(1987)1987 May 28 [TRIANTAFYLLIDES Ρ SAW1DES L0R1S STYLIANIDES & KOURRtS JJ ] ANDREAS SH1AKALLIS, Appellant-Applicant, ν THE REPUBLICO F CYPRUS, THROUGH THE DIRECTOROF THEDEPARTMENTOF CUSTOMS & EXCISE, Respondents (Revtsionai Junsdiction Appeal No 542) Customs and Excise Duties — Motor vehicles importation of by Cypnots — Exemption fromimport duty — The Customsand ExciseDutiesLaw18/78, sub-heading 19 of item 01 of the fourthschedule — Order 188/82 of the Councilof Ministers— A Cypnot,inordertoestablishpermanent settlement abroadand return toCyprus musthave inthefirstplace settledinCyprus— 'Settle· — Meaning of — Minors — Hisordinaryresidenceis in hisparents matrimonialhome — Applicationfor duty freeimportation of motorvehicle correctly turned down on ground that appellant was never a permanent residentof Cyprusbefore hisemigrationabroad Wordsand Phrases— 'Settlement' and 'Permanent Settlement»inOrder188/82 of the CouncilofMinisters The appellant is aCypnot Nationalborn inZaire in 1950 Hisparentswere permanent residents in thatcountry In 1960 the appellant came to Cyprus and attendedTerra Santa School Nicosia as aboarder until 1970 Hisparents remained residents of Zaire InMarch 1970 he went to England for studies, having obtained exemption from military service on the ground that he was permanently residing outside Cyprus In June 1980 the applicant came to Cyprus for holidays and whilst in Cyprus he marriedand together with hiswifewent toZaire,where he stayed until 14 1 83, when he returned toCyprus On 11 5 83 he applied for the duty free importation of a motor car as a repatriated Cypnot.relyingonthe aforesaid Order 188/82 Hissaidapplication was turneddown on theground thatbefore hisalleged emigration abroad he was never apermanentresident of Cyprus 804 5 JO J5 20 3 C.L.R. ShiabalUa v. Republic This isanappeal from the judgment of a Judge of this Court, whereby appellant's recourse, impugning theaforesaid decision was dismissed. ** Held, dismissing the appeal
(1)It isapparent from the wording ofOrder 188/82. thataCypnotinordertoestablish permanentsettlementabroad and return must have, inthefirst place,settled in Cyprus
(2)Theword -settle»meansavoluntary andintentionalactiontosettleand suchcapacitycannotbeartnbutedtoachild,which isconsidered asordinanly resident inhis parents matnmomalhome 15
(3)From 1960 uptoto22 1068theappellant wasaminorand. therefore. hispermanentresidence was inZaire Afterthe22 10.68 uptotoMarch 1970, although appellant was of age. he hadnotsettled in Cyprus Hestmply resided therein temporarily inorder tocomplete hisstudies Inthis respect one cannot loose sight of the fact of thereason whytheappellant was exempted from military service. Appealdismissed. No orderasto costs. Casesreferredto' Matsasv TheRepublic
(1985)3C.L.R 54; Solomomdesv. TheRepublic{\986)3C L.R. 1025, 20 Michaelν TheRepublic(\986) 3CL.R 2067; Kourtellasv. TheRepublic
(1986)3C.L.R. 2079) RazisanaAnother v.Republic
(1973)3 C.L.R. 127; In ReP(G.E.)(AnInfant)[1965] Ch.568 Appeal. 25 30 Appeal against thejudgment ofaJudge oftheSupreme Court of Cyprus (A. Loizou, J.) given on the7th November, 1985 (Revisiona! Jurisdiction Case No. 138/85)* whereby appellant's recourseagainst therefusal oftherespondenttoallowapplicantto importa duty free caras arepatriated Cypnot was dismissed. A.Petoufas,for the appellant. A. Vassiliades, fortherespondent. Cur. adv.vult. TRIANTAFYLLIDES P.:Thejudgment of this Court will be delivered byLorisJ. 35 LORISJ.: The present appeal isdirected against the judgment of a Judge of this Courtdismissing the recourse of the appellant •Reportedtn
(1985)3C.LR.2570. 805 LorisJ. ShiakaUisv.Republic
(1987)who was thereby impugning the decision of the respondent director dated 171284 by means of which the appellant was refused theimportationofadutyfree carasarepatriatedCypnot The appellant relying ontheprovisions of sub-heading 19 of ItemΟ1ofthe Fourth ScheduletotheCustomsandExcise Duties 5 Law 1978 (Law No 18/78)asamended bytherelevant Orderof the Council of Ministers published intheOfficial Gazette of the Republic on 11682 under No 188/82 had applied tothe respondent on11583forthe importationofaduty free caras a repatnated Cypnot On 17 1284 the Respondent Director turned down his aforesaid application forthe reason thathewasnever permanent resident of Cyprus before applicant's emigration abroad The relevant passageoftheaforesaid letterreadsasfollows «Youwere never permanent resident of Cyprus before your alleged 15 emigration abroad and,therefore, you have not returned for settlement inCyprus after emigration therefrom» The undisputed facts ofthiscase arebriefly as follows The applicant a Cypnot national wasborn inZaireof Cypnot parents on 23 1050 His parents were atthetime andarestill 20 permanent residents ofZaire InJune 1960 theapplicantwas broughtbyhismotherto Cyprus where he attended theTerra Santa, Nicosia, as boarder until March1970 His mother returned to Zaire in 1962 and the applicant 25 remained inCyprus underthe guardianship ofan auntofhis In March 1970 the applicant left Cyprus in order to follow further studies in England, having obtained anexemption from liability forserviceintheNationalGuardonthegroundthathe was permanentlyresiding outsideCyprus (Videletterdated18 3 70of 30 •- theMinistry of Intenor addressed tothe applicant -Appendix 2 attachedtothe opposition) The applicant came to Cyprus for holidays onthe3rd June 1980 when he methiswife towhom hewas married and with whom he wentback toZaire where hestayed until the 14.1 83 35 whenhereturnedto Cyprus On the 181 1983 he joined theNationalGuardmcompliance 806 10 3 C.L.R. Shlakallis v. Republic . LoriaJ. with the Law. once he had decided to settle permanently in Cyprus thereafter. On the 11.5.83 the applicant submitted an application for the duty-free importationofhisvehicle asarepatriatedCypriotrelying 5 as aforesaid on Order 188/82. The material part of Order 188/82 read as follows: 10 15 20 25 «Μηχανοκίνητα οχήματα των κλάσεων 87.02.11 και 87.02.19 εισαγόμενα υπό Κυπρίων οι οποίοι κατόπιν μονίμου εγκαταστάσεωςεις το εξωτερικόν δια συνεχή περίοδον τουλάχιστον 10 ετών επανέρχονται και εγκαθίστανται μονίμως εν τη Δημοκρατία νοουμένου ότι η εισαγωγή γίνεται εντός ευλόγου χρονικού διαστήματος α π ότης αφίξεωςτων κατά την κρίσιντου Διευθυντού: Νοείταιπεραιτέρω Η απαλλαγή καλύπτει μόνον ένα όχημα δι' εκάστην σικογένειαν.» (English Translation) «Motor vehicles of categones 87.02.11 and 87.02.19 imported by Cypnots who. having permanently settled abroad for acontinuouspenod of atleast 10years, returnand settle permanently in the Republic, j-.ovided that the importation ismadewithinareasonable timefrom theirarrival at the discretion of theDirector: Provided further The relief covers only one vehicle for each family.» It is apparent from the wording of the order that a Cypriot in order to establish permanently abroad and return must have, in the first place,settled in Cyprus. 30 The word «settle»hasthe meaning of voluntary andintentional action to settle and such capacity cannot be attributed to a child which is considered as ordinarily resident in his parents matrimonial home.(Diceyand Morris - TheConflictof Laws 10th ed. Vol 1 p. 144). 35 The notion of «settlement» as well as «permanent settlement» have been considered in a number of cases (Matsasv. Republic
(1985)3 C.L.R. 54; Soiomonides v. Republic
(1986)3 C.L.R. 3 C.L.R. 1025, Philippos Michael v. Republic, Case No. 552/84 807 LorisJ.
(1987)ShlakallU v. Republic judgment delivered on 21.11.86* and Antonis Kourtellas v. Republic, case No. 317/85 Judgment delivered on23.12.86;** the last twocases are still unreported), where itwasheld that settlement requiressomethingmorethanmerephysical presence; itrequiresintention. 5 Itisclearthat anintention cannotbeattributedtoaminor,(vide Razisand Another v.TheRepublic
(1973).3C.L.R. 127atp. 138 - In-Re: P.(G.E.)(An Infant)[1965]Ch. 568,585-586 (C.A)), which as already stated, is ordinarily resident in his parents matrimonial home. 10 Reverting now tothe factsunder consideration: The applicant wasbom on23.10.50 atZairewhere hisparents werepermanentlysettled.HewasbroughttoCyprusinJune 1960 and hestayed inCyprusstudying up toMarch 1970 when heleft for U.K.forfurther studies. From 1960upto22nd October 1968 15 hewasaminor,thereforehispermanentresidencethroughoutthis period wasthatofhisparents,notablyZaire. After the 23rd October 1968 uptoMarch 1970, althoughthe applicant wasof age, it isapparent that he hadnotsettled in Cyprus;itisclearthatthroughoutthislatterperiod hewasresiding 20 in Cyprus temporarily withaviewtocontinuing andcompleting hisstudies inTerra Santa, Nicosia. Inthis connection wecannot loosesightofthefact thattheappellantinMarch 1970left Cyprus in order tofollow further studies inEngland having obtainedon exemption from liability forservice intheNational Guard onthe 25 ground that he waspermanently residingoutside Cyprus. In this respect weareinfull agreement with thelearned trial Judge thathispermanent residence wasatthetime Zaireand his stayinCypruswasatemporaryoneforthepurposeofeducation. Inviewofthe above itisclearthat itcannot be maintained that 30 the appellant had ever settled in Cyprus «before having permanently settled abroad foracontinuous periodofatleastten years.» Inthe resultpresent appeal failsand itisaccordingly dismissed; inthecircumstancestherewillbe noorder astoitscosts. 35 Appeal dismissed. No orderastocosts. •Reportedm
(1986)3 CLR 2067 " Reported in
(1986)3C.L R. 2079 808