clr/1987/1987_3_1305.pdf

(1987)Held,dismissingthe recourse (l)«Permanentsettlementabroad» which is one of the pre-requisites for the relief under Order 188/82, has been considered in a number of cases {Michael ν TheRepublic

(1986)3 C L R 2067, Inre GapeDeed, Vereyv Gape[1952]1Ch 743,Matsasv Republic

(1985)3 CLR.54,Shakalhs ν Republic

(1985)3 CLR 2570) Thefacts of 5 this case point out that applicant's animus was to have his permanent residence mCyprus and that his residence in Saudi Arabia was only for the purpose of hisemployment andnomore Hedidnot«establish permanently» inSaudi Arabia

(2)Thesecondquestion iswhetherapplicantsatisfiesanotherpre-requisite 1 0 for the relief, ιe stay abroad for a «continuous penod of at least tenyears» «Year· according to the Interpretation Law, Cap 1, means calendar year Ordinanly «calendar year» means365 days except inleap year 366 days and is composed of twelve monthsvarying in length Any penod of time to be calculated as commencing or beginning with the certain date must include 1 5 that date Incomputing the penod of ten years, we cannot commence with part of the day Applicant's residence in Saudi Arabia commenced on the 16th ofJanuary, 1976 and,therefore,thetenyear's penodwould have been completedatmidnightof the 15thofJanuary, 1986 itfollowsthatapplicant's residence inSaudi Arabia was lessthanten years 20 Recourse dismissed No orderas tocosts Casesreferred to Michael ν TheRepublic

(1986)3 C LR 2067, Re CapeDeed, Vereyν Gape[1952] 1Ch 743, 25 Brokelmann ν Ban [1971]3 All ΕR 29, Matsasν Republic

(1985)3 C LR 54. Shakalhs ν Republic

(1985)3 CLR 2570, Stdebothamv Holland[1891-94]All ER Rep 617, Trow ν Ind Coope (West Midlands), Ltd and Another (1967] 2 All ΕR 900 Recourse. Recourse against the rejection of applicant's request for the exemption from import duty of a motor car as a repatriated Cypnot A. Drakos,for the applicant. 1306 30 3 CX.R. Georghiouv. Republic Stylianides J. S. Georghiades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. • STYLIANIDES J. read following judgment. By means of this 5 recourse the applicant seeks the annulmentof the decision of the • respondent - Directorof theDepartmentof Customs and Excise whereby his request for exemption from import duty of a motor carOPELRECORD, No.99(V)86, was rejected. The applicant, a Cypriot, entered intocontract of employment 10 with the AL AFANDI ESTABLISHMENT CO. Inperformance of his said contract he departed from Cyprus on 15/1/

1. At the time he left his country he was married with a child. Towards the end of 1976 his wife and child joined him in Saudi Arabia. He worked in that country as a private employee. He visited his 15 country duringhisannualholidays of aboutonemonth'sduration. Hiswife came to Cyprus and gave birth toa second child in 1979 anda thirdchild was delivered inSaudi Arabia. Heremittedtohis. country his savings. In 1980 he had a house erected in the Republic where on 14/1/86he returned. Shortly later he applied 20 for exemption from importduty of a carwhich he imported inthis country on 14/2/
2. The application was considered and was rejected on thegrounds that: (a) His stay abroad was of temporary nature and did not constitutepermanentsettlement there,and 25 (b) Hisstay abroad was less than tenyears, as he departed on 15/1/76and returnedon 14/1/
3. Hencethis recourse. The application for exemption from import duty was based on theOrderof theCouncilof Ministers madeunderSection 11

(2)of 30 theCustomsand Excise DutiesLaw 1978 (No.18of 1978-1981). The first point that arises for determination is whether the applicanthad settled permanently abroad. The materialpartoftheOrderof theCouncilof Ministers reads:35 «....oiOTToiotκατόπιν μονίμουεγκαταστάσεως ειςτο εξωτερικόν διό συνεχή περίοδον τουλάχιστον δέκα ετών επανέρχονται και εγκαθίστανται μονίμως εν τη Δημοκρατία.» 1307 StyUanldesJ. Georghlouν.Republic

(1987)(«... who after permanent establishment abroad for a continuous period of at least ten years return and settle permanently in the Republic»), Cypriots are entitled toexemption ifthefollowing requirements are satisfied:- 5 (a)(i)Permanentestablishment abroad. (ii)Fora continuousperiod of at least ten years. (

1. b)Return for permanent establishment in the Republic, and (
2. c)Importation within reasonable time from the date of 10 arrival inthe discretion of theDirector. The expression «permanent establishment» was judicially considered ina number of cases by thisCourt. InPhilipposMichael v.TheRepublic of Cyprus

(1986)3 C.L.R. 2067,1saidthe foliowing:«'Permanent establishment' is not synonymous to 'residence'. Residence alone is not sufficient. Permanent establishment indicates a quality of residence rather than its length. The duration of the residence, i.e. regular physical presence in a place, is only one of a number of relevant factors. An element of intention to reside and establish is required. Evidence of intentionmay be importantwhere the period or periods of residence are such as to point to both directions. It is not possible for a person to be permanently settled in the Republic and in another country.Theintention of permanently settling may be gathered from the conduct and action consistent with such settlement. Though permanent settlement cannotbe assimilated todomicile, itis akin toitand pronouncementson domicile are very relevant and helpful. InreGape Deed.,Vereyv.Gape, [1952] 1Ch.743,at749, itwas said:'As has been observed during the course of the argument, the intention permanently to reside in a particular country is one of the two essential 35 characteristics of domicile. Ithas been emphasized as an essential condition or characteristic time and again in 1308 20 25 30 3C.L.R. 5 10 Georghlouv.Republic StyUanldc·«f. these Courts,and Ifind itimpossible tosuppose that the judges,inreferring tothatcharacteristic,weredoingother than stating something which was to the lawyer both definite and precise. Ifa synonym be required, Iwould say that the condition of taking up permanent residence in England was another way of saying: making England your permanent home;that istosay, residing in England with the intention of continuing toreside there untilyou die. Itis, in other words, another way of referring to the characteristicessential todomicile'. And further down on thesamepage:- 15 'You cannot take up a permanent residence at any particular point of time, unless at the time you take up residence you intend thatitshould be permanent, thatis, thatyou should goon livingthere foryour natural days'. And atpages 751-2:- 20 'The expression 'take up' suggestsvolition and intention and even more so does the word 'permanent', for it postulatesadecision toliveinaplacefortherestof one's life, as opposed to livingthere temporarily or for a fixed period oftimeand no longer'. (See alsoVol. 1 of Dicey&Mom's 'The Conflict of Laws', (10th Ed.,)atpages 141-143: and Brokelmann v. Barr, 11971] 3AIIE.R.29). 25 In Matsasv. Republic,

(1985)3 C.L.R. 54, A. Loizou, J., said atp.61,referring tothissame OrderTo my mind permanent settlement carries with itthe notion of a real or permanent home and should be distinguishedfromthenotion ofordinary residence'. 30 In Andreas Shakalhs v. Republic,

(1985)3 C.L.R. 2570,it wassaid:'Settle' hasthemeaningofvoluntaryand intentional action tosettle'». The non Moslems are not under the Legal Order obtaining in 35 SaudiArabiaentitled topermanent residence. The applicant isa Greek Cypriot. His staying in Saudi Arabia 1309 StyUanldeeJ. Georghlouv.Republic

(1987)wascoexistentwithhiscontractofemployment.Heremittedallhis savingstotheRepublicofCyprusandasearlyas1980heerected a dwellinghouse.Theaforesaid pointoutthat hisanimuswasto havehispermanentresidenceinCyprusandthathisresidencein SaudiArabiawasonlyforthepurposeofhisemploymentandno 5 more.Hedidnot«establishpermanently»inSaudiArabia. Though the aforesaid would suffice for the dismissal of this recourse, asthe first ground of rejection ofhisapplication wasa validone,nevertheless,Ishallconsiderwhetherhisstaywasfora periodofatleasttenyears. 10 «Year» according to the Interpretation Law, Cap. 1, means calendaryear.TheOrderrequiresaperiodofatleasttenyears;ten completeyears,notless.CalendaryearistheperiodfromJanuary 1stto December 31st, both days inclusive. Ordinarily «calendar yea» means 365 days except in leap year 366 days and is 15 composedoftwelvemonthsvaryinginlength.Anyperiodoftime tobecalculatedascommencingorbeginningwiththecertaindate mustincludethatdate. TheapplicantlefttheRepublicon15/1/76.On15/1/76hewas intheRepublic.ForpartofthedayhemighthavebeenInSaudi 20 Arabia, If the airplane on which he travelled landed before midnight of 15/1/76inthatcountry.Thecomputation oftimein this statutory instrument is to be made having regard to the purpose oftheorder.Incomputingtheyear,andthepurposefor which the computation is made is continuous permanent 25 residence abroad for a period notlessthattenyears,wecannot commence with part of the day. His residence in Saudi Arabia commencedonthe 16thofJanuary,1976and,therefore,theten years'periodwouldhavebeencompletedatmidnightofthe15th ofJanuary, 1986.(SeeSidebothamv,Holland[1891-94]AllE.R., 30 REP.617;Trowv. IndCoope(WestMidlands), Ltd. andAnother [1967]2AllE.R.900.)Hewasbacktothiscountryonthe14thof January. Therefore, the tenth year was not completed. His residenceinSaudiArabiawasleesthantenyears.Theallegation of hiscounsel that he satisfied the ten years residence abroad is 35 untenable. 1310 3C.L.R. Georghlouv.Republic StyUanldes J. Inview of the above the subjudice decision isnotat all faulty. Therecourse failsand ishereby dismissed. Lettherebe no orderastocosts. Recoursedismissed. No orderastocosts. 1311