3 C.L.R. 1987November14 [STYUANIDES.J] IN THEMATTER OFARTICLE 146 OFTHECONSTTTUnON SOTERISL PANAYIS, Applicant, ν THEPORTSAUTHORITY OFCYPRUS, Respondents (Case No. 451/86). Evtdenc* —Admissibility/of. inproceedings under Art 146 of the Constitution— Pnnciplesapplicable— Review of case law 5 10 The question inthiscase concernstheadmissibility of evidence, whichthe respondentssought toadduce,totheeffect thatthepersonal filesandthefiles of the confidential reports of the applicant and the interested party were before the respondents and were taken into consideration by them in reaching thesub judice decision of the promotionof theinterested party The relevant record of the respondent reads as follows «The Board - (a) After having taken intoconsideration all thefactors at itsdisposal decided tooffer promotion » Held,
(1)Theproceedings inarecourse for annulmentareregulated bythe Rules oftheSupremeConstitutionalCourt, 1962 TheCourthaswide power to receive evidence on any pointor matterwhich the Court might consider necessary for theproper determination of the recourse 15 20 The rules of Evidence applicable in civil proceedings are relaxed in the Revisional Court in view of the material difference between the two jurisdictions Evidence which is relevant totheissues raised and tends tocompletethe picture by pbcing before the Courtall the relevant materia] onthe basisof which the appointing Authority has reached its sub Judice decision is admissible. Such evidence mustcomefrom official source. 2039 Panayls v.Republic
(1987)
(2)Inthe light ofthe relevantrecord oftheresponaents theevidence sou<jln to beadduced falls squarely within the ambit ofthe principle ofadmission ut evidence tocomplete the picture ofthe administrative process and emanates from officialsource ofthe organ that took the sub judice decision Directions accoidmgly 5 Cases referred to· Kyrtakides ν The Republic. 1RSC C 66 Theodossiou ν The Republic. 2 RSC.C 44 Papapetrou v. The Republic. 2RSC C6 1 . Saruhan v. The Republic, 2 R.S.C.C 133; 10 • Georghiades (No 2)v. TheRepublic (196$)3C L R473; Georghiades and Another ν The Republic.
(1966)3 C.L R827, Arkatihs andOthers (No 1) v. The Republic,
(1967)3 C L R 29; Chnstou v. The Republic
(1969)3 C L R. 134, Frangosv The Republic
(1969)3C L R 312 15 Michael (No 2)v. The Republic
(1975)3C L.R 432; loannouv TheWater Board ofLimassoHl9M) 3C.I.R 728 Application. Application by Counsel for respondent for leave to adduce evidence thatthe personal filesandthe confidentialreportsfilesof 20 the applicant and the interested parties were before the respondentsandwere taken intoconsiderationinreachingthesub judice decision topromote the interestedparty. A. Haviaras, for the applicant. P.loannides, for the respondent. 25 Cur. adv. vult. STYLIANIDES J. read the followingjudgment. Inthe courseof the hearing ofthis recourse counsel for the respondent Authority sought toadduce evidence that thepersonal files and thefilesof the confidential reports of the applicant and theinterested party 30 were beforethe respondentsandwere takenintoconsiderationby 2040 3 C.L.R. Panayls v. Republic Stylianides J. them in reaching the subjudice decision of the promotion of the ii-terested party. Counsel for the applicant objected to the admissibility of such evidence as this was not recorded in the minutes kept by the 5 respondentsand theadmissionofsuchevidence istantamount to a correction of such record, a course which isimpermissible. Counsel for the respondents on the other hand submitted that this evidence, which is offered ex abundanti cautela, will come from an official of the respondent promoting Authority to prove 10 that these fileswere before the respondents. The revisional jurisdiction of this Court emanates from Articles 146 and 151 of the Constitution and it is defined therein. A recourse isaimed atan administrative decision. The procedure is of inquisitorial nature and regard should be had to the 15 fundamental difference between acivilactionandarecourse.The object oftheadministrativejurisdictionisthejudicialcontrolofthe actsof the administration. The proceedings are regulated by the Rules of the Supreme Constitutional Court, 1962. 20 TheCourthaswidepowertoreceiveevidence on anypoint or matter which the Court might consider necessary for the proper determination of the recourse. InPhedias Kyriakidesv. The Republic, 1R.S.C.C. p.66,atp. 69 itwassaid:- 25 30 35 «Withregard tothelawand rulesofevidence, inparticular, thisCourt, ofcourse,willfirstlookforguidancetothelawand rules of evidence applicable in Cyprus in respect of other courts but whenever it deems it necessary for the proper fulfilment of its mission under the Constitution it will not hesitate to relax or even depart from such law and rules of evidence. Without inany waywishing to prevent parties from raising any legitimate objection to the admissibility of any evidence adduced before thisCourt, the Court drawstheir attention to the fact that one of the guiding factors to be applied in considering the admissibility ofany such evidence iswhether such evidence isreasonablyrelevantto,andprobative of, any 2041 Styllanides J. Panayts v.Republic
(1987)issue before the Court and can or cannot be of assistance to the Court in doingjusticeinthe particularcase in accordance with itsjurisdiction. Thereafter the Supreme Constitutional Court admitted evidence inMichael Theodossiou v. TheRepublic, 2R.S.CC 44: 5 in Papapetrou v. The Republic, 2 R.S.CC. 61;and Salih Shurki Saruhanv. The Republic, 2R.S.CC. 133. The question of the production of evidence in relation to the decision ofthePublicService Commission hasbeen dealt with,to a certain extent, ina numberof cases,including Georghiades (No. I() 2) v. The Republic
(1965)3 C.L.R. 473, at pp. 478 and 481; Georghiades and Another v.TheRepublic
(1966)3C.L.R.827,at p. 840; Nicos Arkatitisand Others (No. 1)v. The Republic
(1967)3 C.L.R.29atpp.30-31;Chrisfou v. 77ie/?epub/ic
(1969)3C.L.R. 134, atpp. 148,150,153,154; Frangosv. The Republic
(1969)3 15 C.L.R.312, atp.333;NikiMichael(No.2)v.TheRepublic
(1975)3 C.L.R. 432, atp.435;hannou v. The WaterBoard of Limassol
(1984)3 C.L.R. 728, at pp. 735 -739. The Rules of Evidence applicable in civil proceedings are relaxed in the Revisional Court inviewof the material difference 20 between the twojurisdictions. «...the partiestorevisional jurisdiction proceedings, under Article 146 of the Constitution, are at libertytoadduce proof in support of their contentions. But, it isabsolutely clear, on theotherhand, thattheultimateresponsibilityfor,andcontrol 25 of, the reception of evidence in such proceedings, lies with the trialJudge, inthe discharge of hisinquisitorial function in relation tothevalidityoftheadministrativeaction,oromission which issubjudice before the Court. AtrialJudge hasquite a wide discretion inthisrespect, but 30 such discretion hastobeexercisedina mannerwhichis,inter alia, compatible withtheparamount object oftheexistenceof therevisionaljurisdiction underArticle 146,namely toensure good administration; therefore, such discretion cannot be exercised in manner which will be inconsistent with good 35 administration.» (Per Triantafyllides, J., as he then was, in Christou v. The Republic
(1969)3 C.L.R. 134,at p. 150.) 2042
(1987)Panayla v. Republic StyllanidesJ . Fvidence wab admitted in Arkahtts case of the content of the recommendations made by the acting Auditor-General on which reliance WASplaced for reaching the sub judice decision Evidence which is relevant to the issues raised and tends to 5 complete the picture by placing before the Court all the relevant matenal on the basis of which the appointing Authonty has reached itssub judxe decision isadmissible Such evidence must come from official source Thematenalpartfor thisruling of thesubjudice decision reads 10 .c «To Συμβουλιο(α) Α φ ο ο έλαβε υπόψη όλα τ α στοιχεία π ο υ είχε στη διάθεση τ ο υ αποφάσισεν όπως προσφερθεί προαγωγή στη θέση τ ο υ Λιμενικού Μηχανοδηγού, 1ης Τάξης στον κ. Γεώργιο Γ. Παναγή, ΛιμενικόΜηχανοδηγό 2ηςΤάξης.» The Board- 2Q (a)Having takenintoconsiderationallthematenal,whichit hadatitsdisposal. . . . . decidedtooffer promotionto the post of Port Engine Dnver, 1st Grade to Mr George G Panaghi, PortEngine Dnver, 2nd Grade» The evidence sought to be adduced falls squarely within the ambit of the pnnciple of admission of evidence to complete the picture of the administrative process and emanates from official source of the organ thattook thesub judice decision 25 Foralltheafore reasons Ihave decidedtoallow theproduction of this evidence, but applicant's counsel must be given the opportunity to cross -examine the witness who will testify and, therefore, such evidence has to be given viva voce and not by affidavit. 30 Leave granted. 2043