NIKANDROU ν. REPUBLIC (1989) 3A CLR 551

Customs and excise - Motor vehicles - Duty free importation of by repatriated Cypriot-The Customs and Excise Duties Law 18/1978, section 11(2) and the fourth Schedule, subheading 19 of item 01 and Order 188/82 of the Council of Ministers - Permanent settlement abroad for a continuous period, of 10 years - Interruption of such settlement by reason of return to Cyprus before completion - In the circumstances of this case, it was not reasonably open to the respondent to find that the period of settlement abroad had been interrupted.

The applicant, who had been permanently settled in England, returned to Cyprus in May 1986, when he submitted an application for a duty free importation of a motor vehicle in virtue of the aforesaid legislation.

It was transpired that the applicant's wife had a prolonged stay in Cyprus as from the 24/10/76 to 26/1178 and that the applicant himself stayed in Cyprus between the 24th February 1977 and January 1978.

The applicant explained the aforesaid stay of his wife and of himself to Cyprus during the said periods. He alleged that such a stay was due to medical reasons, because his daughter was suffering from asthma and on the advice of her doctor she had to leave the north-east of England, where they were living and where the climate was very humid. In the light of such advice and of the fact that their property in that area had to be compulsorily demolished, the applicant and his family decided to move to Leeds. Pending inquiries by an estate agency for the purchase of a property in Leeds, the family came to Cyprus for holidays, which, due to the health condition of his daughter, was prolonged. In September 1977 the applicant returned to Leeds, where he bought a house and a fish shop and re-established his business there. In December 1977 he came back to Cyprus to celebrate the marriage of one of his daughters. In January 1978 he returned to England with his wife and his unmarried daughter and settled in their new home in Leeds.

The aforesaid explanations were not seriously disputed by the respondent in the light of these explanations the sub judice decision was not reasonably open to the respondent. As a result the Court annulled the sub judice decision In the course of the Judgment the Court referred to the case law relating to the notions of residence and permanent settlement.

Sub judice decision annulled. No order

as to costs.

Cases referred to:

Razis and Another v. Republic (1979) 3 C.L.R. 127,

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

Matsas v. Republic (1985) 3 C.L.R. 54,

Mavronichis v. Republic (1985) 3 C.L.R. 2301,

Constantinides v. Republic (1986) 3 C.L.R. 822,

Iannou v. Republic (1986) 3 C.L.R. 1263,

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

Ttofis v. Republic (1988)3 C.L.R. 1625,

Lakatamites v. Republic (1988) 3 C.L.R. 1565,

Ellina v. Republic and Another (1988) 3 C.L.R. 2651,

Schinis v. Republic (1988) 3 C.L.R. 2692,

Marangou v. Republic (1989) 3 C.L.R. 21,

Lyra v. Republic (1989) 3 C.L.R. 496,

Malakounides v. Republic (1989) 3 C.L.R. 328,

Constantinides v. Republic and Another (1988) 3 C.L.R. 2375,

Matsas v. Republic (1988) 3 C.L.R. 1448,

Recourse.

Recourse against the refusal of the respondents to grant exemption from import duty in respect of a motor vehicle imported by applicant as a repatriated Cypriot.

A. Neocleous, for the Applicant.

D. Papadopoulou (Mrs), Counsel of the Republic B, for the Respondents.

Cur. adv. vult.

SAVVIDES, J. read the following judgment. Applicant, by the recourse prays for the following relief:

(a) Declaration that the act and/or decision of the Director of the Department of Customs and Excise 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 and void and of no legal effect.

(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 Fourth Schedule).

The legal grounds on which the recourse is based are that: The respondents acted under a misconception of fact; they failed to carry out a due inquiry; the sub judice decision was the result of wrong evaluation of the material before them, and misconception and/or wrong interpretation of the law; the sub judice decision lacks due reasoning and was taken in abuse end or excess of powers.

The uncontested facts as emanating both from the application and the opposition are as follows:

The applicant, who is a Cypriot, emigrated to the United Kingdom on the 16th August 1958, where he was established in business, acquired a house and settled permanently. He got married and he had two daughters from the marriage. His wife and children were living with him in England. They used to come to Cyprus on casual visits. His wife and daughters came to Cyprus on the 24th October 1976, and stayed here till the 26th January 1978 and applicant joined them and stayed in Cyprus as from the 24th February 1977, till the 22nd September 1977, when he returned to England. He came back on the 17th December 1977, and stayed till the 26th January 1978, when he returned to England with his family with the exception of one of his daughters who got married during that period. Applicant finally returned to Cyprus with his wife and daughter in May 1986, with the intent to take permanent residence and settle in Cyprus.

On the 10th May, 1986 the applicant submitted an application to respondent 2 for the importation of his Mercedes 230(E) car under Registration A939YLU duty free. Applicant's claim for a duty free car was based on the Order of the Council of Ministers, which was issued under the provisions of s. 11(2) of the Customs and Excise Laws 1978-1981 and published in the official Gazette of the Republic, Third Supplement of 11th June 1982, under Notification 188 which provides under item 19, sub heeding 01, that motor-vehicles of tariff headings 87.02.11 and 87.02.19 imported by Cypriot who, after permanent settlement abroad for a continuous period of at least ten years, return to settle permanently in Cyprus, are exempted from import duty subject to certain conditions set out therein.

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 1976 and 24th February 1977, respectively till the 26th January 1978.

Applicant by letter dated 3rd September 1986, to the contents of which there is a summary reference by both counsel in their respective addresses explained that the prolonged stay of his wife and daughter as from the 24th October 1976 till the 26th January 1978, and his own stay as from the 24th February 1977, till the 22nd September 1977 and as from the 17th December 1977, till the 26th. January 1978, were due to medical reasons as a result of the poor condition of the health of his daughter. According to the applicant his daughter 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 Leeds where applicant employed an estate agent to find a house and business premises for him. Pending the enquiries by the estate agent they came to Cyprus for holidays which due to the health condition of his daughter were prolonged. On the 22nd September 1977, applicant returned to Leeds where he bought a 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 and settled in their new home at Leeds where he carried on the business of his fish shop till May, 1986, when all of them returned to Cyprus to take permanent residence and settle here.

On the basis of the material before him respondent (2) came 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 was not satisfied and refused applicant's application. His decision was communicated to the applicant by letter dated 24th November 1986. As a result applicant filed the present recourse.

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 abroad for a continuous period of at least ten years as provided by Notification 188/82.

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) 3 C.L.R. 127, 135-138; Rossides v. The Republic (1984) 3 C.L.R. 1482, 1486, Matsas v. The Republic (1985) 3 C.L.R. 54, 58-62, Mavronichis v. The Republic (1985) 3 C.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 Republic (1988) 3 C.L.R. 1625; Lakatamites v. The Republic (1988) 3 C.L.R. 1565, Ellina v. The Republic and Another (1988)3 C.L.R. 2651, Schinis v. The Republic (1988) 3 C.L.R. 2692, Marangou v. The Republic (1989) 3 C.L.R. 21, Lyra v. The Republic (1989) 3 C.L.R. 496, Malakounides v. The Republic (1989) 3 C.L.R. 328.

I need not expand further by citing other cases as the issue in the present case does not turn on the question of permanent settlement abroad, which is not in dispute in the present case but on the contention of the respondent that there was a prolonged interruption of applicant's settlement abroad with the effect 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 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 be made to what Stylianides, J. said in the case of Michael v. The Republic (supra) at p. 2075:

"'Permanent establishment' is not synonymous to 'residence'. Residence alone is not sufficient. Permanent establishment indicates a quality of residence rather than its length. The duration of the residence, i.e. regular physical presence in a place, is only one of a number of relevant factors. An element of intention to reside and establish is required. Evidence of intention may be important where the period or periods of residence are such as to point to both directions. It is not possible for a person to be permanently settled in the Republic and in another country. The intention of permanently settling may be gathered from the conduct and action consistent with such settlement. Though permanent settlement cannot be assimilated to domicile, it is akin to it and pronouncements on domicile are very relevant and helpful".

Useful reference may also be made on this issue to Marangou v. The Republic (supra) in which the question as to whether the permanent settlement of the applicant for over 30 years was interrupted by the fact that he came to Cyprus and spend 245 days in 1980 and 204 in 1981 for reasons which necessitated such stay in Cyprus, Stylianides, J. found as follows in the Marangou case:

"A person abandons the permanent establishment in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.

The explanation given by the applicant, though, is one 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".

I fully agree with the above opinion.

In support of his case, counsel for applicant made reference to a circular of the Director of the Department of Customs and Excise (No. 42, October 1984) as to how the provisions of the relevant schedule should be applied and the definition of the various terms. Such circular reads as follows:

"Definition of terms

(i).

(ii).

(iii).

(iv) 'residence abroad will normally be evidenced by reference to the passports covering the 10 years' continuous period immediately preceding the applicant's arrival for permanent residence in Cyprus. If no passports are available for part of the 10 years' period, then the repartiated Cypriot must produce other circumstantial evidence acceptable to the Director of Customs and Excise, such as income tax receipts, evidence of social insurance contributions etc. For such cases the responsible officer at the Customs Headquarters will provide proper advice. It should be noted that residence must be of a permanent and continuous nature but is not deemed to be broken by temporary visits to Cyprus, normally not exceeding in the aggregate 365 days in any period of 34 consecutive months. Periods of residence abroad for studies or temporary employment are not, normally, considered as permanent residence".

The existence of such circular and its application in practice has not been disputed by counsel for the respondents. It is also common ground that the applicant stayed in Cyprus during the years 1977-1978 for a total period of 250 days (24.2.1977 - 22.9.1977 and 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 broken because it falls within the aggregate period set out in such circular directing his subordinate officers that they should note that the nature of permanent and continuous residence abroad "is not to be deemed to be broken by temporary visits in Cyprus, normally not exceeding in the aggregate 365 days in any period of 24 consecutive months".

It is clear in the present case that though the above circular was regulating the procedure in cases of this nature nevertheless in the case of the applicant he was not treated in the same or equal way. I shall not however decide the present case on the basis of the above circular, but I shall proceed to consider it on the basis of the material facts and circumstances of the case.

It is well settled that this Court, in determining a recourse, does not interfere with the subjective evaluation of the facts by the administration, but only interferes to review to the extent that the findings of fact are tainted by a misconception of fact, or law, or the administration has exceeded the extreme limits of its discretionary powers in the sense that its findings are not reasonably open to it, on the consideration of the material before it in its totality. (See the recent judgments of the Full Bench of the Supreme Court in Revisional Jurisdiction Appeals Constantinides v. The Republic and Another (1988) 3. C.L.R. 2375 and Matsas v. The Republic (1988) 3 C.L.R. 1448).

In the present case the explanation given by the applicant for his rather prolonged stay in Cyprus in 1977, has not been seriously challenged by the respondent and in any event is supported by the sequence of events both before his coming to Cyprus in February 1977, as well as subsequently after his return to England with his family in January; 1978 and which clearly indicate to the direction only that it was never his intention to discontinue or interrupt his permanent settlement in the United Kingdom and the carrying on of his business there.

Therefore, the finding of respondent (2) that the stay of the applicant and his family in 1977 and 1978 in Cyprus was such as to interrupt the applicant's permanent settlement in the United Kingdom was not reasonably open to him.

In the result the recourse succeeds and the sub judice decision is declared null and void and of no effect under Article 146.4(b) of the Constitution.

In the circumstances I make no order for costs.

Sub judice decision annulled. No

order as to costs.

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