clr/1988/1988_3_415.pdf

(1988)sons wasrefused ontheground thattheapplicant wasnottheholderofa driving;licence(SeeProviso(b)ofOrder221/79oftheCouncilofMinisters). In fact, the disability invoked by theapplicant (99%of eye-sightreduced)wasthereasonwhythelicenceoftheapplicanthadbeenrevoked. 5 Theapplicantsubmitted thatthesaidprovisoiscontrary toArt.28of theConstitution, inthat (a) Itdividesdisabled personsintotwocategories,thosewhohaveor canobtainadrivinglicence,notwithstandingtheirdisabilityandthosewho, byreasonoftheirdisability,cannotobtainalicence,and 10 (b)Itshould besufficient, ifadutyfree carisusedfortheneedsofthe invalid.Itisnotnecessary thatitshouldbedrivenbytheinvalidhimself. Held,dismissingtherecourse:

(1)"EqualbeforetheLaw"inparagraph 1 ofArticle28doesnotconvey thenotionofexactarithmeticalequality,butitsafeguardsonlyagainstarbi- 15 trarydifferentiations anddoesnotexcludereasonabledistinctions,which havetobemadeinviewoftheintrinsicnatureofthings.

(2)Thedifferentiation between theaforesaid twoclassesofinvalidsis reasonable.

(3)Itisdifficult toseehowargument(b)isconnectedwithArt.28.In 20 anyeventtheshortanswer isthatOrder221/79grantsrelief inrespectof "vehicle suitable for usebypersonssuffering from bodily disablement". Thesewordsclearly convey themeaningthatthevehiclewillbeusedby theinvalidhimself. Recoursedismissed. 25 Noorderastocosts. Casesrefenedto: Christodoulou v.TheRepublic, 1 R.S.C.C.1; Yiannaki v. The Republic

(1965)3C.L.R. 561; 416 3 C.L.R. Damianou v. Republic Kailas v. TheRepublic

(1988)3 C.L.R. 274; Mikrommatis v. TheRepublic, 2R.S.C.C.125; TheRepublic v.ArakianandOthers

(1972)3 C.L.R,

1. Recourse. 5 Recourseagainsttherefusal oftherespondent toexemptapplicantfrom import duty inrespectof theimportation of amotorcar for invalid persons. M.Papamichael,for theapplicant. 10
2. Georghiades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. LORIS J.read thefollowing order andjudgment. The present recoursewasfiledagainst "TheRepublic,through theMinisterof Finance"apparently because thesub-judice decision was commu15 nicated totheapplicant bymeansof aletterdated 22.10.86 (vide Ex. 1 attached totherecourse)bearing on topthewords "Department of Customs-Ministry of Finance". Ashowever, thecompetenceconcerned, under s. 11

(1)of theCustoms &Excise Duties Laws 1978 - 1981 and para (b) of the Order of the Council of 20 Ministers of 14.9.79 under Not. 221/79 (vide also s. 2

(2)of the. Customs & Excise Duties Law 1978 - 1981 and s. 2

(1)of the Customs &ExciseLaws 1967- 1977)isvesteddirectly totheDirector of theDepartment of Customs,which isnotreferred to at all in the title of the present recourse, I consider it more proper 25 thatthedescription of theRespondent shouldread:"TheRepublic through theDirector of theDepartment of Customs", and acting ex proprio motu, Ido hereby order that the title of the proceedingsbetreated ashavingbeenamended accordingly.Ihavetaken this course inthe light of the decision in Christodoulou and the 30 Republic, 1R.S.C.C. 1(followed in Paraskevi Yiannaki v. The 417 Loris J. Damianou v. Republic

(1988)Republic

(1965)3C.L.R.561atp.564andGeorghiosKailasv. TheRepublic

(1989)3C.L.R.274asIamoftheopinionthatthe amendmentatthisstagedoesnotprejudiceeitherofthepartiesin theseproceedings,ortheinterestsofjustice,inanyway. JUDGMENT 1heapplicant bymeansof thepresentrecourse impugnsthe decisionoftherespondentDirectoroftheDepartmentofCustoms setoutinaletterdated 22ndOctober 1986,addressed totheapplicant (vide Exh. 1attached to therecourse), whereby applicant's application for exemptionfromimportduty in respect of 10 theimportation ofamotorcarforinvalidpersons,wasrefused. Therelevant legislativeprovisionsonwhichapplicant'sapplication forexemption wasbasediss. 11 oftheCustoms&Excise DutiesLaws, 1978 -81, andtheOrderof theCouncil ofMinisters made under s. 11

(2),published in theOfficial Gazette No. 15 1553of 14.9.79under No. 221/79. Therelevant part of theFourth Schedule to the Law (Class 01.09)assubstituted byOrderNo.221/79readsasfollows: ("Description of Exemption Petrol and diesel motor vehiclesof ahorse powernot ex- 20 ceeding2000c.c. and2300c.c.respectively suitablefor use bypersonssuffering frombodydisablementimportedbydisabledpersonswhosedisablement isdulycertified byaGovernmentMedicalBoardconstitutedforthepurpose: Provided that this exemption is not applicable to disa- 25 bled persons who: (a)Aretheownersorpossessorsof anotherthusduty free importedvehicle; .418 5 3 C.L.R. LorisJ. Damianou v.Republic (b) are not the holders of a driving licence, provided that when disabled persons are theholders of alearner'sdrivinglicence theDirector may grant such exemption onthecondition that a driving licence will be obtained within one year from payment of customs duty for the vehicle or within such other period which hemiahtconsiderreasonable. Extent of Exemption - As the Minister of Finance may decide on the basis of the financial condition of the appli-. cant"). 10 The applicant, an accountant, born on 27.7.37 applied on „ 22,10.1984, for exemption from import duty for the importation of amotor-car suitable for use by persons suffering from bodily disablement, alleging disability duetoreduced eye-sight. He was referred to a Government Medical Board constituted 15 for the purpose; according to the report of the aforesaid Board dated 8.2.1985 (vide Appendix 1attached to theopposition) the applicantwassuffering from "Retinitis"andhiseye-sightwasreduced to 1%of thenormal. This meant according tothereport dated 5.4.85(vide Appen20 dix 2 attached to the opposition) that the applicant could hardly read, using spectacles, a traffic sign post from adistance of one yard. TheDirector-General of theMinistry of Finance, by letterdated 23.4.85 informed the applicant that his application was re25 fused. Theapplicantchallenged theaforesaid refusal bymeans ofrecourse No.577/85 which waseventually withdrawn after it was• revealed that the said decision was not taken by the appropriate organ i.e. the Director of theDepartment of Customs, but by an 30 organlackingcompetence inthematter. 419 *ris J. Damianou v. Republic

(1988)Inthemeantime, on25thApril 1985,the appropriate Authority at ngundertherelevant legislation forfeited thedriving licenceof tL·applicant. α 22.9.86 the applicant submitted a fresh application adi dre ed this time,totheDirectorof theDepartment of Customs 5 applying for exemption from importdutyfor theimportationofa moto car suitable for invalid persons,allegingdisability dueto reduct deye-sight.Inthis application (vide Appendix 3attached to theopposition) theapplicant states clearly thathehas nodriv­ ing licenceas same has beenforfeited. 10 The respodent Directorof theDepartmentof Customs after examining theapplication of theapplicantdated22.9.86, having takenintoconsideration thattheapplicant is nottheholderofany driving licence andalso thatapplicant's driving licence was for­ feited as a result of thediminutionof his eye sight to 1%of the 15 normal, according to the aforesaid report of the Government Medical Board,applying the provisions ofpara,(b)of theProvi­ soof theOrder No.221/79, set outabove, turneddown thelatter application of theapplicant;therespondent-Directorof Customs addressed totheapplicant aletterdated22.10.86, which is exh. 1 20 attachedtotherecourse,communicatingthereby his said decision andstating thereinthereasons for hisaforesaid refusal. Theapplicantas aresultfiledthepresentrecoursepraying

(1)for theannulmentof theaforesaid decision,

(2)for aDeclaration to the effect that Proviso (

1. b)of Order No. 221/79, (set out 25 above), isunconstitutional. All the facts set out above are uncontested. The gist of the present recourse is thealleged unconstitutionality of the Proviso in para,(b)of theOrderunderNo. 221/79. The aforesaid paragraph is being impugned as contravening 30 Articles 9,23,25 and28 of ourConstitution.At least thatis what is stated intherecourse undertheheading: "Thepresent applica420 3 C.L.R. Damianou v. Republic Loris J. tionisbasedonthefollowing legalpoints". Thematterisnotcarried any further inrespect of Article 9,23 and 25of theConstitution inthewritten addressof the applicant, whereasIwasabletocomprehend it,theissueof alleged uncon5 stitutionality is substantially confined toArticle 28of theConstitution only. The argument of counsel setout inthe written addressfor the applicant inconnection with Article28oftheConstitution has 2 legs: 10 (A)Inthefirstplaceitcomplainsthatpara (b)oftheOrdersubstantially divides disabled persons into 2 categories: (
2. i)Those whocan drive and haveorcan obtain avalid drivinglicence;and (ii)those whocannot driveowing totheirdisability and as aconsequence thereof they donotpossess adriving licenceorthey are 15 unable toobtainone. Itistheallegation oflearnedcounsel for theapplicant thatthere isdiscrimination againstclass(ii)ofdisabledpersonswhosecondition is allegedly worse and they need more than those in class (i)theassistance and thebenefits envisaged bytherelevant Law. 20 (B) The 2nd leg of the argument advanced in this connection (AlthoughImust say Iwasunable tounderstandits alleged connectionwith Article 28of theConstitution)istotheeffect thatthe duty free carwould have been employed for theneeds of an invalid person and need not be driven by the invalid person him25 self. Iintend toconsider thesubmissions advanced one byone,but before indulging into the sad task of dividing disabled persons intoclasses,Ifeel duty bound torepeat what wasoriginally stated. inMikrommatis and TheRepublic, 2 R.S.C.C. 125atp. 131and 30 reiterated thereafter inanumberof casesincludingthecaseofThe Republic v.Arakian & Others

(1972)3 C.L.R. 294 at pp.298299: 421 Loris J. Damianou v. Republic

(1988)" 'Equal before theLaw', inparagraph 1 of Article 28does notconvey thenotionofexactarithmeticalequality butitsafe­ guards only against arbitrary differentiations anddoes notex­ cludereasonabledistinctionswhich have tobemadeinviewof theintrinsicnatureof things." 5 Furtherreference also shouldbemadetothe cases citedat pp. 299,330and301 intheArakian case (supra)bythelearnedPres­ identof thisCourt indelivering thejudgmentof theFullBench in theaforesaid case. Reverting nowtothe case underconsideration: 10 Supposing thatIaccepttheargumentof counselfor applicants that para, (b)of theproviso totheOrder,divides disabled per­ sonsintotwocategories, notablythosewhocandrive andhavea driving licence andthose whocannotdrive andthereforecannot have or obtain a driving licence (which is thecase of theappli- 15 cant). Isthatan arbitrary differentiation orareasonabledistinction which hastobemadeinviewof theintrinsicnatureof things. I hold theview thatit is definitely, areasonable distinction which has tob* nade in view of the intrinsicnatureof things.. 20 Applicant's disability inrespectof hiseye^sighthasbeenextend­ ed to99%;inotherwords he isalmostblind andcannottherefore drive any sortof motor-vehicle.Thisisadmittedby the applicant himself; the following is an extract from the submission of learned counsel for applicant appearing atpage 4of his written 25 address, and it is immaterial whether the said submission was madeinordertosupportthe secondleg ofhisargument: "Είναι περαιτέρω αυτονόητον, ότι είναιαδύνατον να να οδηγούνταιαυτοκίνητα υπότυφλών, τετραπληγικών καιάλλωντάξεων αναπήρων,τωνοποίωνη αναπηρίαδεν 30 . επιτρέπει όχι μόνον τηναπόκτησιν αδείας οδηγού,αλλά και τούτο είναι πρακτικώς αδύνατον λόγω ακριβώς της <422 3 C.L.R. Damianou v. Republic Loris J. αναπηρίαςτων." Comingnow toleg (B)of the submission: Order No.221/79regulates theexemption from duty of motor vehicles:

(1)suitable for use by persons suffering from bodily 5 disablement.

(2)importedby disabled persons

(3)persons whose disablement is duly certified .... Provided thatthisexemption shall notapply topersons who: (a) 10 (b)are nottheholders of adriving licence;... A careful reading of the order clearly shows that what is ex­ empted from duty is amotorvehicle "suitable for use by persons sufferring from bodily disablement". Thewords of the Order are clear andunequivocal andin myview they require no interpreta15 tion.Infact they cannotconvey any othermeaningexcept thatthe vehicles in question will be used by theinvalids themselves; and definitely when so used theowner thereof has tocomply with the relevant Law by holding the necessary driving licence as envis­ aged by para (b)of theOrder.Thesubmission of learned counsel 20 for the applicant that it is immaterial by whom the car would have been driven, is untenable; if the disabled per­ son were to employ another driver for his conveyance, why should that driver employ a motor vehicle suitable for invalid persons and ,not an ordinary motor vehicle? I 25 repeat: What is exempted from duty for the purposes of Order No. 221/79is a motorvehicle "suitable for use" by persons suf­ fering from bodily disablement; andthisfact provides the answer to the further argument of learned counsel of the applicant with reference toLaw No. 64/67, andinparticulartosection 15there30 of, which provides for thetrainingandthesocialre-adjustmentof invalids andhas nothing todo with theregulation of the exemp.423 I.oris J. Damianou v. Republic

(1988)tionfromduty,ofmotorvehiclessuitableforusebydisabledpersons. In the result present recourse fails and is accordingly dismissed;lettherebenoorderastocosts. Recoursedismissed. 5 Noorderasto costs. 424