ANTONIOS CHRISTOU ANTONIOU ν. REPUBLIC (MINISTER OF INTERIOR AND DEFENCE) (1967) 3 CLR 259

Military Service-National Guard-Exemption from military service-The National Guard Law, 1964, (Law No. 20 of 1964), section 4 (1) (3) (or), as amended by Laws No. 26 and No. 44 of 1965, respectively-Appeal against judgment of one of the Judges of tile Supreme Court dismissing Appellant 's recourse under Article 146 of (lie Constitution against Respondent decision not to exempt him from military service-Meaning of "Dependants" in subsection (3) of section 4 of (lie Law, as amended, supra-Whether in each case the dependants are being ,maintained by the conscript ("συντηρούνται υπό του στρατευσίμου"), within section 2 (iii) of the aforesaid amending Law No. 44 of 1965 is a question of fact to be determined on the circumstances of the particular case-Dependants hilts! substantially depend on (lie earnings of the conscript concerned.

Conscript-Exemption from military service-See above.

Exemption from military service-See above.

National Guard-Exemption from military service-See above.

Dependants-Dependants within the meaning of the National Guard Law, 1964 as amended, supra-See above.

This is an appeal from the decision of one of the Judges of the Supreme Court, under the proviso to sub-section (2) of section 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964. The Appellant challenges the decision (reported in (1966) 3 C.L.R. 774) dismissing his recourse against the decision of the appropriate statutory authority to refuse his (Appellant's)application for exemption from military service.

The material parts of the legislative provisions as well as the facts of the case are set out in the judgment of the Court, post.

The Court in dismissing the appeal:

Held, (1). It is, we think, sufficiently clear that the intention of the legislator was to exempt from military service persons whose earnings from their work, were necessary for the maintenance of more than three dependants; necessary to, at least, a substantial extent.

(2) We take the view that the question whether the dependants in each case are maintained by the conscript within section. 2 (iii) of the amending Law No. 44 of 1965 (supra), is a question of fact to be determined on the circumstances of the particular case; and, also, a question of degree which the trial Judge described with the expression "main bread winner".

(3) On the material before us we think that the recourse was rightly decided. Therefore, we will not interfere with the decision appealed from.

Appeal dismissed with costs.

Appeal.

Appeal against the jugment of a Judge of the Supreme Court of Cyprus (Triantafyllides J.) given on the 21.10.66 (Revisional Jurisdiction Case No. 140/66) whereby Applicant's recourse against the decision of the Respondent to refuse his application for exemption from military service was dismissed.

R. Michaelides with A. Lemis for the Appellant.

L. Demetriades for the Respondent.

The Judgment of the Court was delivered by:

VASSILIADES, P.: This is an appeal from the decision of one of the Judges of this Court, under the proviso to sub-section (2) of section 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964.

The Appellant challenges the decision* dismissing his recourse against the decision of the appropriate statutory authority to refuse his (Appellant's) application for exemption from military service.

The appeal is taken on seven different grounds appearing in the elaborately prepared notice, which, however, may be summarised in two contentions upon which the appeal was argued before us this morning, namely:

(1) that the trial Judge erred in his assessment of the evidence and the findings made thereon; and

(2) that in any case the Appellant is entitled to exemption on the common round in the factual aspect of the case.

The Appellant, a young man of the age of 19, was called upon for military service under the provisions of the National Guard Law, 1964, (No. 20 of 1964). The relevant section of the statute is section 4 which in the original text of the law reads:

"4(1). Τηρουμένων των διατάξεων του εδαφίου (3) άπαντες οι πολίται της Δημοκρατίας από της 1ης Ιανουαρίου του έτους καθ' ό συνεπλήρωσαν το δέκατον όγδοον έτος της ηλικίας των μέχρι της 1ης Ιανουαρίου του έτους καθ' ό συνεπλήρωσαν το πεντηκοστόν έτος της ηλικίας των, υπόκεινται εις τας διατάξεις του παρόντος Νόμου και υπέχουν υποχρέωσιν υπηρεσίας εν τη Δυνάμει".

Subsection (3) of this section, as amended by Law 26 of 1965, providing for the exemption from military service, reads:

"4 (3). Εξαιρούνται της υπό του εδαφίου (1) υποχρεώσεως-

(α).................................... ().......................................................................(στ) Άπαντες οι έχοντες κατά την ημερομηνίαν της κλήσεως των προς υπηρεσίαν πλέον των τριών εξαρτωμένων προσώπων:

Νοείται ότι πας στρατεύσιμος υπηρετών εν τη δυνάμει και όστις κατά την διάρκειαν της υπηρεσία του ήθελεν αποκτήσει πλέον των τριών εξαρτωμένων προσώπων εξαιρείται περαιτέρω υπηρεσίας".

By subsequent amendment of the Principal Law, enacted and published in August 1965 as Law No. 44 of 1965, the expression "εξαρτώμενον" in subsection (3) of section 4, was defined by section 2 of the amending law, as follows:

"Διά τους σκοπούς της παρούσης παραγράφου ο όρος εξαρτώμενοι σημαίνει:

(i) Τέκνα έχοντα ηλικίαν κάτω των δεκαοκτώ ετ'ων,

(ii) Σύζυγον

(iii) Εξώγαμα τέκνα, τέκνα άνω των δεκαοκτώ ετών, γονείς, αδελφούς και αδελφάς, οι οποίοι συντηρούνται υπό του στρατευσίμου"

It is the contention of the Appellant that being a person with more than three dependants (as provided in (σт) above) consisting of his two parents, three younger brothers and a sister (falling within (iii) above), the Appellant is entitled to exemption from military service.

The material facts upon which this appeal turns are not in dispute, and may be summarised as follows: When he came under the provisions of the National Guard Law as a conscript for military, service, the Appellant was living in his parental home together with the rest of the family consisting of his father, mother, three younger brothers and one, sister. The family live in a rented house for which they pay £10 per month. The Appellant is the owner of a house which yields £25 per month rent; but this is said to be going towards payment of the house.

The family depended for their subsistence at the material time, on the earnings of the father as a cook, amounting to £30 per month; the earnings of the Appellant as a "technical manager" of a firm of brandy manufacturers, with a salary of £50 per month; and the earnings of Appellant's younger brother aged 17, amounting to £9 per month. Besides the house referred to above, the Appellant also owns 49% of the shares of the firm of brandy manufacturers who employ him, which, however, are said to yield no income to the Appellant under the terms in which they were transferred to him.

Be that as it may, and on the footing that the family depended on the earnings of the father and the two sons, as above, the appropriate statutory committee who reported to the Minister upon the matter, (in order to enable the Minister to decide on the merits of the Appellant's Application for exemption) took the view in their report, (which is before the Court as Exhibit 4) that the father being primarily the supporter of the three elder members of the family (his wife, his boy of 17, and himself) the Appellant could not be a person having more than three dependants, even if he were to be considered as the supporter of the three younger members of the family.

Learned counsel for the Appellant submitted that this approach of the committee, to the question of dependency of the members of this family, was not correct. The family cannot be split in this arbitrary manner, learned counsel argued. It must be taken as a whole, i.e. a family consisting of the parents and the five children, (including Appellant) depending on the earnings of the three elder members of the family, i.e. the father, the Appellant and the younger son of 17.

This being a question of fact, with different merits in each particular case, we are inclined to accept the submission in the circumstances of the present case. We are, therefore, concerned with a family of seven persons (including the Appellant) depending for its living on the earnings of three of its members, one being the Appellant. In these circumstances, the question arises whether the members of his family can be considered as the "dependants" of the Appellant for the purposes of the National Guard Law, in its present form. Obviously they do not depend entirely on him; but they depend partly on the Appellant.

In this connection, the learned trial Judge felt inclined to think that "partial maintenance of parents, brothers or sisters, falling short of total maintenance, but being, nevertheless, the main source of maintenance, would possibly suffice in order to entitle a conscript to exemption from military service."; rejecting in this way, the contrary opinion adopted by the Minister on the advice of his committee. "In any case"-the learned trial Judge went on to say-"the question of partial maintenance could only have arisen as a material consideration in this case, if it were to be found that the Applicant was the main source of maintenance of his family, its main bread winner and it has been found, as already stated earlier in this judgment that this was not so at all". (Page 44 B, C, and F of the record).

The relative provision in the statute, in the definition-of dependants set out above, speaks of persons who "συντηρούνται" by the conscript.

We are unanimously of the opinion that where such persons "συντηρούνται" partly by the conscript and partly from other sources, exemption from service can only be claimed if the conscript can show that the dependants in question substantially depend upon his earnings; and not otherwise. It is a question of fact in each case; and question of degree which the trial Judge described with the expression "main bread winner". It is, we think, sufficiently clear that the intention of the legislator in making this provision, was to exempt from military service persons whose earnings from their work, were necessary for the maintenance of more than three depen4ants; necessary to, at least, a substantial extent. So that such dependants may not find themselves destitute and without the minimum necessaries of life when the conscript answers the call.

We take the view that the question whether the dependants in each case "συντηρούνται υπό του στρατευσίμου" is a question of fact to be determined on the circumstances of the particular case.

In the case before us, the Minister, acting upon the reports of his officers (Exhibit 3) and of his advisory committee (Exhibit 4) who apparently went very carefully into the facts of the case, refused the application for exemption. The Minister's decision challenged by this recourse, was not interfered with by the trial Judge for the reasons stated in his long and careful judgment, where he dealt with every aspect of the case. We are unanimously of the opinion that we should not interfere with his decision. On the material before us we think that the recourse was rightly decided; and the appeal must fail.

Appeal dismissed, with costs.

Order accordingly.

cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο

	CyLaw \| Αναφορικά μ'εμάς \| Επικοινωνία