clr/1989/1989_3A_387.pdf

(1972)3CLR 225, 387 Sazen Fast Food Ltdv. Republic

(1989)Vafeadesv.Republic

(1964)C.L.R454, Colocassidesv.Republic

(1965)3C.L.R.542, KtenaandAnother(No.I)v.Republic

(1966)3C.L.R. 64, 5 Varnava v.Republic

(1968)3C.L.R.

1. Recourse. 10 Recourse against the decision of the respondent refusing to renew applicants' licence for the manufacture of aerated soft drinks atThessallonikis Street, Limassol. C. Valiantisfor L Papaphiiippou, for theApplicants. 15 Y. Lazarou,Counsel of the Republic B,for the Respondent. Cur. adv.vult. 20 MALACHTOS, J. read the following judgment. Following an application by the applicants the respondent, on 10.4.85 granted to them a licence for the manufacture of aerated soft drinks, in accordance with the provisions of the Customs and Excise Laws,atThessallonikis Str.No.72,Limassol. By means 25 of a letter dated 14.1.1986 applicants sought renewal of the above licence which was renewed by virtue of a licence dated 16.1.
2. By letter dated 10.12.86 (exhibit A), the respondent informed the applicants that their "licence to manufacture aeratedsoft drinkswillnot berenewedfor 1987".Thesaidletter 30 reads as follows: "I refer to myevennumberedletterofthe 10thApril 1985 through which you were authorised to manufacture aerated soft drinks at your premises at Thessallonikis Str., Limassol 35 on an experimental basis and inform you that in the lightof the experience gained andin view ofthe fact that:(a)control hasbeen proved to be completely impossible, 40 (b)you have expanded your activities to other premises without prior reference to this office, and 388 3 C.L.R. Sazen Fast Food Ltd v. Republic Malachtos, J. (c) you have manufactured aerated soft drinks from materials other than those acquired from licensed soft drinks manufactures, 5 10 your Licenceto manufacture aerated soft drinks willnot be renewed for
3. You are, further advisedto remit to the Senior Collector ofCustomsLimassoltheamountof£21.60representingduty liability in respect of 432 litres aerated soft drinks manufactured from materials otherthan those acquired from the licensedsoft drinks manufacturers." The applicants by their letter dated 12.1.87 (exhibit B) in 15 effect sought reconsideration of the above decision. The said letter reads asfollows: 20 25 30 35 "Werefer to yourletter 10/12/86,ourletter30/12/86and our meeting at your offices on 9/1/87 with Mr. Loizos Constantinou concerning the renewal of licence to make aerated soft drinksin our fast food premises.

(1)Asyousaytheoriginal licencewasgrantedto uson 10th April 1987onexperimental basisfor 1985for youtoget the experience before you renew same for the coming year.

(2)Having gained your experience in 1985 you gave us a licence on 16/1/86to operate ourmachines during 1986, without any remark that you faced any problem on controlling. You now say that control has been proved to be completely impossible. We do not agree with this allegation andwewouldlikeyou to proveto uswhether any problem has been created concerning the payment of the excise duty to the Customs when getting out supplies of syrups from the authorised suppliers as per your instructions. 40

(3)You also say that we have manufactured aerated soft drinks from materials other than those acquired from 389 Malachtos,J. Sazen Fast Food Ltdv.Republic

(1989)licensedsoft drinksmanufacturers. Againwedonotacceptthisallegationandweinviteyou to tell us who has given to you this false information. Therefore we are not in a position to pay to you the 5 amount of £21.60representing asyou say dutyliability on 432 litres aerated soft drinks from materials other than those we acquired from licensed soft drinks manufacturers. 10

(4)We also have noticed that you have given written instructions to syrup suppliers not to supply us syrups for the manufacture of the aerated drinks with our machinesashethertodone. 15 With these instructions you are closing down our enterprises and should you do not withdraw these instructions immediately, then we have no other alternative but to givethe matter to our legal advisors for further action. 20 Pleasetakeintoseriousconsideration thatourcompany has invested big amounts of money in machines and cylindersfor thesmooth operations of ourshopsinthis field andtherefore thissystem mustnot stopbecauseof 25 false information given to you that irregularities are noticed in the syrups supplies and the payment of the excisedutythereon. Inthelightoftheaboveyouarekindlyrequestedtogive 30 immediatelyinstructionstothesyrupsupplierstogiveus the syrups werequire. Alsopleasegiveinstructions to the Limassol Customsauthoritiestoissuetherespective Excise Traders Licence against payment by us of the £100.-fortheyearending31/12/87." 35 The respondents replied by their letter dated 2.6.87 (Exhibit C) and informed applicants that it was not found possible to alter their original decision which was communicatedtoapplicantsthrough theirletter of 10.12.

1. 40 After the receipt of thesaidletter of 2.6.87 applicants filed thisrecourseon26.6.87prayingfor: 390 i 3 C.L.R. 5 Sazen Fast Food Ltd v. Republic Malachtos, J. "A declaration of the Court that the act or decision of the respondents dated 2.6.87by means of which they refused to renew the licence of the applicants for the manufacturing of aerated soft drinks in their premises at Thessalonikis Str. Limassol is null and void and of no legal effect whatsoever and whatever has been omitted should have been performed". Counsel for therespondent raisedapreliminary objection to 10 theeffect that therecourse isout oftimebecause theact and/or decision of2.6.87 does not amount to an administrative act but is simply of a confirmatory nature being confirmatory of a previous decision of the respondent dated 10.12.
2. It is well settledthat anactordecisionmerelyconfirmatory ofaprevious 15 executory one cannot be made the subject of a recourse. (See, inter alia, Kefalas v. The Republic

(1972)3 C.L.R. 225; Vafeades v.TheRepublic

(1964)3C.LR 454). It is also settled that an act which is a confirmatory of an 20 earlier one.may, however, beexecutory and therefore, subject to a recourse for annulment if it has been made after a new inquiry into the matter (See Colocassides v. The Republic

(1965)3 C.L.R. 542; Ktena and Another (No.l) v. The Republic

(1966)3C.L.R.64; Varnava v.TheRepublic

(1968)25 3C.LR. 566). Regardingthe existence or not of anew inquiry weread the following in Stassinopoulos, Law of Administrative Disputes, 1964,4th edition, at p.176: 30 35 40 "When does anewenquiry exist,isa question of fact. In general, it isconsidered tobe anew enquiry,thetaking into consideration of anewsubstantive legal or factual elements, and the used new material is trickly considered, because he who has lost the time limit for the purpose of attacking an executory act, should not be allowed to circumvent such a timelimit bythecreation ofanewact,whichhasbeen issued formally after anew enquiry,butinsubstanceon thebasisof thesame elements. So,it isnot considered asanew enquiry whenthecase isreferred afresh toaCouncil for examination exclusively on its legal aspect, or when referred to the Legal Council for itsopinion orwhen anotherlegalprovision other 391 Malachtos,J. Sazen Fast Food Ltd v.Republic

(1989)than the one on which the original act was based is relied upon if there is no reference to additional new factual elements. Thereisanewenquiryparticularly when, before theissueof the subsequent act,aninvestigation takesplace of newly emerged elements or although pre-existing were 5 unknown at the time which aretaken into consideration in addition to the others, but for the first time. Similarly, it constitutesnewenquirythecarryingoutofalocalinspection or the collection of additional information in the matter underconsideration." 10 Inthiscasetakingintoconsiderationthatallthematerialwas before the respondent and that no new substantive legal or factual elementswereconsidered,Iholdthat therewasnonew enquiry.Therefore, the letter of 2.6.87 ismerely confirmatory 15 of thedecision embodiedintheletterof 10.12.

1. Soitcannot bemadethesubject matterofarecourseunderArticle 146.1 of the Constitution, the only executory decision which could be madethesubjectofarecoursebeingtheonedated10.12.
2. As this recourse wasnot filed withinthetimelimit of seventyfive 20 days as from 10.12.86 prescribed by Article 146.3 of the Constitution, it is out of time and must, for this reason, be dismissed. In view of my above decision, I consider it unnecessary to pronounce on anyoneoftheotherlegalgrounds raisedbythe 25 applicant inthisrecourse. Onthequestionofcosts,Imakenoorder. Recourse dismissed No order as 30 to costs. 392