clr/1987/1987_3_72.pdf

(1)(f), 19

(1)and21— 5 Definitionsof*gram**flour» and*bread». egittmate interest—Constitution, Art 146.2—Acceptance of an administrative act—//freeandvoluntarydepnves acceptor ofsuchaninterest—Paymentof fee imposed asacondition oflicence forexport ofgoods—Protest lodged before communication ofsubjudice decisionandrecourse filedwithin afew 1 0 days thereafter—Applicants pressed to export their goods—In thecir­ cumstancesthepayment didnotamount tosuchanacceptance •giutnate r.tcrest—Constitution.Art 146.2—Acceptance ofprevious actssimilar but •nnependentfromsubjudice act—Acceptor notdepnved ofhislegitimate ir.tei^t inrespect ofthesubjudice act. 15 fhe applicantsownandoperateamacaroniproducing factory. The factory d.;als w.ith local salesaswell aswith exports By letter dated 26.5.80appel­ lants 2informed therespondents thatforthe purpose ofalicence for export rheywit! ha:etopay£20pertonofexported macaroniforthemonthsofMay rindJun^ 19*0 Asaresulttherespondentsfiledrecourse 167/80andeJudge 2 0 of thisCourtannulledthesaiddecision* Therespondentsinthesaidrecourse filiid the present appeal. In thecourse ofthe heanngofthe appeal counsel forthe appellant raised W Makaronopeion G Carkotis Ltd ν TheRepublicandAnother

(1987)3 C L.R. 52. 72 3 C.L.R. Republic v. Maltaronopelon Carkotis 5 an additional groundof law, namely that the respondents had been depnve oftheir legitimateinterestbecause suchafeehadbeencontinuously imposei for a number of years on exports of macaroni by the respondents, who ha neverprotested and, also,because in the present case they had paidwithoi. protest the fee imposed by the subjudiceact 10 It should be noted that the respondents, who came to know of the sul judice decision before the 26 5 80, had protestedby letter dated 16 5 80 tc the Mintstryof Commerce and Industry against the imposition of the fee Th< said recourse was filedon the 29 5 80 The Ministry replied to the saidlette by letter dated 11 9 80 15 Counsel for the appellants further submitted that macaroni is a produc made entirely of cemohna, which is a product wholly coming from gram which isacontrolledarticle by virtue of Cap 68 after the gramis milled anc as such, falls within the definition of a controlled article and L<; subject toth. provision of section3{1) He contendedthat the trialJudge misdirectedhm selfby readings 19 of Cap 68 in conjunctionwith section3 Finally herelic·*, on s5

(1)(0of the said law which gives awide power to the appellants tore gulate anything having todo with a controlledarticle 20 Held, dismissing the appeal (A) On theissue of the respondent-* Icgiom 3\ interest

(1)The impositionof afee on each of the previous occasions thata application for the export of macaroni was submittedwas by itseh aconiploit administrative act which could be challenged by a recourse The sub judict actisanentirely completeactbyitselfindependent ofany similarpreviousac £>

(2)The respondents, who were pressed to export their goods paid the fe« imposed by the sub judice act waiting for the decision of the Ministry m 30 respect of their protest lodged on the 16 5 80 Notwithstanding the abovy they filed their recourse within avery short time from the receipt of the letter dated 26 5 80 It follows that in the circumstances it cannot be said thai tht· payment ofthefeeamounted toanactofunconditionalacceptanceofthesub judice act emanating fromtheir free consent and volition B) On the question whether macaroni isa controlled article uithm theμι ο visions of Cap 68

(1)The intention of the legislator was ίο Lontrol graina·such and its by-products after gnnding and also the disposition of grain ami flour 35

(2)Nowhere in the law or regulations* there exists any provision as to the control of products originating from any of the controlledarticles which by having undergone process of baking or manufacture, are converted into Λ The Courtcitedin thejudgment theprovisions ofsections 35

(1)(0 Wl) the definition of *grain·ins2, thedefinitionof'flour»ins 19

(2). thedefinitionof'bread·ins l^iJjandmfemd toRegulationsmade beforeandafterIndependence undersection21 oftheLaw 73 Republic v. Makaronopeton Carfcotl*

(1987)newproductentirelydifferent fromtheoriginalarticle Macaroniissuchanew product Where there was an intention to control such a new product,an express provision was madeinthelaw, as inthecase of bread, «theproduct produced by bakingflour»,unders 19

(1)of the law 5 Appealdismissed. No orderas tocosts Casesreferredto Tomboh ν CYTA

(1980)3 CLR 266 andonappeal

(1982)3 CLR 149, Ayoub ν Republic

(1985)3C L R 70, 10 Chnstodouhdes ν /?epub/jc

(1985)3CL R 1979, Hadji Constantmouand Othersν Republic

(1984)3 C LR 319, The Republicν ΚΜCMotorsLtd

(1986)3 C LR 1899, Appeal. Appeal againstthejudgmentofaJudge oftheSupremeCourt of Cyprus (Hadjianastassiou, J.) given on the 30th November, 15 1984 {Revisional Jurisdiction Case No. 167/80)* whereby the decision of the appellants -respondents to require therespon­ dents - applicants to pay £20.- per ton of macaroni exported dunngthe monthsof MayandJune, 1980 inordertosecurean exportlicencewas annulled. 20 C Velans withX.Fotiou (Miss), fortheappellants. Chr Tnantafyllides, fortherespondents. Cur. adv. vult. TRIANTAFYLUDESP.:ThejudgmentoftheCourtwillbedeli­ veredby Mr. JusticeSawides. SAWIDESJ.:ThisisanappealagainstthejudgmentofaJudge of this Court exercising the revisional jurisdiction of theCourt, annullingthedecision of appellant2,respondentintheapplica­ tion, dated 26th May, 1980, prescribing that therespondentsapplicantshadtopay£20.-pertonofmacaroniexportedbythem 30 forthemonthsofMayandJune,1980,inordertosecureanexport licence. fbpottedtn

(1987)3CLR 52 74 25 3C.L.R. Republicv.MakaronopelonCarkotfs SavvidesJ. Therespondents, applicantsbefore thetnalCourt,own amaca rom producing factory The said factory deals with local sales, as well as with exports Concerning exports, the respondents deal with 90 per cent of the exports of macaroni from Cyprus which 5 constitutes60percentoftheoverallproduction ofthefactory On the 26th May, 1980, the Cyprus Grain Commission addressed a lettertotherespondentsinwhich ithadthistosay 10 «Bythe present letter we inform you that forthe purposesof an export licence, the pnce which you will have to pay for each ton ofmacaroni exportedwillbe£20 -forthe monthsof MayandJune, 1980 » The respondents who came toknow about the decision of the appellants earlier, as a similar imposition of a fee for macaroni exported was claimed from them on previous occasions, wrote, 15 through their advocate, a letter on the 16th May, 1980. to the Ministryof Commerce andIndustryprotestingagainst theimposition of such fee No reply wassent totherespondents, on the matters raised in theirletter,bythe26thMay, 1980,when appellant 2addressed to 20 them the lettercontaining thesubjudice decision After the filing of this recourse and in fact on the 11th September, 1980, a letter wassent bythe Ministry of Commerce and Industry, inreply tothe respondents' letterofthe 16th May 1980 explaining the reasons why such fee was imposed by the Gram 25 Commission, which mainlyrumson the allegation that wheat isa subsidised product for the benefit of consumers in Cyprus and when aproduct denved mainly from wheat isexported, afee had tobepaidonaccountofthesubsidyofwheatbytheGovernment The case before the tnal Court focussed on the question 30 whether macaroni isa «controlled article»within theambitofsection 3 of the Grain Control Law {Cap68) and as such subject to the power of appellant 2 to impose any conditions on its export and in particular, as in the present case, to impose a fee of £20 per ton. 35 ThelearnedtrialJudgeaftermakingreference totheprovisions inthe relevant lawand inparticularsection 3,read in conjunction with section 19,which empowers the Council of Ministers when making a control order under sub-section

(1)of section 3 to 75 SawtdeaJ. Republicv. MakaronopeionCarkotis

(1987)ncludebread thereinas acontrolled article fallingwithin thepro'isions of the law, concluded as follows: «it is obvious that bread which is the main derivative of grain cannot be andisnotclassified ascontrolled article as from the application of law in relation to grain only butbecause there is aspecial provision for that purpose. I do not agree therefore that the provisions of the law, in respect of grain are enough to give me the right to extend their application mutatis mutandis in the case of macaroni also. 10 It is undoubtedly a different product which cannot be clas­ sified as a controlled article unless itis declared as such pur­ suant to theprovisions of s. 3 of Cap. 68.» The appellants having felt aggrieved by such decision filed the present appeal and advanced the following grounds of appeal in •upport thereof.

1. The learned Judge erred in law and/or misapplied the rele/antprovisions.of Cap. 68with regard tothepowers ofthe Cyprus jrain Commission to impose conditions on the exportation of joods constituting controlled articles within the meaning of the .aid law. 15 «n
2. The learned Judge misinterpreted the law above mentioned η holding thattheCyprus Grain Commission was notvested with cowers toimpose conditionsontheexportation of goods madeof :ontrolled articles.
3. The learned Judge misdirected himself on the facts and the avidence adduced. Themainissuesinthisappeal onwhich learned counsel onboth sides elaborated, are whether macaroni falls within the definition of a «controlled article» in the sense of the Grain Control Law, 3Q Cap. 68 and whether the interpretationof the law by the teamed malJudge which led to hisdecision to annul thesub judice deci­ sion, is the correctone. Inthecourseof thehearingofthisappeal,counselfortheappel­ lants, raised an additional ground of law that such fee had been 35 continuously imposed for anumber of years on exports of maca­ roni effected by the respondents and the respondents had 76 25 3 C.L.R. Republic v. Makaronopeion Carkotis S a w f d · · J. accepted the imposition of such fee and had never protested to such course. Furthermore,in the present case, they paid the fee imposed without anyreservation. Thus,theyhave deprived them­ selvesofalegitimateinteresttochallenge thesubjudice decision. 5 Counsel for the respondents raised no objection to such addi­ tional ground which was notraised before thetrialCourt. Bearing in mind thatwhen thisCourtis sitting on a revisional appeal from the decision of aJudge exercisingjurisdiction in the first instance, examines the whole case de novo and can go intocertain matters 10 ex propriomotuandinparticularmatterstouchingtheexistence of a legitimate interest. (See The Republic v. K.M.C.Motors Ltd., Revisional Appeal No. 495, in which judgment was delivered on the 16th September, 1986, not yet reported)*, we allowed counsel toargue this ground. 15 Before proceeding to examine the main issue in this case, we shall briefly dispose of the new ground raised by counsel for the appellants as to whether the respondents in this appeal had a legitimate interest tochallenge the sub judice decision. Itiswellestablished by aseriesof decisions of thisCourtadopt20 ing inthisrespect theprinciplesofadministrative law as developed in Greece that when a person freely and voluntarily accepts an administrative act or decision, he is deprived of any legitimate interest to challenge such decision, (See, inter alia: Tomboli v. CYTA

(1980)3 C.L.R. 266 and on appeal

(1982)3 C.L.R. 149; 25 Ayoub v.TheRepublic

(1985)3 C.L.R.70; Christodoulides v.The RepubIic\l9SS) 3 C.L.R. 1979; Hadji-Constantinou & Others v. Republic

(1984)3 C.L.R. 319). As towhen an act or decision is free and voluntary, ithas been clearly expounded inmostof theaforesaid decisions and we need 30 notrepeat the principles underlying it. Theimposition of afee oneach occasion thatanapplication for a permittoexport macaroniwas submitted onprevious occasions was by itself a complete administrative act which could be chal­ lenged by a recourse. This recourse is notdirected against any of 35 such previous acts, but against the particular administrative act embodied inthesub judice decision. The decision of appellant 2 which iscontainedintheletterof the26th May,1980, isan entirely > ι r 'Reportedin

(1986)3C.LR. 1899. 77 a w i d e s J. Republic v. Makaronopeion Carkotla

(1987)omplete administrative actby itself, independent of anysimilar revious decisions. When the respondents came toknow about ieintention ofappellant2toimposesuchfee,theyprotestedto le Minister of Commerce and Industry. Whilsttheirprotestwas nder consideration by the Minister, the decision of appellant 2 5 /astaken and communicated to them bythe letter of the 26th lay, 1980. The respondents who were pressed to obtain an xportlicencefor exportingtheirgoods,paidthefeeinquestion, /airing,however, for the decision of theMinisterof Commerce nd Industry on their protest. Notwithstanding the above, the ,« zspondentswithin averyshorttimefrom thereceiptoftheletter fthe 26th May, 1980,and infact on the29th May,1980,filed ieirrecourse. Bearing inmindtheabove,wefind ourselvesunabletoaccept ie submission of counsel for the appellants that in the cir- 15 umstancesofthepresentcasethepaymentbytherespondentsof iefee inquestion wasan actofan unconditional acceptanceof iedecision emanating from their free consent andvolition and tatbydoingsotheyabandonedanyrightofchallengingthepaylentofthesaidfee. 20 Havingdisposedoftheabovequestion,weshallnowproceed )consider the main issues which pose for consideration inthis opeal. Counselfortheappellantsembarkedonthenatureofmacaroni id submitted that macaroni is a product made entirely of 25 imolinawhichisaproductwhollycomingfrom grain,whichisa >ntrolIedarticlebyvirtueoftheprovisionsofCap.68,after the •ainismilled,andassuch,fallswithinthedefinition ofacontroldarticleandissubject totheprovisionsofsection3

(1).HeconndedthatthelearnedtrialJudgebymakingreference tosection 30 9which refers tobread asacontrolled article,andreadingsuch ;ction inconjunction withsection3,misdirectedhimself,inthat escapedhisattention thatbreadisnotmadeexclusivelyofgrain jtitismademainlyofflour,aderivativeofgrainwiththeaddition fother articlesalien tograin,such assaltandothersubstances. 35 efurthersoughttorelyonsection5

(1)(0oftheLawwhichgives widepowertotheappellantstoregulateanythinghavingtodo ithacontrolledarticle.Onthestrengthofsuchprovision,hesubitted,extremelywidepowersaregiventotheGrainCommission hichincludethepowerofimposingan obligationtorefund part 40 78 Republicv.Makaronopeion Carkotis SawldasJ ofthesubsidyofgrainasthisisamodeofcontrollingtheproces singand subsequent exportation of the controlled articles.The words «regulate-licence and control», counsel submitted, arc notconjunctiveandbyvirtueofthispowertheGrainCommission 5 cancontrolthe«derivatives»ofcontrolled articlesbyvirtueofthe words «milling, processing, storage or grinding» in conjunction withthewords,«importation,exportation,purchase,saleetc.» Counsel for the respondents adopted the reasoning of the learnedtrialJudge andsubmitted thatthedefinition ofgrainasa 10 controlledarticledoesnotcovertheby-productsandderivatives ofgrainandthataspecificorderisrequiredtoextendsuchprovisiontosuchby-products inthesamewayasinthecaseofbread undersection 19.Counselfinallysubmittedthattheprovisionsof section5

(1)(f)arenotapplicableinthiscaseasmacaroniisnotin 15 thenatureofgraininrespectofwhichpowersaregivenundersection 5

(1)(f)oftheLawtotheGrainCommissiontocontrolandregulate. ThelawapplicableinthepresentcaseistheGrainControlLaw, Cap. 68 and the material sections to which reference has been 20 madearesections3,19 and5

(1)(f). Pursuanttosection3ofCap.68: •^ «3.

(1)IfatanytimeitappearstotheGovernorinCouncil(now theCouncilofMinisters)tobenecessaryorexpedientforthe purposeofsecuringasufficiency ofanykindofgrainessential tothewellbeingofthecommunityoritsequitabledistribution oravailabilityatfairpricesorthatpublicinterestsorequires, theCouncilofMinistersmay,byOrder(hereinafterreferredto as"TheControlOrder')declarethatkindofgraintobeacontrolled articleand thereupon theprovisionsofthisLawshall haveeffect inrespectofsucharticle. 35

(2)The Council of Ministers may, rf satisfied that the circumstanceswhichledtothemakingofaControlOrderhave' ceasedtoexistorthatpublicinterestsorequires,cancelsuch Orderanduponsuch cancellation theprovisionsofthisLaw shall,subjecttosection 18,ceasetoapplytosucharticle.» 25 Section19

(1)providesthat: «IfitappearstotheCouncilofMinistersthatpublicinterestso requires, the Council of Ministersmay,inmaking a Control 79 S a w l d e s J. Republic v. Makaronopeion Carkotis

(1987)Order under subsection

(1)ofsection 3,includebread therein as a controlled article and thereupon the provisions of this Lawshall apply mutatismutandis tobread as ifitwere acontrolled article for the purposes of this Law » Finally, section 5

(1)provides for the functions of the Grain 5 Commission established under the Law Paragraph (f)ofsub-section

(1)of section 5 provides that the Commission shall have power«toregulate, license and control the production, importation, exportation, purchase, sale, distribution, milling, treating, 10 processing, storage or gnnding of the controlled article» Hie definition of grain isgiven under section 2 and isas follows «'grain' includes barley and all kindsof grain used for human consumption orconsumption byanimal, and further includes flour (as defined m subsection

(2)of section 19 of this Law) 15 and bran» Thedefinition offlourundersection 19,sub-section

(2)isgiven«'flour' means theproductsproduced bythe millingof wheat, and includesallsuch productsexceptsubstancesseparatedin the milling as wheat offals, and where such products as 20 aforesaid are mixed with other substances, whether or not produced bythemillingofwheatand whether milled withthe wheat orsubsequently added, themixtureshallbedeemed to be flour» The definition of bread which undersection 19

(1)isspecifically 25 mentionedasan articlewhichmaybedeclaredasacontrolledarticle isgiven under sub-section

(2)of section 19as meaning«'bread' means the product produced by baking flour unmixed with any substance other than water, salt and yeast or other leaven » Itisclear from the provisions of section 3 of Cap 68 that such section isan empowenng section mcase itisconsidered that«any kind of grain isessential to the «wellbeing of the community» to declare such kind as a controlled article Asimilar power isgiven under s 19to declare «bread»,a specific by-product of grain pro- 35 auced bythe baking of flour asa controlled article. 80 30 Republicv.Makaronopeion Carkotis Sawides J. Byvirtue ofacontrolorderissuedbytheGovernorinCouncil on27thApril,1954andpublishedinSupplementNo.3oftheofficialGazetteoftheRepublicofthe29thApril,1954underNot.285 citedas«Wheat,BarleyandBread(Control)Order, 1954»,wheat 5 andbarleyweredeclaredtobe«controlledarticles».Itwasfurther declaredbythesameorderthat«breadisincludedasacontrolled articleforallpurposesoftheaforesaid law.» Flourwasdeclared asacontrolled article bythe FlourControl Order, 1961,issuedbytheCouncilofMinistersonthe30thMarch, 10 1961andpublishedinSupplementNo.3oftheofficial Gazetteof theRepublicof31stMarch, 1961, underNot.

1. Under section 21 of the Grain Control Law, Cap. 68 (as amended by Law 54/62) the Grain Commission may, with the approval oftheGovernor, makeregulationsinrespectofmatters 15 whichunderthe lawhavetoberegulated (section21)andgenerallyforthebettercarryingoutofthepurposesofthelaw. TheGrainCommissionintheexerciseofitspowersundersection21,madesuchregulationswiththeapprovaloftheGovernor priortoIndependence andoftheCouncilofMinistersafter Inde20 pendence.SuchregulationsappearinSupplementNo.3oftheofficialGazette ofthe Republicofthe23rd December, 1954under No.717.28.7.1955.under No.451,27.12.58,underNot.1143, 31.3.61underNot.
2. Suchregulationsprovidefortheregistrationofmillers,thecon25 ditionsforthegrantofapermittoamiller,thechargesformilling, theoperation ofbakeries,theproduction ofbread, thecontrolof theproductionandsaleofflour, thecontrolandsaleofbreadand similarmatters. ReadingtheprovisionsoftheGrainControl Law,Cap.68and 30 itsamendingLaw54/62andtheregulationsmadethereunder,no roomforanydoubtisleftthattheintentionofthelegislatorwasto controlgrainassuchanditsby-productsaftergrindingandalsothe disposition of grain and flour. Nowhere inthe laworthe regulations there exists any provision as to the control of products 35 originating from any of the controlled articles which, by having undergone process ofbakingormanufacture, areconverted into anewproductentirelydifferent fromtheoriginalarticlesuchasfor example,inthepresentcase,macaroni.Wheretherewasaninten81 SawideaJ. Republic v.Makaronopeion Carkotis

(1987)tionofthe legislatortoincludespecifically inthelistofcontrolled articles any by-product of flour which by having undergone a manufacturing process was converted into a new article, an expressprovisionwasmadeinthelaw,asinthecaseofbread«the productproducedbybakingflour»undersection19

(1)ofthelaw. 5 Wehavetherefore reachedtheconclusionthatthelearnedtrial Judge rightly found that the provisions of the law cannot be treated asextendingtomacaroniinthesamewayastheyextend tobreadandthattheprovisionsundersection3readinconjunction with section 19 cannot be considered as applying mutatis 10 mutanidstothecaseofmacaroniaswell. Theappeal istherefore dismissedbutinthecircumstanceswe makenoorderforcosts. Appealdismissed withnoorderastocosts. 15 82