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Court refuses to decide on the merits of an executive garnishee order

By December 6, 2019November 24th, 2023No Comments

Where the law states in Article 281 of the Code of Organisation and Civil Procedure that a warrant can be attacked for a “valid reason”, it has been established that a warrant can only be attacked on the basis of a mistake or error in its form on the basis of this article. This was held by the First Hall Civil Court on the 22nd of November 2019 in the acts of the case Engerer et. Vs. Ebejer et. Presided by Hon. Judge Toni Abela.

The Court heard the pleas by the defendants who were notified with a garnishee order against them by spouses Ebejer for the sum of EUR3,482.24. The parties had previously undergone proceedings and the spouses Engerer won, and were given permission by the Court to perform works at the expense of the plaintiffs, should they be in default.

They held that the plaintiffs were asking for payment for the sum of works which went beyond what the Court had ordered in the sentence, and therefore the fees did justify an executive garnishee order. It was also held that in virtue of the sentence the repairs had to be done under the guidance of the technical expert, which did not occur. The Defendants, Ebejer, therefore asked the Court to revoke the garnishee order on the basis of Article 281 of the COCP.

The plaintiffs held that the Court indeed authorised the spouses to perform the necessary works, including the changing of the roof, the placement of new membrane and repairs on the stairs since the plaintiffs were in default.

They also argued that the sentence gave them no limits on expenses and that the technical expert was only to be involved if the repairs were going to be done by the spouses Ebejer.

The Court decided that the defendants were requesting it to go into the merits of the case, which it could not do since this goes against the copious amounts of judgements explaining the function of the Article 281 of Chapter 12 of the Laws of Malta. It was explained that warrants can only be challenged on the basis of Article 281 if there is a defect in the form of the warrant or if it is executed by the wrong Court.  

Quoting the case HSBC Malta vs Conchin (2011), the Court explained that the aim of the procedure in this Article was to challenge a defect in the form of the warrant itself which prejudices the client.

Nonetheless, this does not mean that the merits of a warrant cannot be challenged, in fact the first few words of sub article 1 of the Article says that the article is without prejudice to any other right given by the Code or any other law. However, in such cases the sworn application should be based on Article 156 of Chapter 12.

The Court concluded that it did not have the power to decide on the claims made by the defendant, Ebejer, for the reasons above.

It was held that the warrant could only be examined on the basis of its formal elements which could not be challenged as there were no errors and the Court indeed had jurisdiction over the matter. The pleas were, therefore, rejected and the defendants were ordered to pay all legal costs.

Avv. Malcolm Mifsud


Mifsud & Mifsud Advocates