(1987)1987December7 (L0R1S.J] INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION CLEANTHISELIA, Applicant, v. THE REPUBLICOFCYPRUS,THROUGH 1.THEDISTRICTOFFICER PAPHOS, 2.THEMINISTEROFINTERIOR, Respondents. (CaseNo. 528/86). Registerofbirths—Dateofbirth—Correction of— Judicialcontrol—Principles applicable. Register of births — Dafe of birth — Correction of — Application for — Competency —TheRegistrationofBirthsandDeathsLaw85/73—The only competent organtodealwithsuchanapplicationistheDistrictOfficer. 5 Reasoningofanadministrativeact—Concretefactorsneed bereferredtosoasto render possiblejudicialcontrol—Arguments of counsel — Cannot fill the vacuum. Misconception of fact — Doubt raisedin me mind of the Court as to whether administrationactedunderamisconception offact—Ground forannulment. 10 Respondent 1rejected applicant's request, whichhad been supported by affidavits, a copyfrom aschool registershowingthatapplicantenlistedinthe 1stgradeofthe ElementarySchoolinquestionfortheyear1925—1926and a copy of applicant's certificate of graduation from Paphos Gymnasium referring to the academic year 1937/38, to change the date of his birth 15 recorded tnthe Registerof Birthsfrom 28.5.22to 19.12.
- The ground for rejecting the application was that respondent was not convinced by the new material produced that the date of applicant's birth referred toinhisaffidavit isthe correct one. Hencethisrecourse: 20 Held, annulling the subjudice decisional)The lawapplicable inthiscase Is the Registration of Births and Deaths Law 1973 (Law No. 85/73) as amended. «vwn 3C.L.R. Ellav. Republic 2) The only competent organ under the said law who could examine applications of this nature is respondent
- Respondent
- though hierarchically superior to respondent 1,hasno competency inthe matter. 5 3) This Court will not interfere, if the sub judice decision was reasonably opento respondent
- 10 4)Inthiscase,doubtswereraisedinthemindoftheCourttotheeffectthat respondent 1may have acted under a misconception of fact. Indeed, it is difficult to see how a boy three years and four months old could enrol in the 1st grade of an elementary school or how a boy of 16 years old could graduate fromaGymnasium. 15 5) Moreover. Respondent No. 1failedtogiveany reasonsfor ignoringthe aforesaid two certificates; in fact he gave no reasoning whatever for not believingthecontentsof theaffidavitsaccompanyingapplicant'sapplication. Concrete factors should be mentioned in order to render possible judicial scrutiny.Arguments of counselcannot fillthevacuum. Subjudice decision annulled. No order astocosts. Casesreferred to: Skourides v. TheRepublic
(1967)3C.L.R. 518; 20 Sofocleous v. TheRepublic
(1972)3C.L.R. 56; Zavrosv. TheRepublic
(1969)3C.L.R. 310; Metaiock (NearEast) Ltd v. TheRepublic
(1969)3C.L.R.351: Droussiotisv. TheRepublic
(1967)3C.L.R. 15: TheProfessionals13Ltd. v. TheRepublic
(1986)3C.L.R. 1. 25 Hecourse. Recourse against the refusal of the respondents to correct applicant's dateof birthappearinginthe Registerof Births. A. Stylianidou (Miss), for G. Cacoyiannis, for the applicant. P.derides, forthe respondents. 30 Cur. adv.vult. 2031 Ella «.Republic
(1987)LORISJ. read the following judgment. The applicant impugns bymeans ofthepresentrecourse,thedecisionofRespondentNo. 1,set outIna letterofthelatterdated 12.6.86,communicated to counsel acting for applicant on 16.6.86, whereby applicant's request for the correction of the date of hisbirth appearing inthe 5 Registerof Birthswasturned down by Respondent No.
- It is the allegation of the applicant, that the date of his birth recorded intheRegisterof Births,keptbyrespondentNo.1,asthe 28.5.1922 is wrong and that same should be corrected and substituted bythecorrect one, notably the 19th December 1920, 10 which isrecorded inhisidentity*card. Applicant, with a view to achieving the correction aforesaid, submitted through counsel, a leiter to respondent No. 1, dated 28.5.86, attaching thereto in support of his application the following documents, which are appended to the present 15 recourse: (a)Applicant's ownaffidavit {exh.2) (b)Anaffidavit of hiselderlysisternamely CleonikfCacoyianni (bom on 29.6.1902), dated 16.5.1986 (Exh.3). (c)Anaffidavit swornbyanothersisteroftheapplicantnamely 20 Galatia YpsilanHdated 19.5.86 (Exh.4). (d) A photocopy of page 40 of the Pupils' Register of Elementary School of Polis Chrysochous for the academic year 1925-1926 (Ex.5)wherein itisshown thatthe applicant enlisted inthe 1stgrade ofthe ElementarySchool inquestion 25 on 1.10.1925underNo.
- (e)A copy of applicant's certificate of graduation of Paphos Gymnasium (Ex.6)wherein the academic year of graduation isreferred toastheyeai 1937/38;althoughapplicant'sdateof birthdoesnotappearinthiscertificate applicantisreferred to 30 asbeing 18yearsofage. On 12.6.86 Respondent No. 1addressed tocounsel acting for applicant a letter of even date, (Ex. 7) turning down the said application on theground that«hewasnotconvinced bythe new material produced that the date of applicant's birth referred to in 35 hisaffidavit isthe correct one.» Applicant addressed through hisadvocates letter dated 1.7.86 (Ex. 8) to Respondent No. 2 praying for re-examination and reconsideration of Respondent'sNo. 1decision. 2032 3 C.L.R. Ellav.Republic Lori· J. Respondent No. 2 addressed a letter dated 16.8.86 to advocates actingfor theapplicant(Ex. 9)turningdown applicant's request saying tr^at«the material produced cannotbe considered as convincing proof that the date of applicant's birth recorded in 5 the Register of Births kept inthe Districtof Paphos iswrong.» Before proceeding to examine the merits of the present recourse Iconsider it pertinent at this stage to deal, as briefly as possible, with legal issuesraised by both sides. Inthefirst placethelaw applicable inthiscase istheRegistration 10 of Births and DeathsLaw 1973 (Law No.85/73)as amended;the Registration of Births and Deaths Law 1979 (Law No. 46/79) although published in the Official Gazette of the Republic on 1.6.1979has notcome intoforce as yet. The appropriate organ, according to Law 85/73 who could 15 examine applications of this nature and effect the necessary correction, if satisfied after correct ascertainment of the relevant facts that such correction was indicated, is respondent No.
- Respondent No. 2 although a hierarchically superior organ isnot vested with competencetothateffect; and thereisnoprovision in 20 theLaw authorisingahierarchical recourse. Of courseArticle 29of our Conctitution givestherighttoevery person «toaddress written requests or complaints to any competent public authority», but respondent No. 2 is not the public authority vested with competence in this particular instance. As already stated the 25 competentauthority inthis case was respondent No. 1who gave his decision of 12.6.86 (Exh. 7) and such decision was communicated to counsel acting for applicant on 16.6.
- This decision isof anexecutory characteranditisjusticiable underArt. 146 of the Constitution;and the present recourse which correctly 30 impugns the decision of Respondent 1 only, (vide the prayer) having been filed on 25.8.86 was filed in time pursuant to the provisions of Article 146.3 Coming now to the merits of this case; as stated by Triantafyllides J, (as he then was) in the case of Skourides ν The 35 Republic
(1967)3 C.L.R. 518 at p. 525 such cases must be approached «fully bearing in mind thatthe applicant had to «satisfy by positive evidence... that the correction sought regarding hisdateof birth ought tohave been made,andthat itis notfor thisCourttodecide about thecorrectdate of birth 40 of the applicant. This Court has to leave the jub-judice 2033 LorisJ. Ellav.Republic
(1987)decision... stand, ifsuch decision wasreasonably open to the Committee on the material before it;provided however, that such material does not contain, or has not led to, any misconception of fact.» In the case under consideration it must be stated at the outset 5 that strong doubt has arisen in my mind to the effect that respondent No. 1may have indeed acted under a misconception of fact, for the following reasons; (a)Exhibit5 attached tothe recourse i.e.page 40 ofthePupils' Registerof ElementarySchool ofPolisChrysochous,statesclearly 10 that the applicant enlisted in the 1st grade of the Elementary School in question, on 1.10.1925under No.403.Ifthe applicant wasborn on 28.5.22 asrecorded inthe Register of Birthskeptby respondent No. 1he must have been enlisted inthe 1st grade of the Elementary School when he was only 3 years and 4 months 15 old. Can anybody seriously maintain that a child of 3 years and 4 months old, can follow lessonsofthe 1stgrade ofthe elementary school? (b)Ex.6, the certificate ofgraduation ofapplicant from Paphos 20 Gymnasium refers tothe applicant asbeing 18yearsofage when graduating the said Gymnasium at the end of the academic year 1937/38 i.e. at about June 1938. If the applicant was born on 28.5.22 asrecorded intheRegisterofBirthshewould havehardly completed the 16th year, on graduation from the Gymnasium of 25 Paphos. Furthermore respondent No. 1 failed to give any reasons for ignoringtheaforesaid twocertificates;infacthegaveno reasoning whatever for not believing the contents of the affidavits accompanying applicant's application. And in this connection it 30 must be remembered that due reasoning is an essential requirement foranadministrative decision.Concretefactors upon which the administration based its decision must be specifically mentioned in such a manner as to render possible its judicial scrutiny (Sofodeous v. The Republic
(1972)3 C.L.R. 56 atp.60) 35 Furthermore the reasons must be stated clearly and unambiguously; mere repetition either in a negative form or otherwiseofthetextoftheenactmentconcerned,isnotenough to support the decision (Zavrosv.Republic
(1969)3 C.L.R. 310). 2034 3 C.L.R. Ella v. Republic LorisJ. TherespondentinEx.7sayssimplythat«hewasnot convinced bythe newmaterialproduced». Hedoesnotaddawordastowhy hewasledtosuchconclusion.Ifhedidnotbelieveforinstance the contents of the affidavit of the elderly sister of the applicant who 5 had opportunity to know and remember the date of applicant's birth (vide in particular paragraphs one to five in Ex.3)he should have stated expressly the reason for disbelieving her. Inthe instantcasethereisabsolutelackofanyreasoningandthe materialintheadministrative fileproduced, cannotprovideany.It 10 istrue that an effort hasbeen made bylearned counsel appearing for the respondent to provide in hiswritten addressa reasoning for the sub-judice decision. There isample authority though, that «arguments advanced by counsel for Respondent, during the hearing of a case, cannot really fill the vacuum existing through 15 lack of due reasons dating back to the material time» (vide METALOCK (NearEast)Ltd v.Republic
(1969)3C.L.R. 351atp. 359 - Droussiotis v. Republic
(1967)3 C.L.R. 15 at p. 23, The Professionals13Ltd v.Republic
(1986)3 C.L.R. 1atp.9) Inthe resultthesub-judice decision hastobeannulled notonly 20 onaccountofthestrongdoubtcreatedtomymind,forthereasons abovestated,thatrespondent No. 1 mayindeed haveacted under a misconception of fact, but also for the additional ground of absence of due reasoning of thesubjudice decision. Foralltheabovereasonsthepresentrecoursesucceedsand the 25 sub-judice decision isherebyannulled;inthecircumstancesIhave decided tomake no order astocosts. Subjudice decision annulled. No order astocosts. 2035