(1989)1989 May 13 [MALACHTOS, J] INTHE MATTER OFARTICLE 146 OFTHECONSTITUTION ANDREAS VLACHOS, Applicant, ν THE REPUBLIC OF CYPRUSTHROUGH MINISTRY OF FINANCE AND/OR ANOTHER, Respondent (Case No 527/88) Judicialcontrol — Customs and excise — Motor vehicles — Duty tree importation of by repatriated Cypnots — 77?e Customs and Excise DutiesLaw 18/1978, section 11
(2)andthefourthSchedulesubheading 19 of item 01 and Order 182/82 of the Councilof Ministers— Continues permanent settlement abroadfor at least 10years— Interruptionof the 5 runningof theperiod— Factualsituationassessedby the administration — Interference by Court— Principles applicable The applicant went and established his residence in the United Kingdom dunng 1974, where he remained up to June 1977, when he 10 returned to Cyprus Uponhis return,hesubmitted an application under the aforesaid legislation for a duty free importation of amotor vehicle The application was rejected, because in the opinion of the respondent the applicant did not complete a 10-ycar continuous period 15 It was established that in 1983 the applicant sold his house and all his household clfects in England and on 6/5/83 came with his family to Cyprus, and, having bought a house in 1 imassol in 1983, he resided therein with his family HeremainedinCyprus until9/10/83, when heleft for England to return to Cyprus on 10/12/83 In 1984 he remained in 2 0 Cyprus for a total of about 75 months, and in 1985 he travelled to England dunng the penods 11/1/85to9/3/85,26/3/85to 1/6/85, left again 546 3C.L.R. Vlachosv.Republic&Another on22/7/85 andreturnedfinallytoCypruson26/6/87. 5 Therespondent thoughtthat theperiodofcontinuoussettlement in EnglandwasinterruptedbyreasonofhiscomingbacktoCyprusin 1983. The Court dismissed the recourse on theground that the subjudice decisionwasreasonablyopentotherespondent. Recourse dismissed. No order asto costs. 10 Casesreferredto: Michaelv.Republic
(1986)3C.LR.2067, 15 Papagcorghiou v.Republic
(1984)3C.LR.
- Recourse. Recourse against the refusal of the respondent to exempt 20 applicant from the payment of import duty in respect of a motor vehicleimportedbyhim asa repatriated Cypriot. C.Melas, for the Applicant. 25 S.Matsas, Counsel oftheRepublic B,forthe Respondent. Cur. adv. wit. MALACHTOS, J. read the following judgment. The 30 applicant inthisrecourse claims,asstated therein,the following remedies:- 35 40
- Adeclaration of thecourt that theact andordecision of the respondent authority, which is contained in a letter dated2.6.88,addressedtotheapplicant, andbywhichhis claim for exemption from import duty of his motor car wasdismissed,shouldbedeclarednullendvoidandof no legal effect whatsoever
- A declaration of the coun that the omission and/or refusal of the respondent to accept the claim of the applicant for exemption from import duty of his motor 547 Mjlachtos, J. Vlachos \. Republic & Another
(1989)car.is null and\oidandol nolegaleltect whatsoeverand whatever has been omittedshould ha\ebeen pertormed. and 3 A declaration oi the coun by which the act and/or 5 omission of the respondent, which came to the knowledge ot the applicant on 86.88 and by which he was granted a licence to possess and use his vehicle without payment ot the impon duty up to 306 8S when he should con\ert lor local use and pay the relevant 10 impon duty on the basis of the \alue and the scales applicable on 26
- is null and void and ol no legal effect whatsoever The relevant tacts ol this case are as follows 15 The applicant who was bom in Cvprus emigrated to the United Kingdom in 1961 Hegot married in 196S end in 1972 came back to Cyprus. He returned to 0 Κ in 1974 and remained there up to 26 687 when according to his allegations. 20 came again back to Cvprus in order to settle permanently On thesame day he submitted an application to the Directorol the Department ot Customs andExcise lor exemption horn impon duty in respect ot a Ford Orion Motor car. U K. Registration No" D461 HYH. under heading 19 ot item 01 ol the Fourth 25 Schedule to the Customs and Excise law ol 197S He was. however, informed by the respondent on26 SSthat he was not entitled to such reliet as his absence abroad did not constitute permanent residence abroad for a continuous period ot at least ten years prior to his arrival for repatriation 30 In 19S3 he sold his house and all his household etlects in England and on 6 5 83 came to Cyprus with his tamilv temporarily, as healleges,torthebenefit ol his childien to learn the Greek language since he intended to return eventuallv to 35 Cypnis The respondent on the other hand, contended that the applicant took up permanent residence here and tor that there was abreak in thecontinuity ot his stay abroad, that the bought 40 a house in Limassol in 1983 where he resides with his family. 548 3 C.L.R. VIactios v. Republic &Another Malnchtos, J. As it appears from the passports of the applicant and his family, the applicant arrived on 6.5.83 and remained until 9.10.83 when he left for England to return again on 10.12.83, that is out of the 7 remaining months of 1983 he stayed in 5 Cyprus for about 51/2months. In 1984 he remained in Cyprus for a total of about 71/2 months travelling to England during the periods 11.2.84 to 24.3.S4.3.4.S4 to"19.5.84and 11.S.S4to 12.10.
- 10 In 1985hetravelled to Englandduringtheperiods 11.1.85 to 9.3.85.26.3.S5 to 1.6.85,leftagain on 22.7.85 to return finally on26.6.
- 15 Hiswife wlioarrived withhim on 6.5.83 remained in Cyprus until 3.4.
- when she left for England for about a month, to return on 19.5.S4.She remained here for the next ten months, travelled to Englandfor twoweeksbetween 26.3.85and8.4.
- In 1985shetravelledseveral times,stayingin Cyprusfor atotal 20 of about 187days. Histhree children arrived in Cyprus on 6.5.S3 and remained here continuously until22.7.
- 25 It is also not disputed that the applicant ceased making contributions to his British National Insurance account during the contribution years 19S3/1984 and 1984/1985; he paid only 14 contributions for the years 1985/1986 and IS for the vears 1986/19S
- 30 A letter dated 22.6.88 prepared by a firm of car body repairers in England called Swan Motors states that he worked full time with them from June 1974, until September 19S3and then part time from September 1983 to August 1987 which 35 dates,however, donot quitetallywiththe datesasappearingin his passport. It isthecaseofthe applicant that hewasrepatriated whenhe finally returned withhisfamily in 1987and not asallegedbythe 40 respondents in
- Having considered the matter and all the circumstances of 549 Malachtos, J. Vlachos v.Republic &Another
(1989)thecase,Iamoftheopinionthatontheundisputedfacts ofthe caseitwas reasonably opentotherespondentauthoritytoreach theconclusionthattheapplicantreturnedtosettle permanently intheRepubliconthe6thMay 1983,andthatonthisdate there was abreak inthecontinuityofhis stay abroad,inwhich case 5 theprerequisite often continuousyears permanentsettlement abroadwas notsatisfied.Alsothefact thathebroughthis family to stay inCyprus leads tothe conclusion that there definitely was abreak inthecontinuityofhisstay abroad. 10 InthecaseofMichael v. TheRepublic
(1986)3C.LR.2067 at p.2077,thefollowing isstated: "An administrative court cannot substitute its own discretion intheplaceofthediscretionoftheproperorgan. 15 Nor canthe administrative courtactasanAppeal Court in thematteroftheexercise ofsuchdiscretiononthemeritsof thesubject underexamination.TheCourtcanonly exercise control over such discretion in order toensure that it has been exercised within theproperlimits laid down byLaw- 20 (Papageorghiou v.Republic
(1984)3 C.L.R. 1348)". In conclusion I find that it was reasonably open forthe respondenttoreachthesubjudicedecisionandthatheexercised his discretion properly andwithin the limits laid down by the 25 Law. Therecourse,therefore,fails andishereby dismissed.There willbenoorderastocosts. 30 Recourse dismissed. Noorder as tocosts. 550 ι