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If the same parties to a case are before the Court of Appeal, then the Court of first instance of another case which is identical, may be suspended in order for the Court in the second case see what the judgement of the appeal say. This was held in Roger Borg et -v- Matthew Borg et decided by Mr Justice Toni Abela presiding over the First Hall of the Civil Courts on 2 May 2023.

The Plaintiffs filed a sworn application, in which they explained that HSBC had lent Lm46,000 to the Defendants, Claire and Matthew Borg. They signed the contract on 12 August 2004 and the Plaintiffs were guarantors on the loan. The Plaintiffs paid all the loan and asked to be refunded from the Defendants.

Claire Bonnici filed a statement of defence stating that the action should not have been filed at this stage because there is a pending appeal on a judgement delivered by the Court which dealt with the same merits. The Court of Appeal is being asked to overturn the judgement which ordered that both defendants pay this Debt. Claire Bonnici is asking the Court that the community of acquests should not pay for this debt, as a direct debt form was initially addressed to Matthew Borg on his own. Claire Bonnici held that these proceedings where filed in bad faith.

Claire Bonnici presented other pleas on the action pending before the court.

Mr Justice Toni Abela analysed the evidence, and found that the Plaintiffs did pay the debt in full. The court pointed out that the action of guarantors in terms of article 1942 of the Civil Code. The action is with regards to the payment of a debt buy said party. Article 1149 reads:

“Creditor cannot refuse payment tendered by a third party, if the debtor is benefited thereby.

The Court pointed out that there the Plaintiffs won two cases before the Small Claims Tribunal in 2012 and 2014.

As regard to the plea that the action could not be instituted because a similar case before the Court of Appeal is still pending, the Court noted that this first case, dealt with the same loan given by HSBC Bank plc and part payment was made to the bank by the Plaintiffs. The Court also noted that the sworn application was almost identical in the two cases. Therefore, the case before the Court of Appeal is very similar. In fact, that Court examined the judgement of the Court of First Instance, which is now before the Court of Appeal and the legal principles discussed in that judgement.

These legal principles are identical to those the Court has in front of it and therefore, said that it would be more prudent to see what the Court of Appeal has to say. This would avoid the risk that the Courts give contradictory decisions.

The Court had dealt with the plea in the first sitting on 12 January 2021, and ordered that the case be heard, irrespective of the fact that the Court of Appeal still did not deliver its judgement. It did so with the hope that the Court of Appeal would have decided on the issues at hand.

The Court disagreed with the Defendants in that the appeal should be given precedence on these proceedings. This is not an issue of precedence, but that the action would be suspended until the Court of Appeal delivers its judgement.

The Court held that it was aware that it would paralyze the case, but there was a possibility with its judgement there would be an injustice. The Court has an option to suspend the case in terms of Article 199(4) and Article 964(1) of the Code of Organisation and Civil Procedure and was availing itself of that option.

The Court moved to suspend the proceedings and that term of desertion apply when the Court of Appeal delivers its judgement.

Av. Malcolm Mifsud 


Mifsud & Mifsud Advocates

This article may also be accessed on Malta Today.

For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.