John Vella et

Vs

Ggd Properties Ltd Et

First Hall, Civil Court

Judge

Lino Farrugia Sacco

19th July, 2007

* * *

This judgement analysed the legal concepts of precautionary warrants addressed in Articles 829-838B of the Code of Organisation and Civil Procedure (COCP) (Chapter 12 Laws of Malta), and the specific Warrant of Prohibitory injunction which is dealt with in detail in Articles 873-877. Precautionary acts are vital because the passage of time may render useless and ineffectual the judicial process if the defendant’s assets are disposed of. So, the possibility of issuing precautionary warrants prior to having an executive title is to be able to freeze or seize assets so that in the event of a favourable judgment assets on which to enforce the judgment will be available.

Article 836 of the COCP lists the grounds for revocation of such precautionary warrants. Article 838 renders Article 280 dealing with the time for execution of warrants applicable to precautionary warrants. Article 838A states that it is lawful for the court, upon good cause being shown upon the demand by application of the person against whom a precautionary act has been issued, to order the party suing out the warrant to give, within a time fixed by the court, sufficient security for the payment of the penalty that may be imposed, and of damages and interest, and, in default, to rescind the precautionary act.

Article 838B finally states that unless rescinded by the court or withdrawn by the party suing out the warrant, all precautionary warrants shall remain in force until the final determination of the cause.

Article 873 of the COCP states that the object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.

The Law also permits that a warrant of prohibitory injunction be demanded by a creditor to secure a debt or any other claim amounting to not less than Lm5000. The object of such a warrant is to restrain the debtor from selling, alienating, transferring or disposing inter vivos such property as may be indicated in the application by onerous or gratuitous title or in any manner creating a burden or real and, or personal rights. The Law adds that such a warrant shall not apply to the constitution of any right on, or alienation or transfer of any property made pursuant to a court order, or over bank guarantees and letters of credit.

The application for such a warrant must be served on the party against whom it is issued who has to file a reply thereto within 10 days. However, in urgent cases, the Court may reduce this period. In default of opposition, the court may accede to the demand.

The court may initially issue provisionally a warrant for a short period under such terms and conditions as it may deem necessary according to the case, and subsequently decide about the matter in a definitive manner. The Law, after the 2006 amendments to the COCP, goes on to state that the court must, after appointing the application for hearing, decide on its merits after receiving any evidence it deems fit, within the shortest time possible but not any later than one month from the day when the warrant had been filed and confirmed on oath.

The Court then moved on to examine caselaw which delved into the above legal concepts. In Dragonara Casino Limited vs Dragonara Resort Limited the Court laid down the main functions of the warrant of prohibitory injunction as being: to stop a person from building or carrying out certain works or from making changes in a building, to stop a person from entering a premises or to prevent a person from doing something to the detriment of the applicant of the warrant of prohibitory injunction. In Angelo Xuereb et noe vs Marin Hili et noe the Court stated that this should be interpreted as meaning that the state of affairs sought to be inhibited must be such that it causes prejudice to the extent that not only does it cause damage but a damage for which there is no available alternative or proportionate alternative.

The procedure behind such a warrant is of an exceptional nature. This warrant should only be issued by the Court if three criteria are fulfilled:

That the person against whom the warrant is issued is carrying out an activity that could be prejudicial to the applicant.

That it appears that prima facie, the applicant has a right to impede such an activity

That the warrant is necessary for the conservation of such a right.

It is not sufficient that the applicant show mere prejudice suffered. This prejudice must be irremediable, and hence necessitates an adequate remedy. Hence, it must be necessary. It must be proved, prima facie, that the applicant has such rights he seeks to protect.

This case involved the application for a warrant of prohibitory injunction to stop the installation of a platform lift in a shaft of a block of flats for which MEPA had issued a permit. However, it is essential that no works can be carried out in excess of permits of this nature. Since it was clear in this case that the lift was of a different nature to that approved by MEPA, the Court accepted the request for a warrant to be issued.