clr/1987/1987_3_280.pdf

(1987)1987March 18 [MALACHTOS.J.) INTHEMATTEROFARTICLE 146OFTHECONSTITUTION GEORGHIOSK.HADJIGEORGI, Applicant, v. THEMINISTEROFFINANCE,THROUGH THECUSTOMSDEPARTMENT, Respondent. (CaseNo. 3/83). Executory act—Rejection ofapplication fordutyfree importation ofa motor vehicle (theCustomsandExciseDutiesLaw, 1978, Sub-heading19ofitem 0.1 totheFourthSchedule), whichtheapplicanthasnotimported, butintendedtopurchaseatsomefuturetime—Lacksexecutorynature. Recourseforannulment—PowersofCourt—Courtcanexamineexpropriomotu whetherthesubjudicedecisionisofanexecutorynatureornot. Bymeansofthisrecoursetheapplicantchallengesthevalidityofadecision, wherebyhisapplicationforimportationofacar,whichheintendedtopurchase,freefromimportdutyasarepatriatedCypriot,wasturneddown. Held,dismissingtherecourse:

(1)Thequestionwhetherthesubjudicedeci- 10 sionisofanexecutorynatureornotmaybeexaminedbytheCourtexproprio motu.

(2)Asinthiscasetheapplicantdidnotimportacar,butmerelyappliedfor relief for acar,whichheintended topurchaseatsomefuture time,thesub judicedecisionlacksexecutorycharacter(Yiangouv.TheRepublic

(1987)3 15 C.L.R. 27). Recoursedismissed. Noorderastocosts. Casesreferredto: Yiangouv.TheRepublic

(1987)3C.L.R.27; Georghiouv.TheRepublic

(1982)3C.L.R.

1. 280 20 5 3C.L.R. HadJIgcorgl v. The Minister of Finance Recourse. Recourse against the decision of the respondent to reject applicant' sapplicationforhisexemptionfrom importdutyon the importation of amotorvehicle asarepatriated Cypriot. 5 A. Papacharalambous, forthe applicant. M.Photiou, forthe respondent. Cur.adv. vult. MALACHTOSJ. read the following judgment. By the present recourse the applicant seeks a declaration of the Court that the 10 decision of the respondent to reject his application to buy and import a duty free motor vehicle, isnull and void and of no legal effect whatsoever. Therelevant facts of the case are,briefly, as follows: The applicant, who was born in Cyprus, emigrated to South 15 Africa in
2. In1950he settled inZambia,where he remained, according to hisallegation, until 1982 when he returned and settled permanently in Cyprus. From October 1970 to March 1975 hewasresidinginCyprusbut,ashealleges,temporarilyforhealth reasons. He finally returned toCypruson 11.7.82withthe inten20 tion of taking up permanent residence here. On 16.8.82 he submitted an application to the Director of the Department of Customs and Excise for relief of the import duty on a car he intended to purchase under sub heading 19 of Item 0.1 to the Fourth Schedule ofthe Customsand ExciseLaw,
3. 25 Hewas,however,informedbyletterof20.10.82thataccording to the standing Customs Legislation, itwas not found possible to accede tohisrequest as itwas considered bytherespondent that duringtheperiodof24.10.70to22.3.75,whentheapplicant was living in Cyprus there had been a break in the continuity of his 30 permanent residenceabroad.Therefore, thecontinuousperiodof 10 years, as is required by Law, should begin to run as from 22.3.75when heleft Cyprusand sotheprerequisite ofa nimimun of ten years continued period of time abroad was not fulfilled by the date of repatriation on 11.7.
4. 35 As a result, the applicant filed the present recourse on the. groundsthatthe sub iudice decision lacked due reasoning, thatit 281 MalachtosJ. HadHgeorgt v. The Minister of Finance

(1987)was reached without proper inquiry, and that it was contrary to Article28 of the Constitution. In the course of preparing this judgment, the decision in Revisional Appeal No. 617,Anna Yiangou v. The Republic, was delivered on 20.1.87*.notyet reported, where itwasheld bythe 5 FullBenchthatadecisionoftheDirectorofCustomsasregardsan application for relief from payment of import dutyinrespect ofan intended importation of a motor vehicle, is not an executory administrative actbut isofan informatory or advisory nature. Though the question astowhether thesubjudice decision isof 10 an executory nature or not, was not raised in these proceedings, nevertheless, such matter may be examined by the Court ex proprio motu. (See Costas Georghiou v. The Republic,

(1982)3 C.L.R. 828 at p. 835 and also Anna Yiangou v, the Republic, (supra)). „ In the present case when the applicant returned from abroad with the intention of'permanently settling in Cyprus, he did not importamotorvehicle,norhadheimported onebythetimeofhis application. He merelyapplied forrelief foravehiclehe intended topurchase and import atsome future date. 20 Inviewoftheabove, Ihavereached theconclusionthatthesub judicedecisionisnotanexecutoryonebutisonlyintheform ofan opinion oradviceandassuch,cannotbechallenged byarecource under Article 146of of the Constitution. Inthe result,thisrecourse failsand isherebydismissed,withno 25 order asto costs. Recourse dismissed withno orderasto costs. •PepottedinfJ907?3C.Lft 27. 282 15