clr/1989/1989_3A_551.pdf

(2)andthefourthSchedule,subheading19ofitem01andOrder 188/82oftheCouncilofMinisters—Permanentsettlement abroadfora continuous period of 10years — Interruption of such settlement by reasonofreturnto Cyprusbeforecompletion—In thecircumstancesof thiscase,it was not reasonablyopen to therespondent to find that the period ofsettlement abroadhadbeen interrupted. 10 The applicant, who had been permanently settled in England, returned to Cyprus in May 1986,when hesubmitted anapplication for a duty free importation of a motor vehicle in virtue of the aforesaid legislation. > 15 20 It was transpired that the applicant's wife had a prolonged stay in Cyprus as from the 24/10/76 to 26/1/78 and that the applicant himself stayedin Cyprus between the24th February 1977andJanuary 1978. l The applicant explained the aforesaid stay of hiswife and of himself o Cyprus duringthesaidperiods. He allegedthatsuchastaywasdueto medical reasons,because his daughterwassuffering from asthma and on 551 Nikandrou v.Republic

(1989)theadviceofherdoctorshehadtoleavethenorth-eastofEngland,where they werelivingandwhere theclimatewasveryhumid. In thelightof such advice and of the fact that their property in that area had to be compulsorilydemolished,theapplicantandhisfamilydecidedtomoveto Leeds. Pending inquiries by an estate agency for the purchase of a 5 property inLeeds,thefamilycametoCyprusforholidays,which,dueto thehealthcondition ofhisdaughter,wasprolonged. InSeptember 1977 theapplicantreturnedtoLeeds,whereheboughtahouseandafishshop andre-establishedhisbusinessthere. InDecember 1977hecamebackto Cyprustocelebratethemarriageofoneofhisdaughters. InJanuary 1978 10 he returned to England with his wife and his unmarried daughter and settledintheirnewhomeinLeeds. The aforesaid explanations were not seriously disputed by the respondent. Inthelightoftheseexplanationsthesubjudicedecisionwas 15 not reasonably open to therespondent. Asaresult theCourt annulled thesubjudicedecision. InthecourseoftheJudgmenttheCourt referred to the case law relating to the notions of residence and permanent settlement. 20 Subjudicedecisionannulled.Noorderas tocosts. Casesreferredto: 25 RazisandAnotherv. Republic

(1979)3C.L.R. 127, Rossides v. Republic

(1984)3C.L.R. 1482, Matsas v. Republic

(1985)3C.LR. 54, 30 Mavronichis v. Republic

(1985)3C.LR. 2301, Constantinides v. Republic

(1986)3C.LR. 822, 35 Ioannou v. Republic

(1986)3C.LR. 1263, Michael v. Republic

(1986)3C.L.R. 2067, Ttofis v. Republic

(1988)3C.LR.1625, Lakatamitesv.Republic

(1988)3C.LR. 1565, 552 40 3C.L.R. Nikandrou v.Republic F!lma\ RepublicandAnother

(1988)3CLR 2651. Schims ν Republic

(1988)3CLR 2692, 5 Manmgou ν Republic (19S9) 3CLR 21, Lyra ν Republic

(1989)3CLR 496, Malakoumdes ν Republic

(1989)3CLR 328, 10 Constantimdes ν RepublicandAnother

(1988)3CL R2375, Manasν Republic

(1988)3CLR 1448 15 Recourse. Recourse against the refusal ot the respondents to grant exemption from import duty in respect of a motor vehicle imported by applicant as arepatriatedCypnot. 20 A. Neocleous, for the Applicant. D.Papadopoulou (Mrs), Counsel of theRepublic B,for the Respondents. 25 Cur. adv. vult. SAWIDES, J.read the following judgment. Applicant, by therecourse prays for thefollowingrelief: 30 35 40 (

1. a)Declaration that theact and/ordecision of the Directorof theDepartment of CustomsandExcise whereby he refused applicant's application dated 10th May 1986, for the exemption from import duty of a motor - vehicle as provided by the Customs and Excise Duties Law 18/78 (item 01.19 of the Fourth Schedule) is contrary to the law, null andvoid andof nolegal effect (
2. b)Declaration that the applicant is a repartiated person entitled to relief from import duty in accordance with the provisions of the Customs and Excise Law 18/78 (item 01.19 of the FourthSchedule). 553 Savvides,J. iNikandrou v.Republic

(1989)Thelegalgroundsonwhichtherecourseisbasedarethat:The respondents actedunderamisconception offact; theyfailed to carryout adueinquiry;thesubjudicedecisionwastheresultof wrong evaluation of the material before them, and misconception and/or wrong interpretation of thelaw;thesub 5 judicedecision lacksduereasoningandwastaken inabuseend orexcessofpowers. The uncontested facts as emanating both from the application andtheopposition areasfollows: 10 The applicant, who is a Cypriot, emigrated to the United Kingdom onthe 16thAugust 1958,wherehewasestablishedin business, acquired a house and settled permanently. He got married andhehadtwodaughtersfrom themarriage.Hiswife 15 andchildrenwerelivingwithhiminEngland.Theyusedtocome to Cyprus on casual visits. His wife and daughters came to Cyprus onthe24thOctober 1976,andstayedheretillthe26th January 1978andapplicantjoinedthemandstayedinCyprusas from the 24th February 1977, till the 22nd September 1977, 20 when he returned to England. He came back on the 17th December 1977,andstayedtillthe26thJanuary 1978,whenhe returnedtoEnglandwithhisfamilywiththeexceptionofoneof his daughters who got married during that period. Applicant finally returned to Cyprus with his wife and daughter in May 25 1986,withtheintent totakepermanentresidenceandsettlein Cyprus. On the 10th May, 1986 the applicant submitted an applicationtorespondent2fortheimportation ofhisMercedes 30 230(E)carunderRegistration A939YLU dutyfree. Applicant's claimfor adutyfree carwasbasedontheOrderoftheCouncil ofMinisters,whichwasissuedundertheprovisionsofs.11

(2)of the Customs and Excise Laws 1978-1981andpublished inthe official GazetteoftheRepublic,ThirdSupplementof 11thJune 35 1982,underNotification 188whichprovidesunderitem 19,subheeding 01,that motor-vehicles oftariff headings87.02.11and 87.02.19importedbyCypriotwho,after permanent settlement abroad for acontinuous period of at leastten years,return to settle permanently in Cyprus,areexemptedfrom import duty 40 subject tocertain conditionssetouttherein. 554 3C.L.R. Nikandrou v.Republic Sawides, J. In the course of the examination of applicant's application, applicant was asked by the respondents to account for the prolonged stay in Cyprus of his wife and himself as from the 24th October 1976and24th February 1977,respectively tillthe 5 26th January 1978. 10 15 20 25 30 Applicant by letter dated 3rd September 1986, to the contents ofwhichthereisasummaryreference byboth counsel in their respective addresses explained that the prolonged stay of hiswife and daughter asfrom the24th October 1976till the 26th January 1978,andhisown stay asfrom the24th February 1977, till the 22nd September 1977 and as from the 17th December 1977,tillthe26thJanuary 1978,weredueto medical reasons as a result of the poor condition of the health of his daughter. According to the applicant hisdaughter was suffering from asthma and on the advice of her doctor she had to leave Hartherpool at the North East England where they were living and the climate of which was very humid. As a result, and bearing also in mind the fact that his property at Hartherpool had to be compulsorily demolished they decided to move to Leedswhereapplicant employedanestateagentto find ahouse and business premises for him. Pending the enquiries by the estateagentthey cameto Cyprusfor holidayswhich duetothe health condition of his daughter were prolonged. On the 22nd September 1977,applicant returnedto Leedswhereheboughta house and a fish shop and re-established his business there. In December 1977, he came to Cyprus for the celebration of the marriage of one of his daughters and in January 1978, he returned to England with his wife and his unmarried daughter andsettled intheirnew home at Leeds wherehe carried on the businessofhisfish shoptillMay 1986,whenallofthem returned to Cyprus to take permanent residence andsettlehere. Onthe basisof thematerial before himrespondent

(2)came 35 to the conclusion that the prolonged visit of the applicant in Cyprus in 1977 interrupted.his permanent settlement abroad and, therefore, the requirement for "permanent settlement abroad for a continuous period of at least ten years"under the providions of the Fourth Schedule wasnot satisfied and refused 40 applicant's application. His decision was communicated to the applicant by letter dated 24th November 1986. As a result applicant filed the present recourse. 555 Sawides, J. Nikandrou v. Republic

(1989)The sole question which poses for consideration in the present case is whether when the applicant returned to take up permanent residence in Cyprus. he satisfied the condition of permanent settlement abroadfor acontinuous period ofatleast ten years as provided by Notification 1S8/S2. 5 The notions of residence and permanent establishment have been considered and explained in a series of cases of the Supreme Court such as Razis and Another v. The Republic

(1979)3C.L.R. 127, 135-138: Rossides v.TheRepublic

(1984)10 3 C.L.R. 1482, 1486,Matsas v. TheRepublic (19S5) 3C.L.R. 54,58-62, Mavronichis v.TheRepublic

(1985)3C.L.R.2301. Constantinides v. The Republic

(1986)3 C.L.R. 822. 826, Ioannou v. The Republic

(1986)3 C.L.R. 1263. Michael v. The Republic

(1986)3 C.L.R. 2067-2075; Ttofis v. The 15 Republic{\98&) 3C.L.R. 1625;Lakatamites v. TheRepublic

(1988)3 C.L.R. 1565, Ellina v. The Republic and Another

(1988)3C.L.R.

1. Schinis v.TheRepublic (19SS)3C.L.R.
2. Marangou v. TheRepublic ()9S9) 3C.L.R. 21, Lyra v. The Republic

(1989)3 C.L.R. 496, Matakounides v. The 20 Republic

(1989)3C.L.R. 328. I neednot expandfurther bycitingothercasesastheissuein the present case does not turn on the question of permanent settlement abroad,whichisnot indisputeinthepresentcasebut 25 on the contention of the respondent that there wasa prolonged interruption of applicant'ssettlement abroadwith theeffect that such interruption did not bring the case of the applicant within the requirement of the Fourth Schedule for continuous permanent settlement of at least ten years before his return to 30 Cyprus for permanent settlement to entitle him to the benefit claimed under the law. As to the distinction between "permanent establishment" and "residence" reference may bemade to what Stylianides,J. 35 saidin thecase of Michael v.TheRepublic (supra) atp. 2075: '"Permanent establishment' is not synonymous to 'residence'. Residence alone is not sufficient. Permanent establishment indicates a quality of residence rather than its 40 length. The duration of the residence, i.e. regular physical presence in a place, is only one of a number of relevant 556 3 C.L.R. 5 10 Nikandrou v. Republic Sawides, J. factors. An element of intention to reside and establish is required. Evidence of intention maybe important wherethe period or periods of residence are such as to point to both directions. It is not possible for a person to be permanently settled inthe Republic and inanother country.The intention of permanently settling may be gathered from the conduct and action consistent with such settlement. Though permanent settlement cannot beassimilated todomicile,itis akin toitand pronouncements on domicilearevery relevant and helpful·'. Useful reference may also be made on this issue to Marangou v.TheRepublic (supra)inwhich thequestion asto whether the permanent settlement of the applicant for over 30 15 years was interrupted by the fact that he came to Cypnis and spend 245 days in. 1980 and 204 in 1981 for reasons which necessitated suchstay inCypnis.Stylianides.J.found as follows inthe Marangou cost: 20 25 30 "A person abandons the permanent establishment in a country byceasingtoreside thereandbyceasingtointend to reside there permanently or indefinitely, and not otherwise. The explanation given bytheapplicant,though, isone of the elements that may be taken into consideration in the determination of whether her permanent settlement abroad was interrupted, is supported by all the other surrounding circumstances". 1 fully agree with the above opinion. In support of his case, counsel for applicant made reference to acircular of the Director of the Department of Customs and Excise (No.42, October 1984) as to how the provisions of the 35 relevant schedule should be applied and the definition of the various terms. Such circular reads as follows: "Definition of terms (0 40 (ii) (iii) 557 Sawides,J. Nikandrou v.kepublic

(1989)(iv) 'residence abroad' will normally be evidenced by reference tothepassportscoveringthe 10years'continuous period immediately preceding the applicant's arrival for permanentresidenceinCyprus.Ifnopassportsareavailable for pan ofthe 10years'period,thentherepartiatedCypriot 5 mustproduceothercircumstantialevidenceacceptabletothe DirectorofCustomsandExcise,suchasincometaxreceipts, evidenceofsocialinsurancecontributionsetc.Forsuchcases the responsible officer at the Customs Headquarters will provideproperadvice.Itshouldbenotedthatresidencemust 10 beof apermanent andcontinuousnaturebutisnotdeemed to be broken by temporary visits to Cyprus, normally not exceeding in the aggregate 365 days in any period of 34 consecutive months.Periodsofresidence abroadforstudies ortemporary employment are not,normally,considered as 15 permanent residence". Theexistence ofsuchcircularanditsapplication inpractice hasnot been disputedbycounselfortherespondents.Itisalso common groundthattheapplicant stayedinCyprusduringthe 20 years 1977-1978 for a total period of 250 days (24.2.1977 22.9.1977and 17.12.1977-26.1.1978). The above period is not such as according to the above circular to treat the permanent settlement of the applicant as 25 broken because it falls within the aggregate period set out in such circular directing hissubordinate officers that theyshould note that the nature of permanent and continuous residence abroad"isnot to bedeemedtobebroken bytemporaryvisits inCyprus,normallynotexceedingintheaggregate365daysin 30 anyperiodof24consecutivemonths". It isclear in thepresent casethat though theabovecircular wasregulatingtheprocedureincasesofthisnaturenevertheless in the caseof the applicant hewasnot treated inthesame or 35 equal way.I shall not however decidethepresent caseon the basisoftheabovecircular,butIshallproceedtoconsideriton thebasisofthematerial facts andcircumstancesofthecase. It iswell settled that this Court, in determining a recourse, 40 doesnotinterfere withthesubjective evaluation ofthefactsby the administration, but only interferes to review to the extent 558 3C.L.R. Nikandrou v.Republic Sawides, J. that the findings of fact are tainted by a misconception of fact, orlaw,ortheadministration hasexceeded theextreme limitsof its discretionary powers in the sense that its findings are not reasonably open to it, on the consideration of the material 5 before it in its totality. (See the recent judgments of the Full Bench of theSupreme Court inRevisionalJurisdiction Appeals Constantinides v. The Republic andAnother

(1988)3C.L.R. 2375 andJMatsas v.TheRepublic

(1988)3C.L.R. 1448). 10 Inthepresent casetheexplanationgivenbytheapplicant for his rather prolonged stay in Cyprus in 1977, has not been seriously challenged by the respondent and in any event is supported bythe sequence of events both before hiscoming to Cyprusin February 1977,aswellassubsequentlyafter hisreturn 15 to England with his family in January, 1978 and which clearly indicate to the direction only that it wasnever his intention to discontinue or interrupt hispermanent settlement in the United Kingdom andthecarrying on of hisbusinessthere. 20 Therefore, the finding of respondent

(2)that the stay of the applicant andhisfamily in 1977and 1978inCypruswassuch as to interrupt the applicant's permanent settlement in the United Kingdom wasnot reasonably open tohim. 25 Intheresulttherecoursesucceedsandthesubjudice decision isdeclared null and void and of no effect under Article146.4(b) ofthe Constitution. In thecircumstances Imake no orderfor costs. 30 Subjudice decisionannulled. No orderastocosts. 559