(198β) 1986 March 5 [MALACHTOS, J.] IN T H E MATTER OF ARTICLE 146 OF THECONSTITUTION VARNAVAS NICOLAOU AND SONS LTD., Applicants. v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF COMMERCE AND INDUSTRY, Respondent. (Case No. 363/82). The Imports (Regulation) Law 49/62, as amended by Law 7/67, ss. 3 and 4—Objects and spirit of said Law— Goods belonging to foreigner warehoused in transit in a bonded warehouse—Refusal to grant an import licence to a Cypriot merchant in respect of the said goods on the ground that "... the policy... is that such goods should be re-exported or sold by public auction...."— Reasons given for refusal outside the spirit and objects of said law. On 1.7.82 the applicant company applied for an import licence for 556 cubic meters of Swedish timber, which were stored in transit in a bonded warehouse in Limassol. It should be noted that the importation of the said kind of timber is restricted and regulated by order of the Minister of Commerce and Industry, dated 7.8.72 and that the applicant had accepted an offer to purchase it. The applicant's said application was turned down on the ground that "the policy of the Ministry for goods which belong to foreigners (not Cypriot merchants) and are in transit must be re-exported or sold by public 574 5 10 15 20 3 C.L.R Nicolaou & Sons-Ltd. v. Republic auction which is carried1 out by the Department of. Cu stoms". 5 10 Is Hence the. present) recourse. Applicants copnsel sub mitted that,the, respondents failed to exercise- their dis-. cretionary powers within the objects of ss. 3 and 4* of Law 49/62" as, amendedι by Law 7/
- and that in the present case there-exists an obvious misconception of- law, and' the reason given· for- refusing such a l'cence is con? trary to law. Counsel for- the respondents agreed with submissions. the above Held, annulling the sub-judice decision, that the.reasons given for the refusal to-grant the. import- licence in ques tion- are not within the spirit and objects of· Law- 49/62 (as amended by Law 7/67). which was enacted, in order tn protect the interests of Cypriot Producers and Manu facturers of; goods in the Republic. Sub, judice decision annulled. £30.- costs againstrespondents. 20 Recourse. Recourse against the refusal of the- respondent to grant applicants a licence to import timber. P. Foannides, for the applicants.
- loqnnidou (Mrs.), for the respondent. 25 30 Cur. adv. vuh. MAI.ACHTOS J. read the following judgment. The appli cant in this recourse cla:ms a declaration of the Court that the act and/or decision of the respondent, dated- 2.7·.
- by which they rejected, its application dated- 1.7.
- for importation of timber and/or by- which decision they, re fused and/or omitted to grant the-import licence applied for, is null and void and" of no legal· effect whatsoever- and everything which was omitted should have been performed. * Both sections are quoted at pp. 576-577 post. 575- Malachtos J. Nicolaou & Sons Ltd. v. Republic
(1986)The relevant facts of the case are the following: The applicant is a company formed and incorporated in Cyprus with limited liabMity and its main buvness is the importation, elaboration and sale of timber. The applicant company on 1.7.1982 applied to the resDondent -* authority for an import licence for 556 cubic metres of Swedish timber, which was stored in transit in a bonded ware house in Limassol. It should be noted here that the importation of this kind of timber is restricted and is regulated by Order of the Minister of Commerce and Indu- 1° stry dated 7th August, 1972, and that the applicant had accepted an offer to purchase it. The respondent did not approve the application of the applicant and on 2.7.1982 gave the following reasons in writing:- 15 "Unfortunately, the relevant import licence cannot be issued because the policy of the Ministry for goods which belong to foreigners (not Cypriot merchants), and are in transit must be reexported or be sold by public auction, which is carried out by the Depart- 20 ment of Customs." Tn support of his case counsel for applicant submitted that the respondents in issuing the decision complained of, acted in abuse and in excess of power as they failed to exercise their discretionary power within the objects of section 3 and 4 of the Imports Regulation Law 1962, (Law 49/1962), as amended by the Imports Regulation (Amendment) Law, 1967 (Law 7/1967V These sections read as follows:- 25 "3.
(1)The Minister may, whenever it becomes 30 necessary, in the public interest, to restrict and regulate the importation of goods for the encouragement of local production and manufacture, the improvement of the balance of Trade, compliance with international obligations or the development of the economy of the 35 Republic, by Order published in the Official Gazette of the Republic, restrict and regulate the importation of the goods specified in the Order. 576 3 C.L.R •s 10 Nicolaou & Sons Ltd. v. Republic Malachtoa J.
(2)Any Order may contain such incidental, consequential and supplementary provisions as the Minister may consider necessary or expedient for the carrying into effect of the Order and, without prejudice to the generality of the aforesaid provision, any Order may require prior licence from the Mmister for tlu* importation of any such goods. 4.
(1)Where under the provisions of any Order a licence is required, the licence shall be in the prcscribed form,
(2)The Minister may ;n his discretion:(
- a)grant or refuse such licence; (
- b)make such licence subject to such conditions as he may deem fit; 15 20 25 30 35 (
- c)cancel, suspend or vary any such licence or any conditions thereof: Provided that where under the conditions of a licence a confirmed credit has been opened or.a contractual obligation created, the licence and any condition thereof shall not be cancelled, suspended or varied, unless and until such confirmed credit has expired or such contractual obligation has been fulfilled or has been cancelled or otherw'se has ceased to exist or can reasonably be deemed to have been fulfilled, cancelled or to have otherwise ceased to exist." Counsel for applicant further submitted that the rc;pondents refused to grant the licence applied for relying on an alleged policy of the Ministry not to grant imp>rt licences for goods in transit and that these goods should be re-exported and re-imported or sold by public auction by the Customs authorities. He also submitted that even if this policy exists, is manifestly illegal and arbitrary and amounts to abuse of power as the t:mber in question cannot be considered in law as imported and that is the reason why the import licence is required. The other reasoning, he alle«?d. is even more illogical. When there are goods 577 Matachtos J. Nlcolaou & Sons Ltd. v. Republic
(1986)unclaimed or burdened with heavy storages and charges, can be sold through the Customs by auction, and the Ministiy says "Let the goods in the stores be burdened. witH heavy' charges and expenses and then there is no difficulty ih selling them and if you are interested buy them:at the public auction as the higher bidder". Finally; counsel for applicant submitted that the law says that certain conditions may be imposed' in granting suchi a' licence to protect the public interest' but this does not arise in the-present case. In the present case there exists an. obvious- misconception of the law and a manifest abuse" and' excess of power- and; the reason given for refusing such1 a licence is contrary to law. Counsel for the respondents, both in the opposition and iru her' address*to·the1 Court, agreed with, the submissions of- counsel· for' applicant' andistated- that the decision complained^of should be declared' b y the Court as- null and void' I· have' considered the arguments of" counsel for applicant- and' I must say that I fully agree with him. that the reasons given for the- refusal of the respondent authority to grant' the import licence in question are' not within the spirit' and objects of the Import (Regulation) Law of 1962, as·amended' by Law 7/67, which law was enacted in order to protect the interests of the Cypriot Producers and Manufacturers of goods in the Republic; and, therefore, render the1decision' complained of not duly reasoned·. Consequently, ine recourse succeeds and complained of is hereby annulled. the decision The respondents are adjudged to pay £30.- against the costs of the applicants. Sub judice decision annulled. Respondents to pay £30.against costs. 578