(1986)1986 October 9 [DEMETRIADES, J.J IN T H E M A T T E R O F A R T I C L E 146 O F T H E CONSTITUTION NICOS ERACLEOUS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF FINANCE, Respondent. (Case No. 708/85). Customs and Excise—Motor vehicles, importation of for disabled persons—Exemption from import duty—The Customs and Excise Duties Laws 1978-1984, section 1J(J) and Order 221/79 of the Council of Ministers—The only competent organ to decide an application for such exemp5 tion is the Director of Customs. Recourse for annulment—Power of Court to raise and examine the issue of competency of the administrative organ ex proprio motu. The respondent Minister, having taken into considera- 10 tion the report of the Medical Board and the report of the Senior Technical Examiner of Drivers, rejected applicant's application under s. 11
(1)of the aforesaid laws and the said Orders of the Council of Ministers for the duty free importation of a motor car for disabled per- 15 sons. As a result the applicant filed the present recourse. Held, annulling the sub judice decision:
(1)It is clear from the wording of s. 11
(1)of the Law and the Fourth Schedule thereto as amended by the aforesaid Order of the Council erf Ministers that the only competent organ to determine an application such as the present one is 1566 20 3 C.L.R. Eracleous v. Republic the Director of Customs. The Minister of Finance has no competency in the matter. 5
(2)Though the issue of the competency of the respondent Minister has not been raised by the parties, the Court has power to raise it and examine it ex proprio motu. Sub judice decision annulled. No order as to costs. Cases referred to: 10 Ioannou v. The Republic
(1985)3 C.L.R. 31; Kalli v. TheRepublic
(1984)3 C.L.R. 443; Cyprus Transport Co. Ltd. & Another v. The Republic
(1970)3 C.L.R. 163; Kyriacou v. The Republic
(1985)3 C.L.R. 2414; 15 Diakos v. The Republic
(1985)3 C.L.R. 2334. Recourse. Recourse against the dismissal by the respondent of applicant's application for relief from import duty of a motor vehicle for disabled persons. 20 N. Papaefstathiou, for the applicant. D. Papadopoulou (Mrs.), for the respondent. Cur. adv. vult. DEMETRIADES J. read the following judgment. The applicant challenges the decision of the respondent, which was 25 communicated to him by letter dated the 12th June, 1985, and by which his application for relief from import duty of a motor-vehicle for disabled persons was dismissed. The applicant, a civil servant, applied on the 15th February, 1985, for relief from import duty in respect of 30 a Mercedes car on the ground that he suffers from atrophy of his right leg and arm caused by poliomyelitis that he contracted when he was 17 months old. 1567 Demetriades J. Eracleous v. Republic
(1986)The application of the applicant was made on the basis of the provisions of section 11
(1)of the Customs and Excise Duties Laws, 1978-1984 and an Order of the Council of Ministers made under sub-section 2 of that section by which disabled persons are exempted from paying import and excise duty on motor-vehicles imported by them. 5 Section 11
(1)of the Law reads':«11.-
(1)'Ανεξαρτήτως οιασδήποτε νομοθετικής διατάΕεως δυνάμει της όποιας είναι δυνατή ή ατελής 10 εισαγωγή ειδικώς καθοριζομένων εμπορευμάτων προς χρήσιν αυτών ύπό ώρισμένων προνομιούχων προσώ πων, οργανισμών, άρχων και οργανώσεων, και ΰ φ ' οΰς όρους ό Διευθυντής ήθελεν επιβάλει προς διασφάλισιν τών δημοσίων προσόδων, εμπορεύματα τοϋ 15 έν τώ Τετάρτω Πίνακι καθοριζομένου είδους άπαλλάττονται, ύπό τ ά ς έν τω είρημένω Πίνακι όριζομένας πε ριστάσεις και Ορους έ κ τ ο ς εάν άλλως προνοήται έν τ η τ ε τ ά ρ τ η στήλη τοϋ ιδίου Πίνακος, τοϋ εισαγωγικού δασυ.οϋ ή φόρου καταναλώσεως όστις άλλως θά έπε- 20 βάλλετο δυνάμε 1 τοΠ παρόντος Νόμου, νοουμένου ότι ή αίτησις απαλλαγής υποβάλλεται ύπό ή δ:ά τον εισα γωγέα πριν ή τα εμπορεύματα άπομακρυνθώσι τοϋ τελωνειακού έλεγχου, έ κ τ ο ς ώς άλλως ρητώς προ νοείται έν τώ παρόντι Νόμω.» 25 ("11. -
(1)Notwithstanding any other legislative provision permitting the duty free importation of spe cified goods for the use by certain privileged persons, organizations, authorities and associations, and subject to any terms which the Director may impose for safe- 30 guarding public revenue, goods of the kind speci fied in the Fourth Schedule are exempted under the conditions and circumstances set out therein from the payment of customs or excise duty which other wise would have been imposed under this law, pro- 35 vided that the application for exemption is submitted by or for the importer before the clearance of the goods, except as otherwise expressly provided by this law.") 1568 3 C.L.R. Eracleous v. Republic Oemetriades J. Sub-section 2 of section 11 gives power to the Council of Ministers to add to, delete, alter or otherwise amend any of the classes of goods set out in the Fourth Schedule, by Order published in the Official Gazette. s By virtue of the powers vested in it by sub-section 2 the Council of Ministers issued the following Order which was published in the Official Gazette of the Republic No. 1553, dated the 14th September, 1979, under Notification 221/79. The material to this case part reads as follows:- 10 15 20 -Περιγραφή 'Απαλλαγής Βενζινοκίνητα και πετρελαιοκίνητα οδικά οχήματα, ιπποδυνάμεως μή ύπερβαινούσης τά 2000 κυβ. εκατο στά και 2300 κυβ. εκατοστά, αντιστοίχως, κατάλληλα προς χρήσιν ύπό προσώπων πασχόντων έκ σωματικής αναπηρίας εισαγόμενα ύπό αναπήρων προσώπων τών οποίων ή αναπηρία πιστοποιείται δεόντως ύπό έπϊ τούτω συγκροτουμένου Κυβερνητικού Ίατοικοϋ Συμ βουλίου· Νοείται ότι ή απαλλαγή αϋτη δέν τυγχάνει έφαρμογης έπϊ αναπήρων προσώπων άτινα· (α) Π 25 30 35 Γβ) δέν κέκτηνται άδειαν όδηγοϋ, νοουμένου ότι ο σάκις ανάπηροι κέκτηνται άδειαν μαθητευομένου όδηγοϋ ό Διευθυντής δύναται νά παραχώρηση άπαλλαγήν ύπό τόν όρον ότι θα έζασφαλισθή άδεια όδηγοϋ εντός ενός έτους άπα τοϋ τελωνισμού τοϋ οχήματος ή εντός τοιαύτης ετέρας πεοιόδου ώς ούτος ήθελε κοίνει εΰλογον.» ("Description of exemption 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 dis ablement imported by disabled persons whose disablement is duly certified by a Government Medical Board constituted for the purpose: 1569 Demotriades J. Eracleous v. Republic Provided that this exemption is not applicable disabled persons who:
(1986)to (
- a)or (
- b)are not the holders of a driving licence, pro- 5 vided 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 10 he might consider reasonable.") By the said order, the extent of the exemption was left to the discretion of the Minister of Finance, depending on the financial position of the applicant. As provided by the said Order the applicant was then 15 referred to a Medical Board which, after examining him, reported to the respondent on the 26th April, 1985, confirming the incapacity of the applicant's right leg. The applicant was also referred to the Senior Technical Examiner of Drivers for examination, who, after testing him as to his driving capabilities on the basis of the medical report, informed the respondent, on the 1st June, 1985, that the applicant could drive a vehicle without the need of a special adaptation (see Appendix 3 to the opposition). By a letter dated the 12th June, 1985, the DirectorGeneral of the Ministry of Finance rejected applicant's application. This letter, which is Appendix 4 to the Opposition filed by the respondent, reads:"I have been instructed to refer to your application 30 dated 15.2.1985 for relief from import duty in respect of a car for disabled persons and to inform you that in 'accordance with the reports of the relevant Medical Board and the Senior Technical Superintendent of the Office of Driving Examiners, your physi- ^5 cal condition does not justify the use of a car specially adapted for disabled persons". 1570 20 25 3 C.L.R. Eracleous v. Republic Demetriades J. The applicant bases his recourse on the grounds that the sub judice decision 1. is contrary to the Law and the Regulations and in excess and/or abuse of power, 5 2. it was taken without due inquiry, and 3. it was token by an incompetent organ. 10 15 20 i5 Counsel for the applicant argued the case solely on the last ground mainta:ning that the only competent organ to ascertain the physical disability of the applicant was, under the Law, the Medical Board and that the respondent was not entitled to seek the advice or opinion of any other organ, that is the Senior Technical Superintendent. In support of his argument counsel for the applicant relied on two recent decis:ons of this Court, namely Ioannou v. The Remtblic,
(1985)3 C.L.R. 31 at pp. 36-37 and Kalli v. The Republic,
(1984)3 C.L.R. 443, at pp. 447, 448. Counsel for the respondent argued that the Medical Board cannot opine as to whether or not the condition of the applicant necessitates a specially adapted car and the opinion of the Senior Technical Superintendent in this respect was rightly sought and obtained. Counsel made reference to Regulat:ons 18, 25 and 26 of the Motor Ve hicles and Road Traffic Regulations of 1984, made under the Motor Vehicles and Road Traffic Laws 1972-1983, in order to show that the Senior Technical Superintendent is a person competent to express an opinion as to whether a person is fit to drive an ordinary car or not. Although not specifically raised by counsel on either side, there is another point going to the competency of the 30 organ which has to be examined first. This point is whether the Minister' or the Ministry of Finance was the competent organ or authority to take the sub judice decision. Al though not specifically raised, as Τ said earlier, it is one of the matters which can be examined by the Court ex 35 proprio motu. Authority if needed, may be found, amongst others in Cyprus Transport Co. Ltd. &. Another v. The Republic,
(1970)3 C.L.R. 163, at p. 166; and Kyriacou v. The Republic,
(1985)3 C.L.R. 2414 at p. 2418. 1571 Demetriadea J. Eracleous v. Republic
(1986)In the cases of Diakos v. The Republic,
(1985)3 C.L.R. 2334 and Kyriacou v. The Republic, (supra), the matter of incompetency of the·Ministry of Finance to decide whether relief from import duty should be granted to a person on the ground of disability was raised by counsel for the 5 respondent. In the case of Kyriacou v. The Republic, (where judgment was delivered first), Stylianides J. said the following at pp. 2421-2422: "Having regard to the provisions of s. 11
(1), 10 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 accept or reject the claim of the applicant is the Director. 'Director* means the Director 15 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 DirectorGeneral of the said Ministry had any competence to 20 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 applicant". 25 The same view was also held by Loris, J., in the case of Diakos v. The Republic, (supra). I fully agree with the views expressed by my two brother Judges which I adopt. It is clear from the wording both of the Law and the Fourth Schedule to it (the pro- SO visions of which need not be quoted here having been quoted earlier), as amended by the Order of the Council of Ministers mentioned above, that the Director of Customs is the only competent organ to decide, exercising his discretion, whether or not to grant relief from payment of 35 import duty in respect of motor vehicles imported by disabled persons, that are specially adapted to their needs. Before concluding, I would like to make two remarks: (a) In my view, although the Medical Board is the only 1572 3 C.L.R. Eracleous v. Republic Demetriades J. competent body to decide whether a person is suffering from disability, still it is not a body that has the means to test that person in order to ascertain whether he is in a position to drive and how; and 5 (b) In my experience practically all persons claiming an exemption under the Law apply for the import not of an ordinary car but for one that falls really within what may be described as a luxury car. In the result, the sub judice decision is annulled. 10 There will be no order as to costs. Sub judice decision annulled. No order as to costs. 1573