MARANGOU ν. REPUBLIC & ANOTHER (1989) 3A CLR 21

Customs and excise duties - Motor Vehicles - Duty free importation of. by repatriated Cypriots - The Customs and Excise Duties Law, 1978, section 11(2), sub-heading 19 of Class 01 of the Fourth Schedule and Order 188/82 of the Council of Ministers - "Continuous" permanent establishment abroad for a period of 10 years - Meaning of "continuous"- Prolonged stay in Cyprus during certain years within the 10 year period - Effect.

Executory act - Confirmatory act - New inquiry - Re-examining case, taking into consideration additional elements, but reaching same conclusion - Nevertheless, the new decision is executory.

The applicant went and established her permanent residence in England back in 1951. Her first marriage broke in 1976. She remarried in Cyprus in 1979. On 19.2.86 she submitted an application for a duty free importation of a motor vehicle under the legislation referred to in the first of the above Headnotes.

The application was dismissed, because the applicant had stayed in Cyprus for a total of 245 days in 1982 and 204 days in 1981.

The applicant protested, alleging that the reason for her prolongedstay in Cyprus during 1980 and 1981 was due to the fact that her second husband was facing criminal charges and needed her moral support. However, she continued her business in England with the assistance of her children.

The respondent examined the objection but, having taken into consideration the additional elements submitted by the applicant, as aforesaid, he once again dismissed the application on the ground that the required by the said legal provisions permanent establishment abroad was not continuous.

Hence this recourse.

Held, annulling the sub judice decision:

(1) It is executory, because there had been a new inquiry. The fact that the result was the same is immaterial.

(2) "Continuous" means uninterrupted. A person cannot establish himself simultaneously permanently in more than one country. A person abandons her permanent establishment in a Country by ceasing to reside there and by ceasing to intend to reside there.

(3) On the facts of this case (explanation given for applicant's presence in Cyprus in 1980 and 1981, continuation of her business in England, continuation of payments of social insurance contributions in that country) it was not reasonably open to the Respondent to reach the conclusion that applicants establishment abroad was interrupted in 1980 and l981.

Sub judice decision annulled. No Order

as to costs.

Cases referred to:

Kolokassides v. Republic (1965) 3 CL.R. 542,

Varnava v. Republic (District Officer Nicosia) and Another (1968) 3 C.L.R. 566,

Kyprianides v. Republic (1982) 3 CL.R. 611,

Spyrou v. Republic (1983) 3 C.LR. 354,

Kampouris v. Educational Service Commission (1988) 3 C.L.R. 2235,

Michael v. Republic (1986) 3 C.L.R. 206,

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

Constantinides v. Republic (Minister of Finance) and/or Another (1988) 3 CL.R.2375.

Matsas v. Republic of Cyprus Public Service Commission) (1988) 3 C.L.R. 1448.

Recourse.

Recourse against the rejection of applicant's application for exemption from import duty for a motor vehicle.

J. Mavronicolas, for the Applicant.

A. Vassiliades, Counsel of the Republic B', for the Respondent.

Cur.adv. vult.

STYLIANIDES, J. read the following judgment. The applicant by means of this recourse seeks the annulment of the decision of the Respondent No. 2 - Director of the Department of Customs, whereby her application for exemption from import duty for a motor vehicle was rejected.

The applicant was born in 1932. At youthful age she got married and immigrated with her husband, as early as 1st February, 1951, to England. The couple acquired two children. They established in England, where by hard labour they created businesses. She as from 1962.ran on her own a ladies fashion under the name "Soulla Fashion". The first marriage broke down and in 1976 was dissolved. In 1979 she met SavvasMarangou, whom she married in Cyprus on the 27th December, 1979.

On the 19th February, 1986, she submitted an application for exemption from duty for the importation of a car, under the provisions of the Order of the Council of Ministers made under section 11(2) of the Customs and Excise Duty Law, 1978. (Law No. 18/78) as amended. On the said application she wrote that she returned to Cyprus for permanent settlement on 25th January. 1986. She furnished the Respondents with the documents asked for, her British passport, certificate of the second marriage, the certificate from the Migration Department of the Ministry of Interior, a letter - certificate from the Department of Health and Social Security of the United Kingdom showing the details of her contributions to the British National Insurance Scheme from 26th February, 1951 until the year 1985-1986 inclusive.

On 10th September, 1986, she imported temporarily a new motor - Renault R25V6 saloon car, which was connected by the Respondents with her above - said application.

On 13th May, 1987, she signed a statement that she had never to that date worked in Cyprus.

The examination of her passports revealed that in 1980 she stayed in this country for 245 days and in 1981 for 204 days. Due to this fact the Respondent No. 2 rejected her application, on the ground that "her permanent settlement abroad was not continuous". This decision was communicated to her by letter dated 4th .July, 1987.

On 14th July, 1987, apparently soon after she received the negative decision, she addressed to the Respondent No. 2 a petition asking him to revise his such decision and gave explanation of her long stays in Cyprus during the years 1980 and 1981. She mentioned, inter alia, that her second husband was a member of the Committee of the Co-operative Central Bank; that a crisis broke down in the co-operative movement in Cyprus; the members of the Committee of the Co-operative Central Bank, including her husband, were prosecuted. Pending that criminal case, her husband was by Authority deprived of his passport facilities and during the hard days of suffering she was going and coming to London. In London she was caring on her business with the assistance of her children and she had to bein Cyprus, where her husband was facing criminal charges. The presence of a newly married wife was necessary. This residence in Cyprus was only temporary. She never, during that period, decided to stay in Cyprus. The couple, always, intended to establish in London, but she had to stay for long periods in Cyprus in support of her husband during those difficult days and, so soon as the passport was given back to her husband, the couple left for London.

Thereupon the case of this applicant was reconsidered and a decision was reached on 22nd July, 1987, communicated to her by letter dated 27th July, 1987, the material part of which reads as follows:-

"I inform you that I reconsidered your request in the light of the additional elements you furnished me but unfortunately I cannot approve you as a Cypriot who resettled under. because before your resettlement you did not have continuous permanent settlement abroad for at least ten years."

Hence this recourse.

The Respondents in the opposition raise the preliminary objection that the decision challenged by this recourse is confirmatory of the decision communicated to the applicant on 4th July, 1987 and, therefore, is not justiciable and the recourse is out of time.

It is well settled that a confirmatory act lacks executor nature, and, therefore, it cannot be made the subject-matter of a recourse under Article 146 of the Constitution. A confirmatory act or decision is an act or decision of the administration which repeats the contents of a previous executory act and signifies the adherence of the administration to a course already adopted; it is not in itself executor1 because it does not itself determine the legal position of an individual case, and this is the reason it cannot be the subject of a recourse.

An act which contains a confirmation of an earlier one, may, however, be executory and, therefore, subject to a recourse for annulment, if it has been made after a new inquiry into the matter - (NicosKolokassides v. The Republic of Cyprusthrough the Minister of Finance (1965) 3 C.L.R. 542; Christakis L. Varnava v. Republic (District Officer Nicosia) and Another (1968) 3 C.L.R. 566; Kyprianides v. Republic (1982) 3 C.LR. 611; Spyrou v. Republic (1983) 3 C.L.R. 354; IoannisKampouris v.The Educational Service Commission (1988) 3 C.L.R. 2235).

When does a new inquiry exist is a question of fact. In general, it is considered to be a new inquiry, the taking into consideration of new substantive legal or factual elements. There is a new inquiry particularly when, before the issue of the subsequent act, an investigation takes place of newly emerged elements or, although pre-existing, were unknown at the time and are taken into consideration in addition to others for the first time.

In the present case, not only the new elements, the reason for her stay in Cyprus in 1980 and 1981, were placed before the Administration by the letter of 14th July, 1987, but in the letter of 27th July, 1987, the Administration states expressly that the additional elements which were furnished by the applicant were taken into consideration in the re-examination of her application. This satisfies the requirement for a new inquiry. The sub judice decision expresses the will of the Administration to adhere to the previous decision. Nevertheless, it was takenafter a new inquiry and it is a new executor act subject to review by this Court.

The Order on which the applicant relied for exemption was judicially considered in a number of cases by this Court.

A Cypriot is entitled to exemption if the following requirements are satisfied:-

(a) Permanent settlement abroad for at least ten continuous years;

(b)Return and permanent establishment in the Republic; and

There is no dispute that the applicant satisfies fully requirements (b) and (C).

It is common ground that the applicant settled in England in 1951 and that she returned for settlement in Cyprus on 25th January, 1986. It is, also, undisputed fact that in 1980 she spent 245 days out of 366 in Cyprus and in 1981 she stayed 204 days in Cyprus. Those periods were not continuous.

In Michael v.The Republic (1986) 3 C.L.R. 2067.it was said 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 arid action consistent with such settlement."

This passage was adopted in a number of cases thereafter.

You cannot take up a permanent residence on an particular point of time, unless at the time you take up residence you intend that it should be permanent.

In Matsas v. Republic (1985) 3 C.L.R. 54, it was said at p. 61:-

"To my mind permanent settlement carries with it the notion of a real or permanent home and should be distinguished from the notion of ordinary residence."

The wording of the Order is: ".... διά συνεχή περίοδον του-λάχιστον 10 ετών επανέρχονται και εγκαθίστανται μονίμως εν τη Δημοκρατία..."

"Συνεχής" means "αδιάκοπος, αδιάλειπτος" - (Αντιλεξι-κόν ή Ονομαστικόν της Νεοελληνικής Γλώσσης. Θ. Βοσταντζόγλου, 2nd edition, paragraph 87).

"Continuous" means "uninterrupted, in time, unbroken".

"Continuous" is a qualification, a characteristic of the permanent establishment abroad. A person cannot permanently settle in more than one country at the same time. A physical residence may be either permanent establishment or temporary residence.

The applicant continuously from 1951 until the end of 1986, including 1980 and 1981 paid her contributions to the National Insurance Scheme in England. She, continuously, including 1980 and 1981, ran her business in England. Her second husband, shortly after the marriage, underwent an ordeal in this country, by being prosecuted in connection with maladministration in the Co-perative Central Bank. His passport facilities were taken by the Authorities and he could not travel out of the country.

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.

In Revisional Jurisdiction Appeal No. 572 - ChristoforosConstantinides v. The Republic of Cyprus, through the Minister of Finance and/or The Director of Customs & Excise - (1988) 3 C.L.R. 2375. PetrosMatsas v. The Republic of Cyprus, through the Public Service Commission (1988) 3 C.L.R. 1448, it was said 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 power in the sense that its findings arenot reasonably open to it, on the consideration of the material before it in its totality.

The question of "continuous" permanent settlement required legal interpretation, evaluation of the facts and application of the Law to these facts.

The finding of the Respondent No. 2 that the stay in Cyprus in 1980 and 1981 of the applicant was such as to interrupt the applicant's permanent settlement in England, was not reasonably open to him.

In the circumstances of the present case, I find that the requirements for entitlement to a duty free car, under the Order of the Council of Ministers are satisfied.

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

Let there be no order as to costs.

Sub judice decision annulled.

No order as to costs.

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