(1984)1984 June 16 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION COSTAS IOANNOU. Applicant, v. THE WATER BOARD OF UMASSOL, Respondent. (Case No. 414/83). Act or decision in the sense of Article 146.1 of the Constitution— Executory act—Water Board—Public utility corporation established under the Water Supply (Municipal and Other Areas) . Law, Cap.350—Its decisionsrelatingtoappointmentofitsemployees come within the domainofpublic Law—They areof anexecu- 5 tory administrative nature and can be made the subject of a recourse under the above Article—Potamitis v. Water Board of Limassol
(1983)3 C.L.R. 1121 adopted. Administrative Law—Administrative acts ordecisions—Reasoning— Due reasoning—Belateddisclosure of. can only be allowed when 10 there exist the relevant recordsfrom which due reasoning can be clearly derived and no such records existed in this case—Sub judke decision devoid of any reasoning-Annulled. Practice—Evidence—Reception of evidence to explain or clarify and afortiori to add to the relevent records of the proceedings 15 of the administration wouldbe detrimental to the interest of good administration. Legitimate interest—Recourse against appointment—Thoughapplicant did not possess qualifications required under the relevant schemes of service respondentshave undertaken undera collective 20 agreement to treat applicantasqualified—Applicanthas, therefore, a legitimate interest to file a recourse against the appointment of the interested party. 728 3 C.L.R. 5 Ioannou v. Water Board Limassol The applicant in this recourse sought the annulment of the appointment of the interested party to the post of Technical Assistant Grade 'B'. The sub judice decision stated simply that "at the vacant post of Technical Assistant Mr. Panikkos Panayiotou who works already for the Board appointed on contract during the last six months is appointed"; and an affidavit was filed on behalf of the respondent Board seeking to supplement its reasoning. On the question: 10 15 (a) Whether the subjudicedecision waswithin thedomain ofPrivateandnotofPublicLaw,andassuchcouldnot be made the subject of a recourse under Article 146 of the Constitution; (b) Whether the applicant had no legitimate interest in asmuchashedidnotpossesstherequired qualifications under the relevant scheme of service; (c) On the merits of the recourse. 20 25 30 Held,
(1)that the respondents are a body established under Cap.350 which entrusts it with the duties and powers of the control and management of the water supplies in the municipal area ofthetown ofLimassol;that itis,therefore, a bodycorporatewhich has been created for rendering services to the public andtheirrelationwithandtheiractionsrelatingtotheiremployees come within the domain of public Law, like those of any other public utility corporation rendering services to the public; that any decision, therefore, of the respondents relating to their employees, is, of an executory or administrative nature and, therefore, canbemadethesubject ofarecoursebeforethisCourt underAiticle 146.1 cftheConstitution oftheRepublic(Potamitis v. Water Board of Limassol
(1983)3 C.L.R. 1121 at pp. 11271128 adopted).
(2)That under the existing scheme of service and under the collective agreement entered into between the respondent Board and the Trade Unions representing its employees, there exists an undertaking by the respondent Board that in filling any vacant post will give priority to persons already in its service; that, therefore, the ground of absence of a legitimate interest must also fail asthe respondent Board hasitself treated thesaid collectiveagreementasaddingto and supplementingthe relevant 729 Ioamtou r. Water Board Limassol
(1984)scheme of service, in respect of candidates who are already in its service.
(3)That it is very dangerous to allow evidence to explain or clarify and afortiori to add to the relevant records of the proceedings that the administration thought fit to make; that re- 5 ception of such evidence would be detrimental to the interest of good administration; that the judge exercising revisional jurisdiction must exercise his wide disrectionary powers to allow or not such evidence withtheutmost caution, and always bearing in mind that due reasoning containing clear and adequate rea- 10 sons should be given in order to enable the Court to ascertain whether or not a decision iswellfounded in fact and in law; that in the circumstances of this case the addition to the minutes of the respondent Board at which the sub judice decision was taken, by relying on the aforementioned contents, of the affidavit 15 sworn by its Manager cannot be allowed; that if this Court were to do so this would amount to add reasoning to the sub judice decision which is completely devoid of any reasoning whatsoever and there is no reasoning in relation to such decision to be derived at all from any record related thereto; and that, 20 therefore, the sub judice decision should be annulled on the ground of lack of due reasoning,as belated disclosures of same can only be allowed when there exist the relevant records from which due reasoning can be clearly derived. Sub judice decision annulled. 25 Cases referred to: Potamitis v. Water Board of Limassol
(1983)3 C.L.R. 1121 at pp. 1127-1182; Christou v. Republic
(1969)3 C.L.R. 134 at pp. 148, 150, 152, 156-157; 30 Georghiadesand Others (No. 1) v. Republic
(1965)3 C.L.R. 473; Arkatitis and OUiers (No. 1) v. Republic
(1967)3 C.L.R. 29; Papaleontiou v. Republic
(1967)3 C.L.R. 624; Tseriotis v. Municipality of Nicosia
(1968)3 C.L.R. 218 at pp. 222-223. Recourse. Recourse against the decision of the respondent to promote 730 35 3 C.L.R. loamiou v. Water Board Limassol the interested party to the post of Technical Assistant Grade Β in preference and instead of the applicant. Ch. Pourghourides, for the applicant. St. McBride, for the respondent. 5 Cur. adv. vult. A. Loizou.J. read the following judgment. By the present recourse the applicant seeks the annulment of the appointment of Panikos Panayiotou (hereinafter to be referred to as "the interested party"), to the post of Technical Assistant Grade*B\ 10 On behalf of the respondent Board an objection has been raised that the matters complained of are within the domain of Private and not of Public Law, and that in the engagement of its staff and on matters incidental theieto, it does not exercise executive or administrative authority, hence the sub judice deciJ5 sion could not be the subject of a recourse under Article 146 of the Constitution. The answer to this objection can be found in the case ofPota mitis v. Water Board of Limassol
(1983)3 C.L.R. p. 1121 where Demetriades, J., at pp. 1127-1128, had this to say: 20 25 30 "As Ihave said earlier, the respondents area body establish ed under Cap. 350 which entrusts it with the duties and powers of thecontrol andmanagement of thewater supplies in the municipal area of the town of Limassol. It is,there fore, a body corporate which has been created for rendering services to the public and their relation with and their actions relating to theii employees come within the domain of public law, like those of any other public utility corpo ration rendering seivices to the public. Any decision, therefore, of the respondents relating to their employees, is, in my view, of an executory or administrative nature and, therefore, can be made the subject of a recomse before this Court under Article 146.1 of the Constitution of the Republic". 1 fully share this view and the said objection cannot stand. 35 The fact that the employees of Water Boards are not included in the definition of Public Service in Art'de 122 cf theConstitu tion does not affect the position. The second objection railed on behalf of therespondent Board 731 Λ. Loizou J. Ioannou v. Water Board Limassol
(1984)is that the applicant has no legitimate interest inasmuch as he did not possess the lequiied qualifications under the relevant scheme of service. It appears, however, that under theexisting scheme of service and under the collective agreement entered into between the respondent Board and the Trade Unions 5 representing its employees, there exists an undertaking by the respondent Board that in filling any vacant post it will give priority to persons already in its service, provided that such employees satisfy the requiremuits of the Board, which can be theonlycompetentbody todecideonthematter. Itisapparent, 10 that as a result of this provision thelespondent Board didulti mately consider the applicant as eligible for promotion as it appears from an affidavit sworn by its Manager towhich,how ever,further reference willbemadeinduecourse. Theexistence of the said collective agreement and its relevant terms which 15 were quoted in the written address of counsel for theapplicant that persons that do not possess the qualifications required by the scheme of servicefor anyparticular post,may beconsidered for promotion, are expressly admitted in the aforementioned affidavit. 20 This ground therefore of absence of a legitimate interest must also fail as the respondent Board has itself treated the said col lective agreement as adding to and supplementing the relevant scheme of service, in respect of candidates who are already in its service. Having first disposed of these preliminary legal points which go to thejurisdiction of the Court and as such, ought to have been so dealt, 1 turn now to the facts of the case. The vacancy intheaforesaid post was adveitised in thenews papers and applications were invited to be submitted by the 30 candidates on or before the 19th May, 1982, and theapplicant and theinterested party, who was notin the service of theres pondent Board, were among those who applied for the post. The respondent Board at its meeting of the 10th June, 1982, decidednottofillthesaidvacantpostandinformed theapplicant 35 by letter dated the 11th June, 1982, accordingly, adding inthe said letter that the post would be advertised again when the new schemes of service for the employees of the Board would be prepared. 732 25 3 C.L.R. loannou v. Water Board Limassol A. Loizou J. Therespondent Boardthen atitsmeetingofthe 14thOctober 1982, decided to engage such a TechnicalAssistant on contract. He should, however, possess the qualifications of a graduate of the Higher Technical Institute or equivalent qualification 5 in thefieldof Civil Engineering and its remuneiation would be at scale A.4, plus three increments. On the 26th November 1982, the said post was advertised once more in the daily press and it was provided therein that the candidates should be graduates of the Higher Technical 10 Instituteorotherequivalent schoolinthefieldofCivilEngineering. The last date for the submission of applications was the 10th December, 1982. At the next meetingof the respondent Board of the 16thDecember 1982,(see document 7 of the bundlefiledon behalf of 15 the respondent Board), it was recorded that there had been received26 applications for the post of Technical Assistant(on contract) which was adveitised. The minutes of the meeting of the 12th January 1983, of a Selection sub-Committee set up for the purpose which took 20 place at the office of therespondent Board appearin document 14of the aforementioned bundle of documents. It is iecorded therein that seventeen out of the twenty-six applicants were invited for interview and there attended only fifteen. It isalso recorded that the Committee called eachone ofthem separately 25 and that"at the end of the interviews it found Panayiotis Panayiotou (the interested party) as the most suitable for the post, that he made the best impression at the interview, he concentrated the required qualifications, he had personality, he answeied conectly the question put tohimand hehad pievious 30 experience, and it decided unanimously to recommend to the Board his appointment. The minutes of the respondent Board of its meeting of the 1st February 1983, read as follows: "2. Decisions of the previous meeting and matteis arising therefrom. 35 2.1 The Board approved the decision of the Selection Committee for Technical Assistant Grade "B" for the employment of Panayiotis Panayiotou and approved the Minutes circulated, dated 15th January, 1983". 733 A. Loizoa J. loanncu \. Water Board Limassol
(1984)In execution of the said decision a contract of employment (Document 16) was signed on the 11th Feburary, 1983,between the interested party and the respondent Board for a duration of one year starting on the 14th January 1983, and ending the 13th January 1984. The next meeting of the respondent Board took place on the 3rd March 1983,and deals with the leave to which the interested party would be entitled. At its meeting of the 29th July 1983. the following is recorded:"Technical Assistant 6.? At the vacant post of Technical ! Assistant Mr. Panikos Panayiotou who works already for the Board appointed on contract during the last six months is appointed". The applicant camoto know of rhisdecision on the 12th Scptc- 1 mber 1983, and on the 10th October 1983, he filed the present recourse. What transpired at the aforesaid last meeting at which the peimanent appointment of the interested party to the post of Technical Assistant Grade " B " was decided, has not been recorded, apart from the aforesaid biicf minutes. On behalf of the respondent Board, however, an affidavit was filed and in paragraph 14 thereof the following is stated "14. I positively assert and declare upon my oath that at that meeting on 29.7.1983:(
- a)The applicant himself was in fact duly consideied. (
- b)His qualifications were fully considered. (
- c)The collective agreement which required the Board to consider persons for promotion despite any lack of qualifications was consideied. (
- d)Tn fact all the seven foremen were considered as well as all the employees in the technical department. (
- e)Only those qualifications under the existing Scheme of Service for Technical Assistants were considered and only those. 734 2 3 C.L.R. 5 i0 15 20 Ioannou v. Water Board Limassol A. Loizou J. (
- f)The qualifications required of the person to fill the Contractual Post were not taken into account in any . way whatsoever when considering the suitability of the applicant for promotion to the vacant post of Technical Assistant. (
- g)The ability of the applicant and his lack of qualifications as mentioned by me in paragraph 10 hereinabove under the existing Scheme of Service were fully considered. The applicant was in no way measured against the standard qualifications for the advertised contractual post (
- h)The possibility of advertising the post was considered when the Board found that they were unable in the exercise of their discretion to appoint any of the foremen or technical staff to the vacant post and would have to look elsewhere than amongst their permanent employees. (
- i)The Board decided not to advertise but would offer Mr. Panayiotou the post as he had the necessary qualifications and had shown every satisfaction to that date whilst under contract". This situation raises a serious problem as to whether evidence can be adduced to supplement the minutes of the administrative collective organ concerned. In that respect reference may be 25 made to the case of Costas Christou v. The Republic
(1969)3 C.L.R. 134, in which the cases of Cleanthis Georghiadesv. The Republic
(1965)3 C.L.R. 473 and Arkatitis and others (No. 1) v. The Republic
(1967)3 C.L.R. 29 were reviewed and distinguished! On this point Vassiliades P., in his judgment 30 had this to say at p. 148: 35 "1 shall now proceed to deal, shortly, with the other point taken in this appeal regarding the evidence of Mr. Protestos inthisrecourse. Hewascalledtoexplain from thewitnessbox his vote in the making of the Commission's decision the minutes of which were already before the trial Judge. Counsel for the Appellant objected to such evidence on the basis of the two cases cited by him: Georghiades (No. 2) v. The Republic
(1965)3 C.L.R. 473 and Arkatitis 735 A. Loizou J. Ioannou v. Water Board Limassol
(1984)and Others(No. 1) v. The Republic
(1967)3 C.L.R. 29. The learned trial Judge ruled that statements appearing inthejudgments in those two cases,afforded good ground for receiving the evidence of Mr. Protestos. During the hearing of the appeal before us, learned counsel for 5 the respondent drew attention to the inquisitorial nature of Court proceedings under a recourse and to the rules regulating such proceedings (Rules of theSupreme Constitutional Court, 1962) which give wide power to the Court to receive evidence on anypoint ormatter whichtheCourt 10 might consider necessary for the proper determination of the recourse. Learned counsel pointed out that, unlike ordinary proceedings between party and party where the Court decides the case on the material placed before it by the parties, 15 accordingtotherulesofprocedure and thelawofevidence, proceedings under a recourse are of a public nature where the function of a Court is to investigate into the matter and decide the question before it upon such evidence as the Couit might consider necessary for the purpose. 20 Ifindmyselfinagreementwiththissubmissionoflearned counsel foi the Commission to the effect that the nature oftheproceedingsinarecoursearesuchastogivetheCourt much wider latitude in receiving evidence material for the determination of the issue before it. But, in the exercise 25 of such powei, experience has led to the development of ruleswhich will guidethe Court in receiving suchevidence.· One of such rules is that in dealing with documentary evidence and particularly correspondence or minutes leading to the executive act or decision under consideration, the 30 Court will take the position from the document before it which the Court will, if necessary, construe oi interpret; and willnot admitevidence to explain or interpret the contents of the document. The construction and interpretation of the document is a matter for the Court; and oral 35 evidence in that connection, is more likely to complicate rather than clarify the issue. It is only in exceptional circumstances that oial evidence will be required to 'complete the picture' presented by the document; and it is for theCourt todecidewhetherintheparticular casebefore 40 736 3 C.L.R. 5 10 15 20 25 30 35 Ioannou v. Water Board Limassol A. Loizou J. it, such evidence is necessary or not. The two cases refer red to are, in my opinion, distinguishable on their facts; and do not, I think, support the contentionthat the oral evidence of Mr. Protestos now found on the recoid, was necessary or should be received to explain his view of the matter before the Commission and the reasons for which he cast his vote as he did. The minutes should speak for the member; and not the member for the minutes". Tiiantafylhdes, J., dealt with the matter at p. 150 and said: "Inorder to arrive at a conclusion regarding thetrue effect of the aforequoted statement of Mr. Protestos,the learned Judge of this Court,who tried the case, allowed Mr. Pro testos to give evidence on oath on this point; contrary to an objection to such a course which was raised by counsel for the Appellant. The two earlier cases—Georghiades (No.2) and The Republic
(1965)3 C.L.R. 473 and Arkatitis (ΝοΛ) and TheRepublic
(1967)3 C.L.R. 29—which were relied upon as relevant precedents, by the trial Judge, in leceiving the evidence of Mr. Protestos, are in my view cleaily distin guishable from the present case, in view of the materially different ciicumstances in which evidence was allowed to be adduced during the hearing of such cases. Thereisnodoubtthatthepartiestorevisionaljurisdiction proceedings, under Article 146 of the Constitution, are at libeity to adduce pioof in support of theircontentions. But,it is absolutely clear, on the other hand,that dieulti mate lesponsibility for, and control of, the reception of evidence in such proceedings, lies with the trial Judge, in the dischaige of his inquisitorial function in lelation to the validity of the administrative action,or omission which is sub judice before the Court. A trial Judge has quite a wide discretion in this respect, but such discretion has to be exeicised in a mannerwhich is, inter alia, compatible with the paramount object of the existence of the revisional jurisdiction under Article 146, namely to ensure good administration; therefore, such discretion cannot be exercised in a manner which will be inconsistent with good administration. 737 A. Loizou J. Ioannou ?. Water Board Limassol
(1984)1 think it was contrary to the interests of good administration to permit—in the light of the circumstances of the present case—Mr. Protestos, a member of a collective organ, to give evidence regarding the nature of his views, which had already been officially lecorded in the minutes of such organ. 5 This was not a cas? in which a membei of a collective organ, in expiessing his recorded in the minutes views, had made reference to matteis not stated, too, in such minutes and as a result it became necessary to heai evidence V) regarding such matters; nor was there any allegation made that the views of Mr.' Protestos had been incorrectly recorded. Ihavehad, really,nodifficulty incomingto theconclusion that the evidence given by Mr. Protestos in this case, re- 15 garding what he stated at the relevant meeting of the Public Service Commission, was not property receivable". Loizou, J., at p. 152 said: "I also agree that the appeal should be allowed. In my view it is sufficient, for the purposes of this case, to say 20 that ^he evidence of Mr. Protestos was wrongly received and that the two cases on which the learned Judge relied in receiving such evidence i.e. Georghiades (No. 2) and The Republic
(1965)3 C.L.R. 473 and Arkatitis (No. 1) and TheRepublic
(1967)3 C.L.R. 29,are clearly distinguish- 25 able fiom the present case. The statement of this witness at the meeting of the Commission at which the decision challenged by this recourse was taken, which appears in the extract from the minutes of that meeting (exhibit 1) seems to be perfectly clear and 30 unambiguous". Hadjianastassiou, J., deals with the matter as follows at pp. 156-157: "The learned trial Judge then proceeded to hear theevidence of Mr. Protestos and, in his judgment, after dealing with 35 the authorities cited, had this to say about the issue of the reception of evidence:'In myjudgment, no valid distinction as regards admis738 3 C.L.R. 5 10 15 20 25 30 35 Ioannou \. Water Board Limassol A. Loizou J. sibility can be drawn between the matter objected to in the Iattei case and Mr. Protestos's evidence as to what he had in fact said at the Commission's meeting of February 8 last and accordingly that case provides a precedent for the admission of Mr. Protestos's evidence. It follows that I must proceed to consider the effect, if any, of that evidence. And first, is it acceptable? It hasnot beendisputed; minutes of a meeting do not necessarily convey accurately what actually passed at the meeting; and the evidence is both inherently credible and consistent withtheminutes. Accordingly, 1 accept it as true.' 1 would like to begin by saying that, with due respect to the learned trial Judge's opinion, 1 hold a different view because ajudgment must be read in the light of the facts of thecasein whichitisdelivered. Having had the advantage of reading the decision in those two cases, and particularly Arkatitis* case, I have reached the view that the facts of those cases are distinguishable from the facts of the piesent case, and should not have been followed by the trial Court. Furthermore, I would like toadd that, inmy opinion, as the statement of Mr. Protestos in the minutes appears to be clear and unambiguous, 1 would, therefore, accept the submission of counsel that the evidence was wrongly received. There is no doubt that it is within the province of the Court to construe the document in question, and the fundamental rule of interpretation is that if the words of a document are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaringtheintention ofthe writer. Inmyview, therefore, itwould havebeenaverydangerous practiceindeed to allow evidence to explain or add to what was said long after the meeting was over. In my opinion, in view of the fact that the wordswereclear and unambiguous and thatthiswasnot a case in which it was necessary to complete the picture of such action or decision of the Commission, the Court was 739 Λ. Loizou J. Ioannou v. Water Board Limassol
(1984)not entitled, in the particular facts of this case, to receive this evidence." No doubt the principle to be discerned from the aforesaid statements of the Law is that it is very dangerous to allow evi dence to explain or clarify and afortiori to add to the relevant 5 records of the proceedings that the administration thought fit to make. Reception of such evidence would be detrimental to the interest of good administration. TheJudge exercising revisional jurisdiction must exercise his wide discretionary powers to allow or notsuch evidence with theutmostcaution, and always bearing 10 in mind that due reasoning containing clear and adequate reasons should be given in order to enable the Court to ascertain whether or not a decision is well founded in fact and in law. Especially regarding decisions taken by collective organs which are unfavourable to the subject. This of course subject always 15 to the principle that the reasoning of an administrative decision may appear in the file of the case and it is not necessary that every material factor taken into consideration should be speci fically mentioned in the decision itself, sufficient being the existence of material in the file showing that the sub judice 20 decision is aduly reasoned onetaken after aproperinthecircum stances inquiry. In thecircumstances of this case Iam of theview that Icannot allow the addition to the minutes of the respondent Board at which the sub judice decision was taken, by relying on the afore- 25 mentioned contents, of the affidavit sworn by its Manager. If I were to do so this would amount to add reasoning to the sub judice decision which is completely devoid of any reasoning whatsoever. Nor there being any reasoning in relation to such decision to be derived at all from any iecord related theieto. In 30 fact none has been produced befoie me. (See Papaleontiouv. The Republic
(1967)3 C.L.R. 624). Moreover an appropriate statement of the Law is to be found in the case of Vassos Tseriotis v. Municipality of Nicosia
(1968)3 C.L.R. 218, where at pp. 222-223 Triantafyllides J., as he then 35 was had this to say: "The need for due reasoning ofdecisions of collective organs has been more than once stressed by this Court (see PEO and The Board of CinematographFilms Censors,
(1965)3 740 3 C.L.R. 5 10 15 20 Ioannou v. Water Board Limassol A. Loizou J. C.L.R. 27; Constantinides and Tixe Republic,
(1967)3 C.L.R. 7; Kasapis and The Councilfor Registration of Architects,
(1967)3C.L.R. 270). Such need waseven more gieat in the present case, in view of the already stated circumstances in which the Inteiested Party, a newcomer to the Markets' Service, was appointed over the head of the Applicant to the newly-created senior post in that Seivice, when until then there was no higher post than that held by the Applicant in such Service. Actually, an attempt has been made to disclose the leasoning for the subjudice decision by means of evidence given by the Chaiiman of the Municipal Commission, Dr. Ioannides, at the hearing of the case before the Court. It is correct that, exceptionally, the reasoning for an administrative decision may be disclosid belatedly, but this can only beaccepted when there exist relevant records from which such reasoning can be clearly derived (see Stasinopoulos on the Law of Administrative Disputes
(1964)p. 228); and this is not so in the present instance; no such records appeal to exist;" Considering the facts of the present case and guided by the aforesaid general principles of Administrative Law which I have attempted to sum up,I have cometo the conclusion that the sub judice decision should be annulled on the ground of lack of due 25 reasoning, as to my mind belated disclosures of same can only be allowed when thereexist the relevant records from which due reasoning can be clearly derived. The recourse therefore succeeds but in the circumstances there will be no order as to costs. 30 Subjudice decision annulled. No order as to costs. 741