1977 July 16 [L. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PETROLINA LTD., AND ANOTHER, Applicants, and THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Application in Case No. 7/77). 5 10 15 20 Provisional order—Rule 13 of the Supreme Constitutional Court Rules, 1962—Criteria applicable—Merits of the recourse and irreparable damage or harm either financial or moral—Recourse against refusal to exempt applicant 2 from service in the National Guard—And application for provisional order suspending enlistment pending the hearing of the recourse— No allegation that any financial loss will be suffered by applicant if the provisional order is not made—But submission that the non-making of the Order will cause applicant irreparable damage because there cannot be compensation for the lossof his personal freedom—Enlistment and service in the National Guard cannot be said to be irreparable moral damage or harm —Application refused. National Guard—Enlistment and service in—Cannot be said to be irreparable damage or harm. This was an application for a provisional order, under rules 13* and 18* of the Supreme Constitutional Court Rules, 1962, suspending the enlistment of applicant 2 in the National Guard pending the determination of a recourse against the refusal of the respondent to exempt him from service in the National Guard. The main ground on which the recourse was based was that applicant 2 was, under section 4
(3)(d) of Law 20/64 (as amended by Law 25/66), entitled to exemption from service •Quoted at p. 175 posi. 173 PETROLINA LTD. AND ANOTHER v. REPUBLIC (MINISTER OF INTERIOR) 1977 July 16 in the National Guard because he was permanently residing outside Cyprus. PETROLINA LTD. AND ANOTHER v. REPUBLIC (MINISTER OF INTERIOR) Counsel for applicants has not alleged that any financial loss will be suffered by them if the provisional order is not made but he submitted that the non-making of the Order will cause applicant 2 irreparable damage because there cannot be compensation for the loss of his personal freedom. Held, (after stating the criteria applicable in an application for a provisional order—vide pp. 179-180 post) that, in order .tosucceed, an applicant has ίο satisfy theCourtthat the nonmaking of the provisional order will cause him irreparable da mage or harm either financial or moral; that once it is not alleged that the applicant will suffer any financial loss which in any case would not be irreparable his enlistment and ser vice in the National Guard cannot be said to be irreparable moral damage or harm;that,therefore,the applicanthas failed to prove the prerequisites for the making of the provisional order; and that, accordingly, his application must fail. 10 15 Application dismissed. 20 Cases referred to: Georghiades (No. 1) v. Republic
(1965)3 C.L.R. 392; lordanou (No.2)v. Republic
(1966)3C.L.R. 696; Galazi v. Minister of Education and Others fl967) 3 C.L.R. 577; Papadopoulos v. Republic
(1975)3C.L.R. 89. 25 Application for Provisional Order. Application for Provisional Order suspending the en listment of applicant N o . 2 in the National Guard pend ing the determination of a recourse against the refusal of the respondent to exempt him from service in theNational Guard. 30 L. N. Clerides, for the applicant. R. Gavrielides, Counsel of the Republic, for the re spondent. Cur. adv. vult. 174 35 Thefollowing decisionwasdeliveredby:L.LOIZOU,J.:Thisis an application under rules 13and 18 of the Constitutional Court Rules 1962 whereby the applicants apply for "an Order of the Supreme Court of Cyprus suspending the enlistment of the applicant No. 2 in the National Guard in July, 1977".The said rules read as follows: "13-
(1). The Court, or in proceedings under Article 146anytwoJudges acting in agreement, may,at any stage of the proceedings, either ex propriomotu or on the application of any party, make a provisional order, not disposing of the case on its merits, if the justiceof thecasesorequires.
(2)A provisional order made under this rule may, either on the ground of urgency or of other special circumstances, be made without notice and upon such terms as it may be deemed fit in the circumstances: Provided that allpartiesaffected byan order made under this paragraph shall be served forthwith with noticethereof soasto enablethem toobject to it and upon suchan objection theCourt,.after hearingarguments by or on behalf of the parties concerned, may either discharge, vary or confirm such order under suchtermsasitmaydeemfit.
- The Civil Procedure Rules in force in the Republic on the date of the making of these Rules shall apply, mutatismutandis,to all proceedings before the Court so far as circumstances permit or unless other provision has been made by these Rules or unless the Court or any Judge otherwise directs". The above rules continue in force by virtue of theproviso to s.17 of the Administration of Justice (MiscellaneousProvisions) Law, 1964 (Law 33/64). Rule 13should, of course, now be applied subject to and in conjunction with s.l 1of the abovelaw sothat in the result a Judgeof this Court sitting alone can deal with an application for a provisional order under thesaid rule
- Before dealing with the Application I consider it pertinent to set out briefly the history of these proceedings175 1977 July 16 PETROLINA LTD. AND ANOTHER v. REPUBLIC (MINISTER OF INTERIOR) 1977 m 16 l_ PETROLINA LTD. AND ANOTHER REPUBUC (MINISTER OF INTERIOR) The recourse was filed by the applicants on the 10th January, 1977 and therelief applied for is:. «ι. A declaration of the Court that the act and/or decision of the respondent refusing to exempt applic a n t N°· ^ from service in the National Guardcommunicated to applicants by letter dated the 4th January, 1977 should be declared null and void and of no effect whatsoever.
- A declaration of the Court that the decision of respondent that applicant No. 2 should enlist in the National Guardon the7.1.1977 or on any other date contained in paragraph 2 of the letter dated the 4.1.1977 communicated to applicant No. 1 on the same date should be declared null and void and of no effect whatsoever". The grounds of law upon which the recourse is based, as set out therein,are:" 1 . Under Article 146 of the Constitution the Su preme Court has exclusive jurisdiction to declare any act and/or decision of any organ or authority of the Republic exercising executive or administrative authority as null and void and of no effect whatso ever if taken contrary to the law or theConstitution or in circumstances amounting to an abuse or excess of powers.
- It is contended that the decision challenged in paragraph 1 of the recourse should be declared null and void and of no effect whatsoever inthat:(a) It is notduly reasoned. (b) It was taken contrary to the letter and spirit of s.4
(3)(
- d)of Law 20/64 as amended by Law 25/66 in that Applicant No.2 is in law and in fact a person falling within the ambit of that section i.e. a permanently residing out side Cyprus citizen of theRepublic andhence entitled to exemption from service in theNa tional Guard. 3. It is likewise contended that the decision chal lenged in paragraph 3 of therecourse is null andvoid in that:176 (
- a)Since the decision in paragraph 1is null and voidit follows that thedecision in paragraph 2 is also null andvoid. (
- b)Inany case sinceapplicantresidespermanent ly in England thedecision to call him for en listment without any reasonable noticei.e.on the same day when he was notified contra venes the basic principle of administrative law i.e. that of good government χρηστήδιοίκησις and amounts to an abuse of respon dent's powers". Simultaneously with the recourse the applicants filed an application for a provisional order "suspending theen listment of the applicant No. 2 in the National Guard until the hearing and final determination of the present recourse". The application was fixed for hearing on the 20th Ja nuary, 1977 at 3.30 p.m. On that date counsel appeared before the Court and counsel for the respondent applied for a few days adjournment as he had not as yet received instructions from theMinistry of theInterior.Counsel for the applicants did not oppose the application for adjourn ment andby consenttheapplication was fixed onthe26th January, 1977 at 9.15 a.m. On the 26th January counsel again appeared before the Court and they jointly applied for a further adjournment on the ground that steps were being taken which might lead to an outof court settlement not only of the application for a provisional order but also of the whole recourse. In the light of the above the application for adjournment was granted and the hearing of the application was adjourned to the 12th February, 1977. On that date counsel for the applicants withdrew the application for a provisional order and applied that the recourse be fixed for hearing before the end of April. The Court thereupon dismissed the application for apro visional order and fixed the recourse for hearing on the merits on the 6th April, 1977 with directions that theOp position totherecourse,which was in arrear,befiled with in fifteen days. On the 6th April Mr. Clerides again ap plied for an adjournment and stated in Court that there was no urgency any more as the applicant had returned to Cyprus. Counsel for therespondent did not oppose the 177 1977 luly 16 PETROLINA LTD, AND ANOTHER v. REPUBLIC (MINISTER OF INTERIOR) 1977 July 16 PETROLINA LTD. AND ANOTHER v.. REPUBLIC (MINISTER OF INTERIOR) application for adjournment. The Court adjourned the hearing of therecourse to the 30th May, 1977 andstressed to counsel that that was the only date available before the vacations and that if for any reason the case was not heard on that day there would be no other day available. On this last date Miss Nicolaou appeared for Mr. Clerides and informed the Court that Mr. Clerides was absent in England and his return has been delayed and that she was not in a position to appear for him because the file waswith Mr. CleridesinEngland and in anycaseshehad not studied the case. She, therefore, had to apply for an adjournment. The application for adjournment was not opposed by counsel for the respondent and the hearingof the recourse was adjourned to the 14th September, 1977. Then on the 1st July, 1977 the application for aprovisional order under consideration wasfiled. Itwasfixed for hearing on the 11th July at 9.30 a.m. when on the application of counsel for the applicants and with the consent of counsel for therespondent it wasadjourned to the 14th July on theground that theMinister of theInterior, whose presencetheparties considered necessary, wasout ofCyprus.It waseventuallyheard onthe 14thJuly. The facts relied upon in support of the application are thoseappearingintherecourseandparticularly paragraph 3(
- b)of the grounds of law quoted earlier on and paragraphs 2-7 of the facts in support of the recourse. These paragraphs read asfollows: "2. Applicant No. 1, in order to carry on its business and/or trade more expeditiously established in London since January, 1975 a sister company under the namePetrolina (London) Ltd aswellasLEFKARITISBROSSHIPPINGCO.LTD. 3. Applicant No. 2 has been appointed as the Managing Director of both these companies and heresidespermanently inLondon inorder tomanage theaffairs oftheaforesaid twocompanies. 4(
- a)Furthermore applicant has purchased a flat . . in London in which he resides permanently with his wife. (
- b)Whilst in London applicant had a child born inLondononthe 16.10.1976. 5. Applicant has secured a working permit from 178 the Home Office in order to act as Managing Director of both the above companies which he manages in offices let to them in London for the purpose. 6. One of the reasons which necessitated thepermanent residence of applicant and hisfamily inLondon has been the increasing sphere of work by both Petrolina (London) Ltd but more so of LEFKARITIS BROS SHIPPING CO.LTD which now ownsa fleet of five tankers compared with two originally. 7. The business of both companies i.e. Petrolina (London) Ltd and Lefkaritis Bros Shipping Co. Ltd are business falling within the provisions of s.ll
(3)of theNational Guard Laws 1964-1976 becausethey arebusiness 'necessary for the life and welfare of the people' inasmuch they deal exclusively with petroleumproducts,petrol, gas-oil,gasolineandotherproducts absolutely necessary for thelife of thepeople". Thereisnoquarrel betweentheparties astothecriteria applicable in an application of this nature. There is aline of authorities on the subject including Georghiades (No. 1) v. The Republic
(1965)3 C.L.R. p. 392, lordanou (No.2)v.TheRepublic
(1966)3C.L.R. p.696,Galaziv. Ministerof Education and Others 3 C.L.R. p. 577 and Papadopoulos v. The Republic
(1975)3 C.L.R.
- Useful reference may also be made to the application for Annulment before theCouncil ofStatebyTh.Tsatsos, 3rd ed., at p. 423 et seq. and Kyriakopoulos on Greek Administrative Law 4th ed., vol. C at p. 146 etseq. It clearly appears from the above authorities that the most relevant criteria in an application of this nature are the merits of therecourse and the damageor harm, either financial or moral, that the non-making of the Order will causetothe applicant. It follows, therefore, that the flagrant illegality of an administrative act which renders applicant's chances to succeed obvious is a strong factor in favour of themaking of the provisional order applied for. But short of this the applicant has to satisfy the Court that the non-making of the Order will cause him irreparable damage or harm eitherfinancial ormoralinordertosucceed. 179 1977 July 16 PETROLINA LTD. AND ANOTHER v. REPUBUC (MINISTER OF INTERIOR) 1977 July
- PETROLINA LTD. AND ANOTHER v. REPUBLIC (MINISTER OF INTERIOR) It is, however, a cardinal principle of administrative law that where on the one hand the non-making of the Order will cause damage or harm to the applicant, even irreparable, and on the other hand the makingof the Order will cause serious obstacles to the proper function- 5 ing of the administration then the personal interest of the applicant has tobe subjected to thegeneral interest of the public and the provisional order should not be made. In thepresentproceedings the meritsof thecasecannot have any decisive effect on theoutcomeof the application 10 for a provisional order because on the material placedbefore theCourt itisnot possibletosayeither that theclaim of the applicant is obviously unfounded or that his recourse is bound to be successful. Nor can'it be said that the making of the Order is likely to cause any obstacles 15 totheproper functioning of theadministration. This application, therefore, stands or falls on thequestion of whether the non-making of the Order will cause irreparable damage to the applicants or either of them. It has not been alleged on behalf of the applicants that 20 any financial loss will be suffered by them if the provisional order is not made. What learned counsel on their behalf has submitted is that the non-making of the Order will cause applicant 2 irreparable damage because there cannot be compensation for the loss of his personal free- 25 dom. I am not prepared to subscribe to this proposition. On the contrary I aminclined to agreewith the submissionof learned counsel for the respondent that once it is not alleged that the applicants will suffer any financial loss 30 which in any casewould not, in my view, be irreparable, his enlistment and service in the National Guard cannot besaidtobeirreparablemoraldamageorharm. In the light of the foregoing I must hold that theapplicant has failed to prove the prerequisities for the making 35 of the provisional order and that this application must, therefore, fail. Thecostsof the application willbecostsin the.cause. Application for a provisional order dismissed. Costs in cause. 40 Applicationdismissed. Costsin cause. 180