am of the opinion that, on the material before them, it was reasonably open to the Council of Ministers in the exercise of their discretion to reach the decision complained of and that in the circumstances this Court would not be justified in interfering with such decision. 15 In the result this recourse fails and is hereby dismissed. In all the circumstances I do not propose to make any order as to costs. Case dismissed. No order as to 20 costs. 238