(1988)1988September30 [A.LOIZOU,P.J INTHEMATTEROFARTICLE146OFTHECONSTITUTION STELIOSPANAYIOTOU, Applicant. v. THEREPUBLICOFCYPRUS,THROUGH 1.THEMINISTER OFFINANCE, I.THEDIRECTOROFCUSTOMS, Respondents. (CaseNo. 616/87). CustomsandExciseDuties—Motorvehicles,dutyfreeimportationofbyincapacitatedpersons—Whethertherespondentisentitledtoseek,inadditionto thereportofthemedicalboard,theopinionoftheTechnicalExaminerof theOffice ofExaminers ofDrivers—Questiondeterminedinthe affirmative—Thenatureofthedecisioninrespectofthequestionwhetherthedisa- _ bilityissuchastobringthepersonconcernedwithintheexemption. Thefactsofthiscasesufficiently appearinthejudgmentoftheCourt Recoursedismissed. Noorderastocosts. Casesreferredto: .„ Tsangarisv. TheRepublic
(1975)3 C.L.R.518; Markidesv. TheRepublic
(1985)3C.L.R. 1393; Floridesv. TheRepublic
(1987)3C.L.R.1770; Anastassiouv.TheRepublic
(1988)3C.L.R.1300; Tooutis v.TheRepublic
(1985)3 C.L.R.2478. 1814 15 3 C.L.R. ' ' Pahayioto'uv. Republic Recourse. _ .. '' · ^* • * .J. . ' ι' J T'- »p i. .. « " i_t* Λ ^* - *' ' . ' « - . ' ' Γ.»"" lj"" ".* I Recourse against thedecision oftherespondents whereby ap plicant'sapplicationfortheimportationofadutyfreecarfor disa bled personswasrejected. 5 Chr.Pourgourides,fortheapplicant. ' " *' ** S.Georghiades, Senior Counsel of theRepublic, for the re spondents.' *' '",i-' Cur. adv. vult. » - 10 ^ 20 25 τ 30 t J A. LOIZOUP.read thefollowing judgment. Bythe_present recoursetheapplicantseeksadeclarationoftheCourtthat'thede cision of'the respondents,datedthe5thMay 1987,bywhichhis application'for theimportationofadutyfreecar'for disabled per sons was rejected, is null andvoid andof nolegal effect what: soever. Theapplicantapplied'on the'13thOctober 1986 (Appendix 1) forrelieffromimportdutyforacarforadisabled person.His ap plication wassentalong with applicationsofotherpersons to the ChairmanoftheMedical Board fortheiropinionbyletterdated the6thNovember 1986inwhich the respondentDirectorofCustomsinformed themthattheapplicanthadapplied tohis Depart mentforrelief from importandexciseduty'and asked the'Board togiveitsopinion,"whetherthe'physicaTconditioriofeachofthe persons (therewereothersbesides theapplicantreferred toin that letter)justifies orrenders.necessary theuseofa speciallyi:orivertedvehicle suitable for usebydisabled persons aswell as'what adaptationsoughttobemadetoit"totheChairmanofthe Medical Board inquestion fortheiropinion.TheMedical Boardinques tionconsisted ofDr.fG. Sawides, Senior Specialist Orthopaedic Surgeon! Dr.Papanastassiou, Senior Specialist Surgeon and Dr* Eliades, Principal'Medical Officer'Nicosia. In'theirreporttdated the6th February 1987(Appendix 3)'thefollowing findings are given; ' '_'*-• 1815 A. Loizou P. Panayiotou v. Republic
(1988)"Λόγω Πολιομυελίτιδας σε ηλικία2 ετών έχει επηρεα σθείτοδεξιόκάτωάκροτοοποίοπαρουσιάζειτώραπάρε σηήτοι αδυναμία της ραχιαίας καιπελματιαίαςκάμψης τουδεξιούάκρουποδός. Παρουσιάζειπτώσητουδεξιούάκρουποδόςκαθώςεπί- 5 σηςελαφριάαδυναμίατουδεξιούτετρακέφαλουκαι μερι κήατροφίατωνμυώντηςδεξιάςκνήμης. Το αριστερό κάτω άκροκαι αμφότερα τα άνω άκρα κατά φύση." AndinEnglish itreads: 10 "DuetoPoliomyelitis contracted attheageof twohis right lower leg hasbeen affected anditpresentsnowparesis,thatis weakness of the dorsiflexion and plantarflexion of the right foot. Itpresents footdrop of theright foot aswell as waisting of 15 therightquadricepts andpartialatrophyof themuscles ofthe right knee. " The left lower limb andbothupperlimbsnormal." The.applicant was then referred to Mr.Eracleous, a Senior TechnicalExaminerintheOffice of TransportBranchofExamin- 20 ers for Drivers. Inhis report,datedthe6thApril 1987, (Appen dix 4)hesaysthaton thebasisof thereportof theMedicalBoard datedthe6thFebruary 1987 heexaminedthe applicantandascer tainedthatthephysical conditionpermits himtodrive a vehicle withoutanyrestriction. 25 Theapplicantis fifty years of age marriedwithfivechildren aged between seventeen and twenty six. Heis the holder of a driving licence since 1960 andapparently for thelast 26yearshe was driving vehicles notspecially converted tomeethis alleged disability andthathecould drive suchordinaryvehicles. Infact 30 1816 3 C.L.R. Panayioutou v. Republic A. Loizou P. his driving licence was the regular one without the restrictions that areimposed usually on disabled persons by the appropriate office thatissuesdriving licences. .f - - 5 10 1<J 20 25 QQ - ... The applicant relies on two grounds of law in support of his application. The first one is that therespondents failed to carry out a due inquiry and the second is that they have acted undera misconception offactorlaw.Ishalltaketheminthatorder. Itisthecasefor theapplicant'that thewholematterisgoverned by theprovisions of Class 01.09of the4th Scheduleof theCustoms Duties and Excise Law 1978-1979 by virtue of which the decision is taken by theDirector of Customs after obtaining the opinion of a Medical Board. Nowhere in the Law is mentioned thattheDirectorof Customsmaytakeintoconsideration orobtain the opinion of the Senior Technical Examiner before deciding whether thedisability of apersonjustifies orrequirestheuseofa vehicleconverted for useby adisabled person.' Itwas further argued that the said SeniorTechnical Examiner is not in a position to say whether the disability of a person requires the use of a specially converted vehicle as the matter is purely medical one and that if therespondents were not enlightened, and indeed they were not by the Medical Report, they should inquire'further with theMedical Boardrather than ask.the saidTechnicalExaminer tolookintothematter. Learned counsel for theapplicant,though referring totheprinciple established bycase law that anorgan which"has'powerunder theLaw todecideona given subject may seek theopinionof anotherorganregarding mattersofhiscompetence (SeeTsangaris v. The Republic
(1975)3 C.L.R.518), yet submitted in the present case that the opinion of the Senior Technical Examiner should nothavebeen sought onamatter which ispurely amedicalone and that if any opinion could besoughtfromthesaidexaminer itshould beconfined only totechnical matters such asthe necessary adaptations of thevehicle used by an invalid required and notfor amedical matter. 1817 -i A. Loizou P. Panayiotou v. Republic
(1988)Inmy view the question whether apersons' disability is such as to bring him within the provisions of Class 01.09 of the 4th Schedule isamixed matter ofMedical andTechnical opinion.As regards thequestion whethertheopinion of theSenior Technical Examiner could be obtained or not, I had the occasion to deal 5 with itinthecaseof Markidesv.TheRepublic
(1985)3 C.L.R. 1393,whereatpage 1399Ihadthistosay: "Whatever the legal position is where there is no interferencewith theexerciseof administrative discretion byaperson ororgan havingnocompetencein thematterunder therelevant JQ legislation, there is, under theGeneral Principlesof Administrative Law, noobjection totheadministration on itsown free willtosubject itsadministrativediscretion toforms and limitations, not imposed and not provided for by the law, as a 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 inconsistent and arbitrary and therefore wrong exercise ofdiscretionary power. The competent administrative organ may, however, do so by giving reasonsfor that. 20 Though it may be said that in the present case there was nothing to suggest clearly that the respondent Minister was binding himself to accept theopinion of the Senior Technical Examiner etc.,yetit wasin theform of further opinion and as part of thewider inquiry carried out by himinthematter. Itis obvious that the ascertainment of theextent of invalidity of a person isnotenough. Ithastobecorrelated tothe interference with safe driving and the requirement of any adaptation thata vehicleneed tomeet same (seeMiltiadoucase
(1983)3C.L.R. 590). Such self-binding of the administration, is not contrary 30 totheGeneral Principles of Adminsitrative Law. (See Stassinopoulos, the Law of Administrative Acts, 1951,p.333.Conclusions from the Case Law of the Greek Council of State, 19294959, p. 193 and Decisions of the Greek Council of State738/1933,934/1933, 1062/1951." 35 1818 3 C.L.R. 5 Panayiotou v.Republic A.Loizou P. Theaforesaid approach wasfollowed bymeinthecaseofAndreas Florides v. Republic
(1987)3 C.L.R. 1770 and Ioannis Anastassiou v. The Republic
(1988)3 C.L.R. 1300.The aforesaid approach was also adopted by Sawides J. in the case of Tooulis v.'TheRepublic
(1985)3C.L.R.7478.' ' No doubt therespondents'carried out aproper inquiry in the matter.Theycould inquireandseektheopinion of thesaidExaminer as they did. Consequently for all the aforesaid reasons the firstground ofLaw relied upon,on behalf oftheapplicant, fails. 10 15 2Q The second groundrelied upon bytheapplicant namely thatof misconception of fact and/or lawis based on thefact that therespondents reached the decision that the applicant isinaposition to drive an ordinary vehicle without any restriction which is wrong. The applicant, it is claimed, constitutes a public danger when he drives an ordinary vehicle; he cannot stop the vehicle within thedistancethatanormal person woulddo.Asregards>the misconception of law thepoint raised isthat therespondentsdid nottakeintoconsideration thequestion whether theapplicantcan drive avehicle safely. The question being not whethertheapplicant may drive a short distance but whether the applicant can drive,if hecan atall,asanormaldriveranordinary vehicle.Ifhe cannot then hemustusea.specially convertedvehicle. Thefacts of thecase as appearing from thematerial before me donot suggestanymisconception offact orlaw. 25 Forall theabovereasons therecourse fails and the sub-judice decision isconfirmed. In the circumstances, however, there will be noorder astocosts. • ·< Recourse dismissed. No orderastocosts. 1819