(1935)1985 November 7 [A. LOJZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS SHAKALLIS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF CUSTOMS AUTHORITY, Respondent. (Case No. 138/85). The Customs and Excise Duties Law 18/78—Sub-heading 19 of item 01 of the Fourth Schedule and Order 188/82 of the Council of Ministers—Exemption from import duty on Motor Vehicles imported by Cypriots—The words "permanent settlement abroad"in the said Order—Interpretation 5 of—Context does not requireto give to the said words any meaning other than their naturalmeaning—Applicant,a Cypriot born abroad, his parents being permanently settled in the country he was born—His application, made after he came to Cyprus for permanentsettlement,for the importation 10 of a carduty free, correctlyturned down—Becausethe word "settle" has the meaning of voluntary and intentional action to settle and such capacity cannot be attributed to achild which is considered as ordinarily resident in his parents' matrimonial home. 15 Words and Phrases: "Permanent settlement abroad" in Order 188/82 of the Council of Ministers. The applicant is a Cypriot National born in Zaire in 1950, his parents being permanent residents in that country. In 1960 he came in Cyprus and attended Terra- 20 Santa School Nicosia as a boarder until
- In March 1970 he went to England for studies, having obtained 2570 3 C.LR. Shakallis v. Republic exemption from miliary service on the ground that he was permanently residing outside Cyprus. 5 10 In January 1980 the applicant came to Cyprus for holidays, when he met his present wife with whom he went back to Zaire where he stayed until the 14.1.83 when he returned to Cyprus. On the 18.1.83 he joined the Na tional Guard in compliance with the law once he had de cided to settle permanently in Cyprus. On the 11.5.83 the applicant submitted an application for the duty free importation of his car (which he had been allowed earlier to import duty free as a temporary visitor) as a repatriated Cypriot by virtue of sub-heading 19 of item 01 of the Fourth Schedule to the Customs and Excise Duty Law 18/78 and Order 188/82*. 15 The said application was rejected on the ground that the applicant had never been a permanent resident of Cyprus before his alleged emigration abroad and, therefore, he did not return for se'tlement in Cyprus after emigration herefrom. 20 Hence" the present recourse, the outcome of which depends on the interpretation to be given to the said Order 188/
- The respondent's position is that the Order applies only to Cypriote who were born in Cyprus emigrated abroad and returned in circumstances set out in the Order. The applicant's position was that the Order applies to Cypriote who after "residence" abroad for a continuous period of ten years return and settle permanently in the Republic. 25 30 35 Held, dismissing the recourse, that as i' was held in Matsas ν The Republic
(1985)3 C.L.R. 54 the words "permanent settlement abroad" in Order 188/82 are common words and there is no context requiring that they should be given other than their natural meaning in accor dance with their accepted usage, that they have the notion of emigration for the purpose of working. It appears that the differentialion made by the respondent between Cypriots, who leave Cyprus and adopt voluntarily and for settled purposes as part of their regular order of life • This Order is quoted at p. 2574. 2571 Shakattis v. Republic
(1085)another country and those who could not do so because they were born in that country from parents, who had done so much earlier, is a legitimate and reasonable one. Recoursedismissed. S No order as to costs. Oatec referred to: Matsas v. The Republic
(1985)3 C.L.R. 54; Regina v. Barnet L.B.C. Ex p. Shah [1983] 2 W.L.R. 16 Recourse. Recourse against the decision of the respondent whereby applicant's application for the duty free importation of his motor vehicle PE 269 as a repatriated Cypriot was turned down. 10 A. Petoufas, for the applicant. S. Georghiades, Senior Counsel of the the respondent. Republic, for 15 Cur. adv. vult. A. Loizou J. read the following judgment. The appli cant is a Cypriot National born in Zaire in 1950, his pa rents being permanent residents in that country. In 1960 ?0 he returned with his mother to Cyprus and attended the Terra-Santa School Nicosia as a bparder until
- His mo ther returned to Zaire in 1962 and he remained in Cyprus under the guardianship of an aunt of his. In March. 1970, the applicant went to England for studies having obtained 25 exemption from liability for service in the National Guard on the ground that he was permanently residing outside Cyprus (Appendix Π). It was obvious that he claimed and it was accordingly considered by the authorities that his permanent residence was that of his parents, his stay in 30 Cyprus being a temporary one for the purpose of his edu cationHe came to Cyprus for holidays on the 3rd January 1980, when he met his present wife to whom he was married and with whom he went back to Zaire where he stayed until 35 2572 3 C.L.R. Shakallis v. Republic A. Loizou J. the 14th January 1983 when he returned to Cyprus. On the 18th January, 1983 he joined the National Guard in compVance with the law once he had decided to settle permanently in Cyprus. 5 The applicant on the 15th January 1983, cleared from bonded warehouse his new car under Registration No. PE 269 which he was allowed to import free of import duty : as a temporary visitor by v rtue of the Temporary Importa tion (Private Vehicles and Aircraft) Regulations of 1968, 10 issued under the provisions of section 35 of the Customs and Excise Law, 1967 (Law No. 82 of 1967). This decision was issued once the applicant made a de claration in the prescribed Customs' Form C 104, under No. Β 77856 dated 15th March, 1983 (Appendix IV), as 15 follows: 20 "I declare that I am temporarily importing the goods specified for the purpose of- using them for pleasure at Cyprus and I undertake to comply with the conditions laid down in the Laws and Regulations of the Republic ..." He was originally allowed to so use his vehicle until the 14th June 1983 when he had either to re-export it or make arrangements for it in one of the ways specified by Law as set out at the back of Form C 104, (Appendix V), 25 which was either clearance for home use by payment of the customs' duties or storing in an approved bonded ware house. On the 11th May, 1983, the applicant submitted an ap plication for the duty free importation of h's said vehicle 30 as a repatriated Cypriot by virtue of sub-heading 19 of Item 01 of the Fourth Schedule to the Customs and Excise Duties Law 1978 (Law No. 18 of 1978) and Order No. 188/
- The date of his resettlement in Cyprus was given as the 14th January 1983, the date he returned. 35 As pointed out in the opposition that although there was some contradiction between the two statements of the applicant, yet it was considered expedient that he be given extension for the use of the motor-car in question without the payment of import duty in order that the Custom's Au2573 A. Lolzou J. ShakallIs v. Republic
(1986)thorities might examine his application for relief. Order No. 188/82 published in the Official Gazette of the Republic No. 1783 dated 11th June, 1982 Supplement ΙΠ,
(1)page 885, reads as follows: «Μηχανοκίνητα οχήματα των κλάσεων 8702.11 και 87.02.19 εισαγώμενα υπό Κυπρίων οι οποίοι κατόπιν μονίμου εγκαταστάσεως eic το εΕωτερικόν δια συνεχή περίοδον τουλάχιστον 10 ετών επανέρχονται και εγ καθίστανται μονίμως εν τη Δημοκρατία νοουμένου ότι η εισαγωγή γίνεται εντός ευλόγου χρονικού διαστήμάτσο, από της αφίΕεως των κατά την κρίσιν του Διευ θυντού.- 5 10 In English it reads:"Vehicles of the categories 87.02.11 and 87.02.19 imported by Cypriote who after permanent settlement 15 abroad for a continuous period of at least ten years, return and settle permanently in the Republic pro vided that the importation is made within a reasonable time since their arrival according to the judgment of the director. The relief from import duty covers only 20 one vehicle for every family." It is clear from this Order that a person seeking such a relief has to satisfy the respondent Director of Customs that he went and permanently settled abroad for at least ten years continuously and that he returned to settle per- 25 manently in Cyprus. The application of the applicant was turned down as shown in the letter of the respondent, dated 17th December, 1984, (Appendix ΠΓ) which in so far as material reads as follows: "I refer to your application dated 11th May, 1983, for relief on the above vehicle under sub-heading 19 of item 0.1*of the Fourth Schedule to the Customs and Excise Duties Law and regret to inform you that it was not found possible to accede to your request for 35 the reason stated below:You were never a permanent resident of Cyprus before your alleged emigration abroad and, therefore, 2574 30 3 C.L.R. Shakallis v. Republic A. Lolzou J. you have not returned for settlement in Cyprus after emigration herefrom." 5 As rightly pointed out by counsel for the applicant to which counsel for the respondent agreed, the case turns on the correct interpretation and application of Order No. 188/82 which as seen from the sub judice decision it has been taken by the respondent that it applies only to Gypriots who were born in Cyprus, emigrated abroad and returned in circumstances as set out in the Order. 10 The argument advanced in support of this proposition was that Cypriots who were born abroad do not come within the ambit of the said provisions, not only because it cannot be said that they returned for permanent settle-: ment in Cyprus, but because it cannot also "be said that 15 these Cypriots by nationality "settle" permanently abroad by the mere fact of their birth there. It is significant in this respect that the term "settlement" and not "residence" is used. The word "settle" has the meaning of voluntary and 20 intentional action to settle and such capacity cannot be attributed to a child which is considered as ordinarily resident in his parents' matrimonial home (See Dicey and Morris The Conflict of Laws 10th Ed. Vol. 1, p. 144.) It was argued that for the applicant to come within the 25 said Order same should provide for Cypriots who after "residence" abroad for a continuous period of ten years return and settle permanently in the Republic. In other words the word "residence" should replace the word "settlement" and omit the word "return". It appears that this interpretation of 30 the respondent is contained in an internal circular which is quoted in the address of counsel for the applicant.. and which reads:- 35 "3 (v) 'returns* must be taken to refer to' Cypriots who having emigrated Ubroad return with the intention of taking up permanent residence in Cyprus. This excludes Cypriots born outside Cyprus." Counsel for the applicant has urged that there should not : be given such narrow and literary construction to the : word ^return", and that the legislator by the use of the 2575 A. Loizou J. Shekellie v. Republic {1985) word "return" wanted actually to use the word "repatriated", hence the rule of literary interpretation, the one which could not offer a solution to the issue before the Court. In the case of Matsas v. The Republic
(1985)3 C.L.R. p. 54, the said order came under judicial examination but in respect of different facts. 5 As regards the words "permanent settlement abroad" to be found in the said order, it was held that they are common words and there is no context requiring that they 10 should be given other than their natural meaning in accordance with their accepted usage, that they have the notion of immigration for the purpose of working and they exclude travel abroad for the purpose of studies. It was further held that the term "permanent settlement" 15 carries with it the notion of a real or permanent home and should be distinguished from the notion of ordinary residence. As stated by me in the said judgment at p. 60, "In statutory enactments as the one under consideration the 20 safest course is to take the words used therein in their natural and ordinary meaning unless the framework of the enactment or its legal context in which they are used requires a different meaning which is not the present case." I see no reason why I should not abide by it. 25 Reference is made therein to a passage of Lord Scarman's judgment at p. 26-27 in Regina v. Barnet L.B.C Ex. p. Shah [1983] 2 W.L.R. 16, which reads:"I unhesitatingly subscribe to the view that 'ordinary resident* refers to a man*s abode in a particular place 30 or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.** A significant part of the aforesaid passage is the ex- 35 pression "which he has adopted voluntarily and for settled purposes as part of the regular order of his life". It seems that the respondent differentiates by his decision between 2576 3 C.L.R. Shakallis v. Republic A. Lolzou J. those Cypriots that leave Cyprus and adopt voluntarily and for settled purposes as part of their regular order of life another country and those that could not do so because they were bora in that country from parents, who 5 had done so much earlier. This appears to be a ligitimate and reasonable differentiation though it may appear rather odd because had on this construction the parents of the applicant returned and settled permanently in the Republic, they would be entitled 10 to customs' relief on'their vehicle, whereas the applicant who was born of such parents is considered not to be so entitled. There may be a reason for it which is not for me to question. For all the above reasons I have come to the conclusion 15 that the construction placed on the Order in question and its application to the facts of the present case is correct and consequently this recourse has to and is hereby dismissed. In the circumstances, however, there will be no order 20 as to costs. Recourse dismissed. No order as to costs. 2577