(1987)1987 June3 [A LOIZOU J ] INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION ELENIHERODOTOU, Applicant, ν THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF CUSTOMS AUTHORITIES, Respondent (Case No 341/86) Customs and Excise — Duty free importation of goods — Power to impose conditions for the exemption —TheCustoms andExciseDutiesLaw 18/78 — Paragraph 1ofthe 4thScheduleandsection 11
(1)—Breach ofcondition that could be lawfullyimposed — Effect— Power to confiscatethegoods in question — TheCustoms andExciseLaw82/67,section 158 5 CustomsandExcise— Compounding ofoffences — TheCustomsandExciseLaw 82/67, section 178 — Breach of a condition imposed for the duty free importation ofgoods —As itconstitutesanoffence undersection 121(a), the respondent hadpower tocompound such offence <\ctsordecisions inthesense ofArt 146 1of theConstitution—Compounding of offences invirtueofsection 178of the Customs andExciseLaw 82/67—So closely interwoven with cnmmaiproceedings, thatitisoutside theambitof Art 1461 \dmimstrative Law — Discretion of administration — Exercise of —Judicial control — Pnnciples applicable \Q 15 Vo/dsandPhrases 'Dependent ofaperson*—Daughter, aged36,lectureratthe Higher Technological Institute—Nota'dependent» ofher mother The applicant was upon herrepatriation granted apermit f>>rthe dutyfree importation of a motor car on certain conditions, one of which reads as follows •Thevehicleshallonly be usedbyyouandyourdependents and shall not be lent, hired, exchanged,given away or otherwise disposed of in the Republicwithoutthepoor written authonty ofthe DirectorofCustoms,upon your application» 874 20 3C.L.R. 5 10 Herodotoa v. Republic When itwas discovered thatthecarwas possessedandsystematically used by applicant's daughter, aged 36,a lecturer at theHigher Technological Institute, the respondent decided to confiscate it. Following the confiscation the respondent proposed tocompound the customs offences, which have been committed,foranamountof£300.Theapplicantpaidsuchamount,but with reservation ofherrights. By meansofthepresent recourse theapplicantprays for (a)Adeclaration that the decision toconfiscate the car wasillegal, (b)Adeclaration that the decisiontoimposeapaymentof£300.-byway ofcompoundingisillegal,and (£)Adeclarationthattheterm inrespondent's letterdated6.5.86imposing a new conditionisnull andvoid. Counsel forthe applicant argued, inter alia, thatasthe respondent knew thatneithertheapplicantnorherhusbandhadadrivinglicence,applicant was entitled toexpect thattherespondentwould notact controversially. 15 20 25 30 35 Held,dismissingthe recourse:
(1)Thesub-judice confiscation was effected in virtue of section 158 of Law 82/67. In accordance with such section confiscation maybe resortedtowhen theconditions,which wereimposed for theexemptionfrompayment ofimportduty,have notbeen complied with.It follows thatthequestions, which arise fordeterminationare (a)Whether the conditioninquestion could beimposed and (b)whether therewas abreach of such condition.
(2)The condition inquestion was imposed under thefirstparagraph of Schedule 4 of Law 18/78* by giving a wider interpretation tothe word «persons» in that there were included therein, besides applicants, her dependents.Inanyevent theconditioncouldhave beenimposed byvirtueof section 11{1}** ofthesame law. Itfollowsmattheconditioninquestion could have been lawfully imposed.
(3)TheRegulatory Administrative Act296/73containedadefinition ofthe word «dependent», whereas the relevant for this case Regulatory Administrative Act 188/82does not.Evenifthedefinition ofAct.296/73does not apply, the term «dependent» must be given its ordinary meaning. Applicant's daughter cannot possibly be considered as applicant's dependent. Itfollows thatitwas reasonably open totherespondent to find thattheapplicantbroke thesaidcondition.
(4)Applicant's inability to drive was her problem and,therefore, the argumentofcounsel hereinabove referred tocannotbe accepted.
(5)Thebreach of the aforesaid condition constituted an offence under section 121(a)ofLaw82/67and,therefore,therespondenthadthepower to compound itinaccordancewith section 178ofthe samelaw. *Quotedatρ879post. ·*Quotedatp. 879post. 875 Herodotou v. Republic
(1987)
(6)Inthelightoftheaforesaid legislativeprovisionsrelatingtorespondent's power to impose conditions, the respondent had a discretionary power to impose the impugned new condition. This Court cannot interfere with the exerciseofthediscretion,ifdueweighthasbeengiventoallmaterialfactsand ifithasnot beenbasedonamisconceptionof fact. 5
(7)ThisCourtisentitledtoraiseexpropriomotutheissueofitsjunsdiction.
(8)From mere reading of section 178 it is clear that compounding is resorted to in lieu of criminal proceedings. It follows that it is so closely connected withcriminal proceedings that itisoutside theambitofArt. 146.1 of the Constitution. This Court cannot entertain prayer (b). Ifapplicant had 10 cause to contest the compounding, she ought to have declined payment of £300and fighthercasebefore thecnminal Court One cannotelecttoaccept compounding with reservation and, thus, avoid criminal proceedings. Applicant's attitude wasnothing but adevice tochange forum. Recourse dismissed. 15 No orderastocosts Casesreferredto: Merckv.TheRepublic
(1972)3 C LR.548, Makantou v.TheRepublic(\984)3 C L.R. 100; S. RaftisCo. Ltd. v. TheMunicipalityofPaphos
(1981)3C.L.R.497; 20 Xenophontos v. TheRepublic,2 R.S.C.C.89; Pitsillosv.Aristodemou
(1969)3 C.L.R.226 Recourse. Recourseforadeclaration thatthedecisionoftherespondent to confiscate motor vehicle RV373 belonging to applicant and to 25 impose ontheapplicant anobligationtopaytheamountof£300bywayof compounding isnulland void and of nolegal effect. A.S. Angelides, for the applicant. St, Theodoulou, for the respondent Cur, adv. vult. 30 A.LOIZOU J. read the following judgment. On December 1st 1984, applicant was upon her repatriation granted a permit to importa car free of import dutybyvirtue oftheprovisionsofsubheading 19ofitem01oftheFourthScheduletotheCustoms and 876 3 C.L.R. Herodotou v. Republic A. Loizou J. Excise Duties Law. The permit was granted under certain conditions (see appendix A to the opposition) one of them condition (d)-being as follows: 5 «
- The vehicle shall only be used by you and your dependents and shall not be lent, hired, exchanged, given away or otherwise disposed of in the Republic without the prior written authority ofthe Director of Customs, upon your application.» Followingtheimportation ofthecar,therespondent discovered 10 that it was possessed and systematically used by Despina Charalambidou, aged 36, a lecturer at the Higher Technological Institute for purposes of her own, and who isthe daughter of the applicant. On the 14th March, 1986, the competent Customs Authorities found the car inthe complex of the Higher Technical 15 Institute and confiscated same by virtue of the provisions of the relevant legislation. In the statements which were given by the applicant and her said daughter to the competent Customs Authorities it was stated that the car was used by applicant's daughter for purposes of her own {seeappendices 'B' and ' C to 20 the opposition). The respondent Director of Customs in exercise ofhispowers,byvirtueoftherelevantlaw,byhisletterdated 21st April 1986, proposed to return the car to the applicant upon payment byherof an amount of £300bywayofcompoundingof the Customs offences which she had committed. The applicant 25 accepted theproposal oftherespondent Directorand on the 21st April 1986 she did pay the amount of £
- By her letter of the same date she stated that she acceptstopay the amount of £300 «withfull reservation of her rights». By his letter dated 6th May 1986, the respondent Director 30 informed the applicant that her acceptance to pay the amount of £300«constitutesanadmissionofhavingcommittedthe offences» andacceptance ofthecompounding whichhadbeen proposed to her. Inthe same letter stresswas laid on the conditions on which thepermit had been granted. 35 40 After receiving the aforementioned letterthe applicantfiled the present recourse wherebyshe prayed forthe following relief: «
(1)A declaration of the Court that the decision of the respondent to confiscate vehicle RV 373 (Mercedes 190E) belonging tothe applicant wasillegalnulland void and of no legaleffect whatsoever. 877 A. Loizou J. Herodotou v. Republic
(1987)
(2)A declaration of the Court that the decision of the respondent to impose on the applicant an obligation for the payment of an amount of £300 by way of compounding in respect ofanon-existentoffence isillegal,nullandvoidandof no legal effect whatsoever. 5 Learned counsel for the applicant inhiswrittenaddress mainly contended: a) That once applicant had made known to the administration that both she and her husband had no driving licence and that she will reside with her unmarried daughter i o . who was the only member of the family that was holding a driving licence; and that once on the above facts the exemption dated 1st December 1984 was granted to her, applicant was entitled to expect that the respondent would not act controversially inthe future; 15 b)The termwhichhasbeen imposed bymeansofthe letter ofthe6thMay, 1986andgiventhatapplicant isnottheholder of a driving licence, is tantamount to annulment of the exemption. c)Order 188/82 doesnotintroduce restrictionsastowhoof 20 the members of the family willuse the car. Prayer
(1)The sub judice confiscation was effected by virtue of the provisions of section 158 of The Customs and Excise Law 1967, which reads asfollows: «158.-
(1)If by virtue of any provision of this or any other Lawor under any practice whereby(a)goods chargeable witha dutyof customsareallowed to be delivered without payment of that duty on condition that they will not be sold or willbe re-exported orupon anyother 30 likecondition; or (b) the amount of customs duty payable on any goods depends on theirbeing imported on anysuch condition, any goods are allowed to be delivered without payment of dutyoron payment ofdutycalculated inaccordancewiththat 35 provision or practice, and the condition isnot observed, the goods, shall, unless the non-observance was sanctioned by 878 25 3 C.L.R. Herodotou v. Republic A. Lolzou J. the Director, be liable to forfeiture. 5
(2)The provisionsof thissection shallapplywhether ornot anyundertakingorsecurityhasbeengivenforthe observance of the condition orfor the payment ofthe dutypayable apart therefrom, and the forfeiture of any goods under thissection shall not affect any liability of any person who hasgiven any such undertaking or security.» It is clear from a mere reading of the above section that confiscation maybe resorted towhen the conditions, which were 10 imposed for the exemption from payment of import duty are not complied with And the questions which arise are (a)whether the conditions in question - condition (
- d)could be imposed-and (
- b)whether there wasa breach ofsuch condition. The condition in question was imposed in exercise of powers 15 under the first paragraph ofthe 4thSchedule ofthe Customs and Excise DutiesLaw 1978(LawNo. 18of 1978), which provides: 20 «Goods of the classes described in each of the following sub-headings, imported by or on behalf and for use by the persons, bodies, authorities or organisations mentioned therein.» The exemption was formulated on the basis of the above provisions but by giving a wider interpretation to the term «persons» in that it included, besides applicant, her dependents. But even in the absence of the above legislative provisions the 25 respondents could, by virtue of s. 11
(1)of the same law impose conditions and restrictions. Section 11
(1)reads: 30 «... goods may be imported free of import duty for use by certain privileged persons under such conditions as the Directormay impose for the protection of the revenue.» In view of the above legislative provisions the Director was entitled inLawto impose condition (d). In resolving the issue whether the said condition was infringed need arises to consider the notion of dependent. Inthe relevant 35 Regulatory Administrative Act No. 188 of 1982 there is no definition of the term «dependent» though we find such a definition in Regulatory Administrative Act No. 296 of 1973 879 A.L·!*·*J. Herodotouv.Republic
(1987)which provides: «Dependent of aperson means:(a)Hiswife or her husband; and (b)Includesany otherperson fully ormainlymaintained by him or found under hissupervision and care.» 5 But even ifsuch definition isnot applicable we have togive to the term dependent itsordinary meaning. Itbeingan undisputed fact that applicant's daughter is aged 36 and is employed on a permanent basis, as a lecturer at the Higher Technological Institute, she cannot be considered asthe applicant's dependent. 10 And, also,itbeing an undisputed factthat the carwassolely used byherforherownpurposeswecannotbutarriveattheconclusion that there wasa breach of condition. Inview of this conclusion the respondent was fully entitled in law, by virtue of the aforesaid section 158 to proceed with 15 confiscation; andhisdecisionsotodowasreasonablyopentohim on the basisof the material before him. The submission of learned counsel under (
- a)above is clearly untenable. This isso because in effect it questions the validityof the original decision which wastaken on 1st December 1984.In such decision condition (
- d)was included in express, clear and unequivocaltermsandapplicantwasperfectly entitledtoquestion it within the time prescribed by the Constitution. And once she failed to do so at the appropriate time she cannot claim relief belatedlybycontending thatasrespondent had knowledge of her inability to drive he could not act controversially. The inability to drive, and the importation of the car, notwithstanding such inability, as well as the acceptance of condition (
- d)are her own problem and affair and she cannot blame the administration. Therefore, inviewof allthe above prayer
(1)must fail. Prayer
(2)The confiscation was made in the exercise of powers under section 178of LawNo.82 of 1967 which provides:«178-
(1)Save in respect of any of the offences under sections 9 and 10 the Director and any officer authorised in 35 that behalf by the Council of Ministers, may compound any offence or act committed or reasonably suspected of having 880 20 25 30 3 C.L.R. 5 10 Herodotou v.Republic A.Lolzou J . been committed byanyperson againstor incontraventionof the provisions of any Customs and Excise Laws, on such terms and conditions as he, in his discretion, thinks proper, with full power to accept from such person a payment in money not exceeding the maximum penalty incurred or alleged to have been incurred under any Customs Laws for such offence or act.
(2)On payment of such sum to the Director or authorised officer, no further proceedings in regard to that particular offence or act shall be taken against the person who has so compounded and,ifheisincustody,heshallbe discharged.» As the breach of condition (
- d)constitutes an offence under section 121(
- a)of the above Law, the respondent could lawfully compound the offence. Therefore the confiscation cannot be 15 faulted on anyground and prayer
(2)isbound to fail too. Prayer
(3)I have already dealt with the legislative provisions which empower the Director to impose conditions.Once the Directoris underthe lawempowered toimposeconditions,hisimpositionof 20 the new condition was reasonably open to him inthe light of the material before him and in particular the breach by applicant of condition (d). After alltheimposition ofconditionsand alltheaction taken by the respondent is by virtue of the relevant legislation a matter 25 within the discretion of the respondent and it is well established that thisCourt cannot interfere with such discretion ifdue weight hasbeen giventoallmaterialfactsand ifithasnotbeen based on a misconception of law or fact. None of these prerequisites have been satisfied bytheapplicant inthiscase (SeeinteraliaMerck v. 30 TheRepublic
(1972)3 C.L.R. 548). Having concluded asabove I would deal exproprio motu with thejurisdiction of thisCourt totakecognizance of prayer
(2)even ifsuch issue has not been raised bythe parties.(See Makaritou v. 77ie/?epuW/c(l984)3C.L.R. 100atp. 104,whereitwasheldthat 35 «it is permissible for the Court to raise at any stage of the proceedings on itsmotion mattersaffecting thejurisdiction of the Court». In S. Raftis Co., Ltd., v. The Municipality of Paphos
(1981)3 C.L.R. 497,1said atpp.501-502: 881 A. Lolzou J . Herodotou v. Republic
(1987)«The revisional junsdiction of this Court underArticle 146 of the Constitution is confined to decisions and acts or omissions of,any organ authonty or person exercising any executive or administrative authonty and does not extend to other acts that do not come within this category Inthe case 5 of Phedias Kynakides and The Republic, 1 RS C C ρ 66. it was held thatacts of thepolicemanifestly necessary tolead up to and closely interwoven with prospective criminal proceedings did not constitute an exercise of 'executive or administrative authority' within the meaning of Article 146 of 10 theConstitution Afortiori punishmentsimposed by Courtsmtheexercise o f theircriminaljurisdiction andtheirexecution do notconstitute an exercise of «executive or administrative authority» within the meaning of the said Article 25 Also in the case of Chanlaos Xenophontos and The Republic, 2 RS C C ρ 89 itwas held thattheexercise of the authonty of the Attorney-General to institute criminal proceedings was not within the ambit of Article 146 1of the Constitution as being closely related tojudicial proceedings in 20 cnminal cases and therefore this Court had nojunsdiction in the matter InthecaseofModestosPitsillosν EhasAnstodemou
(1969)3 C L R ρ 226, Hadjianastassiou J atρ 230hadthistosay'With regard to the true construction of paragraph 1 of 25 Article 146, it becomes very clear, in my view, from what I have already said, thatthejunsdiction of thisCourtis confined only and exclusively to matters concerning a decision, act or omission of any organ, authonty or person exercising executive oradministrative authontyandhasnojunsdiction of 30 competence to deal with the decision of the Appeal Court, complained of inthisrecourse,because itisajudicial decision and, therefore, cannot be made the subject of a recourse to thisCourt under thesaid Article 146 of theConstitution' No doubt the proceedings and the judgments of civil and 35 cnminal Courts and the sentences imposed in c iminal cases are judicial acts and do not come within the ambit of Article 146 of the Constitution Likewise the execution of such judgments and the enforcement of punishments are a corollary of thejudicial process andinany eventareso closely 40 connected with judicial acts thatdonotcomewithin theambit 882 3 C.L.R. Herodotou v. Republic A. Loizou J. f the said Article See White HillsLtd and others ν The Republic
(1970)3 C L R ρ 132 at ρ 134 and wheie reterence is made also to Xenofontos and The Republic 2 RS C C 89 . 5 Furthermorereference maybe madetothecase of Makantou ν TheRepublic
(1984)3 C L R ρ 100 It ι^ clear from a mere reading of section 178, which governs compounding that compounding is resorted to in lieu of criminal proceedings and thatafter compoundingthe taking of any Court 10 proceedings inrespect of thealleged offence is prohibited This being the position I hold that compounding is closely interwoven with cnminal proceedings and as such it does not constitute an exercise of «executive or administrative authonty» within themeaning of Article 146 of theConstitution 15 One cannot even with reservation of nghts, elect to accept compounding and thus avoid cnminal proceedings and the consequences therefrom, which include impnsonment and then question thevalidity of compoundingbefore the SupremeCourt The compounding clearly arose from the commission of cnminal 20 offence, punishable by thecustomslegislation andifapplicanthad cause to question the validity of the compounding, she ought to have declinedtopay theamountof£300andfight hercase before theproperforum, theCnminalCourt Theattitudeoftheapplicant in thiscase is nothingbuta device to change forum Itis for these 25 reasons that I think, that the act of compounding is so closely interwoven with the institution of judicial proceedings that it cannot amount to the exercise of executive or administrative authority in the sense of Article 146 1 of the Constitution, therefore this Court has no jurisdiction to take congnizance of 30 relief
(2)In the result the recourse must fail and is hereby dismissed There will,however, be no orderas to costs Recourse dismissed No orderas to costs «83