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(1979) 3 CLR 227

1979 June 20

 

[L. LOIZOU, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

XENOPHON LOIZOU IOANNIDES,

Applicant,

v.

THE REPUBLIC OF CYPRUS, THROUGH

1. THE DIRECTOR OF THE DEPARTMENT OF MEDICAL

SERVICES,

2. THE COUNCIL OF MINISTERS,

Respondents.

(Case No 13/75).

Public Officers—Date of birth—G.O. II/1.47.

Births—Registration—Date of birth—Entry in the Register—Not signed by a person alleging to be the informant—Entry not proof of the date of birth—Section 34(2) of the Births and Deaths Registration Law, 1973 (Law 85/1973).

Administrative Law—Administrative organ—Inquiry—Principles governing the duties of administrative organs regarding the holding of a proper inquiry before arriving at a decision in non-disciplinary matters—Council of Ministers considering Public Officer's application for determination of his date of birth—Discrepancies in the information submitted by applicant—Documents before the Council presenting a sufficiently clear picture to enable them decide the issue—Non invitation of the applicant by the Council to furnish them with any further explanations before reaching their decision not open to any criticism—HadjiLouca v. Republic (1969) 3 C.L.R. 570 at pp. 574-575 and Constantinou v. Republic (1972) 3 C.L.R. 116 at pp. 125-126 followed.

The applicant was a pharmacist, 1st Grade, in the Medical Department. He first entered the Government service in 1942. In his application for appointment he gave his date of birth as the 6. 1. 1915 and the occupation of his father as shoemaker. On entering the service he produced a birth certificate, dated the 15th January, 1942, which showed the 6th January, 1915 as his date of birth. This certificate was signed by the Commissioner of Paphos and as stated therein it was based on a certificate issued by the Mukhtar and Azas of Droushia village. He left the service in 1944 and when he applied for appointment to the Civil Service in 1952 he again gave the 6th January, 1915 as his date of birth. He, also, submitted a birth certificate, issued by the Commissioner of Paphos on the 3rd April, 1947, and the date of birth stated therein was again the 6th January 1915. In this application applicant gave the occupation of his father as shoemaker and the name of his mother as Katerina Paraskeva Loizou.

The applicant raised for the first time the question of his date of birth by letter dated 24th April, 1974, addressed by him to the Public Service Commission alleging that the certificate of birth in his personal file showing that the date of his birth was the 6. 1. 1915 was wrong and that the correct date of his birth was the 25. 5. 1916.

Subsequently to his application to the Public Service Commission the applicant applied to the Council of Ministers by letter dated 9th November, 1974 for determination of his date of birth.

Applicant produced three photocopies of certificates of birth showing the 25. 5. 1916 as the date of his birth, all issued by the office of the District Officer of Paphos. In the Form Comm. 50 which was forwarded by the Mukhtar of Droushia to the Commissioner and on the basis of which the originals of the above three certificates were issued the occupation of the father is given as Forest Guard and the column "Signature and residence of informant and date of giving information" was blank. The name of his mother in these three certificates was Katerina Costi.

On January 16, 1975, the Council of Ministers considered applicant's above application together with the submission prepared by the Ministry of Health and decided that the 6th January, 1915 should continue to be considered as the date of applicant's birth. Hence the present recourse.

In coming to the above conclusion the Council of Ministers invoked the provisions of G.O.II/1.47 which reads as follows:

"The date of birth of an officer whose exact date of birth is not known will, for all official purposes including calculation of the date of retirement, be the date of birth stated by him on entering the Government Service".

Counsel for the applicant mainly contended:

(a)That the Council of Ministers failed to consider the issue in the light of the law applicable which is section 34(2) of the Births and Deaths Registration Law, 1973 (Law 85 of 1973), read in conjunction with Law 16 of 1895 and were, therefore, under a misconception with regard to the legal position.

Counsel sumbitted, in this connection, that the certificates of birth which showed applicant's date of birth as the 6th January, 1915, should not have been relied upon because they were based on hearsay evidence whereas the three certificates which showed applicant's date of birth as the 25. 5. 1916, were based on information extracted from the Register of births and should, therefore, in the light of the provisions of section 34(2) of Law 85 of 1973, be relied upon as proof of the correct date of birth.

(b)That the Council of Ministers came to their decision because of the doubts raised regarding the occupation of Applicant's father and the surname of his mother and that if they were really mindful of finding the truth they ought to have given a chance to the applicant to explain the discrepancies.

Held, (1) that under the provisions of s. 34(2) of Law 85 of 1973 an entry or a certified copy of an entry of birth or death in a Register is not proof of the birth or death unless the entry appears to have been signed by a person alleging to be the informant and that he is a person who might have been bound by the law, on the date of the entry, to furnish to the Registrar information relating to the birth or death; that under the law in force at the relevant time (Law 16 of 1895) it was the duty of the father or mother of the child, and in default of the father or the mother, of [*230] the occupier of the house or premises in which the child was born, to give to the Registrar information of the particulars required to be registered concerning the birth, and in the presence of the Registrar to sign the Register; that in the relative entry of the Register the column relating to the informant is completely blank and in view of this, one could reasonably argue that in the light of the express provisions of s. 34(2) the said entry is not proof of the date of birth therein stated and that, therefore, it would not be of much help to the Council of Ministers.

(2) That the documents which were before the Council of Ministers presented a sufficiently clear picture to the Council to enable them to decide the issue; and that the course followed by the Council of Ministers in not inviting the applicant to furnish them with any further explanations before reaching their decision is not open to any criticism. (See HadjiLouca v. Republic (1969) 3 C.L.R. 570 at pp. 574-575 and Constantinou v. Republic (1972) 3 C.L.R. 116 at pp. 125-126).

(3) That on the material before them it was reasonably open to the Council of Ministers in the exercise of their discretion to reach the decision complained of and that in the circumstances this Court would not be justified in interfering with such decision; and that, accordingly, the application must be dismissed.

Application dismissed.

Cases referred to:

Ieromonachosv. Republic, 4 R.S.C.C. 82;

HadjiLouca v. Republic (1969) 3 C.L.R. 570 at pp. 574-575;

Constantinou v. Republic (1972) 3 C.L.R. 116 at pp. 125-126.

Recourse.

Recourse against the decision of the respondents concerning the dates of birth and retirement of the applicant.

K. Talarides, for the applicants.

V. Aristodemou, Counsel of the Republic, for the respondents.

Cur. adv. vult.

L. LOIZOU J. read the following judgment. By the present recourse the applicant seeks a declaration that:

(1)The decision of the Council of Ministers No. 13. 724 dated 16/1/1795 whereby they decided that applicant's date of birth was the 6th January, 1915 or any other date other than the 25th May, 1916 is null and void and of no effect and/or in excess of powers; and

(2)That the decision of the Director of the Department of Medical Services dated 24/1/1975 that the applicant should retire on the 1st February, 1975 and that the applicant's date of birth by decision of the Council of Ministers No 13. 724 dated 16/1/1975 should be considered the 6/1/1915 is null and void and of no legal effect and/or unlawful and/or in excess of his powers.

The application is based on a miscellany of grounds of law. I shall be dealing at a later stage with the grounds actually argued.

The decision of the Council of Ministers the validity of which is challenged by this recourse is exhibit 1 in these proceedings and I shall refer to it later in this judgment.

The facts of this case, in so far as they are relevant for the purposes of this recourse, are briefly as follows:

The applicant was a pharmacist, 1st Grade, in the Medical Department. He first entered Government service in 1942. His application for employment is exhibit 10. It is dated the 10th May, 1942. In this application he gives his date of birth as the 6/1/1915 and the place of his birth Droushia village, his father's name as Loizos I. Maratheftis and the occupation of his father as shoemaker. On entering the service he produced a birth certificate No. 22997 (exhibit 2) which bears date the 15th January, 1942 and gives the date of his birth as the 6th January, 1915, the place of his birth as Droushia village and the name and surname of his father as Loizos Ioannides. This certificate is signed by the Commissioner of Paphos and as stated therein is based on a certificate issued by the Mukhtar and Azas of Droushia.

It would appear that the applicant left the service some time at the end of 1944 but on the 6th November, 1952, he submitted another application for appointment to the civil service (exhibit 11). In this application he again gives the date of his birth as the 6th January, 1915, his place of birth as Droushia village, his father's name as Loizos Ioannou Maratheftis, the occupation of his father as shoemaker and his mother's name as Katerina Paraskeva Loizou. Together with this application he submitted certificate of birth No. 62544 (exhibit 3) issued by the Commissioner of Paphos on the 3rd April, 1947. This certificate is almost identical with the birth certificate exhibit 2 and the date of birth stated therein is again the 6th January, 1915. The only difference between the two certificates is that in paragraph (b) of exhibit 3 which relates to the source of information on which the entry in the certificate is based there is, in addition to the village authority concerned, reference to a number and a file (red No 390 file 26/35). This file was never traced and as it was stated in Court it has been lost during the 1963-1964 troubles in Cyprus.

He was reappointed to the civil service in October, 1961, after he submitted yet another application for appointment. This application is exhibit 12 and it is dated 12th June, 1961. In this application he gives the date of his birth as the 5th January, 1915, his place of birth Droushia village, his father's name Loizos Maratheftis, his father's occupation as a shoemaker and his mother's name Katerina Loizou.

In a long series of other applications and declarations made by the applicant for a variety of purposes including matters relating to his service, the issue or endorsement of travel documents both during the period of the colonial administration and after independence, social insurance, etc. he consistently states the 6th January, 1915, as the date of his birth. It is of some significance that an entry in the Register of births which relates to an elder brother of the applicant who was born on the 7th June, 1911, also gives the father's occupation as shoemaker and the mother's name as Katerina Paraskeva.

The applicant raised for the first time the question of his date of birth by letter dated 24th April, 1974, addressed by him to the Public Service Commission alleging that the certificate of birth in his personal file showing that the date of his birth was the 6/1/1915 was wrong and that the correct date of his birth was the 25/5/1916 and requesting them to take the necessary actions for the purposes of his service. In this letter (exhibit 17) he enclosed a new certificate of birth to which I shall refer presently. But as far back as 1971 the applicant did submit to the Medical Department together with his personal record form a new certificate of birth showing the date of his birth as the 25/5/1916 but he never raised this matter directly and nobody in the department noticed that the certificate submitted in 1971 was any different to the certificates submitted previously.

Subsequently to his application to the Public Service Commission the applicant applied to the Council of Ministers by letter dated 9th November, 1974 (exhibit 18). This application together with the submission to the Council of Ministers prepared by the Ministry of Health (exhibit 4) and the Appendix thereto as well as all the other documents appended to the Opposition in this case was considered by the Council of Ministers at their meeting of the 16/1/1975 and as a result the sub judice decision No. 13. 724 (exhibit 1) was taken.

As stated earlier on, the first occasion that the applicant submitted a certificate of birth to the Medical Department showing the date of birth as the 25/5/1916 was in 1971 but without drawing attention to this fact until the 24th April, 1974 by his letter addressed to the Public Service Commission (exhibit 17).

In all, three photocopies of certificates of birth showing the 25/5/1916 as the date of birth, all issued by the office of the District Officer of Paphos on the prescribed form (Form F. 69), were produced. The first is under No. A 343139 and it was issued on the 9/7/1971. This is exhibit 7, and it contains the following particulars:

Name: Xenophon Ioannides

Date of birth: 25/5/1916

Sex: Male

Where born: Droushia

Name and surname of father: Loizos

Name, surname and maiden name of mother: Katerina Costi

There is a note on this exhibit which reads as follows:

"Υπόθεσις Ιωαννίδης συνεπληρώθη βάσει ενόρκου δηλ. Υπ' αρ. 342 αρ. φακ. 2/62/3 1971".

But as stated by the Assistant District Inspector in his report to the Ministry of Health dated 12th December, 1974, (exhibit 20) the original of this certificate coloured blue was handed to [*234] the applicant and a copy thereof coloured white was kept at the Commissioner's office. Exhibit 7 is a photocopy of the original and was forwarded by the Ministry of Health to the District Officer. On the copy kept at the District Office of Paphos the name is given as Xenophon (without the surname Ioannides) and also there is no note as to the addition of the surname Ioannides which was not in fact approved until the 16th November, 1971, i. e. after the issue of this certificate. The Assistant District Inspector expresses certain views with regard to these differences which need not concern this Court for the purposes of this case.

The second photocopy certificate is exhibit 8 under No. A 543585 issued on the 29/3/1974. This contains the following particulars:

Name: Xenophon L. Ioannides

Date of birth: 25/5/1916

Sex: Male

Where born: Droushia

Name and surname of father: Loizos

Name, surname and maiden name of mother: Katerina Kosti.

The following note appears on this exhibit as to the surname Ioannides: "Το επίθετο Ιωαννίδης συνεπληρώθη βάσει ενόρκου δηλώσεως υπ' αρ. Φα. 2/62/3".

The third photocopy certificate is exhibit 9 under No. A. 600569 issued on the 5/7/1974. It is in all other respects similar to exhibit 8 except that the name is given merely as Xenophon (instead of Xenophon L. Ioannides) and the father's name as Loizos Ioannides (instead of merely Loizos); but there is a note on the sheet of the Register made on the same date the certificate was issued to the following effect: "On the basis of instructions from the District Officer dated 5/7/1974 at 12. 10 p.m. the name of the father to be entered as Loizos Ioannides."

In the Form Comm. 50 (exhibit 5) which was forwarded by the Mukhtar of Droushia to the Commissioner and on the basis of which the originals of certificates exhibits 7, 8 and 9 were issued the occupation of the father is given as Forest Guard (δασοφύλακας) and the column "Signature and residence of informant and date of giving information" is blank; so also is the column "Date of Registration". But with regard to the latter it is clear that the date of registration must have been between the 21st May, 1916, and the 28th May, 1916.

The sub-judice decision of the Council of Ministers, (exhibit 1) reads as follows:

"Το Συμβούλιον εμελέτησεν αίτηση εκ μέρους του κ. Ξενοφώντος Ιωαννίδη, Φαρμακοποιού, 1ης Τάξεως, εις το Τμήμα Ιατρικών Υπηρεσιών, περί καθορισμού ως ημερομηνίας γεννήσεως αυτού της 25ης Μαΐου, 1916, αντί της 6ης Ιανουαρίου, 1915, ήτις ελογίζετο μέχρι προσφάτως ως ημερομηνία γεννήσεως αυτού εις διαφόρους δηλώσεις γενομένας υπ' αυτού, και αφού έλαβε υπ' όψιν όλα τα συναφή με την υπόθεσιν στοιχεία και έγγραφα, τα επισυνημμένα εις την Πρότασιν, απεφάσισεν όπως η 6η Ιανουαρίου, 1915, εξακολουθήση να θεωρήται ως η ημερομηνία γεννήσεως του κ. Ιωαννίδη."

("The Council considered an application from Mr. Xenophon Ioannides, Pharmacist, 1st Grade, in the Department of Medical Services for determining as date of his birth the 25th May, 1916, instead of the 6th January, 1915, which was considered as his date of birth recently in various declarations made by him, and having taken into consideration all elements and documents relevant to the case, which are attached to the submission, decided that the 6th January, 1915, should continue to be considered as the date of birth of Mr. Ioannides-").

There is no doubt that in coming to this conclusion the Council of Ministers invoked the provisions of G.O. II/1. 47 which reads as follows:

"The date of birth of an officer whose exact date of birth is not known will, for all official purposes including calculation of the date of retirement, be the date of birth stated by him on entering the Government service."

It is abundantly clear from the wording of this General Order and a line of authorities such as Panaretos Ieromonachos v. The Republic, 4 R.S.C.C., p. 82 that it is only applicable in cases where the exact date of birth of an officer is not known.

Learned counsel for the applicant in effect based his case on two legal grounds the gist of which is as follows: Firstly, he argued, the Council of Ministers in coming to their decision failed to consider the issue in the light of the law applicable which, he submitted, is section 34(2) of Law 85 of 1973 read in conjunction with Law 16 of 1895 and were, therefore, under a misconception with regard to the legal position; and secondly, that they came to their decision because of the doubts raised regarding the occupation of applicant's father and the surname of his mother and that if they were really mindful of finding the truth they ought to have given a chance to the applicant to explain the discrepancies.

In an endeavour to align the identity of the applicant with that of the person named in exhibit 5 and consequently exhibits 7, 8 and 9 counsel for the applicant thought it necessary to call two witnesses. Quite apart from the impression that I formed regarding the value of and weight that should be attached to their evidence, I do not think that the function of this Court in these proceedings is to ascertain applicant's date of birth and make any order in relation thereto but to decide the validity or otherwise of the decision of the Council of Ministers. In fact, at some stage of these proceedings, the applicant himself gave evidence on oath not with regard to any matter relevant to the issue of his date of birth but in order to explain why in an application to the head of his department (exhibit 28) he stated that his place of birth was Pedhoulas village. 1 do not feel that I need say anything about this because not only it does not help me to decide the issue which I have to decide in these proceedings but also because learned counsel appearing for him, very fairly and honestly, felt the need to invite the Court not to accept his client's evidence as true.

I now revert to the grounds of law argued on behalf of the applicant. In elaborating his first ground learned counsel submitted that he certificates of birth produced which showed applicant's date of birth as the 6th January, 1915, should not have been relied upon because they were based on hearsay evidence whereas the photocopies exhibits 7, 8 and 9 were based on information extracted from the Register of births and should, therefore, in the light of the provisions of s. 34(2) of Law 85 of 1973, be relied upon as proof of the correct date of birth. But even if we were to assume that this is so and further assume that the Council of Ministers did not have in mind the section in [*237] question, it seems to me that the problem which they had to resolve was not the validity, authenticity or legal effect of the certificates in question and the relative entry in the Register on which they were based but the identity of the person to which they refer and this in view of the discrepancies mentioned above. But, be that as it may, under the provisions of s. 34(2) of Law 85 of 1973 an entry or a certified copy of an entry of birth or death in a Register is not proof of the birth or death unless the entry appears to have been signed by a person alleging to be the informant and that he is a person who might have been bound by the law, on the date of the entry, to furnish to the Registrar information relating to the birth or death. Under the law in force at the relevant time (Law 16 of 1895) it was the duty of the father or mother of the child, and in default of the father or the mother, of the occupier of the house or premises in which the child was born, to give to the Registrar information of the particulars required to be registered concerning the birth, and in the presence of the Registrar to sign the Register. Similar provision is in fact contained in all subsequent enactments relating to the registration of births. As stated earlier on, in the relative entry of the Register (exhibit 5) the column relating to the informant is completely blank and in view of this, one could reasonably argue that in the light of the express provisions of s. 34(2) the said entry is not proof of the date of birth therein stated and that, therefore, it would not be of much help to the Council of Ministers.

Regarding applicant's second ground of law the cases of HadjiLouca v. The Republic (1969) 3 C.L.R. p. 570 at pp. 574-575 and Constantinou v. The Republic (1972) 3 C.L.R. p. 116 at pp. 125-126 may be usefully cited as to the principles governing the duties of administrative organs regarding the holding of a proper inquiry before arriving at a decision in non-disciplinary matters.

I consider it pertinent in this respect to refer again to the letter of the applicant addressed to the Council of Ministers (exhibit 18). It is abundantly clear from this letter that the applicant was not unaware of the discrepancies that existed between the details contained in exhibit 5 and the information furnished by himself on entering the Government service. In fact the whole of his letter aimed at explaining the inconsistency with regard to his father's occupation. Furthermore the submission [*238] to the Council together with its appendix, exhibit 4, and the other documents attached thereto which, according to the statement of counsel of the Republic appearing for the respondents which has not been denied or contradicted in any way, were all the documents attached to the Opposition in this case presented a sufficiently clear picture to the Council to enable them to decide the issue; and in the light of the pronouncements in the HadjiLouca and Constantinou cases cited above the course followed by the Council in not inviting the applicant to furnish them with any further explanations before reaching their decision is not, in my view, open to any criticism.

In the light of all the foregoing I am of the opinion that, on the material before them, it was reasonably open to the Council of Ministers in the exercise of their discretion to reach the decision complained of and that in the circumstances this Court would not be justified in interfering with such decision.

In the result this recourse fails and is hereby dismissed. In all the circumstances I do not propose to make any order as to costs.

Case dismissed. No order as to

costs.

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