(1987)1987March28 rmiANTAFYUJDES. Ρ] INTHE MATTEROFARTICLE146OFTHE CONSTITUTION KYROSDEMOSTHENOUS, Applicant, v. THE REPUBLICOF CYPRUS, THROUGH THE EDUCATIONALSERVICECOMMISSION, Respondent. (CaseNo. 263/84). Evidence — Affidavits,admissibility of in evidence inproceedings by way of Recourse for annulment —Approach ofthe Court— Leave tohieaffidavits — Inthecircumstancesdidnot amount toanexpressionofanyviewastotheir admtssibiltyin evidence. On 22.2.86 theCourtgrantedleave tocounselfortheapplicanttoadduce evidence bywayofaffidavits, «which are filed now» and directed thatany counter-affidavits on behalf ofthe respondent andthe interested partiesbe filed «within onemonth...». On5.4.86 the time for filing such counteraffidavits was extended until 30.4.86. 5 After filing such counter-affidavits counsel forthe respondent raised the 1 0 issue ofthe admissibility in evidence ofthe affidavits filed in supportofthe applicant's case. Held,
(1)Inthecircumstancestheleave grantedby theCourton 22.2.86 andthedirectionof5.4.86donotamounttoanexpression ofanyviewbythe Courtasregards theadmissibility inevidenceoftheaffidavits inquestion. 15
(2)Inthelightof theapproachofthisCourttotheadmissibility of evidence adducedInproceedingsbyway ofrecourseforannulment,theCourtreached thefollowing conclusions: (a)Thepartsofdie affidavits relatingtowhat happeneddunngapplicant's interview areadmissible,becausetheapplicantdisputestheevaluation made 2 0 bytherespondentof hisperformanceatthe interview. (b)Thepartsoftheaffidavits, whicharedirectfy relevanttotheweightofthe recommendationsmadebytheHeadof the Departmentare admissible. 998 3C.L.R, 5 Demoethenous v. Republic (c)Thepartsofthe affidavits, whichconstitute anattempttocontradict the evaluation ofapplicant'sperformance attheinterviewinsucha roundabout wayastobetooremote toberelevant,thepartsoftheaffidavits consistingof argumentsandthepartsconsistingofallegationsnotsubstantiatedinanyway. areinadmissible.
(3)The counter-affidavits are admissible to the extent they tend to contradicttheadmissiblepartsoftheaffidavitsbuttotheextenttheyconstitute a replyto the inadmissible parts of the affidavits should be ignored, unless relevanttothevalidityofthesubjudice decision. \Q RulingasaboveCasesreferredto: Kyriakidesv. TheRepublic. 1R.S.C.C.66; Georghiades (No.2)v.TheRepublic
(1965)3C.L.R.473; Malaisv.TheRepublic
(1965)3C.L.R.572; 15 Georghiadesv.TheRepublic
(1966)3C.L.R.827; Arkakitis (No. 1)v.TheRepublic
(1967)3C.L.R.29; Chnstouv.TheRepublic{1968)3C.L.R. 715.andonappeal
(1969)3C.L.R.134; Michael(No.2)v.TheRepublic
(1975)3C.L.R.432; 20 Constantinidesv. The Electricity Authority of Cyprus
(1982)3 C.L.R, 387; loannou v.The WaterBoardofLimassolU9S4)3C.L.R. 728; Pieridesv.TheRepublic(notreportedyet); Pilavakisv.TheRepublic
(1987)3C.L.R.6. 25 Preliminary issue. Preliminary issue regarding the admissibility in evidence of affidavits filed inthe above case. AS. Angelides, forthe applicant. R. Vrahimi-Petridou (Mrs.), forthe respondent. 30 Chr. Triantafyllides,for interested parries A. Tsintis and A. Constantinou. Chr, Kitromeiides, for interested parties A. Eleftheriades, P. Theodossiou and I. Papaioannou. Cur.adv.vult. 999 Demoethenous v.Republic
(1987)TRIANTAFYLLIDESP.readthefollowingdecision.Thiscaseis beingheardtogetherwithrelatedcases261/84,274/84,275/84, 299/84,342/84,377/84. Onthe28th February1987argumentsofcounsel wereheard regardingtheadmissibilityinevidenceofthefollowingaffidavits: 5 (
- a)An affidavit sworn by the applicant on the 18th February 1986. (
- b)An affidavit sworn by Th. Karydas, an ex-Inspector of ElementaryEducation,on18thFebruary1986. (c)An affidavit sworn by A.Christodoulides, ex-Head of the 10 Department of Elementary Education, in the Ministry of Education,on 17thFebruary1987. (d)Anaffidavit swombyN.Papaxenophontos,ex-Headofthe DepartmentofElementaryEducation,on18thFebruary1986. Counsel for the respondent objected to the admissibility of 15 theseaffidavits andherobjectionwassupportedbycounselforall interestedpartieswhoaretakingpartintheseproceedings. Bywayofanswertotheaforementioned affidavits therewere filedthefollowing affidavits: (
- i)An affidavit sworn by I. Varnavas, ex-Chairman of the 20 EducationalServiceCommission,on29thApril1986. 00 An affidavit sworn by A. Papadopoullos, Head of the Department of Elementary Education, in the Ministry of Education,on8thMay1986. Counsel for the applicant has supported the admissibility of 25 affidavits(a)to(d)aboveandhasalsoarguedthat,inanyevent,the contentsofaffidavits (i)and(ii)abovearepartoftheseproceedings irrespectiveoftheadmissibilityofaffidavits (a)to(d).Butcounsel fortherespondenthasarguedthatifaffidavits (a)to(d)areheldto be inadmissible then affidavits (i)and (ii)should be disregarded 30 becausetheywerefiledascounter-affidavits tothem. 1shalldeal,first,withaproceduralissue: Counsel for the applicant has drawn my attention to the followingdirectionwhichwasmadebymeonthe22ndFebruary 1986:«Leaveisgranted tocounselfortheapplicantincase263/ 35 84toadduce evidencebywayofaffidavits, whicharefilednow, 1000. 3 C.L.R. Demoethenous v. Republic Triantafyllides P. and copies of which are delivered to counsel for the respondent and for theinterested parties,who may file and deliver tocounsel for the said applicant counter-affidavits within one month from today». 5 Also,onthe5thApril 1986 Ϊmadethefollowing direction:«The time within which counsel for the respondent is to file counteraffidavits in case 263/84 is extended up to 30.4.86». In the circumstances in which the filing of the affidavits (
- a)to (
- d)was allowed by me it is clear that leave was granted to file such 10 affidavits independently of any objections to the admissibility of their contents,which counsel for the respondent and interested parties had nothadyetanopportunitytoperuse before they were filed and, therefore, it cannot be said that I have, in any way, expressed a view as to the admissibility of the contents of such 15 affidavits when I allowed themtobe filed. I have examined the issue of the admissibility of the said affidavits in the light of the well settled approach to the admissibility of evidence adduced in proceedings instituted by way of a recourse under Article 146 of the Constitution,as such 20 approach is to be found in case-law of this Court, such as Kyriakides v. TheRepublic, 1R.S.C C. 66, 68, Georghiades (No. 2) v. The Republic,
(1965)3 C.L.R. 473, 481, Malais v. The Republic,
(1965)3 C.L.R. 572, 574, Georghiades v. The Republic,
(1966)3 C.L.R. 827, 840, Arkatitis (No. 1) v. The 25 Republic,
(1967)3 C.L.R. 29, 30, Christou v. The Republic,
(1968)3 C.L.R.715,722 andonappeal
(1969)3C.L.R. 134,148, 149, 151, 154, Michael (No. 2) v. The Republic,
(1975)3 C.L.R. 432, 435, Constantinides v. The ElectricityAuthority of Cyprus,
(1982)3 C.L.R. 387, 389, loannou v. The Water Board of 30 Limassol,
(1984)3 C.L.R. 728, 735-739 and Pierides v. The Republic,case329/80, decisiongivenon 19November 1986 and not reported yet, and Pilavakis v. The Republic, case 525/83, ruling given on 17th February 1987 and not reported yet*; andI have reached the following conclusion. 35 Inasmuchas itisclearthattheapplicantinthiscase disputes the evaluation by therespondentEducationalService Commission of his performance when interviewed by the Commission on the 23rd February 1§84, his evidence regarding what happened at such interview isadmissible and,therefore, paragraphs 1,2 and 4 40 of his affidavit, dated 18th February 1986, are admissible as they relate tosuch interview. Paragraph5,however, of hisaffidavit and •Reportedin
(1987)3CLR 6 1001 Triantafyllides P. Demosthenous v.Republic
(1987)the contents of the affidavits of A. Christodoulides and N. Papaxenophontos attempt to contradict the aforesaid evaluation ofthe Commission insuch aroundabout waythattheyare,inmy view, too remote tobe relevant towhat hasactually happened at such interview and, I, therefore, regard them as containing 5 evidence which for this reason is inadmissible and is excluded accordingly. The same applies to paragraph 3 of the affidavit of Th.Karydas.Asregardsparagraphs 1,2 and 4ofthesaid affidavit of Karydas and paragraph 6Ofthe affidavit of the applicant Ifind that they contain evidence directly relevant to the weight of the 10 recommendations made by A. Papadopoullos, the Head of the Department of Elementary Education, in the Ministry of Education, and, consequently, such evidence is admissible; and the same applies, also, to the second part of paragraph 7 of the affidavit of the applicant. 15 As regards paragraphs 3 and 8, as well as the first part of paragraph 7oftheaffidavit oftheapplicant,1findthattheycontain arguments which should nothavebeen includedinhisaffidavit or allegations of fact which are not substantiated in any way, and, therefore, they cannot be treated as being relevant and, 20 consequently, admissible evidence. Lastly, the counter-affidavits of I. Vamavas and A. Papadopoullos to the extent to which they reply to admissible evidence adduced by the applicant by way of affidavits they are clearlyadmissible;andtotheextenttowhichtheyreplytopartsof 25 affidavits filed by the applicant which have been declared inadmissible they would have tobe ignored, unless they disclose metters relevant to the validity of the sub judice administrative process which have to be taken into account by this Court in determining this case, and the related to itcases which are being 30 heard together withit. Rulingas above. 1002