clr/1983/1983_3_209.pdf

(1983)be revised; and hence this recourse. Nowhere in the file of the administration was there a decision of the Minister nor wasit stated either inthefacts insupport ofthe opposition or in theletter bymeansofwhichthesubjudicedecisionwasconveyed to the applicant that such decision was that of the Minister. 5 Held,(afterstating thatthe question of the competence ofan organ isa matterthat tlieCourt may raise ex proprio motu)that the subjudicedecision doesnot amount toa decision duly taken by the Minister under s.78 of the Social Insurance Law, 1980 (Law 41/80); that it is clear from the provisions of this section 10 that the only competent organ to decide on the hierarchical recourse is the Minister and nobody else; that lack of competence of an organ is a ground for annulment; that since the subjudice decision wasnot taken by the Minister who only had competence, under the provisions of the law, to decide it is not 15 a valid decision and must be annulled. Subjudicedecision annulled· Cases referred to: Republicv. Gcorghiades

(1972)3 C.L.R. 594 at p. 692; Georghiades v. Republic

(1966)3 C.L.R. 252; Hadjistefanou v. Republic

(1966)3 C.L.R. 289; Evlogimenos v. Republic

(1973)3 C.L.R. 174; Phoenicia HotelsLtd. andAnother v.Republic

(1978)3C.L.R.

1. 20 Recourse. Recourse against the refusal of the respondent to grant 25 applicant old age pension. M. Papapetrou, for the applicant. A. Papasavvas, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 30 L. Loizor, J. read the following judgment. By the present recourse the applicant seeks a declaration that the act and/or decision of the respondent dated 17th October, 1980, by which he refused his application for old age pension and/or decided that the applicant had not completed his pensionable age for 35 the purposes of the Social Insurance Law is null and void and of no legal effect. 210 3 C.L.R. Andronikou v. Republic L. Loizou J. The undisputed facts of the case are briefly as follows: On the 10thJanuary, 1957,theapplicant madean application on the prescribed form for a Social Insurance Card. Int the column where he should have stated the date of his birth he 5 made no reference either to the month or the date but merely stated the year of his birth as being
2. On the 21st April, 1980,theapplicant appliedtotheMinistry ofLabour and Social Insurance for old agepension. In hisapplication form hegave thedate ofhisbirth asthe20thApril,
3. In support of this 10 he attached a certificate of birth No.
4. This certificate wasissued bythe District Officer ofPaphos on the 5thJanuary, 1980, on the strength of an affidavit sworn by the applicant. it is common ground that prior to the 5th January, 1980,there was no entry in the Register of Births of the District regarding 15 applicant's date of birth. In view of this discrepancy between the date originally given by the applicant and the date given in the application for old age pension it wasdecided to carry out an inquiry with aview to ascertaining applicant's correct date of birth. From the 20 records in the office of the population census it wasfound that when the applicant originally applied for an identity card in the year 1956 he stated the year 1921,again without any date ormonth,asbeingthedateofhisbirth. IntheMigration office there wasnofilefor the applicant because hehad neverapplied 25 for a passport. The matter was then referred to the District Labour and Social Insurance Office of Paphos for an inquiry to becarried out with a view to ascertaining applicant's correct date of birth. The officer who wasappointed to carry out the inquiry visited applicant's village and took a statement from 30 him. In his statement applicant stated that he was bora on the 20th April, 1915and that he knew this because his mother used to tell him so before she died. He was married in 1945 but could not say how old he was then. He named two covillagers of his who, he said, were of the same age as he 35 remembered that they attended elementary school together. Hesaid that hewasthethird offivebrothers and that hiseldest brothers were born in 1908 and
5. He further stated that whenhe took out hisidentity card hegavethe date of his birth as the year
6. The officer also took a statement from one 40 of the persons named by the applicant who stated that he was 211 L. Loizou J. Andronikou v. Republic

(1983)born on the 30th September, 1915, but that his identity card shows that he was born in

1. He further stated that the applicant was of the same age as he was because they attended elementary school at the same time. The officer did not take a statement from the other person named by the applicant 5 because, as heputs it,he would have told him thattheapplicant was 65 years old. His impression was that there was some sort of collusion as on two previous occasions that he carried out similar inquiries the same persons volunteered evidence and although another inhabitant of the village informed him that 10 the applicant was younger than 65, when asked he refused to give his name. Be that as it may, the conclusion he reached was that he could not express an opinion nor could hefindout any other material establishing the correct date of birth of the applicant. The applicant was consequently informed that after 15 an inquiry it had been decided that thecorrect date of his birth for the purposes of the Social Insurance Law was the year 1921 and thathisapplication hadbeen rejected (reds5and 6in exhibit ΟOn the 10th July, 1980, the applicant wrote anotherletter to 20 the Social InsuranceDepartmentof the Ministry(red8 in exhibit 1) strongly protesting and requesting the reconsideration of his case. Heenclosed anotherphotocopy of thecertificate of birth he had obtained by an affidavit and stated that one of his elder brothers was bora on the 5th July, 1909, and the other on the 25 10th December, 1912 and that his mother used to give birth to one child every three years. He again mentioned the name of theperson whohadmadeastatementtotheofficer supporting his allegation. On the 31st July, 1980, the Ministry informed the applicant 30 that his case could not be reconsidered as he had submitted no material justifying such reconsideration. Onthe 11th August, 1980, applicant wrote a letter to the Minister setting out the history of his application and asking for his intervention in the matter. He was informed in reply 35 by the Director of Social Insurancethat the Minister had gone through his case very carefully but from the available material the revision of the decision regarding his date of birth was not justified. He was further requested that if he had any other material to submit it to the Minister. As a result on the 5th 40 212 3 C.L.R. Andronikou v. Republic L. Loizou J. September, 1980, the applicant wrote another letter to the Minister enclosing two certificates of birth of his elder brothers according to which they were born on the 5th July, 1909 and 10th December, 1912 and three statements from three'co5 villagers of his, one of whom was the same person from whom the officer who carried out the inquiry took.a statement, to the effect that they were born the first in 1913 and the other two in 1915 and that they knew the applicant since childhood and that he was born in
2. In reply the letter exhibit 2 was for10 warded to the applicant informing him that his date of birth could not be revised on the basis of the material supplied and that if he were to produce other undisputable evidence his case would be re-examined. As a result the present recourse was filed. 15 Thegrounds of law setout in the application are: (a) Contravention of the Social Insurance Law No. 41/80 and/or the Regulations; (b) misconception of facts and/or wrong legal characterization of the actual facts and (c) lack of reasoning or due reasoning of the decision. 20 In the course of his short address learned counsel said that he based his case on the grounds of misconception of facts and lack of due reasoning; and he confined his argument to a submission that the respondent should have relied on the material and information supplied by the applicant and should allow 25 the change of his date of birth from 1921 to
3. It seems to me that counsel's submission does not disclose any misconception as to the facts nor does it appear from the facts of the case that there has been such a misconception. The short issue that had to be resolved was the correct date of 30 applicant's birth and all the evidence related to this matter. What, in my view, learned counsel's argument amounts to is a wrong assessment by the administration of the facts before it. Such assessment, however, except in cases where the administration exceeds the extreme limits of its discretionary powers, 35 is not subject to review by an administrative Court. See Conclusionsfrom the Case Lawof the Greek Council of State(1929— 1959) p. 268 and The Republic v. Georghiades

(1972)3 C.L.R. 594 at p. 692 et seq. 213 L. Loizou J. Androuikou v. Republic

(1983)With regard to the ground of lack of due reasoning although learned counsel, apart from mentioning in the course of his address that he relied on such ground, had nothing else to say, it seems clear to me that both the letter dated 17th October, 1980, exhibit 2, by means of which the final decision was com- 5 municated to the applicant as well as the previous correspondence exchanged between him and the Ministry and the other material in thefilemake it abundantly clear why the application was refused. I, therefore, find no merit in either of the grounds raised by counsel. Having said this I feel that 1 must point out, although the matter may not be material for the determination of this recourse, that the inquiry carried out with a view to ascertaining applicant's correct date of birth by the officer appointed for the purpose by the Director falls short of the procedure set out 15 in s.76 of the Law. Although the officer wasvested with powers to summon any person to attend and give evidence or produce any necessary documents he failed to do so with the result that persons who could, to his knowledge, give material information were not summoned to attend the inquiry and give such 20 information. Also, once the officer knew from the statement of the applicant that he had two younger brothers and in the absence of any indication that their dates of birth were not recorded in the Register of Births, one would have thought that the verification of their ages would provide a more or less 25 safe solution to the matter under investigation. But he, nevertheless, failed to inquire into this matter. But, having said this, I hasten to say that, it is not the decision of the Director that isthesubject of this recourse. What ischallenged isthe decision of the Minister on the hierarchical recourse. The procedure 30 in case of such recourse is set out in s.78 of the Social Insurance Law No. 41/80. The Minister could, under the second proviso thereto, appoint an officer or committee of officers from his Ministry with a view to examining certain matters raised in the recourse and report back to him before he issued his decision. 35 The Minister did not choose to follow this course probably because he considered that the material available was sufficient for the purpose of decidingthe issue. It is,however, abundantly clear from the provisions of the section that the only competent organ to decide is the Minister and nobody else. The question 40 of the competence of an organ is a matter that the Court may 214 10 Λ C.L.R. Aodronikou v. Republic L. Loizou J raise ex proprio motu. See Stassinopoulos on the Law of Administrative Disputes

(1964)p. 251; Georghiades v. The Republic

(1966)3 C.L.R. 252; Hadjistefanou v. The Republic

(1966)3 C.L.R. 289; and lack of competence of an organ is 5 a ground for annulment. (See, inter alia, Evlogimenos v. The Republic

(1973)3 C.L.R. p. 174 and Phoenicia Hotels Ltd. and Another v. The Republic

(1978)3 C.L.R.

1. In the present case all relevant documents are contained in the Ministry file exhibit
2. Nowhere in this file is there a deci10 sion by the Minister nor is it stated either in the facts in support of the Opposition or in the letter exhibit 2 by means of which the sub judice decision was conveyed to the applicant that such decision was that of the Minister. In the letter exhibit 2 which is addressed to the applicant on behalf of the Director reference 15 is made to the applicant's letter of the 5th September, 1980, to the Minister in relation to his date of birth for the purposes of the Social Insurance Law and he is informed that the date of his birth cannot be revised on the basis of the certificate of birth of various co-villagers of his which he had forwarded 20 together with his letter. But whatever the contents of the letter it could not in itself amount to a decision duly taken by the Minister under s. 78 of the Law. This being the position I feel that I must come to the 25 conclusion that the decision was not taken by the Minister who only had competence under the provisions of the law to decide and that, therefore, it is not a valid decision and must be annul­ led. 30 In the result this recourse succeeds but in the circumstances 1 make no order as to costs. Subjudice decision annulled. No order as to costs. 215