SHIAKALLIS ν. REPUBLIC
(1987)3 CLR 804 THE CYPRUS LAW REPORTS ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1987)3 CLR 804 1987 May 28 [TRIANTAFYLLIDES. P., SAVVIDES, LORIS. STYLIANIDES & KOURRIS JJ.] ANDREAS SHIAKALLIS, Appellant-Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF THE DEPARTMENT OF CUSTOMS & EXCISE, Respondents. (Revisional Jurisdiction Appeal No. 542). Customs and Excise Duties - Motor vehicles, importation of by Cypriots - Exemption from import duty - The Customs and Excise Duties Law 18/78, sub-heading 19 of item 01 of the fourth schedule -- Order 188/82 of the Council of Ministers - A Cypriot, in order to establish permanent settlement abroad and return to Cyprus, must have, in the first place, settled in Cyprus - «Settle» - Meaning of - Minors - His ordinary residence is in his parents matrimonial home Application for duty free importation of motor vehicle correctly turned down on ground that appellant was never a permanent resident of Cyprus before his emigration abroad. Words and Phrases - «Settlement» and «Permanent Settlement» in Order 188/82 of the Council of Ministers. The appellant is a Cypriot National born in Zaire in
- His parents were permanent residents in that country. In 1960 the appellant came to Cyprus and attended Terra Santa School Nicosia as a boarder until
- His parents remained residents of Zaire. In March 1970 he went to England for studies, having obtained exemption from military service on the ground that he was permanently residing outside Cyprus. In June 1980 the applicant came to Cyprus for holidays and whilst in Cyprus he married and together with his' wife went to Zaire, where he stayed until 14.1.83, when he returned to Cyprus. On 11.5.83 he applied for the duty free importation of a motor car as a. repatriated Cypriot relying on the aforesaid Order 188/
- His said application was turned down on the ground that before his alleged emigration abroad he was never a permanent resident of Cyprus. This is an appeal from the judgment of a Judge of this Court, whereby appellant's recourse, impugning the aforesaid decision, was dismissed. Held, dismissing the appeal:
(1)It is apparent from the wording of Order 188/82 that a Cypriot in order to establish permanent settlement abroad and return must have, in the first place settled in Cyprus.
(2)The word «settle» means a voluntary and intentional action to settle and such capacity cannot be attributed to a child, which is considered as ordinarily resident in his parents matrimonial home.
(3)From 1960 upto to 22.10.68 the appellant was a minor and, therefore his permanent residence was in Zaire. After the 2210.68 upto to March 1970, although appellant was of age, he had not settled in Cyprus. He simply resided therein temporarily in order to complete his studies. In this respect one cannot loose sight of the fact of the reason why the appellant was exempted from military service. Appeal dismissed. No order as to costs. Cases referred to: Matsas v. The Republic
(1985)3C.L.R.54; Solomonides v. The Republic
(1986)3 C.L.R. 1025; Michael v. The Republic
(1986)3 C.L.R. 2067; Kourtellas v. The Republic
(1986)3 C.L.R 2079; Razis ana Another v. Republic
(1973)3 C.L.R. 127; In Re P(G.E.) (An Infant) [1965] Ch.
- Appeal. Appeal against the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 7th November, 1985 (Revisional Jurisdiction Case No. 138/85) whereby appellant's recourse against the refusal of the respondent to allow applicant to import a duty free car as a repatriated Cypriot was dismissed. A. Petoufas, for the appellant. A. Vassihades, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P.: The judgment of this Court will be delivered by Loris J. LORIS J: The present appeal is directed against the judgment of a Judge of this Court dismissing the recourse of the appellantwho was thereby impugning the decision of the respondent director dated 17.12.84 by means of which the appellant was refused the importation of a duty free car as a repatriated Cypriot. The appellant relying on the provisions of sub-heading 19 of Item O.1 of the Fourth Schedule to the Customs and Excise Duties Law 1978 (Law No. 18/78) as amended by the relevant Order of the Council of Ministers published in the Official Gazette of the Republic on 11.6.82 under No. 188/82, had applied to the respondent on 11.5.83 for the importation of a duty free car as a repatriated Cypriot. On 17.12.84 the Respondent Director turned down his aforesaid application for the reason that he was never permanent resident of Cyprus before applicant's emigration abroad. The relevant passage of the aforesaid letter reads as follows: «You were never permanent resident of Cyprus before your alleged emigration abroad and, therefore, you have not returned for settlement in Cyprus after emigration therefrom.» The undisputed facts of this case are briefly as follows: The applicant a Cypriot national was born in Zaire of Cypriot parents on 23.10.
- His parents were at the time and are still permanent residents of Zaire. In June 1960 the applicant was brought by his mother to Cyprus where he attended the Terra Santa, Nicosia, as boarder until March
- His mother returned to Zaire in 1962 and the applicant remained in Cyprus under the guardianship of an aunt of his. In March 1970 the applicant left Cyprus in order to follow further studies in England, having obtained an exemption from liability for service in the National Guard on the ground that he was permanently residing outside Cyprus. (Vide letter dated 18.3.70 of the Ministry of Interior addressed to the applicant - Appendix 2 attached to the opposition.) The applicant came to. Cyprus for holidays on the 3rd June 1980 when he met his wife to whom he was married and with whom he went back to Zaire where he stayed until the.14.1.83 when he returned to Cyprus. On the 18.1.1983 he joined the National Guard in compliancewith the Law, once he had decided to settle permanently in Cyprus thereafter. On the 11.5.83 the applicant submitted an application for the duty-free importation of his vehicle as a repatriated Cypriot relying as aforesaid on Order 188/
- The material part of Order 188/82 read as follows: «Μηχανοκίνητα οχήματα των κλάσεων 87.02.11 και 87.02.19 εισαγόμενα υπό Κυπρίων οι οποίοι κατόπιν μονίμου εγκαταστάσεως εις το εξωτερικόν δια συνεχή περίοδον τουλάχιστον 10 ετών επανέρχονται και εγκαθίστανται μονίμως εν τη Δημοκρατία νοουμένου ότι η εισαγωγή γίνεται εντός ευλόγου χρονικού διαστήματος από της αφίξεως των κατά την κρίσιν του Διευθυντού: Νοείται περαιτέρω ............................ Η απαλλαγή καλύπτει μόνον ένα όχημα δι' εκάστην οικογένειαν.» (English Translation) «Motor vehicles of categories 87.02.11 and 87.02.19 imported by Cypriots who, having permanently settled abroad for a continuous period of at least 10 years, return and settle permanently in the Republic, provided that the importation is made within a reasonable time from their arrival at the discretion of the Director: Provided further............................ The relief covers only one vehicle for each family.» It is apparent from the wording of the order that a Cypriot in order to establish permanently abroad and return must have, in the first place, settled in Cyprus. The word «settle» has the meaning of voluntary and intentional action to settle and such capacity cannot be attributed to a child which is considered as ordinarily resident in his parents matrimonial home. (Dicey and Morris - The Conflict of Laws 10th ed. Vol. 1p. 144). The notion of settlement as well as permanent settlement have been considered in a number of cases (Matsas v. Republic
(1985)3 C.L.R. 54; Solomonides v. Republic
(1986)3 C.L.R. 3 C.L.R. 1025, Philippos Michael v. Republic, Case No. 552/84 judgment delivered on 21.11.86 and Antonis Kourtellas v. Republic, case No. 317/85 Judgment delivered on 23. 12.86; the last two cases are still unreported), where it was held that settlement requires something more than mere physical presence; it requires intention. It is clear that an intention cannot be attributed to a minor, (vide Razis and Another v. The Republic
(1973).3 C.L.R. 127atp, 138 - In-Re: P. (G.E.) (An Infant) [19651 Ch. 568, 585 - 586 ('CAD, which was already stated, is ordinarily resident in his parents matrimonial home. Reverting now to the facts under consideration: The applicant was born on 23.10.50 at Zaire where his parents were permanently settled. He was brought to Cyprus in June 1960 and he stayed in Cyprus studying up to March 1970 when he left for U.K. for further studies. From 1960 up to 22nd October 1968 he was a minor, therefore his permanent residence throughout this period was that of his parents, notably Zaire. After the 23rd. October 1968 up to March 1970, although the applicant was of V age, it is apparent that he had not settled In Cyprus; it is clear that throughout this latter period he was residing in Cyprus temporarily with a view to continuing and completing his studies in Terra Santa, Nicosia. In this connection we cannot loose sight of the fact that the appellant in March 1970 left Cyprus in order, to follow further studies in England having obtained an exemption from liability for service in the National Guard on the ground that he was permanently residing outside Cyprus. In this respect we are in full agreement with the learned trial Judge that his permanent residence was at the time Zaire and his stay in Cyprus was a temporary one for the purpose of education. In view of the above it is clear that it cannot be maintained that the appellant had ever settled in Cyprus before having permanently settled abroad for a continuous period of at least ten years.» In the result present appeal fails and it is accordingly dismissed; in the circumstances there will be no order as to its costs. Appeal dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο