(1988)1988 June25 [KOURRIS,J.] INTHEMATTEROFARTICLE 146OFTHECONSTITUTION KYRIAKOULLA SANDBERG, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEDIRECTOROFCUSTOMSDEPARTMENT, (Respondent). (CaseNo. 170/87). Customs and excise—Dutyfree importation of motor cars by Cypriots—The Customsand ExciseDuties Law 18/78, section 11andOrder188/82ofthe CouncilofMinisters—The threeprerequisitesoftherelief—Analysisofthe authorities. Wordsandphrases: "Permanent settlement"inOrder188/82oftheCouncilof Ministers. Theapplicant, who married abroad with aGerman subject- have been permanently settled abroad for a numberof years.On 29.6.85shecame to . Cyprus with her husband and stayed in Cyprus until 13.I2.85.The applicant and her husband resided during thatperiod with applicant's sister in thelatter's flat. On 23.9.85 theapplicant applied for apermit tooperatean instituteofforeign languages.Shefinally receivedthepermiton7.6.86. Theapplicant left with herhusband on 13.12.85andreturned with him on4.2.86 for permanent resettlement inCyprus. Herapplication for aduty freeimportation ofa motorcarwasturndownontheground thattheperiod of applicant's stay in Cyprus asaforesaid resulted inthenon conclusion of the ten years'period of permanent settlement abroad, which is one of the prerequisites for therelief.Hencethisrecourse. Held,annullingthesub-judicedecision:On thefacts of thiscaseitwas notreasonably open totherespondenttoreject theapplication of theapplicant,becausethelatter's stay in Cyprus during 1985- wasof a temporary nature. c 10 1_ ^ 20 SubJudicedecision annulled. No orderasto costs. 1278 3 C.L.R. Casesreferredto: Sandberg v. The Republic ' : **' ; '*; •-. »>." ! "· f ·. ·ΐ .-,·. Λβζίί v. 77*Republic
(1979)3C.L.R..127; ' ..·:,.,,< -• . , •--·* : -v.,. ·, •;• . -1 :.-.·· . - • "nr• " •• Rossides v. TheRepublic
(1984)3 C.LJt. 1482; ', * ;, .» ,. ·, Mattes v/rte/tep«Mfc
(1985);3,C.LR. 54; . ..,-·•, , Mavronichis v. TheRepublic f1985) 3 C.L.R.2301; 10' • -J _ ' ·· Constantinides v. Γ/ieRepublic
(1986)3 C.L.R.822; loannou v.TheRepublic
(1986)3 C.L.R. 1263, . Recourse., , .; Recourse against therefusal of therespondenttoallowappli10 canttoimportadutyfree motorvehicle asarepatriatedCypriot. Th. loannides, for theapplicant. D.Papadopoulou (Mrs.), for therespondent. • ., < . . Cur. adv. vult. 20 KOURRISJ.read thefollowingjudgment. By thepresentrecourse theapplicant seeksadeclaration of theCourt.thatthe act and/or decision of therespondents torefuse to her toimporta motorvehicle free of duty,in accordancewith theprovisions of sub -heading 19of Item0.1 of,theFourth Schedule to.the Cus tomsandExcise Duties,Law (Law 18/78)is nullandvoid and of nolegal whatsoever. 25 On 18.2.1986 the applicant submitted an application tothe Customs and Excise Department seeking relief under sub .heading 19of Item0.1 of theFourth Scheduleof Law 18/78, on theground thathaving beenaCypriot,who,after permanentsettlementabroad for acontinuousperiod of at least tenyears,re- 15 •1-279 Kourris J. Sandberg v.The Republic
(1988)turned toCyprus inorder tosettlepermanently. Theappropriate Authority, after examining all thematerial before it inrelation tothe applicant's application, decided that her case does not fall within the provisions of theLaw and relevant regulations on the ground that her absence from Cyprus was not 5 of aperiod of at least ten yearsandrejected theapplication of the applicant for theimportation ofhermotor -carfreeofduty. (SeeAppendix 4). Hencethe present recourse. The matter is governed by theExcise Duties Law 18/78,s.l 1 10 and Order 188/82 published in the Third Supplement, Part II to the Official Gazette of the Republic of 11th June, 1982, under Not. 17/83. The said Order, in so far as relevant, reads as follows:"Vehicles imported by Cypriots who after permanent settlement abroad for acontinuous period of atleast 10 years, return and settle permanetly in the Republic, provided, that the importation is made within a reasonable time since theirarrival according tothejudgmentof theDirector. 15 Therelief from importdutycoversonlyonevehicleforeve- 20 ry family." Thepoint inissueis whether theapplicant settled abroad permanently for a continuous period of at least 10years before she returnedtosettlepermanently inCyprus. Thenotionofpermanent settlement abroad hasbeenexplained, ^ inter alia, in the cases ofRazis v.TheRepublic
(1979)3 C.L.R. 127 at p. 135,Rossides v. The Republic
(1984)3 C.L.R. 1482 atp. 1486;Matsas v.TheRepublic,
(1985)3 C.L.R. 54atpp. 58 - 62;Mavronichis v. The Republic,
(1985)3C1..R. 2301;Constantinides v.TheRepublic,
(1986)3C.L.R. 822 andloannou v. 30 1280 3 C.L.R. Sandberg v.The Republic. The Republic^
- me)3 C.L.R. 1263., Kourris J. ..'',: ,. I adopt, with due respect what Pikis, J., said in the Ioannou case (supra) at p. 1267whichreads as follows:- 5 "In myjudgment the Order imposed three separate conditionsfor enjoyment ofthebenefit granted therein: (a)Permanent settlement abroad, (
- b)Continuous stay abroad for noless than 10years,and (c)Repatriation i.e.re-settlement inCyprus." 0 c l(1 te- Having dealt with the legal aspect of thecase, Inow propose tostateinbrief thesalient facts oftHecasewhich areas follows:The applicant went to Athens in September, 1973for studies and in 1974 hermotherjoined her in Athens and in March, 1976 herfather alsojoined herinAthens.Asneither herparents northe applicant herself had any means for their upkeep, the applicant had to seek employment and provide for all of them. The applicant started working inGreece first as aclerk in a company and later shewas employed by aninstitute for foreign languages and she wasteaching English. . On 26.7.1981 applicant got married toa German subject who wasresiding andworking inGeneva, Switzerland andshe moved to Switzerland. On 26.10.1982 she went toGreece and took her final exams successfully andshegotadiploma from theUniversity of Athens for English literature and then returned toSwitzerland where she continued residing and working in Geneva. Applicant came toCyprus with her husband on29.6.1985and sheleft.fpr Switzerland with her husband on 13.12.1985.During their stay in Cyprus theyresided in aflat atLarnaca with hersis1281 Kourris J. Sandberg v.The Republic
(1988)ter who is married and who was also the owner of a flat.They kept their flat in Geneva andherhusband was making efforts to find employment in Switzerland, because, in the meantime, he was dismissed from his job as redundant. Applicant also on 23.9.1985 applied totheMinistry ofEducation for apermit toop- 5 erate aninstitute for foreign languagesand shereceived apermit on 7.6.
- On 4.2.1986 applicant came to Cyprus with her husband for permanent re-settlement in Cyprus and sheresided at the village of Pano Livadhia in the District of Larnaca. It should be noted JQ that applicant was bom and lived atPanoLivadhia before shedeparted for Greece in
- The respondent rejected her application for import of her car free ofduty because heconsidered that theapplicant did not stay abroad continuously for at least 10years because of her stay in Cyprus betweenv29.6.1985 till 13.12.
- Counsel for theapplicant contended that applicant has satisfied the requirements of the law because her stay in Cyprus during 29.6.1985 and 13.12.1985 and was of a temporary nature. The purpose of applicant was to make inquiries whether she could find work and re-settle permanently in Cyprus. He said that this wasapparent from thefact thattheykept their flat inGenera,that her husband was making inquiries to find ajob in Switzerland, and thefact that theyreturnedtoSwitzerland. The question which poses for determination is whether in the 25 light of theaforesaid cases andon thefacts herein before setout, it was reasonably open for the Director of the Customs and ExciseDepartment toreach thesubjudice decision. In my judgment the answer is in the negative, because the proper inference to be drawn from the facts is that the applicant 30 and her husband came to Cyprus to settle permanently on 4.2.1986 and their stay in Cyprus from 29.6.1985 till 13.12.1985 was of a temporary nature for the purpose of ena1282 • 15 20 3 C.L.R. Sandberg v. The Republic ." • : Kourris J. » blingapplicanttomakeinquirieswithaviewtofinding employment inCyprus. 5 For all theabovereasons,it wasnotreasonably openfor the DirectoroftheCustomsandExciseDepartmenttoreachthedecisionwhichhedid. Inthecircumstances,therecoursesucceedsandthesubjudice decisionisannulledbutwithnoorderforcosts. Subjudicedecisionannulled. Noorderastocosts. 1283