(1987)1987February 9 (LORIS,J.] INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION CARAMONDANI BROSLTD., Applicants, v. THEREPUBLICOFCYPRUS,THROUGH 1.THEMINISTEROFHEALTH, 2.THE MINISTEROFCOMMUNICATIONSANDWORKS, 3.THEPRESIDENTOFTHETENDERBOARD, Respondents. (CaseNos.73/87). Executoryact—Preparatoryact—Tenders—The GovernmentStoreRegulations, reg. 22—Final decisionon tendersof over £150,000 is taken by a MinisterialCommittee—Therecommendation oftheMain TenderBoardto thesaidCommitteeisapreparatoryact. Provisiona} order—Flagrant illegality—Meaning of—Irreparable damage— ** Allegeddamageshouldbespecificallyandsuccinctlypleaded. Recourseforannulment—Itisdirectedagainstanactoromissionandnotagainst apartyassuch. The applicants in this recourse prayed for a provisional order restrainingthe respondentsfrom acceptingtheTenderofCYEMS CO.LTDfortheMechanical 10 Services Installations at the New Paphos General Hospital until thefinal determinationofthisrecourseoruntilfurther order.. TheapplicantssubmittedthatthedecisionofthePresidentoftheTenderBoard to accept the said tender is flagrantly illegal in thatsuch tender isviolatingthe relevantinstructionstotenderers,whereascounselfortherespondentsarguedthat acceptanceofthetenderbythePresidentoftheBoardandanyevaluationhemade of die tender in question are preparatory acts, which are not binding on the MinisterialCommittee,whichwilltakethefinaldecision. Ai5 Held, dismissing the application for provisional order:
(1)The decision complainedofwasnotplacedbeforetheCourtinclearandunequivocalterms.A 2 0 recourseisdirectedagainstanactoromissionanditisnotmadeagainstapartyas such.
(2)Regulation22oftheGovernmentStoreRegulationsprovidesthatfortenders 156 3 C.L.R. Caramoodani Broa Ltdv.Republic ofover£150,000thefinaldecisionwillbetakenbyaMinisterialCommittee.Inthis casesuchCommitteehasnotsofarexaminedthetenders.ThesameRegulation provides that «the Main Tender Board submits its recommendations to the Ministerial Committee.» There is no material to the effect that such 5 recommendation has been made, but even if it has, it would constitute a preparatoryact.
(3)Assumingmatthedecisionofrespondent3isofanexecutorynature,thenext questionthatposesfordeterminationiswhethertheactcomplainedofis flagrantly illegal.AsithasbeenheldinFrangosandOthersv.TheRepublic
(1982)3C.L.R. 10 53«FortheCourttoacttheillegalitymustbepalpablyidentifiable».Itiswellsettled thattheCourtshouldnotplungedeeplyintothemeritsoftherecourseinorderto traceallegedillegality.Inmiscasetheapplicantfailedtoestablishflagrantillegality.
(4)On the same assumption the last matter for determination isthe issueof «irreparabledamage».Itmustbeborneinmindthattheallegeddamagemustbe 15 specificallyandsuccinctlypleaded.Inthiscasethereisnosuchaplea. Applicationdismissed. Noorderastocosts, Casesreferredto: 'Lambrouv.E.S.C.
(1970)3C.L.R. 75; 20 Papadopoulosv.TheRepublic
(1983)3C.L.R. 1423; FrangosandOthersv. TheRepublic
(1982)3C.L.R.53; Sophocleousv.TheRepublic
(1971)3C.L.R. 345. Application for provisional order. Application for an order restraining the respondents from 2 5 accepting the tender of the interested party for the mechanical services installations at the new Paphos General Hospital until the final determination of the recourse against the decision of the respondents to award the tender to the interested party. 30 A. Stylianidou (Miss) with M. Malachtou Cacoyiannis, for the applicants. (Miss) for G. N. Charalambous, Senior Counsel of the Republic, for the pondents. Cur. adv. vult. LORIS J. read the following decision. This is an application 3 5 praying for a provisional ordet restraining the respondents from 157 LotftaJ. CanmondanlBro·Ltdv.Republic
(1987)accepting the tender of CYEMS CO. LTD (CYEMS) for the Mechanical Services Installations at the New Paphos General Hospitaland/or from communicatingtoCYEMStheacceptance ofthesaidTenderortheirdecisiontoawardtothemthecontract forthesaidworksuntilthefinaldeterminationofthisrecourseand/ 5 oruntilfurtherorotherorder. Learnedcounselforapplicantsrelyingontheaffidavitswornon 7.2.87 by Gerasimos Y. Caramondanis of Nicosia, one of the Directorsoftheapplicantcompany,andthefactsIncorporatedIn the aforesaid affidavit by reference to the material appearing in 10 and appended to the main recourse, submitted that the provisional order applied for should be granted as the act or decision ofrespondentNo.3,namelythePresidentoftheTender Board,toacceptthetenderofCYEMSCO.,isflagrantlyIllegal,as the aforesaid tenders are violating the instructions to tenderers 1* appearing in Exhibit 1 attached to the main recourse; teamed counsel maintained further that the applicants will suffer irreparabledamageiftheprovisionalorderisnotgranted. Learned counsel appearingforthe respondents opposed the application for provisional order and submitted inter alia that 20 acceptance and probably evaluation of the tenders that might havebeen made bytheTender Board through itsPresident, are preparatory acts which are not binding on the Ministerial Committee which will take the final decision on the matter, pursuant to the provisions of regulation 22 of theGovernment 25 StoreRegulationsasamended. Counselfurtherpointedout:(a)thattheMinisterialCommittee, comprising of the Ministers of: Finance, Commerce &Industry, Communications&Works,JusticeandHealthdidnotmeetsofar in order to considerthetenders in question (b)thatthree ofthe 30 MinisterscomprisingtheaforesaidMinisterialCommitteewerenot joined in the present proceedings which thus could not.be proceededwith. Ihaveconsideredthepresentapplicationinthelightoftheable arguments advanced by both sides and I have come to the 35 conclusion that the present application must fail and the provisionalOrderapplied for,refused, forthefollowingreasons: In thefirstplace the act or decision complained of was not placed in clear and unequivocal terms before me. In this 158 3CUB. CanmondanlBrosLtdv.Republic LottoJ. connection itmust be remembered that «arecourse under Article 146oftheConstitution ismadeineffect againsttheactordecision or (omission)whichisitssubject-matter; itisnot madeagainstany party assuch...» (AndreasLambrou v.E.S.C.
(1970)3 C.L.R. 75). 5 The maximum that can be deduced from the material placed before me, as I was able to comprehend it, is that respondent No.3,namelythePresidentoftheTender Boardhasaccepted and evaluated the tender of CYEMS Co. Ltd which is allegedly violating the instructions to tenderers appearing in Exhibit 1 10 attached tothemain recourse. But it is clear from regulation 22 of the Government Store Regulations, as amended, that for tenders of over £150,000 (which isthe present case) the final decision will be taken by a Ministerial Committee comprising of the five Ministers set out above. And itiscommon ground, in fact itwas stated by learned 15 counsel for the applicant at the outset, that the Ministerial Committee did not examine the tenders so far but it is going to meet forthispurpose some time intheafternoon ofTuesday, the 10th February. 20 It is true that the aforesaid regulation provides also that «the Main Tender Board submits its recommendations to the Ministenal Committee». There is no material before me to the effect that any recommendation was submitted by Respondent No.3 to the Ministerial Committee. Assuming though that a 25 recommendation was so submitted by Respondent No.3 (in this connection whateverissaid aboutsuch arecommendation would be a mere surmise because such recommendations are due to their nature confidential); such a recommendation would be a mere preparatory act which lacks executory character asitis not 30 binding upon the Ministerial Committee; in other words such a recommendation is simply a preparatory act which is not predetermining the final decision which is up to the Ministerial Committee totake,the appropriate Organ inthe circumstances. Of course it would have been otherwise if the preparatory act 3 5 would itselfprejudice the resultofthefinaladministrative actasit wouldthen createlegalresultsbyitself (videPapadopoulos v. The Republic
(1983)3 C.L.R. 1423 at p.1426 and the cases therein cited). Once the complaint of the applicants isconfined to the act or 159 Loris J. Caramondani Bros Ltd v. Republic
(1987)decision of Respondent No3 I consider itunnecessary atleast for the purposes of the present application to deal with the issue raised by learned counsel for the respondents totheeffect thatthe Ministenal Committee or at least the three remaining Ministers comprising with Respondents 1 & 2 The Ministenal Committee should be joined as parties to thepresent proceedings 5 Assuming thattheactordecision ofRespondentNo 3.was ofan executory characterand therefore justiciable underArticle 146the next question which poses for determination is whether same is flagrantly illegal Inthecase of Frangos&Othersν TheRepublic
(1982)3C L R 53itwas stated (atρ 57 of thereport)that«FortheCourttoact.the illegality mustbe palpably identifiable »Iaminfull agreement with such statement In the present application the tender of the CYEMS Co is not 15 before me, the contents thereof were vaguely presented before meand thus my task tojudge whetherthey areincontraventionto the Instructions to Tenderers set in Exhibit 1 becomes more difficult My attention was specifically drawn by learned counsel appearing for the applicant tothe contentsof para 4 of Schedule 20 «A», paras 6 and 8 of Schedule «B» attachedtothemain recourse as well as tothe letter addressed by applicantstothePresidentof theTender Board which isalso attachedtothemainrecourse and marked Exhibit 2, it was submitted that the aforesaid matenal in particularindicates thatRespondentNo3 acted inviolation of the 25 instructions to Tenderers and therefore such matenal points at flagrant illegality I have considered carefully the whole of the matenal placed before me and Ihave examined the particular portions of such matenal in the light of the submission of learned counsel for 30 applicants but Ifeel that Iam unable to agree with her Itiswell settled that in dealing with a Provisional Order the Court should not plunge deeply intothe ments of the recourse inordertotrace alleged illegality which inany way would nothave been «flagrant» as notpalpably identifiable ontheface of therecourse Goinginto 35 the ments of the recourse and probing into disputed facts on occasions, will unavoidably lead to prejudging the recourse itself something impermissible at the stage of the application for a provisional Order 160 ™ 3 C.L.R. Caramondani Bros Ltdv. Republic LorisJ Having given to the matter mybest consideration Ihave come tothe conclusion that, assuming thatthe actcomplained ofwasof an executory character, the applicant has failed to establish flagrant illegality. 5 On the same assumption Iintend to deal as briefly as possible with the issue of «irreparable damage». In thisconnection itmust be borne in mind that such alleged damage must be specifically andsuccinctlypleaded. (Sophocleous v. Republic
(1971)3C.L.R. 345). 10 In the application under consideration I could not trace any specific and succinct plea to that effect and I must add that hypotheticalcontentionsasthosecontained inpara.7ofSchedule «A»attachedtotherecoursecannotcarrythecaseofthe applicants any further. 15 For all the above reasons the present application fails and is accordingly dismissed. Let there be no order astoitscosts. Application for provisional order dismissed. No order on t u astocosts. 161