← Κύπρος

clr/1988/1988_3_112.pdf

(1988) 1988January28 (TRIANTAFYLLIDES,P.,SAVVIDES,LORIS.STYLIANIDES,KOURRIS, JJ.] THE ADMINISTRATORS OFTHEESTATEOF CHINNACOLANDAY KRISHNA PILLAY,DECEASED,1.ADAMOS ADAMIDES,2.PANAYIOTIS CONSTANTINOU, A

a misconception of law. Appellantscould notfilearecoursepriortothedecisionconcerningtheir applicationforrefund. Appealallowed.Noorderasto costs. ™ Casesreferredto: Murrayv. CommissionerofInlandRevenue [1918]A.C.541; Whitneyv. CommissionersofInlandRevenue [1926]A.C.37; TheQueenv.JusticesofCountyofLondonandLondonCountyCouncil [1893J2Q.B.476. 113 Administrators of Pillay v.Republic

(1988)Appeal. Appeal against thejudgment of aJudgeof theSupreme Court of Cyprus (A. Loizou, J) given on the 17th August , 1985 (Revisional Jurisdiction Case No. 277/83)* whereby appellants' recourse against the refusal of the respondents to refund estate 5 duty paid in respect of the property of the deceased Chinnacolanday Pillay wasdismissed. Fr.Saveriades, for theappellants. A. Evangelou, SeniorCounselof theRepublic,for the respondents. Cur. adv. vult. TR1ANTAFYLLIDES P.:The Judgment of theCourt will be delivered byMr.Justice Stylianides. STYLIANIDES J.: The question raised in this appeal is whether the appellants-applicants are entitled to a refund of an amount of £4,364.30 paid on 25/9/80,or they are prevented to prefer aclaim for the return thereof by the proviso (b) to section 56of theEstateDuty Law, 1962,(Law No.67/62). ^ Thesalientfacts of thecaseoverwhich thereisnodisputeare asfollows:Chinnacolanday Krishna Pillay died in Limassol on 21/11/78 leaving a will dated 24/1/52. The named executors renounced their executorship and letters of administration with the will annexed were granted to the applicants by the District Court of Limassol inProbate Application No.25/79on6/2/79. On 30/3/79 the applicants delivered to Respondent Commissioner a simplified declaration of thedeceased's property * Reported m
(1985)3CLR
  1. 114 20 25 3 C.L.R. Administrators of Pillay v. Republic Stylianides J. in Cyprus contending that he was not of Cyprus domicile at the timeof hisdeath.Thedomicileof origin was thatof South Africa andthelastdomicileofchoice wasUnited Kingdom. 5 in ^c On 8/2/80 the Commissioner, on the assumption that the domicile of the deceased was not Cyprus, disregarded the property abroad, and consequently the estate duty payable was assessed as nil. On 1/9/80,when it wasestablished thatdeceased hadaCyprus domicile at the time of his death, the applicants submitted a supplementtothesimplified declaration ofproperty,alreadyfiled andrequested theRespondent Commissioner torevise theearlier assessment accordingly. On 13/9/80theRespondent Commissionerraised an additional assessment of £5,004.30.The applicants objected theretoon24/ 9/80on thesoleground that theassessment wasexcessive. On25/9/80theCommissioner decided torevisetheassessment to£4,364.
  2. Hecommunicated forthwith this tothe applicants, whoon 27/9/80paid thewhole amount. 20 ~c Early in January 1981 it came to the knowledge of the administrators that themarriage of the deceased tohis wife was celebrated withoutanante-nuptialcontractinorabout 1929inthe Union of South Africa where both had been born with a South African domicileoforigin andthatmighthavecreated community of a property in the sense that all the property, movable and immovable, belonging toor acquired byeither spouse before the change ofdomicile falls intothecommon ownership of bothand thatalltheliabilitiesofeitherspouse"arethejoint liability ofboth. He and his wife were born in South Africa. In 1955 they left thatcountry and settled inEngland.Atthesametime all assetsin *r\ his name in South Africa were liquidated and the proceeds transferred toEngland in his name,where they were invested in thepurchaseof immovables. 115 Stylianides J. Administrators of Pillay v. Republic
(1988)In 1961heapplied and acquired British citizenship. Thereafter hevisited Cyprusa numberoftimes. In 1977 all his immovables in England were sold and the proceeds were deposited in external accounts in England and in Cyprus. Part of the money was employed in thepurchase in his 5 name,having obtained the necessary permit from the Council of Ministers,ofaflat inLimassol. Theadministrators,very sensibly andpromptly by Originating Application No. 3/81,

section 53of the Administration of Estates Law, Cap. 189, applied to the appropriate Court-the 10 District Court of Limassol-for the determination of these issues andotherconsequential questions. The summons wastaken outon 15thJanuary, 1981.Noticeof this application was given tothe Respondent Commissioner by letterdated 15/1/81,inwhich itwas,interalia,written:15 "In casethat theanswers tothequestionsraised arethatthe wife of thedeceased wasentitled totheone half of the above estatebyvirtueoftheSouthAfrican system,theassessmentof theestateduty must berevised accordingly. Thequestion as to themeaning of the 'community of property' hasbeen recently raised by the U.K. Inland Revenue and we consider that directionsmust begiven bytheCourt." 20 TheCommissioner, if he sowished,he might have intervened in thatapplication, buthedecidednot todoso. Allinterestedpartieswereservedwiththesaidapplication and theDistrict Courtof Limassol on27/4/82 decided, inter alia,that theestateofthedeceased, aswellashisliabilitiesasatthetimeof hisdeath, consist of the one half of those shown in his name at the time of his death, as there was a community of property between thespouses. On 13/5/82applicant 1 apprised therespondentCommissioner 116 25 30 3 C.L.R. Administrators of Pillay v. Republic Stylianides J. of theJudgment of the Court and sent him a copy. He requested at the same time the refund of all the estate duty paid and the interest paid,asthevalue of thenetestate was below theamount subject toestate duty. 5 By letter dated 20/1/83 the applicant repeated his previous request. The Respondent Commissioner considered the matter and rejected theapplicant'sclaim.Hisdecision wascommunicated by letterdated22/4/83,thematerialpanofwhichreads asfollows:- 10 15 20 25 "l.Repayment of money paid asEstateDuty isgovernedby section 56of theEstateDuty Law which providesthat wherea claim is made to the Commissioner of Estate Duty for the return of any Estate Duty overpaid, such amount must be refunded, provided theclaim ismade within three yearsof the dateof issueof thenoticeof assessment and itisproved tothe satisfaction of the Commissioner that the money have been overpaid. 2. Accordingly whenever the above condition is satisfied the Commissioner must refund the overpaid money. This is not so, however, where the proviso to section 56 paragraph (b) applies. This provides that nothing in this section shall confer or be deemed to confer on any person any right to prefer a claim for the return or any right to a return of any money paid as Estate Duty on any ground which has been or could have beenraised by such person by wayof appeal

this Law. 3.Noappeal bywayof arecourse wasmade before andthe right to a return

section 56 has been extinguished by virtueof theprovisothereto. •2Q 4.Consequently nomoneycould berefunded inthepresent case." The applicants challenged the legality of this decision by the 117 Stylianides J. Administrators of Pillay v. Republic

(1988)recourse. Thelearned trial Judgerelyingonproviso(b)to section 56of the Estate Duty Law, 1962, (Law No. 67/62), as amended by Laws Nos. 71/68 and 3/76, dismissed the recourse, because the g ground onwhich they claim thereturn of theamount of duty paid could, with diligence, beraised as a ground in an appeal, which they failed to do, not through lack of knowledge, but through lackofdiligence. A Law to provide for the imposition and collection of the JQ Estate Duty was for the first time enacted in this country on 24/ 12/1942.ItisCap.294ofthe 1949Codification and Cap.319of the 1959Edition of theLawsof Cyprus. Cap. 319 was in operation at the time of the establishment of theRepublic of Cyprus. 15 The Estate Duty Law, Cap. 319,ceased to be in force on the 31st day of December, I960, as provided in the proviso to paragraph 2of Article 188ofthe Constitution. With adelayof almost 22months theEstateDuty Law, 1962, (Law No.67/62) was passed by theHouseof Representatives. 20 We went through the two Laws-the Estate Duty Law, Cap. 319 and the Estate Duty Law, 1962. In substance and effect the latter is no more than a copy of the old Law with the necessary adaptations inorder tobring theLaw inconformity with thenew Legal Order created by the Constitution. The drafter translated Cap.319. The only radical change is the part

the heading "Appeals"- sections 38-46-whichprovidedfor appealsin the first instance to a Judge in Chambers and on a point of Law for an appeal totheSupreme Court from thedecreeororderof aJudge in Chambers. 25 30 Article 146of the Constitution introduced in this country the Administrative Law which was applied in continental countries. 118 3 C.L.R. Administrators of Pillay v. Republic Stylianides J. TheSupremeConstitutional Courtand thepresent SupremeCourt were given exclusivejurisdiction todetermine thevalidity ofan act or omission of any organ, authority or person exercising executiveoradministrative authority. 5 The new Law-sections 37 to42-provide for objections toany assessment, thegrounds of theobjection, thedetermination ofthe objection bytheCommissioner; section 42provides for recourse totheConstitutional Court byany personaggrieved by adecision of theCommissioner of Estate Duty. Nowhere provision ismade for appealstoany Courtororgan. 10 Section 60of Cap.319ran as follows:- 15 "If at any time within three years of the date of issue of a notice of assessment aclaim ismadetotheCommissioner for thereturnof any moneys paidasestateduty and itisproved to the satisfaction of theCommissioner that such estate duty has beenoverpaid, it shall be lawful for theCommissioner and he ishereby required toreturn theamount ofduty which hasbeen overpaid: Provided that- 20 25 (a)Wherebyreason of any proceeding atlaw,anydebtdue fromthedeceased which might beallowed as adeduction has notbeen ascertained, andinconsequence thereof the executor wasprevented from claimingrefund ofestateduty as aforesaid within the said term of three years, it shall be lawful for the Commissioner toallow suchfurther timeformaking aclaimas mayappear tohimtobereasonable; (b) nothing in this section shall confer or be deemed to confer on any person- 30 (i)anyrighttoprefer aclaim for thereturn,oranyrighttoa return, of any moneys paid as estate duty on any ground which has been or could have been raised by such person by 119 Stylianides J. Administrators of Pillay v. Republic

(1988)wayof appeal

thisLaw; (ii)anyrightof actionagainsttheCrownfor therecovery or returnof anymoneysoverpaid asestateduty." This section, with the exception of paragraph (ii) of proviso (b),relating toactionsagainsttheCrown, wastranslated inGreek andtransplanted in totoassection"56inthenewLaw. 5 The second proviso on which the sub judice decision was based refers to appeals, but nowhere in the Law there is a provision for appeal. 10 Aperson aggrieved by adecision of the Commissionerof the Estate Duty is entitled,

Article 146o

f the Constitution, to seek the annulment of such decision by recourse to this Court,

Article 146of the Constitution.

Learned counsel for the appellants submitted that the second proviso, section 56(b) is not workable, it was included by error andshould be disregarded. 15 Learned counsel for the respondents, on the other hand, submitted that the word "appeal" should be read as a "recourse" inwhichprovision ismadeundersection

  1. 20 In Murray v. Commissioners of Inland Revenue [1918] A.C.541,Lord Dunedin stated (atp.553):"It is our duty to make what we can of statutes, knowing thatthey aremeant tobeoperative, and notinept, and nothing shortof impossibility should inmyjudgment allow aJudge to declareastatute unworkable." Thisprinciple was reiterated in Whitney v.Commissioners of Inland Revenue, [1926] A.C.37, where Lord Dunedin said atp. 52:- 120 25 3 CX.R. Administrators of Pillay v. Republic Stylianides J. "Astatuteisdesigned tobeworkable,andthe interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable." 5 Thedominantpurposeinconstruing astatuteistoascertainthe intention of the legislature asexpressed inthestatute,considering itasawhole and inits context. In Halsbury' s Laws of England, 4th edition, volume 44, pagagraph 872weread:- 10 15 20 25 30 "872.Statute tobe construedasa whole.For the purposes of construction, the context of words which are to be construed includes notonly theparticular phrase or section in whichtheyoccur,butalsotheotherpartsof thestatute. Thus a statute should beconstrued as a whole soas, so far as possible, to avoid, any inconsistency or repugnancy either within the section to be construed or as between that section andotherpartsofthestatute." Lord Esher, M.R. in The Queen v. Justices of County of London and London County Council [1893] 2 Q.B. 476, at p.488, referred to the necessity of reading enactments - " subject to their not being made absurd by matters which never could have been within the calculation or consideration of the legislature." The applicants could notraise thequestion of the community of property between thedeceased and his late wife at any time prior to their receiving information to that effect from London, and before theissueof thecommunity ofproperty, which in this casewasaratherperplexed issue havingregard tothefact thatthe couple changed domicile, wasdetermined by theCourt. So soon as they received such information they took out an originating summons, which wasultimately determined on27/4/
  2. 121 Stylianides J. Administrators of Pillay v. Republic

(1988)Asystem of appeals on thesubstance was set up in theEstate Duty Law, Cap.
  1. The system of appeals, the grounds of appeal, the power of the Court,the contents of thejudgment in the appeal, are completely different from the new Legal and Juridical Order established by the Constitution and consequentially by theEstateDutyLaw of
  2. 5 The second proviso to section 56, on which the sub judice decision was based, appears to be a transplantationfrom the old Law intoadifferent system, in which it does notsuit and cannot liveorwork. Itwas a mistake or oversight of thedrafter, and the JQ legislator, having regard tothewhole structureof theLaw andthe new Legal andJudicial Order,could notbe takentohaveintended this to be part of the Law. The Law should be read without the second proviso. TheCommissioner laboured

amisconceptionof law and 15 his decision cannot survive judicial scrutiny. The appellants claimed the return of the estate duty paid so soon as theDistrict Courtof Limassol issued itsJudgmentinOriginating Application No. 3/81. The appellants could not have resorted to the Court against the respondents on the matter of their right to prefer a 2η claim for thereturn of theestate duty paid before adecision was takenonthematterby theAdministration.Theirright of recourse,

Article 146, cannotbemade nugatory.

For all the foregoing, the appeal is allowed. The sub judice decision is declared null andvoid andof no effect. In all thecircumstances,we make noorderas tocosts. Appealallowedwithnoorderas tocosts. 122 25

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.