Constitutional recourse dismissed because a confirmatory reply to a rejected application is not a new decision subject to annulment.

[*329] 1973 March 9

(L. LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Andrea’s loannides,

Applicant,

And

The Republic of Cyprus, through

1. The Permits Authority,

2. The Ministry of Communications & Works,

Respondents.

(Case No. 167/69).

Constitutional Law - Act or decision which can he made the subject of a recourse for annulment Article 146.1 of the Constitution - Executory Act - Confirmatory Act - Request that original decision be reconsidered - No new material in support of request - And no-new inquiry taking place rendering new decision executory - Reply to request merely confirmatory of original decision and as such it is not a decision in the sense of the said Article of the Constitution and cannot be the subject of a recourse.

Equality and discrimination - Principle of equality of treatment -It applies only in cases of legality - Refusal by the Administration to repeat an unlawful act does not amount to discrimination.

L. Papaphilippou, for the Applicant.

S. Georghiades, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

The following judgment was delivered by; -

L. LOIZOU, J. The relief claimed by the [*330] Applicant in this recourse is a declaration that the decision of the Respondents to reject his application to register four second-hand vehicles imported from the United Kingdom is null and void and of no effect whatsoever.

The undisputed facts of the case are "briefly as follows:

On the 12th August, 1965 the Applicant bought the vehicles in question in England. They are two second-hand Leyland lorries, one second-hand A.E.G. lorry and one secondhand Dodge Trailer. The vehicles were imported in Cyprus on the 3rd April, 1967. On the 29th June, 1967, the Applicant, together with another person, applied to the Minister of Communications and Works for a permit to register the said vehicles. Their application is exhibit

2 and it contains a description of the vehicles, the time and place of their purchase, the name of the ship on which they were transported to Cyprus and the date of their importation; enclosed with the application was the relative Customs Entry Form No.2151 (Form C.30). In the penultimate paragraph of their application they express their regret for the delay in applying which they attribute to the fact that the decision of the Council of Ministers had not come to their knowledge earlier.

The application was referred to the licensing authority for consideration .and on the 26th October, 1967, the Chairman informed the Applicants by his letter exhibit 1 that their application had been considered by the licensing authority who decided to reject it on the ground that it had [*331] been submitted after the 31st May, 1967. The reference to the 31st May, 1967 is made in view of the proviso to regulation 12A of the regulations made under the Motor-Transport (Regulation) Law, 1964. This regulation was introduced for the first time on the 7th October, 1965, by the Amending Regulations published in Supplement No.3 to the Gazette under Not. 626. It reads as follows:

"12. A. Ουδεμία

άδεια οδικής χρήσεως δια λεωφορείον και ουδεμία άδεια δημοσίου

μεταφορέως "Α" ή ιδιωτικού

μεταφορέως "Β" εκδίδεται επί τη βάσει των παρόντων Κανονισμών διά

μηχανοκίνητον όχημα το πρώτον κυκλοφορούν εκτός εάν τούτο είναι νεότευκτον και

αμεταχείριστον".*

By Not. No.406 published in Supplement No.3 to the Gazette of the 25th May, 1967, regulation 12A was amended by the addition at the end thereof of the following proviso:

"Νοείται ότι εις

ευλόγους περιπτώσεις η αρχή αδειών δύναται εν τη διακριτική αυτής εξουσία, να

εκδώση τοιαύτην άδειαν αφού ικανοποιηθή ότι το μηχανοκίνητον όχημα –

(α) ηγοράσθη εκ του Βρεττανικού Υπουργείου Πολέμου προ της 7ης Οκτωβρίου, 1965, ή

(β) ηγοράσθη ή

συνεφωνήθη όπως αγορασθή εκτός της Κύπρου προ της 7ης Οκτωβρίου, 1965, ή

(γ) εισήχθη εν Κύπρω

προ ή κατά την 7ην Οκτωβρίου, 1965 αλλά δεν ενεγράφη προ ή κατά την ειρημένην

ημερομηνίαν,[*332] και εάν υποβληθή αίτησις δι' έκδοσιν τοιαύτης αδείας μέχρι της 31ης Μαΐου,

1967".

As it appears from exhibit 1 the reason why the application was refused by the licensing authority was because it had been submitted after the 31st May, 1967, in contravention of this regulation.

Almost two years later, on the 7th February, 1969, the Applicant, alone this time, wrote the letter exhibit 3 to the Chairman of the licensing authority praying that the authority’s decision of the 26th October, 1967, by virtue of which the application to register the four vehicles was rejected be reconsidered. Attached to this letter were the invoice issued by the vendors of the vehicles in England and a photocopy of the Customs Entry Form No.2151.

By his letter dated 21st March, 1969, exhibit 4 the Chairman of the licensing authority informed the Applicant that the licensing authority had examined his application on the 13th March, 1969, and it had decided to inform him that they had nothing to add to their letter of the 26th October, 1967, (exhibit 1).

There upon the Applicant filed the present recourse.

The grounds of law upon which the Application is based are that the Respondents acted under a misconception of the facts and/or the law and also in discrimination against the Applicant. In his particulars of the grounds of law the Applicant sets out the names of five persons who, in his [*333] allegation, imported vehicles and to whom the Respondents issued permits; he further alleges that the decision complained of was in contravention of Articles 23 and 25 of the Constitution. But this last ground was not pursued when the Application came up for hearing and in fact not one word was mentioned by learned counsel v/ho was appearing on behalf of counsel for the Applicant with regard to any violation relating to such Articles.

By their Opposition the Respondents allege that the Application is out of time in that the decision challenged by the recourse i.e. the letter dated 21st March, 1969 (exhibit h) is merely confirmatory of the earlier decision which was communicated to the Applicant by the letter dated 26th October, 1967 (exhibit l). They further allege that the decision to reject the application was in conformity with regulation 12A of the regulations and that the Respondents had no discretion in the matter.

Learned counsel appearing for the Applicant was content to rest his case on the issue of discrimination and to argue that the Application was not out of time as alleged in the Opposition.

With regard to the issue of time limit a mere comparison of exhibits 2 and 1 i.e. the original application by the Applicant and the letter communicating to him the authority's negative decision, with exhibits 3 and 4 i.e. his request that the original decision refusing his application be re-examined and the authority's reply thereto, will leave [*334] no room for doubt that the decision challenged by this recourse is merely confirmatory of the original decision contained in exhibit 1. Nor can it be argued that there has intervened a new inquiry which has rendered the last

decision executory, because it is abundantly clear that exhibit 3 does not contain either any new material or any other material which was not before the Respondents when they were taking their first decision. (See Conclusions from the Case Law of the Greek Council of State 1929-1959 at p. 241).

The very wording of exhibit 4 the subject-matter of this recourse, clearly shows that the Respondents are merely signifying their adherence to their previous decision thereby and that it cannot be considered to be anything more than a mere repetition of such previous decision; and as such it is not a decision in the sense of Article 11*6 of the Constitution and cannot be the subject of a recourse.

But quite independently of the issue of time limit the Applicant has, in my view, also failed to make out a case on the issue of discrimination. In the course of his address learned counsel for the Applicant gave the names of three persons to whom, in his allegation, the Respondents had issued permits to register imported second-hand vehicles although their applications were submitted out of time as in the case of the Applicant and, therefore, in contravention of regulation 12A. This allegation was denied by counsel for the Respondents who said that in all the three instances [*335] mentioned by counsel for the Applicant the applications to the licensing authority were made prior to the 31st May, 1967 Learned counsel for the Applicant declined a suggestion from the Court to adjourn the case and have the files containing the applications of those three persons produced and he preferred to close his case. But, even assuming that the Applicant’s allegation was correct and that the Respondents had in fact allowed registration of the vehicles in question in contravention of the regulations, such action could not amount to discrimination against the Applicant' because it; is now well settled that the principle of equality of treatment applies only in cases of legality and, therefore, refusal by the Administration to repeat an unlawful act does not amount to discrimination. (See Conclusions from the Case Law of the Greek Council of State 1929-1959 p. 182).

In the light of all the foregoing 1 find no merit in this' recourse and it must fail. Very reluctantly I have decided to make no order as to costs.

Recourse dismissed.

No order as to costs.

[*336] TRANSLATION

This is an English translation of the Greek texts appearing at pp. 331-2 ante.

"12A. No road use licence for a bus and no licence for a public carrier ‘A’ or for a private carrier 'B' may be issued under these regulations in respect of a motor vehicle which is put on the road for the first time unless same is new and unused.

…………………………………..

Provided that on a reasonable occasion the licensing authority may in its discretion, issue such a licence if satisfied that the motor vehicle –

(a) had been purchased from the British War Ministry prior to the 7th October, 1965, or

(b) had been purchased or agreed to be purchased Outside Cyprus prior to the 7th October,1965, or

(c) had been imported to-Cyprus prior to or on The 7th October, 1965, but had not been Registered prior to or on the said date, and if an application for the issue of such licence is lodged by the 31st May, 1967”.

* An English translation of this text appears at p.336 post.