(1985)1985 November 22 [STYLIANIDES, J ] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ELIAS KYRIACOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF FINANCE, Respondents. (Case No. 414/85). The Customs and Excise Duties Laws 1978-1981Ss. 2
(2)and 11—The Order of the Council of Ministers made under s. 11
(2)published on 13.9.79 under Not. 221/79—Import duty—Refusal to exempt applicant from payment of duty in respect of a vehicle for incapacitatedpersons—The or- 5 gan vested with competence to decidesuch a matter is the Director of the Department of Customs—Therefore, sub fudice decision taken in excess of power—In any event respondents not entitled to take into consideration a report by the Senior Technical Inspector of Examiners of 10 Driversas the law intendsthe certificationof theincapacity of applicant to be made by the Medical Boardand no one else—Therefore, sub fudice decision vitiated by a misconception of Law and of Fact Administrative Law—Misconception of Fact and of Law. On 21.2.85 the applicant applied for exemption from payment of import duty for a car suitable for incapacitated persons under paragraph 01-09 of the Fourth Schedule of the Customs and Excise Duties Laws, 1978-1981. He was 2414 15 3 C.L.rt. 5 10 15 Kyriacou v. Republic referred to a Medical Board which eventually made its report lo the Director-General of the Ministry of Finance. He was also referred to the Senior Technical Inspector of Examiners of Drivers, who came to the conclusion that the applicant is in a position to drive a vehicle without special adaptation. A socio-economic report on the family and financial condition of the applicant was received from the State Welfare Services. Relying en the report by the Senior Techincal Examiners the Diiector-General of the Ministry of Finance turned down the applicant's, said application. As a result (he present recourse was filed. The applcant did not raise the issue of competence of the Director-General of the Ministry of Finance. The issue was brought to the attention of the Court by the address of counsel for the respondents. Held,annulling the sub fudice decision: 20 25 30
(1)An administrative act or decision taken by an organ not having competence is a decision arrived •at in excess of power and is of no effect whatsoever. The matter may b : examined by the Court ex proprio motu. (?) The applicant's application fox exemption was based on s. 11 of the Customs and Excise Duties Laws 197819^1 and the Order of ihe Council of Ministers made under s. Π
(2)and published in the Official Gazette of 14.9.79 under Notification 221/79. Having regard to the provisions of s. 11
(1), where re ference is made to the "Director" and paragraph (b) of the said Order of the Council of Ministers, there can be no doubt that the organ vested with competence in - the matter in hand is the "Director". In accordance with s. 2
(2)of the said laws and s. 2
(1)of the Customs and Excise Duties Laws 1967-1977 "Director" means the 2415 » Kyriacou v. Republic
(1985)Director of the Department of Customs. It follows that the sub judice decision is the product of excess of power.
(3)The law intends the certification of the incapacity of the applicant to be made by a Government Medical Board established for the purpose and by no one else. The 5 certificate of the Board is not an advisory act but an intermediate one. Therefore, by relying on the report of the Senior Technical Inspector of Examiners of Drivers the Director-General of the Ministry of Finance took into consideration matters which he should not and thus acted 10 on a misconception of law and of fact. This is a further ground for annulling the sub judice decision. Sub judice decision annulled. No order as to costs. CMM referred to: 15 Mehmed Ali Rouhi v. The Republic, 2 R.S.C.C. 84; Georghiadesv. The Republic,
(1966)3 C.L.R. 252; HjiStefanou v. The Republic,
(1966)3 C.L.R. 289; Evlogimenos v. The Republic,
(1973)3 C.L.R. 184; loannou v. The Republic,
(1985)3 C.L.R.
- 20 Recourse. Recourse against the refusal of the respondents to exempt applicant from the payment of import duty for a car suitable for incapacitated persons. P. Demetriou, for the applicant. 2416 25 3 C.L.R. Kyriacou v. Republic
- Georghiades, Senior Counsel for the respondents. of the Republic, Cur. adv. vult. 5 10 15 20 STYLIANIDES J. read the following judgment. The applicant, a refugee-from Famagusta, now residing at Ypsonas village in the Limassol District, was seriously injured in 1974 during the Turkish invasion. He received medical treatment in Cyprus and Germany but he was left with serious incapacity of the right upper limb. On 21.2.85 he applied for exemption from payment of import duty for a car suitable for incapacitated persons under paragraph 01-09 of the Fourth Schedule of the Customs & Excise Duties Laws, 1978-
- He was referred to a Government Medical Board which, after examination, reported to the Director-General of the Ministry of Finance (Appendix 2 to the opposition). Thereafter the applicant was referred to the Senior Technical Inspector of Examiners of Drivers who was furnished with a copy of the report of the Medical Board. The latter, having examined the applicant, came to the conclusion that he is in a position to drive a vehicle without any special adaptation. A socio-economic report on the family and financial condition of the applicant was received from the State Welfare 25 Services. The Director-General of the Ministry of Finance, relying on the first two aforesaid reports, rejected the application of the applicant and communicated his such decision on 24.1.85 (Appendix 5). 30 By this recourse the validity of this decision is challenged on the ground that the Minister of Finance and/or the Director-General of the Ministry, acting in contravention 2417 Styttanides J. Kyriaeou v. Republic
(1985)of the Law, took into consideration and acied on the report of the Senior Technical Inspector of Examiners of Drivers and not only on the report of the Medical Board thai has the duty to certify and verify the incapacity of the appli cant. 5 The question of competence of the Director-General of the Ministry of Finance has not been raised by the applicant as a ground of invalidity of the sub judice decision. It was rightly brought to the attention of the Court oy the aUJiess of counsel for the respondents. 10 An administrative act or decision taken by an organ not having competence is a decision arrived at in excess of power and is of no effect whatsoever—(Mehmet Alt' Rouhi v. The Republic, 2 R.S.C.C. 84, 88). An administrative Court is entitled to examine ex proprio 15 motu the competence of the particular organ, the decision of which is being challenged before it—(Stassinopoulos on the Law of Administrative Disputes,
(1964), p. 251; Cleanthis Georghiades \. The Republic,
(1966)3 C.L.R. 252, 276; Yiangos Hji Stephanou v. The Republic,
(1966)3 20 C.L.R. 289; Evripides Evlogimenos v. The Republic,
(1973)3 C.L.R. 184). The relevant legislative provision on which applicant's application for exemption was based, is s. 11 of the Cu stoms & Excise Duties Laws, 1978-1981, and the Order of 25 the Council of Ministers made under s. 11
(2), published in the Official Gazette No. 1553 of 14.9.1979 under Notifi cation No. 221/79. Section 11, before the repeal and substitution by s. 2 of Law 50/85 of subsection
(2)thereof, reads as follows:-11.-
(1)Ανεξαρτήτως οιασδήποτε νομοθετικής 5ιατάΕεως δυνάμει τη*: onoioc είναι δυνατή η ατελής ε*· σαγωγή ειδικώς καθοριζομένων εμπορευμάτων προς χρήσιν αυτών υπό ωρισμένων προνομιούχων προσώ2418 30 3 C.L.R. 5 10 15 20 25 30 35 Kyriaeou v. Republic Styllanidoa J. πιυν, οργανισμών, αρχών και οργανώσεων, και υφ' ους όρους ο Διευθυντής ήθελεν επιβάλει προς δισσφάλισιν των δημοσίων προσόδων, εμπορεύματα του εν τω Τετάρτω Πίνακι καθοριζομένου είδους απαλλάττονται, υπό τας εν τω ειρημένω Πίνακι οριΖομένσς περιστά σεις και όρους εκτός εάν άλλως προνοήται εν τη τε τάρτη στήλη του ιδίου Πίνακος, του εισαγωγικού δα σμού ή φόρου καταναλώσεως όστις άλλως θα επεβάλλετο δυνάμει του παρόντος Νόμου, νοουμένου ότι η αίτησις απαλλαγής υποβάλλεται υπό ή δια τον εισαγω γέα πριν ή τα εμπορεύματα απομακρυνθώσι του τελω νειακού ελέγχου, εκτός ως άλλως ρητώς προνοείται εν τω παρόντι Νόμω.
(2)Δια Διατάγματος αυτού δημόσιευθησομένου εν τη επισήμω εφημερίδι της Δημοκρατίας, το Υπουργικόν Συμβούλιον δύναται να προσθετή, διαγραφή, μεταβάλλη ή άλλως τροποποιή τσς κλάσεις ή οιασδήποτε τού των ως αύται εκτίθενται εν,τω Τετάρτω Πίνακι». ("
(1)Notwithstanding any other legislative provision permitting the duty free importation of specified goods for the use by certain privileged persons, orga nizations, authorities and associations, and subject to any terms which the Director may impose for safe guarding public revenue, goods of the kind specified in the Fourth Schedule are exempted under the condi tions and circumstances set out therein from the payment of customs or excise duty which otherwise would have been imposed under this law, provided that the applica tion for exemption is submitted by or for the importer before the clearance of the goods, except as otherwise provided by this law.
(2)The Council of Ministers may by Order published in the Official Gazette add, delete, alter or otherwise amend the classes or any of them as the same are set out in the Fourth Schedule". 2419 Stylianides J. Kyriaeou v. Republic
(1985)The relevant part of the Fourt Schedule, as substituted by the aforesaid Order of the Council of Ministers, reads:Εδάφιον 09 Περιγραφή Απαλλαγής Βενζινοκίνητα και πετρελαιο κίνητα οχήματα, ιπποδυνάμεως μη υπερβαινούσης το 2000 κυβ. εκατοστά και 2300 κυβ. εκα τοστά, αντιστοίχως, κατάλληλο προς χρήσιν υπό προσώπων πασχόντων εκ σωματικής ανα πηρίας εισαγόμενα υπό αναπή ρων προσώπων των οποίων η αναπηρία πιστοποιείται δεόνως υπό επί τούτω συγκροτου μένου Κυβερνητικού Ιστρκού Συμβουλίου: Έκτασις Απαλλαγής Ως ήθελεν α ποφασίσει ο Υ πουργός Οικο νομικών βάσει της οικονομικής καταστάσεως του αιτητού. 10 15 Νοείται ότι η απαλλαγή αύτη δεν τυγχάνει εφαρμογής επί αναπήρων προσώπων άτινα: 20 (α) Είναι ιδιόκτητοι ή κάτο χοι ετέρου ούτως ατε λώς εισαχθέντος οχήμα τος' 25 (β) δεν κέκτηνται άδειαν ο δηγού, νοουμένου ότι ο σάκις ανάπηροι κέκτην ται άδειαν μαθητευομέ νου οδηγού ο Διευθυν τής δύναται να παραχώ ρηση απαλλαγήν υπό τον όρον ότι θα εΗασφαλι-' σθή άδεια οδηγού εντός ενός έτους από του τε λωνισμού του οχήματος ή εντός τοιαύτης ετέ ρας περιόδου ως ούτος ήθελε κρίνει εύλογον. 2420 30 35 40 3 C.L.R. Kyriaeou v. Republic Stylianides J. ("Description of Exemption 5 Petrol and diesel motor vehicles of a horse power not exceeding 2000 c.c. and 2300 c.c. respectively suitable for use by persons suffering from body disablement imported by disabled persons whose disablement is duly certified by a Government Medical Board constituted for the purpose: Provided that this exemption is not applicable disabled persons who: 10 15 20 (a) Are the owners or possessors of another duty free imported vehicle; to thus (b) are not the holders of a driving licence, provided that when disabled persons are the holders of a learner's driving licence the Director may grant such exemption on the condition that a driving licence will be obtained within one year from payment of customs duty for the vehicle or within such other period which he might consider reasonable. Extent of Exemption—As the Minister of Finance may decide on the basis of the financial condition of the applicant"). The legislator by Section 11 of the Customs & Excise Duties Laws, 1978-1981, exempted from payment of import 25 and excise duty the goods specified in the Fourth Schedule under the conditions and circumstances set out therein, provided that the application for exemption is submitted before clearance from customs. The Council of Ministers is empowered by Subsection
(2)of this Section to make 30 any alterations, deletions or amendments of the classes or any of them set out in the Fourth Schedule by order to be published in the Official Gazette of the Republic, and after the amendment by Law 50/85 such order has to be approved by the House of Representatives. 35 Having regard to the provisions of s. 11
(1), where reference is made to "the Director" and paragraph (b) of the Order of the Council of Ministers, no doubt is left that the organ vested with competence to examine and 2421 Stylianides J. Kyriaeou v. Republic
(1986)accept or reject the claim of the applicant is the Director. "Director" means the Director of the Department of Customs—(See s. 2
(2)of the Customs & Excise Duties Laws, 1978-1981, and s. 2
(1)of the Customs & Excise Laws, 1967-1977). Neither the Minister of Finance nor the Di- 5 rector-General of the said Ministry had any competence to determine the application of the applicant. Only when the application of the applicant is accepted by the Director. the Minister of Finance is empowered to decide the extent of the relief on the basis of the financial condition of the 10 applicant. As the Minister of Finance and the DirectorGeneral lacked competence, the sub judice decision is the product of excess of power and is of no legal effect whatsoever. There is another matter which has to be given due con- 15 sideration. The law intends the certification of the incapacity of the applicant to be made by a Government Medical Board established for the purpose and by no one else. The issue of this certificate is not simply an advisory act but an independent intermediate act— (loannou v. The Repu- 20 blic,
(1985)3 C.L.R. 31). In the present case, as in arriving at the sub judice decision the Director-General relied on the report of the Senior Technical Inspector of Examiners of Drivers, he took into consideration matters which he should not and thus acted on a misconception of law and fact. This is a further ground for annulling the sub judice decision. 25 The decision complained of is hereby declared null and void. Let there be no order as to costs. Sub fudice decision annulled. No order as to costs. 2422 30