(1987)1987 March 21 [STYLIANIDES J ) INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION IOANNISΡ SALLOUMIS, Applicant, ν THE REPUBLICOF CYPRUS,THROUGH THE MINISTRY OF FINANCEAND/OR THE DIRECTOR OFCUSTOMSAUTHORITY, Respondents (CaseNo 1052/85) Customs and Excise Duties—Motor vehicles, importation of by Cypnots— Exemption from import duty—Order 188/82 of the CouncilofMinisters— 77ienobon of^permanentsettlementabroad*—77iediscretionof theDirector to examine anddecide whether eachone of the pre-requisites oftherelief under Order188/82 issatisfied—Judicialcontrolof the discretion 5 Executory act—informatoty/Advisory act—Rejection of application by a repatriatedCypnot fortheduty free importationof a motor car, whichthe applicant had not imported, but intended to import—Lacks executory character The applicant was employed by a Cyprus firm in Saudi Arabia ascosting 1 0 manager for the penod 24574 until 4785 In September, 1980 the applicantmarriedinCyprus,butuntil26 783hiswifeandfamily were staying in a rented house in Umassol On26783 applicant's wife and children moved,also,toSaudiArabia Theapplicantandhisfamily returnedtoCyprus on 4785 Itmust, also, benotedthatdunng the penodofhis stay in Saudi 1 5 Arabia the applicant remitted money inCyprus for the purchase ofa house, a building site anda flat-office in umassol On 1010 85theapplicantapplied for thedutyfree importationof amotor car,which he intendedtopurchase Hisapplication was turneddown onthe ground that applicant's stay abroad was ofatemporary nature Hence the 2 0 present recourse Held,dismissingthe recourse
(1)Itis for theDirectorof Customstoreach a decision on whether each of the pre-requisites forthe relief under Order 188/82 of theCouncil of Ministers is satisfied The submission thatthe Director hasnodiscretion to determine thenature of an applicant's stay abroad iswholly untenable
(2)An administrative Courtcannotsubstitute itsown discretion intheplace 412 25 3 CUR. Salloumls v. Republic of that of the proper organ, but it can only exercise control over such discretion inorder toensure thatithasbeen exercisedwithin theproper limits laiddown by law 5
(3)In this case and beanng in mind the case-law on the notion of «permanent settlement», this Court isof theview thatitwas reasonably open to the respondent Director to find that applicant's stay abroad was of a temporary nature
(4)Inany event and inview of the fact that the applicant had not imported a motor car, the sub judicedecision lacksexecutory character 10 Recoursedismissed No order astocosts Casesreferredto Michaelν TheRepublic
(1986)3 C L R 2067 Re GapeDeed, Vereyν Gape [1952) 1Ch 743. 15 Brokelmannv Barr{1971]3AHE R 29, Matsas ν TheRepublic[1985]3 C L R 54, Shakalhs ν TheRepublic[1985]3 C L R 2570, Neocleousv 77ieflepuW/c[1986] 3 C LR 1435, leomdouv 20 TheRepublic[1986)3 C L R 2022, loannou ν TheRepublic[1986]3 C L R 1263, Theodoulou ν TheRepublic[1987)3 C L R 424, Yiangouν TheRepublic(1987]3 C L R 27, Recourse. Recourse against the rejection of applicant's request for 25 exemption from import duty for a motor car as a repatriated Cypnot A.S Angehdes, for the applicant 30 S Georghiades, Senior Counsel of the Republic, for the respondent Cur adv. vult. STYLIANIDESJ readthefollowing judgment. Bymeansofthe present recourse the applicant seeks the annulment of the 413 StyUanldesJ. Salloumlsv.Republic
(1987)decisionoftherespondentDirectoroftheDepartmentofCustoms &Excisewherebyhisrequestforexemptionfromimportdutyfor amotor-carwasrejected. Thesalientfactsofthecaseoverwhichthereisnodisputeare:Theapplicantfrom24.5.74until4.7.85wasemployedasCosting ManagerintheserviceofJ.&P.Limited,aCyprusfirm,inSaudi Arabia. In September, 1980, he married in Cyprus. His family since marriage until 26.7.83 was staying in a rented house in Limassol,whentheymovedalsotoSaudiArabia.Twoyearslater theyreturned home.Theapplicantcontinuedhisservicewiththe 10 sameemployerinCyprus. 5 On 10.10.85he submitted an application for exemption from importdutyinrespect ofamotor-vehiclebyvirtueofOrder188/ 82.Thisapplication wasrejected because«hisstayabroad wasof a temporary nature anddidnot constitute permanentsettlement 15 there». DuringhisstayinSaudiArabiaheremittedmoneytoCyprusfor thepurchaseofahouse,abuildingsiteandaflat-office inLimassol. Heallegedthatin1985hedecidedtoreturntohishomelandfor thebetterupbringingofhistwinchildrenwhoatthematerialtime weretwoyearsold. 20 It was submitted by learned counsel for the applicant that the Director had no discretion under the relevant Order to decide whether the stay of the applicant abroad was permanent or temporary, TheOrderon whichtheapplication isbasedwasmadebythe 25 CouncilofMinistersinvirtueofitspowersunderSection 11 ofthe Customs Duties and Excise Law, 1978 (No. 18 of 1978) as amended. HavingregardtotheprovisionsofSection11,where reference ismadetotheDirectorandtheOrderoftheCouncilofMinisters, 30 nodoubtisleftthattheorganvestedwithcompetencetoexamine andacceptorrejecttheclaimoftheapplicantistheDirectorofthe DepartmentofCustoms&Excise. Before therelief sought canbe granted,theDirectorhastobe satisfiedthatthefollowingprerequisitesaremetbytheapplicant(
- a)Permanent settlement abroad for at least 10 continuous years; 414 35 3CUR. Salloumis v. Republic Stylianldes J. (
- b)Returnandpermanentestablishment intheRepublic;and, (
- c)Importationwithinreasonable timefrom thedateof arrival. 5 Itis for the Directoron the material placed before him toreach a decision on each of the aforesaid and then issue the administrative act contemplated either accepting or rejecting the application. The submission of counsel for the applicant thatthe Director has no discretion to determine the issue of the natureof the stay abroad of ah applicant iswhollyuntenable. Counsel for theapplicant submitted thatthe applicant satisfied 10 the requirement of permanentsettlement abroad for a period of continuously 10years as he worked inSaudi Arabia for 11 years. The length of theperiod isnot sufficient. In Philippos Michael v. The Republic, Case No.552/84, judgment delivered on 21.11.86, not yet reported*, in dealing 15 with the term of «μόνιμος εγκατάστασις» («permanent establishment»), Isaid:- 20 25 30 «'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. Itis not possible for a person to be permanently settled in the Republic and inanother 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 to itand pronouncementson domicile are very relevant and helpful.» In re Cape Deed.,Verey v. Gape. [1952] 1 Ch. 743, at 749, it was said.- 35 «As has been observed during the course of the argument, the intentionpermanently to reside in a particular country is •Reportedin
(1986)3C.L.R. 2067. 415 Stylianides J. SaUoumls v. Republic
(1987)one ofthetwoessentialcharacteristicsofdomicile.Ithasbeen emphasized as an essential condition or characteristic time and again inthese Courts,and I find itimpossible to suppose that the judges, in referring tothat characteristic, were doing other than stating something which was to the lawyer both 5 definite and precise. If a 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; thatistosay, residing in England with the intention of continuing to reside there until you die. It is, in 10 other words, another way of referring to the characteristic essential to domicile». And,further down, on thesame page:«You cannot take up a permanent residence at any particular point of time, unless at the time you take up 15 residence you intend thatitshould bepermanent, thatis,that you should go on livingthere foryour natural days». And atpages 751-752:«The expression 'take up' suggests volition and intention and evenmore sodoestheword'permanent', foritpostulates 20 a decisiontoliveinaplacefortherestofone'slife,asopposed to livingthere temporarilyorforafixed period oftimeand no longer». (See,also,Volume 1of Dicey&Morris«TheConflict ofLaws», (10thEdition),atpages 141-143;andBrokelmann v.Ban, [1971] 25 3AI1E.R.29). InMatsas v.Republic,
(1985)3 C.L.R.54, A.Loizou,J., said at p.61, referring tothissame Order:«To my mind permanent settlement carries with it the notion of a real or permanent home and should be 30 distinguished from the notion of ordinary residence». InAndreas Shakallis v. Republic,
(1985)3 C.L.R.2570, itwas said: «'Settle'» has the meaning of voluntary and intentional action to settle». (See,alsoPhivos Neokleous v. TheRepublic, CaseNo.465/85, 416 35 3 CUR. Salloumis v. Republic Srylianides J. decided on 24 5 86 by Tnantafyllides, Ρ ,unreported * Leonidha ν The Republic, Case No 422/85, judgment delivered on 28 11 86, not yet reported**, Charalambos Ioannou ν The Republic, Case No 415/85, judgment delivered on 9 7 86 by 5 Pikis, J ,unreported,*** Theodoulou ν The Republic, Case No 57/86, judgment delivered by Sawides, J , on 23 1 87)**** Learned counsel for the applicant stressed the fact that the applicant's wife, a dentist, who from 1975 was keeping a dental clinic in Limassol, 3 years after their mamage, in 1983, left 10 Limassol and moved to Saudi Arabia where she joined her husband It is well established that an administrative Court cannot substitute its own discretion in the place of the discretion of the proper organ Norcan the administrative Courtact as an Appeal 15 Courtinthematterof the exercise of such discretion onthements of the subject under examination The Court can only exercise control over such discretion in order to ensure that it has been exercised within the proper limits laid down by Law Inthepresent case, beanng inmindtherelevant case-law of the 20 Supreme Court on the notion of «permanent settlement abroad» and the matenal before the Directorset outhereinabove, I am of theviewthatitwas reasonably open tothe respondenttofind that applicant's stay abroad was of a temporary nature and did not constitute permanent settlement in Saudi Arabia The fact that 25 applicant's wife 3 years after the mamage joined him tn Saudi Arabia, wherefrom penodically they visited Cyprus untilthe lapse of two years, when they finally returnedto Cyprus, does notalter the temporary natureof his stay abroad Thisrecourse, therefore, fails 30 A decision of the Director with regard to the exemption from payment of import duty is only executory act when there is importation of the goods Order 188/82 becomes effective only on the importation of the goods - (See Anna Yiangou ν The Republic,Revisional Appeal No617, decided on20 1 87,notyet ' Reportedm
(1986)3CLR 1435 " Reportedin 11986)3CLR 2022 ·" Reportedm
(1986)3CLR 1263 ""Reportedin
(1987)3CLR 424 417 StyUanldesJ. Salloumis v. Republic
(1987)reported)*. The sub-judice decision only conveys the opinion of the Director about the applicant'srightsunder the said Order and is not an executory one and, therefore, not amenable to review under Article 146 of the Constitution. Forallthe aforesaid reasonsthe recourse ishereby dismissed. Let there be no orderastocosts. Recourse dismissed. No orderasto costs. *Reportedin
(1987)3C.L.R27. 418