CHRISTOFI ν. REPUBLIC (1989) 3A CLR 230

(1989)3A CLR 230 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αφαίρεση Υπογραμμίσεων

(1989)3A CLR 230 1989 February 21 [KOURRIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION SOTERIS CHRISTOPHI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF CUSTOMS DEPARTMENT, Respondent. (Case No. 253/87) Executory act-Informative or Advisory Act-Customs and Excise-Motor Vehicle-Disabled persons-Relief from import duty-The Customs and Excise Duties Laws 1978-1981, item 09 of class 01 of the Fourth Schedule - Car in question not actually imported, but intended to be imported by applicant - Rejection of application-It is of an informative or advisory nature. Annulment of an Administrative Act - Effect - In reconsidering the matter, there can be no new inquiry in respect of new facts. Due inquiry-Motor vehicles-Disabled persons-Relief from import duty - Decision taken before issue of the medical certificate - Failure to carry out due inquiry. In this case the application of the applicant for a duty free importation of a motor vehicle under the aforesaid legislation was rejected. By means of a recourse to this. Court the applicant challenged the said decision The Court annulled the decision, on the ground that it was taken by an incompetent organ. Following the annulment the respondent director examined the matter, but instead of confining himself to the facts existing at the time, when the annulled decision was taken, he embarked upon a new inquiry. Despite that, he did not await for the new certificate of the medical board, but issued the sub judice decision on the basis of the old certificate, which had been issued during the inquiry, which had resulted to the annulled decision. The director dismissed applicant's application. Hence this recourse. Counsel for the respondent raised for the first time the issue that the decision is not of an executory nature, because at the time of the submission of the application for importation, the motor vehicle had not been imported. In the light of the authorities concerning a similar Order relating to the duty free importation of motor cars by Cypriots, who return after permanent settlement abroad, the Court accepted the said Objection of counsel for the respondent, but, nevertheless, the Court proceeded and dealt with the other issues as well. Finally, the recourse was dismissed on the ground that the sub judice act was not of an executory nature. The Court added that, had it been of an executory nature, it would have annulled a decision in accordance with the principles appearing in the last two of the above Headnotes. Recourse dismissed. No order as to costs. Cases referred to: Yiangou v. Republic

(1987)3 C.L.R. 27, Republic v. Safirides

(1985)3 C.L.R. 163, Karatsis v. Republic

(1987)3 C.L.R.

1. Recourse. Recourse against the refusal of the respondent to exempt applicant of import duty in respect of an invalid's vehicle. Ch. Christodoulou, for the Applicant. D. Papadopoullou (Mrs), Counsel of the republic B, for the Respondent. Cur. adv. vult. KOURRIS, J. read the following judgment. By the present recourse, applicant prays for a declaration that the decision of the respondent communicated to him on 20.1.1987, whereby he rejected applicant's application for exemption of import duty in respect of an invalid's vehicle, is null and void and of no effect whatsoever. Applicant is a refugee from Styllous, Famagusta District residing at Pano Polemidhia Village in the District of Limassol. During the invasion of Cyprus by Turkish troops. he was injured as a result of a bullet hitting him on the right shoulder. On 18.10.1984, he submitted an application to the Ministry of Finance for exemption from payment of import duty for a car suitable for incapacitated persons under para. 01-09 of the Fourth Schedule of the Customs and Excise Duties Laws 1978-
2. The Ministry of Finance referred applicant to a Government Medical Board which, after examination, reported to the Director-General of the Ministry of Finance on 22.2.1985 (appendix 1 to the opposition, blue 8 of exhibit 1 which is the file of the Administration). Thereafter, applicant was referred to the Senior Technical Inspector of Examiner of Drivers who was furnished with a copy of the report of the Medical Board. The latter, having examined the applicant, concluded that applicant is in a position to drive a vehicle without any adjustment (blue 9 of exhibit 1). The Director-General of the Ministry of Finance considered the aforesaid reports and rejected the application of applicant and communicated his decision by letter dated 11.4.1985 (blue 10 of exhibit 1). Applicant feeling aggrieved, filed recourse No. 594/85, and the record of the Court dated 31.5.1986 reads as follows:- "Papadopoullou: The competent organ to take a decision on the subject matter of the applicant's application is according to Section 11 of the Customs and Excise Duties Law 78/81 the Director. I have in my hands the case of Elias Kyriakou v. The Republic 414/85, and which case touches the point and which is reported in

(1985)3 C.L.R. 2414. In page 2421, paragraph 35, I read (read). In view of this I submit that Your Honour may annul the sub judice decision as having been reached by an organ with no competence in the matter. There is no need for a fresh application to be submitted as we shall refer ourselves the relevant material to the Director of Customs, but there will be no objection to the applicant submitting any supplementary material. Christodoulou: In view of this development, I have no objection to the sub judice decision being annulled on the ground of lack of competence by the organ that took it. Court: In the light of the statements made the sub judice decision is annulled as having been taken by an organ having no competence in the matter and the application should be examined by the Director of Customs, the applicant being at liberty to submit any supplementary material he may deem fit to do. No order as to costs." Before dealing with the substance of the case, I propose to examine a preliminary point raised by counsel for the respondents. She said that the sub judice decision is not executory but of an informatory or advisory nature and as such no recourse can be filed. She said that the car was not actually imported in the present case and the applicant intended to import a car. She relied on the case of Yiangou v. The Republic

(1987)3 C.L.R. 27. That case concerned the refusal of the appropriate authority to allow the applicant to import a car free of import duty under Order 188/2 of the Council of Ministers made under s.11

(2)of the Customs and Excise Duties Law 18/78 (as amended). The Full Bench interpreted the said Order to mean that the car should have been actually imported and not intended to be imported at some future date. The said Order referred to "isagomena". The Order under examination again refers to "isagomena" and I am of the view, applying the principle laid down in the Yiangou case (supra), that the car must be actually imported and not intended to be imported by the applicant at some future date. In these circumstances, I reached the conclusion that the sub judice decision is not executory but informatory or advisory and as such cannot be made the subject of a recourse. For this reason alone, the recourse is dismissed, but I propose to deal with the substance of the case. Counsel for the respondents stated in her address to the Court that the recourse was withdrawn and applicant's case was forwarded to the Director of Customs, being the appropriate organ to decide applicant's application. Pausing here for a moment, I would like to state that the record of the Court dated 31st may, 1986, does not state that the recourse was withdrawn but that the decision which was the subject matter of Recourse 594/85, was annulled "as having been taken by an organ having no competence in the matter and the application should be examined by the Director of Customs, the applicant being a liberty to submit any supplementary material he may deem fit to do." If the decision was annulled, then the administration comes under a duty to restore the status quo ante and examine the matter afresh by reference to the factual and legal background prevailing prior to the decision. (Republic v. Safirides

(1985)3 C.L.R. 163). In the present cease, the Administration did not examine the case afresh by reference to the factual and legal background prevailing prior to the decision, but it proceeded to make a new examination of the case as it appears from the letters of the Director of Customs to applicant dated .22.8.1986 (blue 11(Y) of exhibit 1); letter to the Senior Technical Examiner dated 18.8.1986 (blue 11(b) of exhibit 1); letter to applicant dated 18.11.1986 (blue 12 exhibit 1); letter to the Medical Board dated 18.11.1986 (blue 13 of exhibit 1); and letter by Senior Technical Examiner .dated 1.12.1986 to the Director of Customs (blue 14 of exhibit 1). Consequently, if Recourse No. 594/85 was annulled then the Director of Customs acted under a misconception of law in view of the fact that he proceeded with a new inquiry with flew facts and the inevitable conclusion is that the present recourse ought to have been annulled on the ground that the Director of Customs acted under a misconception of law. Now, if the said recourse was annulled but the applicant was at liberty to submit any new material to the competent organ, then although the record states that the recourse was annulled, in point of fact, it appears that the litigants took it to mean that there would be a new inquiry into the matter and actually the Director of Customs proceeded to make a new inquiry, not relying on the material that the Director-General of the Ministry of Finance had before him. For this purpose he addressed a letter dated 18.8.1986 to the Senior Technical Examiner who examined the applicant. He also addressed a letter to the applicant dated 18.11.1986 (blue 12 of exhibit 1) inviting him to discuss the matter, and, also on the same date, i.e. 18.11.1986 he addressed a letter to the Medical Board requesting them to examine the applicant (blue 13 exhibit 1). The Senior Technical Examiner informed the Director of Customs by letter dated 1.12.

1. that he examined the applicant and ascertained that his physical condition was such that he could drive a vehicle without any special adjustment. The Director of Customs, instead of waiting for the medical report of the Medical Board, it appears that he relied on the certificate of the. Medical Board dated 22.2.1985 and he rejected the application of the applicant. This decision is contained in a letter dated 20.1.1987 and communicated to applicant - (see blue 15 of exhibit 1). In the light of the above, facts, it is obvious, that although the Director of Customs started a new inquiry into the matter, he made a decision before receiving the medical report of the Medical Board who were about to examine the applicant. In point of fact the Medical Board; having examined the plaintiff, forwarded their certificate dated 10.4.1987 to, the Director of Customs (appendix I to the opposition). It is obvious that the Director reached his decision without having all the material facts before him, i.e. he reached his decision without waiting for the certificate of the Medical Board. Instead he relied on the certificate of the Medical Board dated 22.2.
2. In the circumstances, I find that the respondent failed to Carry out a due inquiry and the recourse ought to have succeeded on this point also. (Karatsis v. The Republic

(1987)3 C.L.R. 900). In view of the fact that the decision of the respondents, as I have held earlier on is not executory, the recourse is dismissed but with no order for costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο