clr/1987/1987_3_1073.pdf

(1987)The applicant applied for regranting to him of the identity card. The application was turned down on the ground that his place of abode at the material timewasPigheniavillage. Theapplicantrenewedhisrequest,but,onceagain,afteranewinquiry,the respondents turned down the application, this time on the ground that the applicant's place of abode at the material time was the village of Kato Pyrghos Hencethisrecourse. Itappearsthatinreachingthesubjudicedecisionthe respondentsreliedonacertificate dated8.3.79bythechairmanofthevillage Commission of Kato Pyrghos to the effect that at the material time the applicant wasresidingat KatoPyrghos. 5 10 It must be noted that from perusal of the file of the administration it was established that, apart from the aforesaid certificate, the respondents had before them: (a)Certificate byEliasM.Eliades,Courtbailiff atthe Morphou Court untilthe invasion, that atthe timeapplicant wasresiding atSouliou 6 1 5 Morphou (Eliades was residing at Souliou 17). (b) Certificate to the same effect asthatofEliadesbyA.Hadjicharalambous,whowasresidingatSouliou 1, (c)Asimilar statement by N.Efstathiou, another Morphou man, (d)Two certificate by the chairman of the village Commission of Morphou that applicant was until 14.8.74 residing at Souliou 6, Morphou (e)Letterdated 2 0 21.12.78bythe DistrictOfficer Paphosthatthereason ofaneariierrefusalof the chairman ofthevillageCommissionof KatoPyrghostogranta certificate totheapplicant thattheapplicantwasapermanentresidentofMorphou was that such chairman «did not know ifyou really before the invasion were a permanent resident of Morphou». 2b Held, annulling the sub judice decision:

(1)Misconception of fact exists when the administration took the decision on thebasisofnon existing facts. Evaluation of facts isprimarily withinthe domain of the administration.This Court does not review a decision on the merits of the evaluation of facts. There does not exist a misconception of fact when the administration 3 0 determines items which in substance are different and conflicting (Passage from the Conclusions of the CaseLawof the Greek Council ofState

(19291959)atp.268citedwithapproval).Failuretomakedueinquirycausinglack ofknowledge of material factsamountstoamisconception of fact.

(2)The burden lieson the applicant tosatisfy oratleastraisedoubtinthe 3 5 mindoftheCourtthattheadministrationactedunderamisconceptionoffact.

(3)Incases where a doubt hasarisen inthisrespect the Courtmay either order further necessary evidence orannul the act,sothatthe administration mayascertaintherealfactswithoutroom ofdoubtbeing left.

(4)Inthiscase the subjudice decision wasissued only on the basisof the 4 0 aforesaid certificate of the chairman of the village Commission of Kato 1074 3C.L.R. 5 Spyrouv. Republic Pyrghos. The administration completely disregarded all other material inits tile. It is evident that there has been no due inquiry in this case. The respondentsfailedtoconsider, evaluate orassesssuchothermatenalinthe file.Therefore, the Court cannot relyon the presumption of the correctness ofthefindings of factbytheadministration.Gravedoubthasbeen createdin themindof theCourtregardingsuch correctness. Subjudice decisionannulled. £100.-towardsapplicants costs. Casesreferredto: 10 TheRepublicv.Lefkos Georghiades

(1972)3C.L.R.594; Christtdesv.TheRepublic

(1966)3C.L.R.732; lordanouv.TheRepublic

(1967)3C.L.R.245; Mikellidouv.TheRepublic

(1981)3C.L.R. 461; Photos Photiadesand Co.v. TheRepublic, 1964C.L.R.102; 15 Paphitisv.Republic

(1967)3C.L.R.300; Skourides v.Attorney-General

(1967)3C.L.R. 518; Economou v. TheRepublic

(1970)3C.L.R.420; Kontos v.Republic

(1974)3C.L.R.112; SkapoullisandAnother v. TheRepublic

(1984)3C.L.R.554. 20 Recourse. Recourse against the decision of the respondents whereby applicant's application for regranting tohim hisrefugee identity cardwasrejected. C.Anastassiades, forE.Efstathiou,fortheapplicant. 25 A Vassiliades,fortherespondent. Cur. adv. vult. STYLIANIDESJ. read the following judgment. The applicant by this recourse seeks declaration that the decision of the respondents communicated to him by letter dated 29/3/79, 30 wherebyhisapplication forregraftting tohimhisrefugee identity cardwasrejected,isnullandvoidandofnoeffect whatsoever. Theapplicant wasbom atPighenia village where hefound a family. Hehassixchildren. He resided athisnativevillageuntil 1969or 1970when he changed hisplaceofresidence. Heisa 35 builderbyoccupation. 1075 StyUanldesJ. Spyrouv.Republic

(1987)After the Turkish invasion of 1974 he moved with hisfamily to Panayia village inthe Paphosdistrict. Due tothe plightthat befell on thiscountry by the Turkish invasion and the disruption of the economy he, as many thousands of Cypriots, was unemployed. He travelled to Boulgaria where he worked from January to 5 September 1975.Inthemeantimehisfamilymovedfrom Panayia to Polis Chrysochou. In January 1976 he was employed in Tsechoslovakia; hereturned finallyfrom thatcountryin December

1. From October 1977 untilJune 1978 he wasemployed at Saoudi Arabia. InvirtueofthedecisionoftheCouncilofMinisters13503of 19/ 9/74 a refugee identity card was issued to the applicant, who stated that his place of abode at and before the Turkish invasion wasMorphou town. During his absence abroad the respondents informed his wife 15 thattherefugee identitycarNo.47427 issuedtotheapplicantwas cancelled because he was not at the material time resident at Morphou. Thereupon the applicant submitted application requesting the regranting to him of his refugee identity card, the holding of which obviously entailed material benefit and certain 20 positive legal results. Certificates - statements by a number of persons were submitted to the respondents insupport of hissaid application. Inthefileoftheadministration produced before thisCourtthere was nothing indicating that he was resident of Pighenia with the 25 exception that his name was in the list of voters for the 1973 elections,apparently the Presidential elections. The respondents rejected the request of the applicant on the ground that his usual residence before the Turkish invasion was Pighenia village and not Morphou. The applicant was informed 30 accordingly byletterdated 8/10/
2. The applicant renewed his request and his application was reconsidered by the respondents. The respondents obtained an undated statement of the Chairman of the village Commission of Pighenia tothe effect thatthe applicantleft Pigheniain 1970and 35 was residingat Kato Pyrghosand a statement from the Chairman ofthevillageCommission ofKatoPyrghostotheeffect that before theTurkishinvasiontheapplicant had hisusualresidenceatKato Pyrghos.The latterstatement isdated 8/3/
3. 1076 10 3C.L.R. Spyrouv. Republic StytlanldesJ. On 28/3/79 the sub judice decision was taken whereby the application for regranting to him of the refugee identity card was rejected asitwas consideredthathehadhisusualresidence before theTurkish invasion atKatoPyrghos andnotMorphou.Hencethis 5 recourse. The respondents raised preliminary objection thatthe decision challenged by this recourse is confirmatory of the decision communicated to the applicant on 8/10/77 and therefore is not amenable tothejurisdiction of this CourtunderArticle 146 of the 10 Constitution and further that the recourse is out of time. In an Interim Decision the Courtdecided thatthesub judice decision is not comfirmatory of the decision of 8/10/77, as new inquiry was carried outand there is no identity of reasoning between the first andtheseconddecision.Theprayer isjusticiableandtherecourse 15 isnotoutof time. The applicant by this recourse complains that the sub judice decision was based on a misconception of fact and or on facts which were neithertrue nor correct, thatitlacks reasoning, it isa product of excessand orabuse of power and iscontraryto law. 20 Misconception of fact existswhen theadministrative decision is taken on the basis of non existing facts. Ithas been decided in a number of cases that administrative acts or decisions done or taken on a misconception of law or fact may be treated as instances of excessor abuse of power. 25 Evaluation of the facts is primarily within the domain of the administration and in our system of Revisional Jurisdiction the Courtdoes notreviewadecision onthemeritsof theevaluation of fact. Onthe question of misconception of fact in tne Conclusions of the Case Law of the Greek Council of State (1929-1959), we 30 read atp. 268:- 35 40 «Δια την ύπαρξιν πλάνης περί τα π ρ ά γ μ α τ α απαιτείται αντικειμενική ανυπαρξία των εφ' ων η πράξις ερείδεται πραγματικών περιστατικών και προϋποθέσεων: 2134

(52), διαπιστουμένη άνευ του στοιχείου της υποκειμενικής κρίσεως: 1089

(46). Δεν υφίσταται πλάνηπερίτ απ ρ ά γ μ α τ α οσάκιςηΔιοίκησις εκτιμά κατ' ουσίαν διάφορα, και αντιφατικά στοιχεία ων η οτάθμισιςδύναται κατ'αρχήννα οδηγή και εις το συμπέρασμα εις ο ήχθη ηΔιοίκησις. Τοιαύτηεκτίμησις δεν ελέγχεται κατ'ουσίανεν τη ακυρωτικήδίκη (βλ.και 1474

(56)». 1077 StyUanidesJ. Spyrouv.Republic

(1987)(«For the existence of a misconception of fact there is required an objective non existence of the actual circumstances and prerequisites upon which the act isbased (2134/52) which isascertained inthe absence ofthe element of the subjective test: 1089/46. There does not exist a 5 misconception of fact when the administration determines itemswhich insubstance aredifferent and conflicting; whose determination may inprinciple leadtotheconclusion arrived atbytheadministration.Thesubstance ofsuch determination isnot controlled inthe annulment trial(seealso 1474/56).» 10 See,also TheRepublic v. Lefkos Georghiades,

(1972)3 C.L.R., p. 594. Failure to make a due inquiry causing lack of knowledge of material factsamountstomisconception offact (Christidesv. The Republic

(1966)3 C.L.R. 732;hrdanou v. TheRepublic

(1967)3 15 C.L.R. 245;Mikellidou v. TheRepublic

(1981)3 C.L.R. 461). The burden lies on the applicant to satisfy the Court that the respondent hasacted under a misconception of fact or atleast to raise a doubt inthe mind of the Court inthisrespect. In Republic v. Georghiades (supra)at p.646itwassaid:- 20 «There is no doubt, therefore that our Supreme Court, in exercising its competence under Article 146 of the Constitution, hastoexaminewhetheracertain administrative actcanbeannulledascontraveningtheprovisionsofthelaw. The mistaken valuation of the real facts and the mistaken 25 subjection or non-subjection of those facts to the said legal provisions, constitutes contravention of the law for the purposes of Article 146. In case 368 of 1937, the Greek Council of State, dealing with the question of misconception of the real facts, took the 30 view that misconception of the facts bythe administration is anindirectcontravention ofthelaw,andprovidesareason for the annulment of such decision of the administration». In cases where such doubt having arisen, itappears probably that the administrative act concerned has been based on a 35 misconception ofthetrue factssituation,theAdministrative Court hastwocoursesopen toitinordertoclearadoubtthathasarisen: either to order further necessary evidence or to annul the act concerned so that the administration may ascertain the real facts 1078 3C.L.R. Spyrouv.Republic StyU*nJd*»J. withoutroomfor doubtbeing left. (See«TheLawof Administrative Acts»by Slasinopoutos

(1951)p.305; Photos Photiadesand Co., v. TheRepublic of Cyprus through the Ministerof.Finance, 1964 C.L.R. 102; Theodotos Paphitisv. The Republic

(1967)3 C.L.R. 5 300; PantelisSkourides v. TheAttorney-General of The Repulbic

(1967)3 C.L.R. 518; Economou v. TheRepublic

(1970)3 C.L.R. 420; DinosKontos v. Republic

(1974)3 C.L.R. 112; Skapouliis and Another v.The Republic

(1984)3 C.L.R. 554.) In the present case the respondents issued the sub judice 10 decision onlyonthebasisof thecertificate issued by theChairman of the village Commission of Kato Pyrghos. In the file of the administration, however, there is a certificate issued by Elias M. Eliades, Court Bailiff posted at the Morphou Court until the invasion, who as from 1974 is posted at the District Court 15 of Paphos. His wife, Koulla, is posted at the office of the DistrictOfficer atPaphos.Thecertificate issuedbythecivilservant is totheeffect thattheapplicantwas residing until14/8/74atSouliou 6 at Morphou. Eliades was residing at Souliou 1/- They were neighbours and they were frequently meeting at the coffee-shop 20 of Morphou. Inthe same file of the administration there isa note dated 16/2/79thatAvraam Hadjicharalambous who was residing at the material time at Souliou 1, Morphou, certified that the applicant was livingwith his family atMorphou.Nicos Efstathiou, anotherMorphoumanmadeasimilarstatement.Thechairmanof 25 the village Commission of Morphou issued two certificates, one 20/11/76certifying thattheapplicantwas residing until14/8/74at Souliou 6 atMorphouwhen hefledduetotheTurkish invasion.In 1977 thesame Chairmanissued anothercertificate stating thaton the information of two reliable persons, namely Andreas 30 Charalambous of Morphou holder of identity card 24923 and Elias Pelava of Morphou holder of identity card 250310, the applicant until the invasion was permanent inhabitant of Morphou. The administration completely disregarded all the above 35 comingfrompersons residing atMorphouatthematerialtimeand used only the certificate they obtained from the Chairmanof the village Commission of Kato Pyrghos on 8th March 1979. It is noteworthythattheapplicantin 1978 aDDliedtothisChairmanfor acertificate concerninghisrefugee identify card,butthisChairman 40 refused to issue any. The applicant complained to the District Officer who by letter dated 21/12/78 (Exhibit Γ) informed the applicantthathiscomplaintwas investigated anditwas foundthat 1079 StyflanidesJ. Spyrouv.Republic

(1987)«the reasons of the refusal of the Chairman of the village Commission to issue the requested certificate isthat he did not knowifyoureallybeforetheinvasionwerepermanentresidentof Morphou.»Hedidnotstatetohissuperior,theDistrictOfficer,in December 1978,whichisadateapproximatetothe8/3/79,that 5 the applicant wasbefore the invasion resident of KatoPyrghos. Thisplea of ignorance isnot compatible withhiscertificate ona cyclo style form of the respondents No. 2 to the effect that the applicantwasresidentofKatoPyrghos. Fromallthe above itisevidentthatthe respondentsfailed to 10 carry out a due inquiry. The respondents failed to consider or evaluate the host of the certificates and statements in their file. Theyfailed tomakeanyassessment ofthematerialbefore them. Theydidnotperformtheirprimaryduty.TheCourtcannotrelyon thepresumptioninfavourofthecorrectnessofthefindingsoffact 15 bytheadministration.Gravedoubthasbeencreatedinthemind oftheCourtaboutthecorrectnessofthefinding offactonwhich the sub judice decision was based. Thus sub judice decision is tainted and faulty. HavingconsideredthematterIdecidedtoannulthesubjudice 20 decisionallowingthustherespondentstocarryoutthereasonably necessary inquiry for the ascertainment directly of the relevant facts. FortheforegoingreasonsIdeclarethesubjudicedecisiontobe nullandvoidandofnoettectwhatsoeverunderArticle146.4(b). 25 Underthecircumstancesofthecase,respondentstopay£100.towardsapplicant'scosts. Subjudicedecision annulled. Respondents topay£100.- costs. 30 1080