(1986)1986 July 1 1 [SAWIDES, h] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS SOPHOCLIDES AND1CO. LTD., Applicants, »».
- THE MINISTER OF COMMERCE AND INDUSTRY
- THE REPUBLIC OF CYPRUS, THROUGH THE ATTORNEY-GENERAL. Respondents. (Case No. 570/84). Constitutional Law—Right to practise any profesion or to carry on any occupation, trade or business—Restrictions or conditions in the public interest—Constitution, Article 25—Whether section 3 of the Import (Regulation) Law 49/62, as amended by Law 7/67 and the contents of the 5 Regulatory Order relating to cheese published by virtue of the said section on 20.1.83 violate the said right safeguarded1 by Article 25 of the Constitution—Whether a decision refusing, the grant of a licence for the importation of cheese on the ground that the quota of the applicant 10 for the period in question fiad been covered by a previous licence violates said Article of the Constitution. Constitutional Law—Equality—Constitution, Article 28—Decision restricting the grant of licences for the importation of Edam cheese to regular importers—Complaint by a 15 regular importer that such decision violates tixe-principle of equality, as being discriminatory against new importers— Applicant, being a regular importer, is not entitled to raise such an issue. Administrative Law—Discretion of administration—Judicial con1302 20' 3 C.L.R. Sophocfides & Co. l t d . v. Republic trol—This Court will not substitute its own discretion for that of the administration. The Imports (Regulation) Law 49/62, 7/67—Section
- 5 15 20 Λ .5 30 35 by Law Legitimate Interest—Constitution, Article 146.
- Administrative ilO as amended act—Executory—Confirmatory. By an order made by respondent d under s. 3 of Law 49/62, as amended 'by 'Law 7/
- and published on the 20.1.83, the importation of cheese falling within the customs classification 0.4.04 was ,placed under control and as such, for dts impor'ation an import licence was irequired .by .respondent.
- Respondent 1 decided to restrict the 'importation of cheese as from the ibcginnin» of the second half of 1984 for the .purpose .of protecting .and encouraging 'local ,pro•duction and especially .the -disposition of surplus "hallou.mi'1 cheese After several consultations with dhc 'various organisa tions concerned ithe ,respondent Minister (decided, mte; alia, -that "licences should also be granted ,too .for the im portation of Edam... cheese to all regular importer^ of such cheese. Ίο !be cleared after 311.|10.'84", .and -that «the relevant iquantities Of cheese will 'be .apportioned "to The importers .entitled on .the 'basis tof statements ooncernmc their imports .... for the >ears
- I9«2, -1983 and .1984'". At the (request .of ithe Foodstuffs Importers' Asso ciation the period to be ^covered !by -the statements was agreed as *the .period Ibetween tl:9.'8U .and 3il'8:
- The tquota .approved for ithe applicant company, which was a iregular -importer iof cheese, ^was fixed ;at U4.307 "kilos for ithe 'last four months of (
- On 21:9.84 irespondent 1 .approved ithe tissue of an •impart ilicence for 3.7 itons of :Edam cheese, rto icovei ithe whole <of .the applicant's nuiota tfor (the :sa:d ^period. One ,of the .conditions .indorsed ·οη ithe said 'licence was as .fal lows: "In .future you will ·ηοΙ insist an rthe -importation -of 1303 Sophoclides & Co. Ltd. v. Republic {1986) goods . for which an import licence is required without first having secured an import licence." On the 12.10.84 the applicant company submitted a new application for the importation of an additional quantity of 17 tons of Edam cheese. The application was turned down, on the ground that applicant's quota had been covered by virtue of the first licence granted to the applicant. 5 As a result the present -recourse was filed. Counsel for the respondent raised the preliminary objection that appli- 10 cant lost its legitimate interest, because it failed to challenge the decision embodied in the said condition indorsed on the first licence granted to the applicant. Counsel for the applxant complained, inter alia, of violations of Articles 24, 25 and 28 of the Constitution. In support of his con- 15 tcntion as regards the violation of Article 28 he argued that the criteria used for the fixing of the quota were unreasonable, creating discrimination between those who had already been importing cheese and new importers. Held, dismissing both the preliminary objection and the 20 recourse (A) As regards the preliminary objection: The arguments that the sub judice decision is merely confirmatory of the previous decision and that the applicant has lost its legitimate interest by having accepted unreservedly the previous decision are not supported by the material 25 before the Court, The condition indorsed on the first licence was, on the one hand, a mere hopeful expectation by respondent 1 that the applicant would have been satisfied by the quantity in respect of which such licence was issued and, on the other hand, no absolute prohibition on 30 importation of new quantities was imposed. (B) As regards the issue of the constitutionality of section 2 of Law 49/67 as amended by Law 7/67, the contents of the Regulatory Order published on 20.1.83 and the sub judice decision:
(1)Article 25.2 of the Con- 35 stitution recognises the imposition of conditions or restrictions to the right safeguarded by Article 25. namely the right to practise any profession or to carry on any occupation, trade or business, necessary, inter alia, in 1304 3 C.L R 5 10 15 20 25 Sophochdes & Co Ltd ν Republic the pubic interest Hicie is no doubt that m the modern state it is often found desirable to subject certain com modities to some form of goveinmental contiol for the purpose of ιη'α aha, the protection of local produce and its marketability in the interests of the country as a whole The applicant tailed to satisfy the Court that the re striction in question in this case was not aimed at the above purpose and was arbitral ily imposed by the res pondent Minister This Court will not subst.tute its discretion for that of the administration, even if it would have reached a different conclusion, had it been called upon to exercise its own discretion on the merits In conclusion the restrictions imposed in this case were within the ambit ot Ar'icle 25.2 of the Constitution and in the circumastances do not violate Article 25 or any other Article of the Constitution and the discretion of lespondent I was properly exercised
(2)The applicant does not fall within the category of new importers, but belongs to the category of the regular importers It follows that the question as to whether there is an absolute probihition of new importers is an aca demic one As it was said in Constantinou ν The Republic
(1966)3 C L R 572 "an instance of discrimination can only arise, if different treatment is meted out in two cases. which are similar in all material respects" What the applicant was entitled to prove was whether there was .my discrimination between him and other importers of similar i»oods, which he failed to do It follows that Article 28 of the Constitution has not been violated in this case 30 Recourse dismissed £50 costs in favour respondents Cases referred to frfan and Others ν The Republic, 3 R S C C 39 35 Impalex Agencies Ltd ν The Republic 361· 1305
(1970)3 CLR of Sophoclides & Co. Ltd. v. Republic
(1986)Psaras v. The Ministry of Commerce and Industry
(1971)3 C.L.R. 151; facovides v. The Republic
(1966)3 C.L.R. 212; Constantinou v. The Republic
(1966)3 C.L.R. 572 Recourse. 5 Recourse aga:nst the refusal of rhe respondent:; to grant applicants a licence to import 17 tons of Edam cheese. Ρ Angdides, for the applicants. St. loannides, (Mrs.), for the respondents. Cur. adv. vult. 10 SAVVIDES 3. read the following judgment. By this re course the applicant company challenges the decision of the Minister of Commerce and Industry (respondent 1) com municated to it by letter dated 16.10.84, refusing the grant of a licence to the respondent -to import into Cyprus 17 15 tons of Edam cheese, as being unconstitutional, ultra vires and illegal. The legal grounds on which the recourse is based, are the following: '(
- a)The sub judice decision was based on regulations which are ultra vires the re'evant law. 20 (
- b)The law and regulations on which the sub ijudice de cision was based, vio'ate Articles 23. 24, 25 and 26 of the Constitution. (
- c)The sub judice decision amounts to unreasonable discrimination and violation of the principle of equality binder Article 28 of the Constitution. 25 The facts of the .case are briefly as follows: The applicant .is a company -of limited liability and is trading, inter .alia, with the importation of cheese -of the brand" "Edam". Relying -on section 3 of the Imports ((Regulation) Law, 1962, (Law 49/62), as amended by Law 7/67, respondent 1306 30 3 C.L.R. Sophoctides & Co. Ltd. v. Republic Sawtdes J. 1 issued an order published in Supplement No, 111 of the official Gazette of the Republic dated 20.1.83, under Notification 7/83, whereby the importation of cheese falling within the customs classification 0.4.04, was placed under 5 control' and as such, for its importation an import licence was required by respondent 1. Respondent 1. for the purposes of the protection1 and encouragement of the local' production of products and especially the disposition of the surplus of "halloumi" 10 cheese, decided to- restrict the importation of cheese as from· the beginning of the second half of 1984. After several' consultations with the various organisations concerned respondent 1 came to the following decision which was communicated to the Secretary of the Cyprus Chamber 15 of Commerce and Industry (KEBE) and to the Secretary of the Foodstuffs Importers' Association, by letter dated the 24th September, 1984 signed by the Director-General of the Ministry of Commerce and1 Industry: 20 25 30 "I have instructions to inform' voir that the Ministry of the Commerce and Industry after having studied the views of all persons concerned: with regard to' the question of importation of cheese, came to the following decisions: (
- a)Licences would' be granted' for the importation of reasonable quantities of liixurv cheese. (b). Permission should be granted* immediately for the importation of cheese of the types Edam. Cheddar, and Processed to importers who will produce evidence that they have bought "Halloumi" from the Cyprus Milk Industry Organisation. The percentage will· be one to* three. 35 Licences should also be granted for the importation' of Edam,. Cheddar and Processed cheese to all regular importers, of such cheese,, to»be cleared1 after 31.10.84. It is. understood· that in· all three cases the quantities-of cheese which· will' be granted will· be apportioned to the importers entitled' on- the basis of sta1307 Savvides J. Sophoclides & Co. Ltd. v. Republic
(1986)iements concerning their imports which they were requested to submit for the "years
- 1983 and 1984." At the request of the Foodstuffs Importers' Association the period to be covered by the statements was agreed as 5 the period between 1.9.198! and 31.8.
- On the basis of the statements submitted, a quota was fixed for each importer based proportionately on his imports for such period. The quota approved for the applicant was assessed at 14.307 kilos for !he last four months 10 of
- On the 18th September. 1984, the applicant submitted an application for the importat:on of 17 tons of Edam cheese. Respondent 1 for the purpose of facilitating the applicant to make use of the space in one container, a 15 facility which was usually afforded by the respondent to other importers as well, approved on 21.9.1984 the issue of an import licence for 17 tons of Edam cheese, to cover the whole of his quota for the period 1.9.1984 to 31.
- 1984 and the following was one of the conditions indorsed 20 on the said licence: "In future you will not insist on the importation of goods for which an import licence is required without first having secured an import licence.1' The applicant on 12.10.1984 submitted a new appiication for the importation of an additional quantity of 17 tons of Edam cheese. On the 16th October, 1984, respondent 1 refused the grant of such permit and on the endorsement of Part C of 'he application, he gave his reasons as follows: "Because you have covered your quota for the period 1.9.1984 to 31.12.1984 (15,000 kilos) by virtue of import licence No. N/9/1874/1984 which was granted to you on 21.9.84 for 17,000 kilos of cheese." 1308 25 30 3 CLR Sophochdes & Co Ltd ν Republic Sawides J As a result applicant filed the present re-ourse, challeng ing the said decision 5 10 I5 ^t' 25 30 35 By his written address counsel toi applicant contended that Law 49/62, as amended by Law 7/67 to the extent that it allows the imposition of restrictions on the importa tion of cheese is unconstitusional as violating Article 24 of the Constitution Any restriction, counsel submitted, to the importation of cheese could be effected by the increase oi the import duty and not by imposing quotas and restncting its importation He contended that the provisions of Article 24 are special previsions which supersede the general provisions ot Article 25 of the Constnution. In any event, counsel submitted, the provisions of Law 7/67 cannot be applied in the present case, as cheese of tne type of Edam is used for the making of pizza and there is no local cheese suitable for such purpose for the protection of which a reslnction could be imposed In any event, counsel added if it is found that Law 7/67 does not violate the provisions of Article 25 of the Constitution, the regulations which were made classifying Edam cheese in the category of foodstuffs the importat'on of which could be restricted, are illegal and unconstitutional Counsel finally submitted that the criteria used lor the fixing of a quota violate Article 28 of the Constitution, in that such quota is based on the average of the quantities previously imported by the same importers Such criteria are in his submission, unreasonable and violate the princi ple of equality under Article 28 of the Constitution, creating discrimination between those who had been lrnporting cheese and new importers, thus establishing a pri vileged class of existing importers and excluding abso lutely new importers Counsel for the respondent by her written address raised a preliminary objection that the applicant lost its legitimate interest to challenge the decision, in view of the fact that it had failed to challenge the decision of the respondent which was embodied in the conditions indorsed on the import licence granted to him on 21 9.1984 Counsel submitted that the refusal by respondent 1 of 1309 Sawides J. Sophoclides & Co. Ltd. v. Republic
(1986)the application of the applicant of the 12th October, 1984 and the grounds given for such refusal are merely con firmatory of the previous decision of 21.9.
- Counsel in her written address went at some length to expound on· the principles governing legitimate interest and also the effect of an acceptance of an administrative act without protest which deprives a person of his legitimate interest to challenge a decision taken in that respect. 5 It was: counsel's, contention that the applicant accepted' the decision of respondent 1 of 21.9.1984 without any 10 protest and1 without reservation of rights, and, therefore, it lost any legitimate interest to challenge a subsequent prohibition based on such decision. In dealing with' the substance of the case, counsel· sub mitted' that the restrictions imposed by respondent V do not 15 violate· the Constitution and that under the provisions of Article 25· of the· Corrstifution, respondent 1 was entitled' to· impose_ any restrictions which· were absolutely necessary,. inter alia, in the' public interest. Counsel' contended that the protection*of locally produced cheese was a matter of 20 public interest and for the protection· of its· consumption and disposition, respondent l· had a duty to take steps by restricting the importation of cheese from, abroad. Counsel concluded her argument by submitting that in the circumstances of the case there has been no violation 25 of the principle of equality and' that in any event applicant failed to prove such violation. I shall deal' first with the preliminary objection raised by counsel for respondents. Though lengthy argument has been advanced on the principles as to the nature of an 30 executory act and the existence of a- legitimate interest, Τ find, that such principles have no application in the circumstances of the present case. Neither the contention of counsel· for the respondents that the sub judice decision is not of an executory character but is merely confirma- 35 tory of a previous decision, nor the contention that the applicant by having accepted the previous decision: of 21.
- 1984 unreservedly,, has lost its legitimate interest, can: be substantiated- from the material! before me. What is stated: 1310· 3 C.L.R. Sophoclides & Co. Ltd. v. Republic Sawides J. in the conditions subject to which the import licence of 21.9.1984 was granted was, on the one hand, a mere hope ful expectation by respondent 1 that the applicant would have been satisfied by the quantity in respect of which such 5 licence was issued, ("in the future you will not insist") and on the other hrmd, no absolute prohibition on importation of new quantities was imposed but the only restriction men tioned therein was the one requiring an import l:cence for future importation of such goods ("for the importation of 10 goods for which an import licence is required without first having secured an import licence"). In the result, I find that the preliminary objections can not be sustained and I shall proceed to deal with the sub stance of the case. 15 20 25 30 35 Sub-section
(1)ot section 3 of Law 49/62, as set out in section 2 of Law 7/67 by which it was replaced, pro vides as follows1: «
(1)Ό Υπουργός δύναται, οσάκις καθίσταται άναγκαΐον έν τω δηυοοίω συμφέροντι όπως .περιορισθή και ουθμισθή ή εισαγωγή εμπορευμάτων ϊνα ένθαρρυνθή π τοπική παραγωγή και 6ιομηχαν'α βελτίωθή το -έμπορικόν ίσοΖύγιον, τηρηθώσιν αϊ διεθνείς υποχρεώ σεις ή άναπτυχθή Π οικονομία της Δημοκρατίας, δια Διατάγματος δημοσιευομένου έν τή έπισήυω έφημερίδι της Δημοκρατίας, νά περιορίϋη και ρυθμ!2η τήν είσαγωγήν των έν τώ Διατάγυατι καθοριζομένων εμπορευ μάτων». ("Whenever it becomes necessary in the public in terest to restrict and regulate the importation of goods for the encouragement of local production and indu stry, -the improvement .of the balance of trade, com pliance with international obligations or the develop ment of the economy of the Republic, the Minister may, 'by order published in the «official Gazette of the Republic, restrict and regulate the importation of the goods specified in the Order.") By virtue of .the .above «powers which were vested in the Minister of Commerce and Industry, the Minister issued an 1311 Savvides J. Sophoclides & Co. Ltd. v. Republic
(1986)order published in the official Gazette of the Republic oi 20.1.83 under Notification 7 restricting and regulating the importation of certain goods set out in the Schedules therein included, for the reasons as stated therein that "it has become necessary in the public interest to restrict and 5 regulate the importation of goods for the purposes mentioned in sub-section
(1)of section 3 of the Imports (Regulation) Law". Amongst the goods so restricted, as set out in Schedule 1 of the Law, was cheese. I shall examine first the ground whether either the provisions of Law 7/67 or the contents of the regulatory act of the Minister amount to a restriction of the right of the applicant to exercise its trade in violation of paragraph 1 of Article 25 of the Constitution, as it was contended by counsel for applicant. 10 I-*1 The question as to whether the imposition of restrictions on imports violates Article 25 of the Constitution, came up for consideration in a number of cases both before the Supreme Constitutional Court and this Court. In Hussein Man and 4 others and the Republic, 3 R.S.C.C. 39, the 20 Court had this to say at pages 42, 43: "In the opinion of the Court, having regard to the impact on the economy of the country through the change of sovereignty and the creation of the Republic, it cannot be said that such powers to restrict 25 and regulate imports as those given under the Regulations in question were not necessary in the public interest in the sense of paragraph 2 of Article 25, at the time of the coming into operation of the Constitution and at the relevant time, i.e. February 1961. 30 The period of time during which such Regulations would continue to be considered as 'necessary', in the above sense, is a question of fact which does not call for a decision in this Case. (c) Regulation 3 of The Defence (Importation of Goods) Regulations, 1956, lays down that the importation of any goods is prohibited save under the authority of a licence for the purpose. The relevant power to grant or refuse a licence, was exercised, in 1312 35 3 C.L.R. 5 10 Sophoclides St Co. Ltd. v. Republic Savvides J. the present case, in the public interest, i.e. for the purpose for which it was granted. The fact that by the exercise of such power the interests of a certain part of the population, i.e. the vine-growers, for whose protection the Vine Products Scheme exists, may have been served at some expense to the interests of traders and consumers of sugar in general, due to the importation of the more expensive U.S.S.R. Migar, is not sufficient to lead the Court to the conclusion that the power in question was exercised in abuse or excess thereof." In Impalex Agencies Ltd. v. Republic
(1970)3 C.L.R. 361 we read the following in the judgment of A. Loizou, J. at pp. 371, 372 and 373: 15 20 25 30 35 "It would be observed that the Minister of Commerce and industry, has power to restrict and regulate the importation of goods into the Republic, by an order published in the Official Gazette, after taking into consideration the public interest, and quite rightly in my view, counsel for the applicants conceded that the regulation of the importation of the potato seed was in the public interest and was approved by the Applicants. I would like to begin by stating that in the modern state it is often found desirable to subject specified activities to some form of Governmental control. The purposes of such controls will vary. Sometimes a control is imposed for the purpose of collecting revenue; sometimes the type of activity may be such that it is desirable in the public interest to restrict the number of persons who exercise it. Tn practice, one of t.he commonest methods whereby controls can be imposed is the licence, and in the case in hand, the applicant company, like any other importer who desires to carry on with the business of importation of potato seed, is required to secure a licence from the Minister of Commerce and Industry, who is the licensing authority under the provisions of s. 4
(1)of Law 49/62 1313 Savvidos J. Sophoclides & Co. Ltd. v. Republic
(1986)(as amended). These import licences, I may add, are usually granted in pursuance of (protectionist policies. The purpose of section 3
(1)of Law 49/62, and the order made under that section is not the rcgula5 tton of any profession, occupation, trade or .business, but the regulation and the control of importation Οι potato seed. The mere fact, therefore, .that the importa tion of th : s commodity is .a necessary mean's for carrying on the business of importation, cannot justify 10 the conclusion that the regulation and control of this commodity and the refusal of the Minister interfere directly with ithe right, as such, of the applicant com pany to carry on the business of an importer. I would add that in this case. : t is clear, that the com- 15 pany has not been granted a licence for the importa tion of potato seed, simply because it did not con form .to the test laid down by the Ministry, and that because for a period of three years prior to the <de-cision of t h e Minister the -Company decided not to 20 t r a d e with this commodity for reasons explained "by Mr. Hadjisoteriou, one of the directors of the com pany. 'In my judgment, therefore, I find that the .decision or act of the Minister is not repugnant to the provi- 25 .sions of Article 25 of t h e Constitution. I would like, however, to state t h a t even assuming that I was wrong in this finding, and that the deci sion or act <of the Minister -directly interfered with the right of t h e company to carry on the trade or 30 (business of -importer of potato .seed, t h e n again I would have h a d no difficulty in ; my judgment t o make ,a finding that such formalities, iconditions or restrictions which .are .prescribed by this Law, are only '.necessary for the protection Of t h e rights .and 35 'liberties guaranteed ;by -the 'Constitution, as provided for iby 'paragraph 2 *of Article 25 of ithe Constitution." •1314 3 C.L.R. Sophoclides & Co. Ltd: v. Republic Savvides J. In Psaras v. The Ministry of Commerce and Industry
(1971)3 C.L.R. 151, the Court had this to say at pp. 160. 161: 5 10 15 20 25 30 35 40' "In the light of what has been stated hereinabove as to the relevancy of the Cyprus Potato Marketing Law, 1964, to1the sub judice decision, I do not find that the determination of the constitutionality of this Law or any part thereof is necessary for the purposes of these proceedings. Had it been· necessary, however, to adjudicate upon it, I would have no hesitation1 in deciding that this law is not unconstitutional', as it comes within the ambit of para. 3 of Article 25. The next point for determination is (
- a)the unconstitutionality or not of section 3· of the Imports (Regulation) Law, 1962, and; the order made thereunder, under which the decision eompained of was taken, and (
- b)the unconstitutionality or not of the said decision. (
- a)Article 25 of the Constitution safeguards the right of the individual' to practise any profession or to carry on any occupation, trade or business.. Paragraph 2 thereof provides that the exercise of this right may be subject to such formalities, conditions or restrictions as are prescribed by Law and are inter alia necessary only... in the public interest.'' It regulates, therefore, the· conditions under which a profession, trade or business may be exercised. The· requirement of a licence for the importation of a particular type of goods does not amount to a prohibition to carry out a profession or occupation. One may still become an importer in respect of these goods or other goods subject to certain conditions' which are necessary inter alia in the 'public interest*: I hold, therefore, that section· 3 of Law 49/1962 as amended1 is constitutionally valid' so long as the restriction or regulation of the- importation of goods is made, as it is; the case under consideration, in the public interest or for any other of the objects set out in· the said1 section' i.e. the encouragement of local1 production and manufacture; the' improvement of the balance of 1315 Savvides J. Sophoclides & Co. Ltd. v. Republic
(1986)trade, compliance with international obligations and the development of the economy of the Republic, all being objects that bring it within the ambit of para. 2 of Article 25. the very terms of which render it manifestly a provision of Law necessary in the publ:c interest." With the above in mind, I find myself unable to agree with the argument of counsel for applicants that the deci sion or act of the Minister in imposing restrictions on the importation of cheese is contrary to the provisions of Article 25 of the Constitution. Article 25 safeguards the right to practise any profession or to carry on any occupation, trade or business subject to such formalities, conditions or restrictions, as provided by the Law. 5 H) Paragraph 2 of Article 25 recognises the imposition of 15 conditions or restrictions to such right, necessary, inter alia, in the public interest. There is no doubt that in the modern state it is often found desirable to subject certain commodities to some form of governmental control for the , purpose of. inter alia, the protection of local produce and 20 its marketability in the interest of the country as a whole. In the case under consideration the applicant has failed to satisfy the Court that such restriction was not aimed at the above purpose and was arbitrarily imposed by the Minister of Commerce and Industry. It has been repeatedly stressed that the Court will not interfere by substituting its own discretion for that of the administration even if the Court would have reached a different conclusion had it been called upon to exercise its own discretion on the merits, (facovides v. The Republic 30
(1966)3 C.L.R. 212). In the circumstances of the present case I find: (
- a)That the restrictions imposed by respondent i were within the ambit of paragraph 2 of Article 25 of the Con stitution and that ·η the circumstances of the case they 35 do not violate Article 25 or any other Article of the Con stitution, 1316 25 3 C.L R Sophoclides & Co. Ltd ν Republic Sawides J (
- b)That the discretion ot respondent 1 was pioperly exercised and no case has been made foi mterference by this Court with the exercise of such discretion 5 I finally come to the contention of counsel for applicant that there -s a violation of Article 28 of the Constitution ;n that an absolute prohibition is imposed on persons who were not previously importers of cheese in case they wished to import such product The applicant does not fall within the category of a new importer but was one of the importers who were pre viously importing cheese The question as *o whether there is an absolute prohibition of new importeis is an academic one in the present case as the applicant does not fa'l within the category of such persons and in consequence he cannot 15 raise a legitimate claim on this ground 10 In Constamuwn ν The Republic
(1966)3 C L R 572 it was said at page 581 20 25 "But an instance of discrimination can only arise 11 different treatment is meted out in two cases which are similar in all material respects;" What the applicant was entitled to prove, was whether there was any discrimination between him and other im porters of similar goods which he failed to do I. therefore, find that the contention of counsel for violation of Article 28 of the Constitution, has not been substantiated and has no place in this case In the result, this recourse fa'ls and is hereby dismissed with £50 - against costs in favour of the respondent 30 Recourse dismissed Applicant to nay £50 - costs 1317