3 C.L.B. 1984April11 rTRIANTAFYLLIDRS.P.] !N T H E MATTER O F ARTICLE 146 O F T H E C O N S T I T U T I O N VARNAVAS NICOLAOU A N D SONS LTD. Applicants, v. T H E REPUBLIC O F CYPRUS, T H R O U G H T H E MINISTER OF C O M M E R C E A N D INDUSTRY, Respondent. (Case No. 225/79). 5 Executory act—Application for importation oftimber — Circular addressedto all persons concerned (including applicants) that a licence would be granted provided they would agree to purchase a quantity of timber from a local company—Letter informing applicant thattheirapplication will be examined on basis of such circular — Return toapplicant of their application together 10 with anote that*applications mustbeaccompanied byawritten confirmation or contract of the Cyprus ForestIndustries Ltd.» (thesaidlocal company) — The final refusal of applicants' application wascommunicated by means of such note — It follows that time began to run asfrom such communication and not. assuggestedfrom communication of theaforesaid circular. 15 Legitimate Interest—Acceptance ofanadministrative act—Agreement between Government Officials and the Association of Timber Dealers and Building Material Importers that theMinistry concerned would decide what course to adopt asregardsimportation oftimber afterpublishing acommunique inviting allpersonsconcerned tosubmit declarations astothequantity of timber they would wish toimport — Circular communicating suchacourse—Neither the applicants nor the saidAssociation can be taken ashaving accepted such a course. 20 The factsof this casesufficiently appear from thejudgment of the Court. Thejudgmentdealswithtwopreliminaryobjections,namelythattherecourse Isout of time and that the applicants lack legitimate interesttochallenge the subjudiceact. Preliminary objections dismissed. 1793 N l c o U o · & S o n · v. B*pubtlc
(1987)Casesreferred to Goultelmosv The Republic
(1993)3 C L R 883, Spyrouv Republic(\983)3C L R 354, FoumiaLtd ν The Republic
(1983)3 C L R 262, Karserasv TheImprovementBoardofSfrovo/os
(1983)3C LR 144 5 Recourse. Recourse against the decision of the respondent to dismiss applicants'applicationforalicencetoimportSwedishtimber. T. PapadopouloswithN. Papaefstathiou, for the applicants. M. Kyprianou, Senior Counsel of the Republic, for the 10 respondent. Cur,adv. vult. TRIANTAFYLLIDES P.read thefollowingdecisionfBy means of the present recourse the applicants complain against the dismissal of their application for a licence for theimportation of 15 Swedish timber. Thesaidapplication oftheapplicantstotherespondentMinistry was made on 13 February 1979 because timber is a controlled commodity by virtue of the Imports Regulation (Control and Regulation of Goods) (Amendment) Order, 1972 (see No. 154 in 20 theThirdSupplement, PartI, totheOfficial Gazetteof 11August 1972) which was issuedbytheMinisterofCommerceandIndustry undertheprovisionsof section 3 of theImports(Regulation) Law, 1962 {Law 49/62), as amended by section 2 of the Imports 2 5 (Regulation) (Amendment) Law, 1967 (Law 7/67) On26March 1979 theMinistryofCommerceandIndustrysent toallpersons concerned,including theapplicants,acircularletter informing them thata licence would be granted toall those who had declared thequantity of timberwhich they plannedtoimport in 1979 provided that they would enter intoa contract with the 30 Cyprus ForestIndustriesLtd.forthepurchase from suchcompany of aquantityof timber equivalent totenpercentof thequantityof timberwhich theywishedtoimport. 1794 3 C.L.R. Nlcolaou &Sons v.Republic TriantafyWde· P. On the same date the applicants sent a reminder to the respondent asking forspeedy examination of their application, 5 Bya reply dated 31 March 1979the respondent referred tothe aforesaid circular of 26 March 1979 and informed the applicants thatapplicationswouldbeexamined onthebasisoftheconditions contained insuch circular. Thereafter the application of the applicants was returned to them with a Note that «Applications must be accompanied by a written confirmation or contract of the Cyprus Forest Industries 10 Ltd.* The applicants did not comply with the requirement referred to inthe said Note and filed the present recourse. Counsel for the respondent has raised the preliminary objections that the present recourse is out of time and that the 15 applicants do not possess an existing legitimate interest, in the sense ofArticle 146.2 oftheConstitution, entitlingthem tofilethis recourse. Regarding the first objection it has been submitted by counsel fortherespondent thatthesubjudicedecisionwas communicated 20 to the applicants by the circular letter of 26 March 1979 and that the letter of 31 March 1979 isonly of a confirmatory nature and, therefore, cannot bechallenged byarecourseunderArticle146of the Constitution. Itiswell settled that only executory decisions are amenable to 25 the jurisdiction of the Supreme Court under Article 146 of the Constitution and that confirmatory actsor decisionsare notof an executory nature and, therefore, cannot be challenged by means of a recourse (see, inter alia, in this respect, Goulielmos v. The Republic,
(1983)3 C.L.R. 883, 903, Spyrou v. The Republic, 30
(1983)3 C.L.R. 354,358,Foumia Ltd v. The Republic,
(1983)3 C.L.R. 262,268,269andKarserasv.TheImprovements Boardof Strovolos,
(1983)3 C.L.R. 144,147). The present recourse was filed on 13 June 1979 and if it is correct that the sub judice decision was communicated by the 35 circularletterof26March 1979thenthisrecoursewouldbeclearly out of time as ithasbeen filed after the expiry of the seventy-five daysprovided forbyArticle 146.3of the Constitution. 1795 TriantafyfHd*«P. NlcoUouASonsv.Republic
(1987)Inmy view, however, the final refusal of the application of the applicants was, in effect, communicated to them by the Note which accompanied their application when itwasreturned to the applicants after the letterofthe respondent dated 31 March 1979 and, therefore, the present recourse has been filed within time, underArticle 146.3oftheConstitution, insofarasthesaid refusal is concerned. 5 Regardingnexttheobjection ofcounsel fortherespondent that the applicants do not possess a legitimate interest inasmuch as they have, allegedly, accepted the condition imposed by the 10 respondent in relation tothe importation of timber, itisuseful to bear inmind the following: After meetings which were held at the Ministry of Commerce and Industry from 7 February 1978 to 17 February 1979 it was agreed between officers oftheMinistryofCommerceand Industry 15 and representatives of the Timber Dealersand Building Materials Importers Association that there would be issued a communique inviting all persons concerned to submit till 26 February 1979 declarations regarding the quantity of timber they wished to import during 1979 and after these declarations the Ministry of 20 Commerce and Industry would proceed todecide what course to adopt. Such course was communicated by the circular letter of the respondent dated 31 March 1979 and it cannot be regarded as having oeen adopted witn tne consent of the applicants or ofthe 25 aforementioned Association towhich they belong. Consequently, the applicants have not divested themselves of the legitimate interest entitling them to file the present recourse against the sub judice,refusal of their application for a licence to importtimber. 30 Intheligh|ofalltheforegoing itisnotpossibletosustainthetwo preliminary objections raised by counsel for the respondent and this recourse has to proceed to be heard and determined as regards itsmerits. Orderaccordingly. 35 1796