clr/1987/1987_1_427.pdf

(2)and

(3)ofsection6of Cap.278 arenotapplicable. Illegitimatechildren— Legitimationof— Reviewof thehistoricalevolution of the lawofCypruson thematter. Constitutional Law — Judgments in CMI and Criminal proceedings — Constitution, Art. 30.2 — A judgment must be duly reasoned — Whatis requiredby«duereasoning». 427 Ιαre Cbaralambotu

(1987)Evidence — Hearsay evidence — Pedigree cases — The exception of the rule againsthearsayevidence inpedigree proceedings. Practice — Forms and precedents — Useful, but servileadherence to them not required. 5 Practice—Petition for establishingpaternalaffiliation—Faultyreferenceto lawon which it was based — Irregularity, remedied by the steps taken by the respondent Theappellant,whowas bomin 1939 outofwedlock, filedapplication 1/84 inD.C.Nicosiafor herpaternalaffiliation, seeking adeclarationthatsheisthe illegitimate childof Andreas Cleanthous,lateofVassilia,whodied on26.8.83 1 0 and whose estate is administered in Probate application 408/83, D.C. Nicosia. The application was modelled on theWillsandSuccession (Declarationof Death andLegitimation)Rules, 1953. • ThetrialCourtdismissed theapplicationonthefollowinggrounds,namely: 15 a) That the applicant was precluded by section 6 of Cap. 278 to file or prosecutethepetition,as thelateAndreas Cleanthoushasnotrecognised her by willasherchild.InthisrespectthetrialCourtheldthatneitherthe aforesaid Convention nor the law, whereby it was ratified, changed or affected the restrictive provisions of Cap.278, and (b)Thatinany event theappellant failed toprove her case. Hence this appeal. Held, allowing the appeal:

(1)Before the enactment of the Wills and Succession Law theonly methodof legitimation was bysubsequent marriage of theparentsof theChildbom outof wedlock. Thesaid law (Cap.220 inthe 2 5 1949 Edition,now Cap. 195) provided thatanillegitimate childshall havethe status of a legitimate childin respect of his motherandherrelatives by blood (Section 52); it, also, provided for the legitimation of such a child by subsequent marriage (Section53)andby orderof theCourt(Section54). Theaforesaid sections53 and54were repealed andreplaced byCap.278, 3 0 which provided for legitimation bysubsequent marriage (section4and5)and by anorderof theCourt(Section6*). *Quotedatpp.433-434 post. 428 20 In re Charalambou· 1C.L.R. Subsection 2ofsection6readsas follows •Anorder under subsection

(1)maybe madeonapplication to the Court byoronbehalfofthefather 3 Provided thatwherethefatherisdeadsuchapplicationmaybemade bythechildhimself,ifthe fatherhasrecognisedbyhiswillthechild as his» On 11278Cyprussigned theEuropean Convention ontheLegalStatus ofChildrenBomoutofWedlock TheConventionwasratifiedbyLaw50/79 1" 15 20 25 30 35

(2)Theoperative parts of the aforesaid Conventionare Articles 2-10 Section4ofthe ratifying Law50/79 empowersthe SupremeCourt tomake rulesgoverning,interalia,theprocedureinanycasebyvirtueofthatlawand adds that until suchrules areissued, theprocedure willbegovernedby the RulesofCourt forthetimebeingin force

(3)TheConvention anditsstatusinthelegalorderofCyprusunderArt 169 of theConstitution was considered inMalachtou ν Armeftts and Another

(1987)1CLR 207 Itwas heldthatthe Convention hassupenorforce,not inthesenseofrepeahngwyinconsistentwithitdomesticlaw,butinthesense of havingsupenonty andprecedence initsapplication

(4)Any provision of the internal law limiting cases in which legal proceedingstoestablish paternitymaybebroughtisincompatible with the Convention (Art 3, which, also, provides for two ways of evidencing- or establishing paternity) Itfollows that subsections2 and3 of Cap 278 are incompatible with the Convention and,therefore, are inapplicable The applicanthadarighttoffte andpursueherapplication forjudicialdecisionin respectofherpaternal affiliation

(5)ThePetition was based on Law5€M79, Section 54 of the Willsand Succession Law,Cap 195andsettlon6crfCap 278 Sections44and46of Cap 195restrictthe nghtofinhentance tolegitimate children ofa deceased andtheirdescendantsonly Thepetitionisbasedonthecorrectlaw Buteven ifthereference totheLawwastosome extent faulty, thiswould amount to irregularity,remedied bythestepstaken bythe respondents

(6)Theprescribed formsintheWillsandSuccession (Declaration ofDeath andLegitimation) Ruleswereadaptedandusedinthispetition Asithasbeen held almostahundredyearsagoinBellν C/ubbs11891-1892]8 TL R 296 itisvery convenienttohaveforms,butservile adherencetosuchformsisnot required 429 In re Charalambous

(7)The tnalJudge referred, also tothewitnesses whotestified, and said thatastheevidencewas conflicting andAndreasCleanthouswas notalive,he could notaccepttheevidenceadducedby theapplicant The duties of a Judge intheJudicial process were set out inChnstou and Another ν Angehdou and Another

(1984)1 C LR 492 Art 30 2 of the 5 Constitution provides that the judgment of a Court in civil or cnminal proceedings «shall be reasoned· What is required by due reasoning was explained inPioneer Candy Ltd and Another ν Stehos Tryphon and Sons Ltd

(1981)1 C L R 540 Thetnal Court has a duty under Art 30 2 of the Constitution tofurnish properreasoningfor itsfindings Thereasonsmustbe 1 0 persuasive and this is a fundamental attributeofjudicial process Inthis case there hasbeen almost noevaluation andthereasoning isinadequate

(8)The submission of counsel for the respondents that in any event the evidence adduced at the tnal was inadmissible as being hearsay cannot be accepted because therewas ample evidence which was nothearsay andin 1 5 any event hearsay evidence topedigree isadmissible by way of exceptionto thegeneral rule Appeal allowedwith costs Order forretnal Costsof firsttnal to be costsincauseinthe new 20 tnal,inany event notagainst the appellant Casesreferredto Malachtou ν Armeftis andAnother

(1987)ICLR 207, Re Pntchard (Deceased) [1963] 1All ΕR 873, 25 Spyropoullos ν Transavta

(1979)1C LR 421, Inre HadjiSotenou

(1986)I C L R 429, Inre Williamsand Glyn's Bankpic

(1987)1C LR 85 Bellv Clubbs[189I-1892J8TLR 29%, Chnstou and Another ν AngelidouandAnother

(1984)I C L R 492, 30 Pioneer Candy Ltd & Another ν Stehos Trvphon & Sons Ltd

(1981)1 C L R 540, LaCloche ν LaCloche (1872]L R 4 P C 325, /n/?eOavy[1935]P 1, Battle ν Attorney General [1949]Ρ 359 Appeal. Appealby applicantagainstthejudgmentoftheDistrictCourtof I 430 35 1C.L.R. Inre Charalambous Nicosia (Ioannides, D.J.) dated the 10th November, 1984 (Appl. 1/84) whereby applicant's application fora declaration that sheis the illegitimate child of Andreas Cleanthous late of Vassilia who died on 26.8.83was dismissed. £. Efstathiou withM. Tsangarides, forthe appellant. 5 C. Gavrielides,forthe respondents. Cur.adv. vult. A.LOIZOU J.: The judgment of the Court willbe delivered by Mr Justice Stylianides. STYLIANIDES J.: This appeal turns on the interpretation and 10 application of the Convention on the Legal Status of Children Bom out ofWedlock and LawNo.50/79 whereby itwas ratified. The applicant-appellant wasbom in 1939 out of wedlock. She is the natural child of her mother, Panayiota Paraskeva. They come from Vassilia village of Kyrenia district, which is,since the 15 summer of 1974, under occupation bytheTurkish forces. AndreasCleanthousofVassiliawasunmarried. Hewaslivingat allmaterialtimesatVassilia.LaterhemovedtoMorphouwherehe ran a shop for sometime and later he established himself in Nicosia. From 1951 he was cohabiting with a certain Maroulla 20 Cleanthous who gave birth to a chilld Eleni Cleanthous.About a yearbeforehisdeathhemarriedthesaidMaroullaCleanthous. He passed away on 26/8/83. MariosLambriandieswasgrantedlettersofadministration ofthe estate of the said deceased inProbate Application No.408/83of 25 the DistrictCourtof Nicosia. On 12/1/84 the applicant commenced proceedings by Application No. 1/84 in the District Court of Nicosia for her paternal affiliation by judicial decision. By this application the applicant seeks declaration and order that she is the illegitimate 30 childofAndreasCleanthouslateofVassilia,whodiedon 26/8/83 inNicosia and who isthe person whose estate isadministered in Probate Application 408/83 of the DistrictCourt of Nicosia. This petition is modelled on the Wilts & Succession (Declaration of 431 Stylianides J. Inre Charalambous

(1987)Death and Legitimation) Rules and the forms prescribed therein, made underSection 86of theWills&Succession Law,Cap.220, ofthe 1949EditionoftheLawsofCyprus.TheseRulesweremade in

1. Copyofthepetitionandtherelevantaffidavitwereservedofthe 5 Attorney-Gernera!of theRepublicand thethree respondents, the administrator of the estate of the late Andreas Cleanthous, his survivingwife Maroulla Cleanthous and Eleni Lambrianidou noe Cleanthous the daughter who was legitimated by the subsequent marriage to which we have just referred above. The Attorney- 10 General did not take part in the proceedings. The other . respondents contested the petition. The Court after hearing 7 witnesses for the petitioner and 3 witnessesfortherespondentsdismissedthepetitionontheground that the applicant wasprecluded bythe provisionsofSection 6of 15 the Illegitimate Children Law, Cap. 278, to file or prosecute this petition,asthelateAndreasCleanthoushasnotrecognizedherby will as his child and that neither the Convention on the Legal Status of Children Bom out of Wedlock nor the Law ratifying it underArticle169oftheConstitution,i.e.LawNo.50/79,changed 20 or affected the restrictive provisions of Cap.
2. The trial Judge proceeded further. He referred tothewitnesseswho testified and arrived at the conclusion that the petition would fail on the substance as well. He ultimately dismissed it with order for costs against the petitioner. 25 Thisappeal isdirected againstthesaiddecision.Thegroundsof appeal are:
3. That the trial Judge misdirected himself on a matter of law; that the Convention, after its ratification, has superior force and displaced and superseded theprovisionsofSection 30 6 of the Illegitimate Children Law, Cap. 278; and that the limitationsprovided inSection6ofCap.278areinapplicable.
4. That the trialJudge failed to evaluate the evidence and thejudicialprocesswasfaulty;and thathisfindings offact are notwarranted bythe evidence before him. Before the Wills and Succession Law 1945 (No. 25/45) came intooperation on 1/9/1946,the only method of legitimation was 432 35 1 C.L.R. In re Charalambous Styllanldes J . by subsequent mamage of the parents of the child bom out of lawful wedlock, a method which has been adopted through Byzantine law by the Canon law of the Greek Orthodox Church The Lawof Succession wasbased on creed 5 Section 52 of the Wills and Succession Law, Cap 220 (1949 edition), provided that an illegitimate child shall have the Legal Statusofalegitimatechildinrespectofhismotherandhisrelatives by blood Section 53 provided for legitimation by subsequent mamage, and Section 54 for legitimation by order of Court 10 Thenghtofapplication totheCourtfor legitimation waslimited tothefatherofthechildwiththeconsentofthemotherofthechild and of the child himself, if the child was of age and under no disability, the mother could apply only within 12 months of the birth ofthe child 15 This part of the Wills and Succession Law was repealed and substituted by the Illegitimate Children Law, 1955{No 15/1955) which isCap 278 inthe 1959 edition of the Lawsof Cyprus The following methods of protection to an illegitimate child wereadopted inthislegislation - 20 (a)Bysubsequent mamageoftheparents(Section4and5), (b)Bya legitimation order of Court The legal effect of legitimation by an order of the Court is to render theillegitimate childlegitimate,asfrom the dateof itsbirth in respect of both his father and mother and their relatives by 25 blood (Section 7) Anorderforlegitimation maybe made underSection6onlyon application to the Court by/or on behalf of the father and where the father isdead on the application of the child ifthe father has recognized byhiswillthe childashis 30 Weconsider pertinent toquote senatim Section 6of thisLaw«6

(1)Anillegitimatechildmaybedeclaredlegitimatebyan orderof a Court under the provisions of thissection 433 Styllanldes J. InreCharalambous

(2)An oiJor under subsection

(1)may be made on application tothe Court by oron behalf of ihe father: Provided thatwherethefatherisdead suchapplication may bemade bythe childhimself ifthefather hasrecoqni.7edbyhis willthe child as his.

(3)Noordershallbemadeundersubsection

(2)unless(a) at the time of the conception of the child a marriage between the parents would not be forbidden, on account of relationship byblood orby marriage,bythe family lawof the religious community to which the person, who claims or is 10 alleged to be the father, belongs; (b)thefather cannotadoptthechildundertheprovisionsof the Adoption Law; (c)thelegitimation bysubsequent marriageundersection 4 became impossible owing to the death of the mother or for 15 anyother reason; (d)where the father ismarried, hiswife consents tosuchan order being made; (e)where thechildisnottheapplicant, such childorincase of hisincapacity hisguardian or theperson appointed bythe 20 Courttorepresent thechildinthisrespect,consentstosuchan order being made.» The European Convention on the Legal Status of Children Bom out of Wedlock wasdone at Strasbourg on the 15th dayof October, 1975.U wassigned on behalf of the Republic of Cyprus 25 ori 1/12/78, subject to ratification pursuant to a decision of the Council of Ministers No. 17.257 of 28/9/78 in accordance with Article 11.1 of the Convention and by virtue of Article 169, paragraph 2, of the Constitution of the Republic of Cyprus. Itwasratified bytheConvention ontheLegalStatusofChildren 30 Bom Out of Wedlock (Ratification) Law, 1979 (No.50 of 1979). According to Article 11 the instruments of ratification, acceptance orapproval aredepositedwiththeSecretary General •Reported in

(1987)1C.L.R. 207. 434 5 1 CX.R. In re Charalambous Stylianide* J. of the Council of Europe The Convention came into force there months after the date of the deposit of the third instrument of ratification, acceptance or approval, ιe on 11/8/78 The instrumentof ratification of theRepublic of Cyprus was deposited with the Secretary General of the Council of Europe on the 11th day of July, 1979 and pursuant to paragraph 3 of Article 11,the Convention came into force three months after the date of the deposit of the instrument of ratification in respect of Cyprus, ιe 11/10//79 Under Article 14 any State may, at the time of signature, or when depositing its instrument of ratification, acceptance approval or accession, make notmore than three reservations in respect of theprovisions of Articles 2 to 10 of theConvention The Republic of Cypnis made no reservation whatsoever ThisConvention,itsapplication inthelegalorder of Cyprus and Article 169 of the Constitution were judicially considered in Civil Appeal No 6616, Toulla C Malachtou ν Chnstodoulos G Armeftis and Another, unreported*, taken by five Judges of this Court Itwas held thattheConvention hassuperior force and any incompatible provisions of the Municipal Law are not applicable The law applicable is that set out in the Convention The Conventionprevailsover an inconsistent law antenoror postenor, on the pnnciple of lex supenor derogat infenon The Convention has supenor force, not in the sense of repealing the inconsistent law but in the sense of having supenonty and precedence in its application Article 1of the Convention reads «Each Contracting Party undertakes to ensure the conformity of its law with the provisions of this Convention and to notify the Secretary General of the Council of Europe of the measures taken for thatpurpose » In the Explanatory Report, Chapter «Commentanes on the Provisions of theConvention», inrespect of Article 1itis recorded that the measures referred to in this Article will usually take the form of legal or administrative texts These measures should be taken not later than the entry into force of the Convention in relation totheContracting Party concerned The Cypnot Legislator has chosen to include Section 4 of the 'Reported in

(1987)ICLR 207 435 Styliaitidts J. InreCharalambous

(1987)Ratifying Law, empowering the Supreme Court to issue Rules governing the practice and procedure of the Courts under the provisions of that Law and in particular the procedure to be followed before them inanycase byvirtue ofthe said lawand the paymentoffees.Section4goesfurther andbyitsprovisoprovides 5 that until such Rules of Procedure are issued, all matters, the procedure and the payment of fees, will be governed mutatis mutandis, bythe Rulesof Court in force theretofore. " Theoperative partsoftheConvention areArticles2to 10,allof which create objective rulesof general application. Theyregulate 10 the rights and responsibilities of all individuals governed by the Lawsof Cyprus. Article 3 of the Convention, as it isplain from itswording, and from the Explanatory Report-paragraphs 16and 17-setsouttwo ways of evidencing or establishing paternal affiliation. Italso sets 15 out the general rule according to which legal proceedings to determine paternity should in all cases be allowed. Thus, subject to reservations formulated in accordance with Article 14, any provision of the internal law limiting cases in which legal proceedings to establish paternity may be brought will be 20 incompatible with the Convention. The legislation of this country regulating the position of the illegitimate children strived to balance two equallyjustbut not so consistent principles, that of the preservation of the sanctity of marriage on the one hand and that of removing a social stigma 25 which may stamp certain persons during the whole lifetime, through no fault oftheirs, onthe other hand. Thisendeavour was labouring against the innocent, the illegitimate children. International society moved forward in the way of the protection of the illegitimate children. Children bom asa resultof 30 evenadulterousassociationoreventheproductsofrelationshipof incestuous nature are equally protected bythe Convention. The restrictions, limitations and conditions set out in subsections2and3ofSection6ofCap.278areincompatiblewith the Convention and therefore are inapplicable. It might be very helpful if the legislator had the provisions affected by the Convention amended and brought into line with the Convention, for anyone to find upon looking up the relevant Law, rather than to have every time to go through the 436 35 1C.L.R. InreCharalambous Stylianides J. Conventions ratified in order to ascertain whether and to what extentanyparticularstatutoryprovision has'beenaffected bysuch ratification. The applicant had arightto file and pursue her application for 5 judicial decision in respect of her paternal affiliation. «Affiliation» intheConvention hasnotthesamemeaningas«affiliation order» in Part III of the Illegitimate Children Law. Establishment of paternal affiliation asenvisaged inthe Convention givestoachild bom out of wedlock the samerightsofsuccession asa child bom 10' within wedlock in the estate of its father and its mother and a member of itsfather's ormother's family. Mr. Gavrielides for the respondents, though he did not file a cross appeal, argued that the application was not based on the properlawandtheRulesofCourtwerenotstrictlyadheredto.The 15 petition is based on the Law Ratifying the Convention, «Section 54 of the Willsand Succession Law, Cap. 195» and Section 6of the Illegitimate Children Law,Cap.278.Section 54 of Cap. 195 provides that this Law shall not be applied in any case inwhich the application thereof shall appear 20 tobe inconsistent with anyobligation imposed by treaty. The provisions of Section 44 and Section 46 of the'Wiils and Succession Law and the first schedule thereto restrict therightof inheritance to legitimate children of a deceased and their descendants only. 25 The petition is based on the correct Law. But even if the reference totheLawwastosomeextentfaulty,thiswouldamount only toan irregularity which waswaived and/or remedied bythe stepstakenbytherespondents. (RePritchard(deceased) [1963]1 AltE.R.873;Spyropoullos v.Transavia

(1979)1 C.L.R. 421;Inre 30 HadjiSoteriou

(1986)1 C.L.R. 429; In re Williamsand Glyn's Bankpic,C.A. 7040 delivered 19/3/87, unreported*.) The prescribed forms in the Willsand Succession (Declaration of Death and Legitimation) Rules were adapted and used inthis petition.Withregard totheformswerepeat what wassaid almost 35 a hundred years ago by Mr.Justice Hawkins in Bell v. Clubbs 8 T.L.R. [1891-1892]296atp.298:«It was very convenient to have forms, which if followed, • Reportedin(1987}1CL.R 85. 437 Stylianldes J. Inre Charalambous

(1987)should be sufficient. Butitdidnot requireaservile adherence to the forms provided, for this might do infinite mischief and make the forms trapsinstead ofaids». Rule 12provides that theAttorney-General shall be one of the respondents and Rule 16thatacopy ofthepetition and acopy of 5 the affidavit should be delivered or sent by the petitioner to Attorney-General. Legitimation Order affects the status of a person and the State has an interest in it.The Attorney-General, though itmay not be strictlynecessary tobeaparty,heshould benotified intimeofthe 10 proceedingsbyservingonhisoffice copyofthepetition andofthe affidavit insupport, soastotakeanypartintheproceedingsashe maydeem fit. The applicant in this case adhered to this provision, but the Attorney-General did not think fit to appear or take part in the 15 proceedings. The trialJudge after decidingto dismissthe application on the ground thatthe applicantwasbarred bytheprovision of Section 6

(2)to apply, referred to the witnesses who testified before him and said that as the evidence was conflicting and Andreas 20 Cleanthous was not alive, he could not accept the evidence adduced by the applicant. Itisnoteworthy that the applicant, her mother, a brother and a sister of the deceased testified for the petitioner.ThetrialJudgefailedinhisdutytoanalysetheevidence adduced and tomake a proper evaluation. 25 The duties of the Judge in the judicial process were set out in Christouand Another v.Angelidou andAnother

(1984)1 C.L.R. 492as follows atp.495:«ThereisaneedforthetrialJudgetoformulate clearlyinhis judgment the specific issue or issues of fact arising between 30 the parties and to state hisfinding on such issueor each one of such issues.Judges trying civil disputes should unfailingly do so. [Papaellina v.EPCO (Cyprus) Ltd. and Lion Products Ltd.,

(1967)1C.L.R.338,atp.362). Paragraph 2 of Article 30 of our constitution provides that 35 thejudgment of a Court in civilorcriminalproceedings 'shall be reasoned'. InPioneerCandyLtd.&Another v.Stelios Tryphon& Sons 438 1C.L.R. InreCharalambous StyllanldeaJ. Ltd.,

(1981)1C.L.R. 540,atp.541,itwassaid:'The authorities establish that for the requirement of due reasoning, there must be: 5 (a)An analysis of the evidence adduced in the lightof the issuesasarisingand defined bythepleadings; (

1. b)Concrete findings as the necessary prelude to the judgment of the Court; (
2. c)A clear judicial pronouncement indicating the outcome of the case'. 10 15 In the present case the judicial process was faulty. The judgment does not amount to a sufficient judicial determination of the disputes between the parties. The trial Court failed to determine the issues which had arisen, and give reasons for his such decision - (Theodora loannidou v. CharilaosDikaeos,

(1969)1C.L.R.-235; Chambou & Others v.Michael&Another,

(1981)1C.L.R. 618).» ThetrialCourt hasadutyunderArticle30.2ofthe Constitution to furnish proper reasoning of its findings. The reasons must be persuasive and this is a fundamental attribute of the judicial 20 process. In the present case there was almost no evaluation and the reasoningisinadequate.Thefindingsarefaultyastheyaretainted with misdirection, lackofadequate direction ontheevidence and lack ofproper reasoning. 25 Mr.Gavrielideshavingregard tothepowersofthisCourt under Section 25

(3)oftheCourtsofJusticeLawandtheCivilProcedure Rules, 0.35, r.8, submitted that the evidence adduced by the petitioner was inadmissible as being hearsay and therefore this Court has power to sustain the judgment under appeal on other 30 grounds. We are unable to agree with him for two reasons: There was ample evidence which was not hearsay and secondly hearsay evidence as to pedigree is admissible in exception to the rule excludinghearsayevidence.(LaCloche v. LaCloch [1872]L.R.4. 35 P.C. 325, English Reports 17P.C.) InRe Davy [1935] P.l, itwas held that declarations of deceased made «ante litem motam» are admissible in evidence in proceedings for legitimation and although the party sought to be legitimated is filius mullius until 439 Styllanides J. InreCharalambou*

(1987)decree and therefore before decree can have no relations, the result of excluding the declarations would be to take away by a rule of evidence the benefit that the statute intended to confer upon persons whose birth has been originally illegitimate apart from the operation of the statute. (See, also, Battle v. Attorney- 5 General [1949]P.359.) For the foregoing reasons the judgment under appeal is set aside and new trial of the application is ordered before another Judge. We trust that all necessary arrangements will be made for a 10 speedy newtrial. With regard to costs,the costsof the firsttrialtobe costsin the cause in the new trial,but not to be against the appellant at any rate. Costsofthisappealtobepaidbythe respondents. Appeal allowed. 15 New trialordered. 440