(1989)19S9February21 [KOURRIS.J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION SOTERIS CHRISTOPHI. Applicant, v. THE REPUBLIC OF CYPRUS,THROUGH THE DIRECTOR OF CUSTOMS DEPARTMENT. Respondent. (CaseNo.253/S7) Executory act — Informative orAdvisory Act — Customs and Excise — Motor Vehicles— Disabledpersons—Reliefform import duty— The Customs and Excise Duties Laws 1978-1981, item 09of class 01 of the FourthSchedule— Car in question not actuallyimported, butintended to be imported by applicant— Rejeaion of application— It is of an $ informative oradvisory nature Annulment of an Administrative Act — Effect — In reconsidering the matter, therecanbeno new inquiryinrespect ofnew facts. 10 Due inquiry — Motor vehicles— Disabledpersons — Relief from import duty — Decision taken beforeissueof themedicalcertificate — Failure tocarryout dueinquiry. Inthiscasetheapplication oftheapplicantfor adutyfree importation \5 ofamotorvehicleundertheaforesaidlegislationwasrejected. Bymeans ofarecourseto thisCourttheapplicantchallengedthesaiddecision. The Court annulled the decision, on the ground that it was taken by an incompetent organ. 20 Following the annulment the respondent director examined the matter, but instead of confining himself to the facts existing at the time, 230 3 C.L.R. 5 10 15 20 Christofi Λ.Republic when theannulled decision was taken heembarked upon anew inquiry Despite that hedidnotawait for thenew certificate of themedical board, but issued thesub judice decision on thebasisof-the oldcertificate, which had been issued during the inquir). which had resulted to the annulled decision The director dismissed applicant's application Hencethis recourse Counsel for the respondent raised for the first time the issue that the decision is not of an executor}' nature, because at the time of the submission of theapplication for importation, themotorvehicle hadnot been imported In the light of the authorities concerning a similar Order relating to the duty free importation of motor cars by Cypnots. who return after permanent settlement abroad, the Court accepted the said objection of counsel for the respondent but nevertheless the Court proceeded and dealt with theotherissues aswell Finally,therecourse was dismissed on theground that thesub judice act was not of an executory nature The Courtadded that had itbeen of an executory nature,itwould have annulledadecision inaccordancewith the principles appearing in thelast two of theabove Headnotes Recourse dismissed No order as to costs 25 Casesreferred to Yiangou ν Republic
(1987)3 C.L.R 27. 30 Republic \ Safindes
(1985)3 CL.R 163, Karatsisν Republic
(1987)3CL.R 900 35 Recourse. Recourse against the refusal of the respondent to exempt applicantof importdutyinrespect of aninvalid's vehicle. 40 Ch. Christodoulou, for theApplicant. D. PapadopouUou (Mrs), CounseloftheRepublicΒ', forthe 231 Christofi v.Republic
(1989)Respondent. Cur. adv. vuk. KOURRIS. J. read the following judgment. By the present 5 recourse, applicant prays for a declaration that the decision of therespondent communicated to himon 20.1.1987.wherebyhe rejected applicant's application for exemption of import dutyin respect of an invalid's vehicle, is nuli and void and of no effect whatsoever. 10 Applicant is a refugee from Styllous, Famagusta District residing at Pano Polemidhia Village inthe District of Limassol. Duringtheinvasion ofCyprusbyTurkish troops,hewas injured as a result of abullet hittinghim on therightshoulder. 15 On 18.10.1984.he submitted an application to the Ministry of Finance for exemption from payment of import duty for a car suitable for incapacitated persons under para. 01-09 of the Fourth Schedule of the Customs and Excise Duties Laws 197S- 20
- The Ministry of Finance referred applicant to a Government Medical Boardwhich,after examination, reported to theDirector-General oftheMinistryofFinanceon 22.2.1985 (appendix 1 totheopposition,blue8ofexhibit 1 whichisthefile of the Administration). 25 Thereafter, applicant was referred to the Senior Technical Inspector of Examiner of Drivers who was furnished with a copy of the report of the Medical Board. The latter, having examined theapplicant, concludedthat applicant isinaposition 30 to drive avehicle without any adjustment (blue 9of exhibit 1). The Director-General of the Ministry of Finance considered the aforesaid reports and rejected the application of applicant and communicated his decision by letter dated 114.1985 (blue 35 10of exhibit 1). Applicant feeling aggrieved, filed recourse No. 594/85, and the record of the Court dated 31.5.1986 reads as follows:40 "PapadopouUou: Thecompetent organto takeadecision on the subject matter of the applicant's application is 232 3 C.L.R. 5 10 15 20 Christofi v. Republic Kourris, J. according to Section 11 of the Customs and Excise Duties Law 78/81theDirector. Ihaveinmyhandsthecaseot Elias Kyriakou v.The Republic 414/
- and which case touches the point and which is reported in
(1985)3 C.L.R. 2414. In page 2421.paragraph 35.1read(read). In view ofthis Isubmit that Your Honour may annul the sub judice decision ashaving been reached by an organ with no competence in the matter. There is no need for a fresh application to be submitted as we shall refer ourselves the relevant material to the Director of Customs, but there will be no objection to the applicant submitting any supplementary material. Christodoulou: In view of this development, I have no objection to the sub judice decision being annulled on the ground of lack of competence bythe organ that took it. Court: In the light of the statements made the subjudice decision isannulled ashavingbeen taken by anorgan having no competence in the matter and the application should be examined bytheDirector of Customs,theapplicant beingat liberty to submit any supplementary material he may deem fit to do. Noorder asto costs." 25 Before dealing with the substance of the case. I propose to examine a preliminary point raised by counsel for the respondents. She said that the sub judice decision is not executory but of aninformatory or advisorynature andassuch 30 no recourse can be filed. Shesaidthat the car was not actually imported in the present case and the applicant intended to import a car. She relied on the case of Yiangou v. The Republic
(1987)3C.L.R.27. 35 That case concernedthe refusal of the appropriate authority to allow the applicant to import acar free of import dutyunder Order 188/2of the Council of Ministers made under s.ll
(2)of the Customs and Excise Duties Law 18/78 (as amended). The Full Bench interpreted the said Order to mean that the car 40 should have been actually imported and not intended to be imported at some future date. The said Order referred to "isagomena". The Order under examination again refers to 233 Kourris,J. Christofi v. Republic
(1989)"isagomena"' and I am of theview,applying the principle laid downinthe Yiangoucase (supra),thatthecarmustbeactually imported and notintendedtobe importedby the applicantat some future date. In these circumstances, I reached the conclusion that the sub judice decision is not executory but 5 informatory oradvisoryandassuchcannotbemade the subject of arecourse. Forthisreasonalone,therecourseisdismissed,butIpropose to dealwith thesubstance of thecase. 10 Counsel for the respondents stated in her address to the Courtthattherecoursewas withdrawn andapplicant'scasewas forwarded to the Director of Customs, being theappropriate organ to decide applicant's application. Pausing here for a 15 moment,Iwouldliketostatethattherecordof theCourt dated 31st May, 1986,doesnotstatethattherecoursewas withdrawn but thatthedecision which was thesubject matterofRecourse 594/85,was annulled*'ashaving been takenby anorgan having no competence in the maner and the application should be 20 examined by the Director of Customs,the applicant being at libertvto submit any supplementary material hemav deem fit to do?' If the decision was annulled,thenthe administration comes 25 under a duty to restore the status quo ante and examine the matter afresh by reference tothefactual andlegal background prevailingpriortothedecision. (Republicv. Safirides
(1985)3 C.L.R. 163). Inthepresent case,theAdministration did not examine the case afresh by reference to the factual and legal 30 backgroundprevailingpriortothedecision,butitproceededto make a new examination of the case as it appears from the letters of theDirectorof Customstoapplicant dated 22.8.1986 (blue ΐΐ(γ) ofexhibit 1); lettertotheSeniorTechnicalExaminer dated 18.8.1986 (blue 11(b) of exhibit 1); letter to applicant 35 dated18.11.1986(blue12exhibit 1); lettertotheMedicalBoard dated 18.11.1986 (blue 13 of exhibit 1); and letter by Senior TechnicalExaminerdated1.12.1986totheDirectorofCustoms (blue 14ofexhibit 1). Consequently, ifRecourseNo.594/85was annulled then the Director of Customs acted under a 40 misconception of law inviewofthefact thatheproceededwith a new inquiry with new facts andthe inevitable conclusion is 234 3 C.L.R. Christofi v.Republic Kourris, J. that the present recourse ought to have been annulled on the ground that the Director of Customs acted under a misconception oflaw. 5 Now.ifthesaidrecoursewasannulledbuttheapplicantwas atlibertyto submitanynewmaterial to thecompetent organ, then although therecordstates that therecoursewasannulled, inpoint offact,itappearsthatthelitigantstookittomeanthat there wouldbea new inquiry into thematter and actually the 10 Director of Customs proceeded to make a new inquiry, not relying on the material that the Director-General of the Ministry" of Finance had before him. For this purpose he addressed a letter dated 18.8.1986 to the Senior Technical Examiner who examined the applicant. He also addressed a 15 letter to the applicant dated 18.11.1986 (blue 12of exhibit 1) invitinghimtodiscussthematter,and,alsoonthesamedate,i.e. 18.11.1986 he addressed a letter to the Medical Board requestingthemtoexaminetheapplicant(blue 13exhibit1). 20 The Senior Technical Examiner informed the Director of Customs by letter dated 1.12.1986 that he examined the applicant and ascertained that hisphysical condition wassuch thathecoulddriveavehiclewithoutanyspecialadjustment.The Director of Customs,instead ofwaitingfor themedical report 25 oftheMedicalBoard,itappearsthathereliedonthe certificate of the Medical Board dated 22.2.1985 and he rejected the applicationoftheapplicant.Thisdecisioniscontainedinaletter dated20.1.1987andcommunicatedtoapplicant-(seeblue15of exhibit1). 30 Inthelightoftheabovefacts,itisobviousthat althoughthe Director of Customsstarted anewinquiry into the matter,he made a decision before receiving the medical report of the Medical Board whowere about to examine the applicant. In 35 point offact theMedical Board,havingexaminedthe plaintiff, forwarded their certificate dated 10.4.1987 to the Director of Customs(appendix 1 totheopposition). It isobvious that the Director reached his decision without 40 having all the material facts before him, i.e. he reached his decision without waiting for the certificate of the Medical Board. InsteadhereliedonthecertificateoftheMedicalBoard 235 Kourris.J. Christofi v.Republic
(1989)dated22.2.1985. Inthecircumstances.Ifindthatthe respondent failed to carry out a dueinquiry andthe recourse ought to have succeeded on thispoint also,(karatsis v.The Republic(19S7) 3 C.L.R. 900). In view of the fact that the decision of the respondents, asI have held earlier on is not executory, the recourse is dismissed but with no order for costs. Recourse dismissed. No orderas tocosts. 236