(1987)1987 February 7 IFIKIS J ] INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION CONSTANTINOSSYMEOU, Applicant, ν THE REPUBLIC OF CYPRUS,THROUGH THE MINISTRY OF FINANCEAND/OR THE DIRECTOR OF CUSTOMSAUTHORITIES, Respondents (CaseNo 271/86) Customs and Excise—Motor vehicles, importation of by Cypnots—Exemption fromimportduty—The Customsand ExciseDutiesLaws,1978-1981—Order 188/82—The three prerequisites for obtaining the benefit thereunder— Repatnation must succeed inpoint of time not only settlement abroad, but staythereatfor acontinuousperiod of ten years 5 Executoryact—Advisoryormformatoryact—CustomsandExcise—Import duty— An executory act relatingtoitcan onlycome intobeingon importationof the goods in question On 7 6 85 the applicant submitted an application as a repatriated Cypnot for the importation of a carduty free The application was turneddown and 1 0 as a result the present recourse was filed The applicant emigrated to the United Kingdom in 1936 HereturnedtoCyprus in 1969, presumably totest whether he would make Cyprus his home again In 1973 he resettled in Cyprus,butm1975 went backtoUΚ Heresettled inCyprus on23 9 77,but in 1981 he once again resettled inUΚ On 12 4 85 hereturnedtoCyprus for 1 5 permanent settlement The question thatarises inthis case is whether thepermanentstay abroad for a continuousperiod of ten years need precede repatriation in order for one toqualify for thebenefit underOrder 188/82 Held,dismissingthe recourse
(1)Theliteral constructionof theexpression in the said Order « after permanent settlement abroad for a continuous penod of 10 years, returns and settles permanently in the Republic > 332 20 3CX.R. 5 Symeou v. Republic suggests that resettlement mustsucceed in pointof timenotonlysettlement abroad butstaythereatforacontinuouspenodoftenyears Inthisrespectthe word «after- examined in juxtaposition to the requirement of return and resettlement is of special relevance Therefore the recourse should be dismissed
(2)In any event the sub-judice decision is of an advisory or mformatory nature because under the Customs and Excise Duties Laws an executory decision with regard to import duty can only come into being on the importationofgoodsandtheapphcanhn thiscasehadnotimportedthecar 10 Recourse dismissed Noorderastocosts Casesreferredto Rossidesν TheRepublic
(1984)3 C LR 1482 Matsas ν TheRepublic
(1985)3 C LR 54 15 Mavronychis ν TheRepublic
(1985)3 CLR 2301 Constantimdesν TheRepublic(\9S6)3 CLR 822 loannouv TheRepublic
(1986)3C LR 1236 Michaelν TheRepublic
(1986)3 C LR 2067 Kourtellasv TheRepublic
(1986)3 CLR 2079 20 Yiangouν Republic
(1987)3CLR 27 Recourse. Recourse against the refusal of the respondents to allow applicant toimport a car free of duty as a lepatnated Cypnot Ρ Papageorghiou,for the applicant 25 S Georghiades, Senior Counsel of the Republic, for the respondents Cur adv vult PIKISJ read the followingjudgment This isyet one more case turning on the interpretation of the order of 11/6/81* whereby 30 (RegulatoryAdministrative ActNo 188/82madeunder s 11
(2)olthe CustomsandExcae DuOesLaws 19781981) 333 PikisJ. Symeoti v. Republic
(1987)repatriates whosatisfied certain conditions are allowed to import a car free ofduty.The 1982orderreplacedanearlierone withthe same theme,modifying theconditionsnecessarytoqualify forthe benefit. Unlike previous decisions of the Supreme Court on the interpretation of the 1982 order, the present case does not touch 5, on thequalityofsettlement abroad toqualify aspermanent,orthe duration of such settlement. These prerequisites foracquisitionof the benefit were comprehensively discussed and settled in a number of first instancecases*. The following three prerequisites must be satisfied in order to 10 acquiretherightgivenbythe order:(a)Permanent settlement abroad; (b)fora continuousperiod of 10years;and (c)repatriation. Moreover, the importation mustbe made within a reasonable 15 timeafterresettlement,afactorsignifyingthenexusthatmustexist betweenimportationandresettlement. Awhollydifferent question arisesinthiscase,namely, whether permanent stay abroad fora continuous period of 10years need precede repatriation inordertoqualityforthebenefit. So farasI 20 am aware, this issue was not raised for consideration in any previous case and falls tobe decided inthe present proceedings. Exposition of the facts of the case will, Ibelieve, illuminate the problem initstrue dimension. ApplicantemigratedtotheUnitedKingdomasfarback,as1936. 25 Asmaybegatheredfromthefacts,applicantreturnedtoCyprusin 1969,presumablytotestwhetherhecouldmakeCyprushishome again.Between 1969and1973helivedbetweenCyprusandthe United Kingdom; on average, he stayed in Cyprus for about 7 months ayear. In 1973 he resettled in Cyprusandstayed inthe 30 •(See, intera&a, Rookiesv.Republic
(1984)3 C.L.R. 1482;Matsasv. Republic
(1985)3 CL.R, 54,Mavronychis v.Republic
(1985)3 C.L.R 2301;Constantimdesv. Republic
(1986)3CL.R.822;loannouv. Republic
(1986)3C.LR. 1263;Michaelv.Republic
(1986)3C.L.R.2067;KourteOasv. Republic
(1986)3C.LR.2079. 334 3 C.L.R. Symeou v.Republic PtklsJ. country until3/9/75when he wentback tothe United Kingdom. HeresettledinCypruson23/9/77.Until1980hestayedmostlyin Cyprus, visiting England occasionally from time to time. Seemingly, he resettled inthe United Kingdom in 1981where he 5 stayed until 12/4/85 when he returned to Cyprus with a view to permanent settlement. In between he kept visiting Cyprus for variable periods of time. Following his last repatriation he submitted, on7/6/85,applicationfortheimportation ofacarfree of duty. Inhis application he specified 12/4/85 as the date ofhis 10 repatriation. On a literal construction of the provisions of the 1982 order resettlement inCyprusmust,inordertoentitletherepatriatetothe benefits oftheorder, succeed inpointoftimenotonly permanent settlement abroad but stay thereat for a continuous period of 10 15 years. This is the natural effect of the pertinent provisions ofthe order, that is, «... after permanent settlement abroad for a continuous period of 10years,returnsand settlespermanently in the Republic...».The orderpostulates continuous stayabroad for a period of 10 years before settlement as a prerequisite for the 20 acquisition of the benefit given bythe law. Of especial relevance is . the word «after» examined injuxtaposition tothe requirement of return and resettlement. The accrual of the right is dependent onresettlement after a continuousstayabroad for nolessthan 10 •years.Onexamination ofthefactstheinescapable inference isthat 25 although applicant was permanently settled in the United Kingdom before "his repatriation, he was not abroad for a continuousperiodofJOwearspriortoreturntoCyprus.Duringthe preceding 10 years applicant had for lengthy periods of time his home and waspermanently settled inCyprus. Hisrecourse must 30 consequently be dismissed. Moreover, hisrecourse isdoomed tofailure foranother reason untouched upon by the parties. The sub judice decision is not executorybut of an advisory or informatory character. Under the relevant provisions of the Customs and Excise Duties Law, an 35 executorydecisior^withregardtothepaymentofimportduty,can only come into bemg"onthe importation of the goods. The sub judicedecision doesnotdefine inanybindingsensetheliabilityof the applicant to import duty. It merely reflects the views of the Administrationaboutapplicants' rightsunderthe 1982orderand 335 PikisJ. Sytneou v. Republic
(1987)as such is not justiciable The point was emphatically made in a recent decision of the Full Bench of the Supreme Court*, deciding that an executorydecision withregard tothepaymentof import duty can only emerge on the importation ofthegoodsand in connection with their clearance The 1982 order itself ties the conferment ofthe benefit tothe importation ofthe goodswithina reasonable time after repatnation The order does not bestow an absolute nghtbutone directlyrelated tothetimeofimportationof the goods The recourse fails Letthere be no orderastocosts 5 10 Recourse dismissed No orderasto costs • Yiangouv Republic
(1987)3CLR 27 336