clr/1988/1988_3_411.pdf

(1985)3 C.L.R.2414; 411 Constantionou v. Republic

(1988)Kallis v. TheRepublic

(1984)3C.L.R. 443; loannou v. TheRepublic

(1985)3C.L.R.

1. Recourse. Recourse against therefusal of therespondent Directorof Cus­ toms to allow applicant to import aduty free vehicle for invalid 5 persons . E.Efstathiou,for the applicant. S. Georghiades, Senior Counsel of the Republic, for the re­ spondent. Cur. adv. vult. 10 LORIS J. read the following judgment. The applicant in the present case challenges therefusal of therespondent Director of Customs toallow him toimporta duty free vehicle for invalid per­ sons. The invalidity of the applicant was the result of injuries sus- • 15 tained by him,in August 1985, in aroad traffic accident After the submission of his application, on 27 February 1986, for exemption from thepayment of importduty, theapplicant was referred for examination by a Medical Board set up for the pur­ pose and composed by a Senior Specialist Orthopaedic Surgeon, 20 a Senior Specialist Surgeon and a First Medical Officer. The Medical Board forwarded its report totheDirectorof theDepart­ ment of Customs on 25 April
2. Such report, at its material part,reads as follows: "Τα κατάγματα έχουν επουλωθεί σε ικανοποιητικό. 25 * άξονα όμως το δεξιό γόνατοέχει χάσει σχεδόν πλήρωςτην 412 3 C.L.R. Constantinou v. Republic Loris J. κινητικότητα του η δε κάμψη της κατά γόνυ αρθρώσεως έχει σχεδόν εξαλειφθείπλήρως. Ωσαύτως το δεξιό σκέλος παρουσιάζει σχετική αδυνα­ μία." 5 ("The fractures have healed in a satisfactory axis, but the right knee has lost almost fully its moving ability andthebend­ ing of the knee arthrosis has almost disappeared fully. Also the right leg shows some weakness"). The said medical report was forwarded by theDepartmentof 10 Customs totheSeniorTechnical Inspectorin theOffice of Exam­ iners of Drivers for his opinion,who, after examining the appli­ cant in thelight of such report,ascertained thattheapplicant was in a positon topossess a driving licence and thathis bodily con­ dition permits himtodri/e avehicle without any restriction. 15 Thesubjudice decision was communicatedtotheapplicant by letterdated 25 August 1986, by meansof which he was informed thatinaccordance with thereportof theMedical Board his bodily condition does notrequire theuse of a vehicle specially adapted for invalid persons. 20 Theonly complaintputforward by counsel for theapplicantin his written address, is thattheDirectorof theDepartmentof Cus­ toms,in arriving at thesub-judice decision,relied onthereportof the Senior Techincal Inspector in the Office of Examiners of Drivers as well,anorgan which was incompetenttoparticipatein 25 thewhole administrative process and thus acted undera miscon­ ception of law and fact. Hereferred, in this respect, tothecase of Kyriacouv. TheRe­ public

(1985)3 C.L.R. 2414, where, on a similar question raised, it was held thattheonly competentorgan tocertify thein413 Loris J. Constantionou v. Republic

(1988)capacity of theapplica.. #as theMedical Board and thattheDi­ rector of Customs, by relying on thereportof theSeniorTechni­ cal Inspectorin theOffice of Examiners of Drivers, hadactedun­ der a misconception of law and fact. The same approach was, also, adopted in thecases oiKallis v. 5 The Republic,

(1984)3 C.L.R.443 andIoannou v. The Republic

(1985)3 C.L.R. 31. λ fully endorse thestatementof my brotherJudge Stylianides in the case of Kyriacou v. The Republic (supra) at p. 2422: "The law intends thecertification of theincapacity of theapplicant to 10 be made by aGovernmentMedical Board established for thepur­ pose and by no one else..." In the instant case, although the applicant was referred to a Government Medical Board, the report of which appears in the file, he was referred thereafter to theSenior Technical Inspector 15 of Examiners of Drivers 'who examined theapplicanthimself and ascertained" that theapplicant was in a position todrive anordi­ nary vehicle (vide Report dated 16th June 1986 attached to the opposition as Appendix 4). It is abundantly clear from theopposition and Appendix 4 at- 20 tached theretothat therespondent Directorof Customs took into consideration thereport of theSenior Technical Inspectorof Ex­ aminers of Drivers, i.e. material which ought nothave been taken into consideration and thus acted under a misconception of law and fact exercising his discretion wrongly. 25 In thecircumstances thesub-judice decision is hereby declared null anddevoid of any legal effect. Let therebe noorder as tocosts. Subjudice decisionannulled. Noorder as to costs. 30 414