(1988)1988May27 INTHEMATTEROFARTICLE146OFTHECONSTITUTION [SAVVIDES, J.] DEMETRIS CHRYSANTHOU, Applicant, v. THE REPUBLIC OFCYPRUS,THROUGH 1.THE DIRECTOR OFCUSTOMS DEPARTMENT, 2.THE ATTORNEY -GENERAL OFTHEREPUBLIC, Respondents. (CaseNo. 207/87). Customs and Excise duties—Duty free importation of motor vehiclesfor invalidpersons—The Customs andExciseDuties Laws 1978—1979,Fourth Schedule,para. 09of class01—Havingobtained thereportoftheMedical Board, respondent referred thematter totheSenior TechicalExaminer in the Office of Examiners—Latter's report,in virtue whereof theapplicant .<j could drive without any restriction, wasnot referred back tothe Medical Board—Such omission rendered defectivetheexercise of thediscretion— Review of conflicting authorities onthesubject whether the matter could havebeenreferredtotheSeniorTechnicalExaminer. Thefacts of thiscaseappear from thejudgment. 10 Subjudice decision annulled with£125costsagainstrespondent. Casesreferredto: Kalli v.TheRepublic
(1984)3C.L.R. 443; 1054 3 C.L.R. Chrysanthou v. Republic Markidesv. TheRepublic
(1985)3C.L.R. 1393; Tooulisv.TheRepublic
(1985)3 C.L.R. 2478; loannouv. TheRepublic (\9%5) 3C.L.R31; . *' Kyriacou v. TheRepublic
(1985)3C.L.R. 2414; Siampettasv.TheRepublic
(1987)3 C.L.R.1823. Recourse. Recourseagainsttherefusal oftherespondents toexemptthe applicantfrom thepaymentofimportdutyinrelationtoamotor carforinvalidpersons. P.Angelides, for theapplicant. 10 - D.Papadopoulou (Mrs), fortherespondents: Cur. adv. vult. SAVVIDESJ.readthefollowingjudgment.Theapplicant by thepresentrecourse,challengestherefusal oftherespondentDi15 rector of Customs to exempt him from the payment of import dutyinrelationtoamotorcarforinvalidpersons. 20 Theapplicantisacitizenof theRepublicof Cyprus.Heis28 years old and heis adraftman, earning an incomeof £230per month.Onaccountof anaccidentin 1974hisrightlegremained shorterbysixcmsandwithpartialangylosisoftherightknee. Relyingontheprovisionsofparagraph0.9ofclass0.l·ofthe • FourthScheduletotheCustomsandExciseDutiesLaw,1978(as amended) heappliedonthe22nd April, 1986totheDirectorof Customs seeking permission to buy aMercedes automatic 250 25 diesel Motorcarrequired byhimfor hiswork,dutyfree,onthe groundthatheisaninvalidperson,settingoutintheapplication 1055 SavvidesJ. - Chrysanthou v. Republic
(1988)the cause of his invalidity and his personal and family circumstances. Attached to such application he submitted a discharge certificate from the National Guard issued on 9th July, 1980before completing hisMilitary Service,ontheground ofinability to serveduetohisaforesaid invalidity. 5 The Applicant's application was referred to a Government Medical Board setupfor thepurpose, with therequest tohavethe applicantexamined and submit areport astohiscondition. The applicant wasexamined bytheMedical Board which was composed of the Senior Specialist Orthopaedic Surgeon, aSenior Specialist Surgeon and theDistrict Medical Officer ofNicosia as members. Areport signed by all three of them was submitted to respondent 1on the 19th December,
- The opinion of the Medical Board regarding the condition of the appellant is described insuchreport as follows: io 15 "Onaccount ofatraffic accident in 1974hesuffered afractureinthemiddleof hisrightfemur. He presents shortness of six cms and partial angylosis of therightknee. Healsopresents considerable muscular atrophy inthefront surface of the thigh. He complains of swelling of the leg and that he gets tired easily. Heuses a special kindof shoe. Boththehigherlimbs andtheleft lowerlimbarenormal." On the 21st January, 1987 the applicant was referred by respondent 1 totheSeniorTechnical ExaminerintheOffice ofExaminersfordrivers for examination inthelightof thereportof the Medical Board. The senior Technical Examiner after examining 1056 20 3 C.L.R. 5 10 Chrysanthou v. Republic Savvides J. the applicant submitted his report on 11th February,
- According tosuchreport theapplicant "candrive amotorcar without any restriction." In consequence of the above reports applicant's application wasrejected andrespondent 1byhisletterdated 26th February, 1987communicated suchdecision totheapplicant. The contentsof such letterread as follows: "Withreference toyour application dated 22nd April, 1986 for relief from import duty in respect of acar for invalid personsIwish toinform you thaton the basisof thereport of the appropriate Medical Board yourbodilycondition doesnotjustify the use of a car specially adapted for use by invalid per-. sons." 15 As a result applicant filed the present recourse praying for a declaration that the act and/or decision of the respondent is null andvoid andof nolegal effect. 2o The legal grounds on which therecourse is based are that the sub judice decision lacks due reasoning, it was taken in abuse and/or excess of power, under circumstances amounting to unlawful delegation, under amisconception of law and misinterpretationofthereportoftheMedical Board. 25 ™ Counselfor applicant insupport of his grounds of law submitted that theonly competent organ under therelevant regulations which can advicerespondent 1 astotheinvalidity of the applicant istheMedical Board.Respondent 1 inthepresent caseinsteadof relying on the advice of such Board referred thematter to an incompetent person, the Senior Technical Examiner of Drivers to express an opinion as to whether the applicant could drive without any restriction and on whose opinion respondent 1 relied in reaching hisdecision.Therelianceplaced on suchreport, counsel submitted, shouldleadtotheannulmentofthesubjudicedecision as it was based on theopinion of an incompetent organ. In support of his submission he sought torely on thejudgment in Kalli v. The Republic
(1984)3 C.L.R. 443. 1057 Savvides J. Chrysanthou v. Republic
(1988)Counsel for the respondent on the other hand submitted that the subjudice decision was lawful andcorrect andwas taken after a due inquiry intoall relevant material before theDirectorof Cus toms, in accordance with the Customs and Excise Duties Laws 1978-1979 and theprovisions of the Fourth Schedule to thesaid 5 laws. Counsel submitted that therespondents after complying with the requirement of therelevant statutory provision concerningthe examination of the applicant by a Medical Board,rightly referred the applicant totheSenior Technical Examiner tobe examined as IQ to whether hecould drive an ordinary vehicle or whether he was in need of a car specially adapted tohis need. She submitted that an administrative authority may on its own free will make further inquiry in addition tothatexpressly provided by law as a choice of means to form an opinion. In support of her proposal she «sought torely on thedicta inMarkides v. TheRepublic
(1985)3 . C.L.R. 1393 and Tooulis v. The Republic
(1985)3 C.L.R. 2478. Applicant's claim for aduty free caris based on the provisions of paragraph 0.9 of class 0.1 of theFourth Schedule to the Cus- ~ο toms andExcise Duties Laws 1978-1979 which provides as fol lows: "Descriptionof exemption. Petrol and diesel motor vehicles of a horse power not ex ceeding 2000 c.c. and 2300 c.c. respectively suitable for use 25 by persons suffering from body disablement imported by disa bled persons whose disablement is duly certified by aGovern mentMedical Boardconstitutedfor thepurpose: provided thatthisexemption is notapplicable todisable per sons who: (
- a)Are theowners or possessors of anotherthusduty free im ported vehicle; 1058 30 3 C.L.R. 5 Chrysanthou v. Republic Savvides J. (
- b)are not the holders of a driving licence, provided that when disabled personsaretheholdersof alearner'sdriving licence theDirectormaygrant suchexemptionon thecondition that a driving licence will be obtained within one year from payment of customs duty for thevehicle or within such other periodwhich hemightconsiderreasonable." Undertheheading "Extentofexemption" itisstated: "AstheMinisterofFinancemightdecideonthebasisof the financial positionof theapplicant." Theaboveprovision wasconsidered in a numberofcases. 10 InKalli v.The Republic (supra),Pikis,J. in annulling thedecision rejecting a claim for a duty free car by an invalid person had this to say atpp.447,448. 15 20 25 30 " for thedetermination of disability and assessment of itsextent and implications theRegulation enjoins the Minister toconfine his enquiry to one source only, namely, the Government MedicalBoard,envisaged therein.TheMedical Board istheonly competent authority toopineonthesubject; itisnot just any source from which advice may be sought. It is the only competent body to adjudge a necessary prerequisite for theexercise of Ministerial discretion, that is,the disability of the applicant. Therefore, it was wholly impermissible for the respondent to seek advice from another source on the conditionoftheapplicant and,less permissible still,torelyon such opinion.If theMinister wasof theview that thefindings of the Board were inconclusive, he could seek further information fromthem,particularly withregard tothedifficulties raised by thedisability ofthe applicant, in theway of hisusing an ordinary car and, the extent to which these difficulties would be eased by the useof a car specially designed for disabled persons. Tomycomprehension, theRegulation doesnot stipulate,as 1059 SavvidesJ. Chrysanthou v.Republic
(1988)aprecondition for theimportationofaduty-freecar,eithertotalinability todriveanordinarycar,orabsolutenecessity for the use of a car, adapted tothe needs of his incapacitation. Provided otherconditions are satisfied, theimportation of a duty-free carbyadisabledpersonispermissiblewheneverthe 5 applicanthas,onaccountofhisdisability,reasonableneedof acaradjusted tohiscondition.Whatisreasonable,isamatter of fact anddegree.Forinstance,ifadisabledperson,though abletodriveanordinarycar,candosowithgreatdifficulty, or atgreatcosttohishealthorcomfort,acaseofreasonableneed .Q may besaid tobemadeout.However,Irepeat,thearbiterof hisdisability, itsextent andimplications,istheGovernment Medical Board envisaged by the Regulation. Nobody else. Certainly, not theexaminer upon whoseopinion therespondentmostlyrested hisdecision inthiscase.Theevaluationof 1 5 thefindingsoftheGovernment MedicalBoardandthereasonablenessof theneedforacarspeciallyadaptedtotheneedsof theapplicant,aremattersforthediscretionoftheMinister." Asimilaropinion wasexpressedbyStylianides,J.inthecases 20 ofJoannou v.TheRepublic
(1985)3C.L.R.31, 36,37andKyriacouv. TheRepublic
(1985)3C.L.R.2414, 2422. ThecaseofKalli andJoannouwereconsideredbyA.Loizou J. (as he then was) in the case of Markides v. TheRepublic
(1985)3C.L.R. 1393whereheexpressed adifferent opinionas tothepoweroftheMinisterofFinancetoobtain further opinion 25 from another sourcenotexpressly mentioned inthelaw,aspart of the widerinquiry carried outbyhim.He hadthis to say atp. 1399: "Whatever the legalposition iswhere thereis no interferencewiththeexerciseofadministrativediscretionbyaperson 30 ororganhavingnocompetenceinthematterundertherelevant legislation,thereis,undertheGeneralPrinciplesofAdministrativeLaw,noobjection totheadministrationonitsown free willtosubjectitsadministrativediscretiontoformsandlimitations, not imposed and not provided for by the Law, as a 35 1060 3 C.L.R. Chrysanthou v. Republic Savvides J. choice of means to form an opinion. In such a case what it cannot do thereafter is to ignore arbitrarily such opinions as same would constitute proof of incosistent and arbitrary and therefore wrongexerciseof discretionary power. Thecompetent administrative organ may, however, do so by giving reasonsfor that. 10 15 20 Though it may be said that in the present case there was nothing to suggest clearly that the respondent Minister was binding himself toaccept theopinion of theSenior Technical Examiner etc., yetit wasin theform of further opinion and as part of the wider inquiry carried out byhimin thematter. Itis obvious that the ascertainment of theextent of invalidity of a person isnotenough. Ithastobecorelated to the interference withsafedrivingandtherequirement of anyadaptation that a vehiclemay need tomeet same (seeMiltiadous case (supra)) Such self-binding of the administration, is notcontrary to the General Principles of Administrative Law (See Stassinopoulos, the Law of Administrative Acts, 1951 p. 333, Conclusionsfrom theCase Law of theGreek Council of State, 19291959,p. 193andDecisionsof theGreek Council of State738/ 1933,934/1933, 1962/1951." The above view was endorsed by me in Tooulis v. The Republic (supra)in which Iconcluded asfollows at pp.2491: "Fromthematerial before meIhavenottheslightest hesitation inconcluding that theMinisterofFinance inreaching his decision has given undue weight to the opinion of the Senior Technical Examiner as against that of the Medical Board, which materially affected his decision and that he wrongly construed the contents of the report of the Medical Board as suggesting that the applicant did not require a car for invalid person. If the Minister wished to have a certification by the Medical Board, the appropriate expert organ provided by the law, as to the extent of the incapacity of the applicant and whetherherequired 'acar specially adapted for useby invalid persons heshould havereferred thereportof theSeniorTech1061 Savvides J. Chrysanthou v. Republic
(1988)nicalExaminer totheMedical Board for itsexpert opinion and not torely solelyontheopinionoftheSeniorTechnicalExaminerashedidin thepresentcase.By acting ashedid, theMinister of Finance failed to carry out a proper inquiry into the matter." The aboveopinion wasadopted byTriantafylides, P.in Siampettas v. The Republic
(1987)3C.L.R. 1823,in which he found that theomission of theDirectorof Customstorefer thereport of the SeniorTechnical Examiner totheMedical Board for itsexpert opinionrendered hisenquiryonthematterdefective andinconsequence annulled thesubjudicedecision. All thematerialcircumstances in thepresent casearesimilarto those in the cases of Tooulis and Siampettas (supra). In the present case aswell theDirectorof Customs failed torefer thereportof theSeniorTechnical Examiner totheMedical Board forits expert opinion inthelightof theincapacity mentioned byitin its 15 report and obviously gave undue weight to the report of the Senior Technical Examiner. By soacting the Director of Customs failed tocarryout aproper inquiry intothematter. For all the abovereasons thesubjudice decision hastobeand 20 is hereby annulled with £125.- against costs in favour of theapplicant. Subjudice decision annulled with£125.-costsinfavour of applicant. 1062 5 10