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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 316
1989 March 4
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MICHAEL MAVRONICHIS.
Applicant,
v.
THE REPUBLIC OF CYPRUS THROUGH THE DIRECTOR OF
CUSTOMS ANI) EXCISE AND ANOTHER,
Respondents.
(Case No. 952/87)
Executory act - Confirmatory act - Rejection of application for the duty free importation of a motor vehicle on the same grounds as those, which had formed the basis of a previous decision - New decision lacks executory character - Recourse dismissed.
The application of the applicant for a duty free importation of a motor car as a repatriated Cypriot was dismissed on the ground that the applicant did not satisfy the prerequisite of 10 years permanent residence abroad prior to the repatriation. The applicant's recourse was dismissed. Following the dismissal, applicant submitted 3 affidavits as regards the aforesaid issue and requested re-examination. By letter dated 22/7/87 respondent 1 dismissed the application on the ground that no new facts were invoked and that, in any event, the importation was not effected within a reasonable period of time following the repatriation.
By letter dated 1/9/87 counsel of applicant explained the reasons for the delay. By letter dated 12/9/87 the application was once again rejected on the same grounds as set out in the letter of 22/7/87. The Court dismissed the new recourse on the ground that the decision communicated by the letter of 12/9/87 was of a confirmatory nature.
Recourse dismissed No order as to costs.
Recourse.
Recourse against the refusal of the respondents to allow applicant to import a duty free motor vehicle as a repatriated Cypriot.
Chr. Clerides, for the Applicant.
A. Evangelou, Senior Counsel of the Republic, for the Respondent.
Cur. adv. vult.
MALACHTOS, J. read the following judgment. By the present recourse the applicant claims, as stated therein:-
A. A declaration that the decision of the Director-Department of Customs and Excise, the Ministry of Finance as it appears in the latter's letter dated 12th September, 1987, addressed to the applicant is null and void and of no effect whatsoever being contrary to the Constitution and the Law and taken in excess and/or abuse of power, and
B. A declaration that the rejection of respondents 1 and 2 to acceede to applicant's request for authority for the free importation of a car as embodied in the letter of his advocates dated 1st September, 1987 is null and void and of no effect whatsoever being contrary to the Constitution and the law and having been taken in excess arid abuse of power.
The factual background in this recourse is as follows:
The applicant on 28.7.82 submitted an application as a "repatriated Cypriot" for the duty free importation of a motor car which was turned down on the ground that he did not satisfy the prerequisite of ten years permanent residence abroad prior to such repatriation. As against this decision the applicant filed Recourse No. 271/83, which was dismissed by the court as it was found that the respondent correctly found that he did not satisfy the requirement of a continuous period of at least ten years abroad. An appeal was filed as against this decision which was subsequently withdrawn.
B. letter of his counsel dated306.87, applicant requested that his case be reviewed in the light of three affidavits attached thereto purporting to support his allegation that he had been "permanently residing" abroad and has not lived there only as a student but he was working as a professional musician.
By letter dated 22.7.87 the applicant was Informed that the three affidavits did not add any new facts to his case to satisfy the prerequisite of permanent continuous residence of at least ten ears abroad. He was also informed that he failed to import a car within a reasonable period of time from the date of his repatriation.
By letter dated 1.9.87 counsel for applicant informed the respondent authority that the applicant had imported .a vehicle in respect of which relief was requested under the relevant legislative provision and also attributed his client's delay to import a car, to the practice of the Department to invite applications for relief to be flied prior to the importation.
The respondent by letter dated 12.9.87 rejected once again application of the applicant on the same grounds as those set out in the letter of 22.7.87.As a result, the applicant filed the present recourse contending that the court in Recourse No. 271/83 had: reached its decision not having before it the three affidavits which introduced, new facts justifying the granting of the order applied for.
As rightly submitted by the respondents in the form of a. preliminary objection, their sub judice letter of 12.9.87 is confirmatory of their decision contained in their letter of 22.7.87 which in their subsequent letter is referred to and repeated. Therefore, it was contended that this latter letter lacks the necessary executory character to be the subject matter of a recourse under Article 146 of the Constitution. Furthermore as regards the decision of the respondent of 22.7.87 the applicant was on the 23.11.87, when the present recourse was filed, clearly out of the time limit of 75 days.
For these reasons, this recourse fails, and is dismissed with. No order as to costs.
Recourse dismissed. No order as to costs.