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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 387
1989 April 5
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SAZEN FAST FOOD LIMITED,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF
CUSTOMS DEPARTMENT,
Respondent.
(Case No. 544/87)
Executory act - confirmatory act - In the absence of a new inquiry, an act confirming a previous one lacks executory nature - What constitutes new inquiry.
By letter dated 10/12/86 the respondent informed the applicants that their license to manufacture aerated soft drinks will not be renewed for 1987. The applicants protested by letter dated 12/1/87, requesting in effect reconsideration of the said decision. By letter dated 2/6/87 respondents informed the applicants that it was not found possible to alter their original decision. By means of the present recourse the applicants impugned the decision communicated by the last mentioned letter.
The Court dismissed the recourse on the ground that, since there had been no new inquiry, the sub judice decision was of a confirmatory nature, lacking executory nature.
Recourse dismissed. No order as to
costs.
Cases referred to:
Kefalas v. Republic (1972) 3 C.L.R. 225,
Vafeades v. Republic (1964) C.L.R 454,
Colocassides v. Republic (1965) 3 C.L.R. 542,
Ktena and Another (No.1) v. Republic (1966) 3 C.L.R. 64,
Varnava v. Republic (1968) 3 CL.R. 566.
Recourse.
Recourse against the decision of the respondent refusing to renew applicants licence for the manufacture of aerated soft drinks at Thessallonikis Street, Limassol.
C. Valiantis for L. Papaphilippou, for the Applicants.
Y. Lazarou, Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
MALACHTOS, J. read the following judgment. Following an application by the applicants the respondent, on 10.4.85 granted to them a licence for the manufacture of aerated soft drinks, in accordance with the provisions of the Customs and Excise Laws, at Thessallonikis Str. No.72, Limassol. By means of a letter dated 14.1.1986 applicants sought renewal of the above licence which was renewed by virtue of a licence dated 16.1.86. By letter dated 10.12.86 (exhibit A), the respondent informed the applicants that their "licence to manufacture aerated soft drinks will not be renewed for 1987". The said letter reads as follows:
"I refer to my even numbered letter of the 10th April 1985 through which you were authorised to manufacture aerated soft drinks at your premises at Thessallonikis Str., Limassol on an experimental basis and inform you that in the light of the experience gained and in view of the fact that:-
(a) control has been proved to be completely impossible,
(b) you have expanded your activities to other premises without prior reference to this office, and
(C) you have manufactured aerated soft drinks from materials other than those acquired from licensed soft drinks manufactures,
your Licence to manufacture aerated soft drinks will not be renewed for 1987.
You are, further advised to remit to the Senior Collector of Customs Limassol the amount of £21.60 representing duty liability in respect of 432 litres aerated soft drinks manufactured from materials other than those acquired from the licensed soft drinks manufacturers."
The applicants by their letter dated 12.1.87 (exhibit B) in effect sought reconsideration of the above decision. The said letter reads as follows:
"We refer to your letter 10/12/86, our letter 30/12/86 and our meeting at your offices on 9/1/87 with Mr. Loizos Constantinou concerning the renewal of licence to make aerated soft drinks in our fast food premises.
(1) As you say the original licence was granted to us on 10th April 1987 on experimental basis for 1985 for you to get the experience before you renew same for the coming year.
(2) Having gained your experience in 1985 you gave us a licence on 16/1/86 to operate our machines during 1986, without any remark that you faced any problem on controlling.
You now say that control has been proved to be completely impossible. We do not agree with this allegation and we would like you to prove to us whether any problem has been created concerning the payment of the excise duty to the Customs when getting out supplies of syrups from the authorised suppliers as per your instructions.
(3) You also say that we have manufactured aerated soft drinks from materials other than those acquired from licensed soft drinks manufacturers.
Again we do not accept this allegation and we invite you to tell us who has given to you this false information. Therefore we are not in a position to pay to you the amount of £21.60 representing as you say duty liability on 432 litres aerated soft drinks from materials other than those we acquired from licensed soft drinks manufacturers.
(4) We also have noticed that you have given written instructions to syrup suppliers not to supply us syrups for the manufacture of the aerated drinks with our machines as hetherto done.
With these instructions you are closing down our enterprises and should you do not withdraw these instructions immediately, then we have no other alternative but to give the matter to our legal advisors for further action.
Please take into serious consideration that our company has invested big amounts of money in machines and cylinders for the smooth operations of our shops in this field and therefore this system must not stop because of false information given to you that irregularities are noticed in the syrups supplies and the payment of the excise duty thereon.
In the light of the above you are kindly requested to give immediately instructions to the syrup suppliers to give us the syrups we require. Also please give instructions to the Limassol Customs authorities to issue the respective Excise Traders Licence against payment by us of the £100.- for the year ending 31/12/87."
The respondents replied by their letter dated 2.6.87 (Exhibit C) and informed applicants that it was not found possible to alter their original decision which was communicated to applicants through their letter of 10.12.86. After the receipt of the said letter of 2.6.87 applicants flied this recourse on26.6.87 praying for:
"A declaration of the Court that the act or decision of the respondents dated 2.6.87 by means of which they refused to renew the licence of the applicants for the manufacturing of aerated soft drinks in their premises at Thessalonikis Str. Limassol is null and void and of no legal effect whatsoever and whatever has been omitted should have been performed".
Counsel for the respondent raised a preliminary objection to the effect that the recourse is out of time because the act and/or decision of 2.6.87 does not amount to an administrative act but is simply of a confirmatory nature being confirmatory of a previous decision of the respondent dated 10.12.86. It is well settled that an act or decision merely confirmatory of a previous executory one cannot be made the subject of a recourse. (See, inter alia, Kefaias v. The Republic (1972) 3 C.LR. 225; Vafeades v. The Republic (1964) 3 C.L.R 454).
It is also settled that an act which is a confirmatory 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 (See colocassides v. The Republic (1965) 3 C.L.R: 542; Ktena and Another (No.1) v. The Republic (1966) 3 C.L.R. 64; Varnava v. The Republic (1968) 3 C.L.R.566).
Regarding the existence or not of a new inquiry we read the following in Stassinopoulos, Law of Administrative Disputes, 1964, 4th edition, at p, 176:
"When does a new enquiry exist, is a question of fact. In general, it is considered to be a new enquiry, the taking into consideration of a new substantive legal or factual elements, and the used new material is trickly considered, because he who has lost the time limit for the purpose of attacking an executory act, should not be allowed to circumvent such a time limit by the creation of a new act, which has been issued formally after a new enquiry, but in substance on the basis of the same elements. So, it is not considered as a new enquiry when the case is referred afresh to a Council for examination exclusively on its legal aspect, or when referred to the Legal Council for its opinion or when another legal provision other than the one on which the original act was based is relied upon if there is no reference to additional new factual elements. There is a new enquiry 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 which are taken into consideration in addition to the others, but for the first time. Similarly, it constitutes new enquiry the carrying out of a local inspection or the collection of additional information in the matter under consideration."
In this case taking into consideration that all the material was before the respondent and that no new substantive legal or factual elements were considered, I hold that there was no new enquiry. Therefore, the letter of 2.6.87 is merely confirmatory of the decision embodied in the letter of 10.12.86. So it cannot be made the subject matter of a recourse under Article 146.1 of the Constitution, the only executory decision which could be made the subject of a recourse being the one dated 10.12.86. As this recourse was not filed within the time limit of seventy five days as from 10.12.86 prescribed by Article 146.3 of the Constitution, it is out of time and must, for this reason, be dismissed.
In view of my above decision, I consider it unnecessary to pronounce on any one of the other legal grounds raised by the applicant in this recourse.
On the question of costs, I make no order.
Recourse dismissed. No order as
to costs.