3 CX.R. 1987March30 [STYLIANIDES.J 1 INTHEMATTER OFARTICLE 146 OFTHE CONSTITUTION ELLICONSTANTOURI, Applicant, v. THE REPUBLIC OFCYPRUS, THROUGH THE MINISTER OF FINANCEAND/OR THE DIRECTOR OF CUSTOMS& EXCISE, Respondents, (Case No. 588/84). Customs and Excise Duties—Motor vehicles, importation of by Cypnots— Exemption from import duty—Order 188/82 of the Council ofMinisters— 'Reasonable timerfromdateofamval—A questionoffact—Itsevaluationleft to the discretionof the respondentDirector 5 Executory act—Informatoiy/Advisory act—Rejection of application by a repatnatedCypnot for the duty free importationof a motor car. which the applicanthad not imported,but intended to import—The crucial words in Order188/82arethosereferringto"Importation*—Sub judicedecisionlacks executorycharacter—Itisinformatoryoradvisorym nature. 10 Theapplicantwas bominCypruson9.10.60.On 11.7.63 thewhole family emigrated totheUnitedStates.InFebruary. 1981 theyreturnedtoCyprus On 16.10.82 the applicant applied for a duty free importation of a motor car. which she intendedto buy. Herapplication was finally turned down on the ground that it was not submitted within reasonable time from applicant's returntoCyprus. 15 As aresult theapplicant filed thepresent recourse. ΠΛ 25 Held,dismissingthe recourse:
(1)Inthelight of allthematenalbefore the Court, the conclusion is that it was reasonably open to the respondent Directorto find thattheapplicanthad comeback toCyprus for settlementin Februry, 1981.
(2)Thequestionwhatis«areasonable time»dependsonthecircumstances and is,therefore, a question of fact. The evaluation of thisfactor tsleft tothe discretion of the respondent Director. Inthiscase itwas reasonably open to him to conclude that the penod from February, 1981 -October, 1982 was notwithin thelimitsof «reasonable time·. {3} Thecrucial words inOrder 188/82 are thosereferring to«importation. As inthiscasetheapplicanthadnotimportedacar,butshe simplyintended 391 Constantouri v. Republic
(1987)to do so, : sub judice decision is not of an executory nature, but only of informatory t dvisorynature. Recourse dismissed. No orderas tocosts 5 Casesreferre toAnastasis ν MinisterofFmace
(1987)3 C.L.R. 200. HjiYorghiv.Ministerof Fmace
(1987)3 C.L.R. 280; Michael v. TheRepublic
(1986)3 C.L.R. 2067; Yiangouv. TheRepublic
(1987)3 C L.R. 27; Recourse. 10 Recourse against the refusal of the respondents to exempt applicantfrom importdutyforamotorcarasarepatriated Cypnot. AS. Angelides, for the applicant. M.Photiou, for the respondent. Cur. adv. vult. 15 STYLIANIDES J. read the following judgment. The applicant by thepresent recourse challenges therefusal oftherespondentto exempt her from importduty for a motor-car. The applicant was bom in Cyprus on 9.10.60. On 11.7.63the whole family emigrated to the United States. In February, 1981, 20 they returned to Cyprus. On 11.6.82theCouncilof Ministersinvirtue ofitspowers under Section 11
(2)of the Customs & Excise Duties Laws, 1978-1981 made an Order that was published in the Official Gazette on 11.6.82 (No. 118, ThirdSupplement, PartI).UnderthisOrder ifa 25 Cypnot satisfies the requirements laid down therein is entitled to exemption from import duty for one car for each family. The requirements are: (
- a)Permanentsettlementabroad for atleast 10continuous years; (
- b)Returnand permanent establishment inthe Republic; and, (
- c)Importation of motor-car within reasonable time from the date of arrival. On 16.10.82theapplicantsubmittedapplicationfor relief under 392 30 3 C.L.R. Constantouri v. Republic Styllanldes J. the said Order inwhich she stated thatshe returned toCyprus on 23rd November, 1981, with theintentionof taking uppermanent residence in Cyprus Her such application was rejected on the mam ground that the relevant Order was operative only for 5 Cypnots who returned after thedate of theOrder She complained to the Directorof the Departmentof Customs &Excise thattheletterdated6 7 83 communicatingsuch decision to her was not properly addressed as her surname was erroneously wntten and alleged further that though she came to 10 Cyprus on 23rd November, 1981. in fact the time she took up permanent residence was 1983 and she applied for re examination of her case A further inquiry was earned out and the following facts were established She returned from the UnitedStates on 15 2 81 She 15 stayed in Cyprus continuously with theexception of 4days' travel abroad between 10-12 October, 1981, and 21-23 November 1981 On 3 7 82 she celebrated her marnage in Cyprus with a Cypnotcivilservant InMay, 1983,shetravelled with herhusband abroad tothe UnitedStates and returned inJune, 1983 20 On the basis of the relevant facts before him the respondent Directordeterminedthattheapplicantreturnedand re-established herself inCyprus permanentlyasfrom 15 2 81 She submittedher application on 16 10 82, that the time that elapsed was not reasonable 25 Having given careful consideration tothis case, I have reached theconclusion, inthelight of allthematenalbefore me,thatit was reasonably open to the respondent Director of Customs to find that the applicant had come back to Cyprus to settle here permanently in February, 1981 Her 4 days' absence travel 30 abroad in October and November, 1981, and her travel with her husband in 1983 cannotin any way be treated as preventing the respondent from reaching the conclusion he did She submitted her application on 16 10 82, some 20 months after her permanentsettlement in Cyprus She complains against 35 the decision of the Director that such application was not made within reasonable timefrom arrival In Phthppos Michael ν The Republic, Case No 552/84, Stytlanldes J. Constantoori v. Republic
(1987)judgment delivered on21.11.86/not yetreported*, Isaid:«Whereanything,islimitedtobedonewithina«reasonable time»,thequestion whatisareasonable timemust necessarily depend onthecircumstances,andis,therefore,aquestionof fact». - (Halsbury's Laws of England, 4th Ed.,Volume 45, 5 page 552,paragraph 1147;Yiangou andAnother v.The Republic,
(1976)3C.L.R. 101). The evaluation ofthe factor of«reasonable time» betweenthe return toCyprus andtheclaim forrelief forthe importation ofa motor-car is left by the provisions of Order 188/82 to the 10 discretion ofthe DirectorofCustoms. Iamofthe viewthat itwas reasonably open totheDirectorof Customs to find that theperiod from February, 1981-October, 1982 was notwithin thelimitsofreasonable timeafter applicant's return to Cyprus. Thiscase willbe ultimately dismissed. In a recent decision of the Full Bench in Revisional Appeal No.617 - Yiangou v. TheRepublic - in which judgment was delivered on the 20th January, 1987**, where the facts were identicalwith the present case, itwasheld thatthe decision ofthe 20 respondentDirectorforrelieffromimportdutyforacarintendedto be purchased in the future wasnot anexecutory actamenableto the jurisdiction of this Court under Article 146 but only of informatory oradvisory nature. The crucial words intheOrder ofthe Council ofMinisters are 25 clearly those referring tothe «importation» of themotor-car in question and cannot inanywaybe construed asextending to intended future importation ofgoods.The definition ofthe word •import»inSection2ofthe Lawappliestothesamewordusedin the Order - (See, also, Charalambos Anastasis v. Minister of 30 Financethrough the Department of Customs &Excise,Case No. 316/85, decisiondeliveredon17.2.87***,and GeorghiosK. HjiYorghi v. The Minister of Finance through the Customs Department, Case No.3/83, decision deliveredon 18.3.87).**** •Reported in(1986}3C.LR 2067. "Reportedin
(1987)3C.L.R. 27. '"Reported in
(1967)3C.L.R.200 ·**·Reported In
(1987)3C.L.R.280 394 15 3 C.L.R. Constantourl v.Republic Stylianidea J. For all the aforesasid reasons the recourse ishereby dismissed and thesub-judice decision is confirmed. Inallthe circumstances I make no order astocosts. Recourse dismissed. No orderastocosts. 5 395