(1987)1987January 23 [SAWIDES J] INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION THEODOULOS A THEODOULOU Applicant, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OFFINANCE AND/OR THE DIRECTOR OF CUSTOMS AND EXCISE, Respondents (Case No 57/86) istoms and Excise Duties — Motor vehicles importation of by Cypnots — Exemption from importduty—TheCustomsandExciseDutiesLaws, 1978 - 1985, section 11
(2)—Order 188/82 of the Councilof Ministers — The notion of'permanent settlementabroad»—Review of theCaseLaw ofthis Court 5 By means of this recourse the applicant challenges the validity of the decision, wherebyhisapplication forthedutyfree importation ofamotorcar was turned down on the ground that his stay abroad was of a temporary nature It is common ground that dunng the penod 1411 74 fall 2885 the 1 0 applicant was continuously employed and residinginSaudi Arabia withthe exception of shortpenods,when hewascomingtoCyprusonleave Theapplicant'sfamily,however,didnottoilowhim,butstayedinCyprusin a house rented byhimand hischildren werecontinuously attending schools inCyprus Moreover,theapplicantdid not acquirefrom the Government of SaudiArabia apermitforpermanent residence therein 15 Held, dismissing the recourse
(1)The three prerequisites for the relief under Order 188/82 of the Council of Ministers are permanent settlement abroadforatleasttenyears,returntoCyprusandpermanentsettlementinthe Republic,and importation of the carwithina reasonable ume from the date 2 0 ofamval atthe discretion of theDirectorof Customs
(2)In the light of the case Law of this Court relevant to the notion of permanent settlement abroad and beanng m mind the particular circumstances of thiscase,and especially thefact thatapplicant'sfamily was residinginCyprusdunngthewholepenod ofapplicant'sstayabroad,thathis 424 3 C.L.R. Theodoulou v. Republic children attendedschools inCyprus andthathecould notobtainapermitfor permanent residence inSaudi Arabia, this Courtis of theopinionthatit was reasonably open to the Director to find that the applicant had not settled permanently abroad. Recoursedismissed. No orderas to costs. Casesreferredto: Matsasv. TheRepublic
(1985)3 C.L.R.54: Rossidesv. TheRepublic
(1984)3 C.L.R. 1482; 10 Mavronichis v. TheRepublic
(1985)3 C.L.R.2301: Leonida v. TheRepublic
(1986)3 C.L.R. 2022: Neocieousv. TheRepublic
(1986)3 C.L.R. 1435; hannouv. TheRepublic
(1986)3 C.L.R. 1263; Michaelv. TheRepublic
(1986)3 C.L.R. 2067. 15 Recourse. Recourse against the refusal of the respondents to allow applicant to import a motor car free of duty as a repatriated Cypriot. A. Panayiotou, for theapplicant. 20 S. Georghiades,Senior Counsel of the Republic, for the respondents. Cur. adv. vult SAWIDES J. read the following judgment. The applicant, by this recourse, challenges the refusal of the Director of the 25 Departmentof CustomsandExcise toallow himtoimportamotor carfree of duty. TheapplicantisaCypriotwhowas employed inSaudiArabia as from the 14th November, 1974 till2.8.1985 by afirm ofbuilding contractors,namely Alfadl,BinladenandJ &ΡCorp.Ltd. During 30 such period he was residing in Saudi Arabia and used to visit Cyprusatvariousintervals.On the 2nd August, 1985,he resigned 425 SawtdesJ. Theodoulou v. Republic
(1987)from the said firm and returned to Cyprus On 15 10.85 he submitted an application to the Director of the Department of Customs and Excise for exemption from the payment of import duty inrespect of a motorcar The applicant was requested by the respondent to supply certain information concerning his family, residence of the members of hisfamily dunng the penod he wasworking abroad, whether he maintained a house in Cyprus and other relevant matters 5 On 21 10 85 applicant supplied the information requested 10 according to which his family, consisting of his wife and two children, did not reside with him in Saudi Arabia during his stay there, but were living in Cyprus in a house rented by him. His children were attending schools in Cyprus and he returned to Cypruswiththeintentiontoerectabuildingandstartabusinessof 15 his own and resettle here His application was refused by the Director of the Department of Customs and Excise, whose decision was communicated to the applicant by registered letter dated the 29th November, 1985, on the ground that his stay abroad was of a temporary nature and did not constitute 20 permanent settlement there The relevant order of the Council of Ministers under section 11
(2)of the Customs and Excise Duties Laws, 1978 - 1985 enabling the duty free importation of motor vehicles by Cypriots whoafter permanentsettlementabroadforacontinuouspenodof 25 atleast 10yearsreturnandsettlepermanentlyinCyprus,provided that the importation is made within a reasonable time after their return,waspublished intheofficial Gazetteofthe Republic dated 116 1982 under Not 188/82 (ThirdSupplement, PartI). AccordingtotheprovisionsofsuchorderaCypnotisentitledto 30 exemption, ifthe following prerequisitesare satisfied (a)Permanent settlementabroad foratleast 10years; (b)ReturntoCyprusandpermanentsettlementintheRepublic. (c)Importation ofthecarwithinareasonabletimefrom thedate of arrival atthe discretionof the Director. The question which poses for consideration in this case is whether the applicant satisfies the above prerequisites Itiscommon groundinthiscasethattheapplicantforthepenod 426 35 3 C.L.R. Theodoulou v. Republic S a w l d e s J. as from the 14th November, 1974, when hewent toSaudi Arabia till the 2nd August, 1985, when he returned to Cyprus, he was continuously employed and residing in Saudi Arabia with the exception of short penods when he was coming to Cyprus on 5 leave According to the letter of the applicant of the 21st October, 1985, addressed to the Director of the Department of Customs and Excise, his family did not follow him abroad, but stayed in Cyprus inahouse rentedby him,andhischildren for thepenod as 10 from 1974 tillOctober, 1985,were continuouslyattendingschools in Cyprus By his wntten address counsel for applicant admitted that applicant had no permit for permanent residence abroad, as the Governmentof SaudiArabia does notgiveapermitforpermanent 15 residence to foreigners irrespective of the extent of the penod of their residence there for purposes of employment Counsel contendedthatirrespective ofthefactthattheGovernmentofSaudi Arabia does notgrant permitsfor permanentsettlementthere,the fact thatthe applicant resided and worked there continuously for 20 a penod of 11 years satisfies the requirement of permanent settlementabroadfor thepurposes of Notification 188/82 entitling himto aduty-free car The contentsof the orderpublished under Notification 188/82 came up for consideration ina number of cases of thiscourtand I 25 need notexpound further on thismatter (see inthisrespect,inter aha Matsas ν The Republic
(1985)3 C LR 54, Rossides ν The Republic
(1984)3 C L R 1482, Mavromchis ν The Republic (1985J3CLR 2301, Leonida ν TheRepublic (CaseNo 422/85 inwhichjudgment was delivered on 28 11 86 notyet reported)* 30 35 Theinterpretationoftheprerequisite of«permanent settlement» has been considered in asenes of cases of thiscourt InMatsasν TheRepublic (supra)A Loizou.J said the following at ρ 61 «To my mind permanent settlement cames with it the notion of a real or permanent home and should be distinguished from the notionof ordinary residence > In Phivos Neocleous ν The Republic, (Case No 465/85 •Reportedin
(1986)3 C LR 2022 427 S a w l d e s Λ. Theodoulou v. Republic
(1987)judgment delivered on the 24th May, 1986, not yet reported)* Triantafyllides, Ρ in dealing with a recourse challenging a similar refusal of the Directorof the Departmentof Customs and Excise, by a Cypriot who had been continuously residing andworking in Saudi Arabia as from the 9th December, 1974 till the 30th January, 1985, concluded as follows: 5 «Inthelightofthecase-law ofourSupremeCourtrelevantto thenotionofpermanentsettlementabroad,suchasRazisv. The Republic
(1979)3C.L.R. 127,135, Rossides v.TheRepublic,
(1984)3 C.L.R. 1482, 1486 and Matsas v. The Republic 10
(1985)3 C.L.R. 54, 58-62, and bearing, also, in mind the particular circumstances of the present case and, especially, that the family of theapplicant was residing in Cyprus during all the time when he was abroad, thathis salary was remitted to Cyprus for the needs of his family and thathe was paying 15 social insurance contributionsinCyprus, 1 amof theviewthat itwas legallyandreasonably opentotherespondentDirector of Customs to find that the applicant had not settled permanently abroad and to refuse on this ground the applicant's application for duty free importationof his motor 20 car.» A similar approach on the matter is found in the judgment of Pikis,J. in Charalambosloannou v. TheRepublic (Case No. 415/ 85,judgment delivered onthe9thJuly,1986, notyetreported**), where "the applicant stayed and worked in Saudi Arabia from 25 1968-1982 and inwhich itwas heldthat: « The question that must be answered is whether 10 years stay inaforeign countryimmediately qualifies the stayer as a permanentsettler in thatcountry for thepurposes of the Order. Ithinknot.Theconceptof permanentsettlementisnot 30 tied to the length of stay but to the element of permanence associated with physical stay. If the legislature intended to make length of stay the sole criterion for exemption, it was wholly unnecessary to make any reference to permanent settlement.» •Reportedm
(1986)3 C LR 1435 •Reportedin
(1986)3CLR 1263 428 35 3 C.L.R. Theodoulou v. Republic S a w l d e s J. Stylianides J in dealing with a similar issue in the case of Philippos Michael ν The Republic {Case No 552/84 judgment delivered on the 21st November, 1986, not yet reported*), after an extensive analysis of thematter said the following 5 10 15 «'Permanent establishment' is not synonymous to 'residence' Residence alone n. not sufficient Permanent establishment indicates a quality of residence rather than its length The duration of the residence, ιe 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 intention may 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 inanothercountry 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 » 20 Inthe light of the Case Law of our Supreme Court relevant to the notionof permanentsettlementabroad asabove, and beanng also in mind the particular circumstances of the present case and especially thefact thattheapplicantcould notacquire apermit for permanent settlement inSaudi Arabia thathis family was residing 25 in Cyprus during the whole period when he was abroad and his children were attending schools in Cyprus, I am of theview thatit was legally and reasonably open to the respondent Director of Customs and Excise to find that the applicant had not settled permanently abroad and to refuse on this ground his application 30 for duty free importation of a motorcar Before concluding, however I wish toadd thatI share theview of counsel for the respondents that it would have been just and equitable iftheorderpublished underNotification 188/82 andthe proviso theretowere amendedtocover also cases of Cypnots who 35 after a long continuous residence abroad over 10 years, for purposes of employment return to settle in Cyprus, beanng in mind the fact they have remitted here most of their earnings of foreign currency I also endorse the opinion expressed by •Reportedm
(1986)3CLR 2067 429 SawidesJ. Theodoulou v. Republic
(1987)Stylianides. J. in the case of Philippos Michael (supra) that there are weighty considerations for theMinisterofFinanceto examine such cases favourably in the exercise of his powers under the provisotothe order. In the result, this recourse fails and ishereby dismissed, but in the circumstances I make no order for costs. Recourse dismissed. No orderasto costs. 430 5