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When a property is purchased by court auction, there is no need that the eviction of the property takes place before or immediately after it is purchased. This was decided by the Court of Appeal, on 27 March 2020, presided by Chief Justice Joseph Azzopardi and Justices Joseph Micallef and Tonio Mallia. This judgement concerned a warrant of eviction in Raymond Auto Dealer Limited -v- Giuseppe Magro. This was an appeal from a decree issued by the First Hall of the Civil Court delivered on 7 February 2020. In this decree the Court turned down Magro’s request to revoke the warrant of eviction from a property in Qormi.

In the proceedings Magro argued that he rented the premises since 1984 and that the fact that the property was sold by Court auction to Raymond Auto Dealer Limited, should have been sold with him as a tenant. The company moved for the warrant as it had an executive warrant, following a judgement of 17 February 2016 which ordered the judicial sale of the property. The judicial sale took place in June 2018 and the company deposited the money in court. When the court marshal went to enforce the warrant, Magro refused to leave. A fresh application was filed for the Court to order that Magro be forcibly removed from the premises.

The first court in its judgement explained that the warrant of eviction was upheld on 12 July 2019 and Giuseppe Magro was ordered to vacate the Hal Qormi property. The company had filed an application in court for the property to be sold by judicial sale, after the Court had held that the property cannot be physically divided. Magro is trying to have the warrant of eviction revoked, as he is arguing that he was not ordered to vacate the property and that the terms of his 1984 lease would have been breached. This action was filed  in terms of Article 281 of the Code of Organisation and Civil Procedures. The company complained that Magro did not file his claims, although he had a number of opportunities to present these in the previous actions. Neither did he appeal the previous judgment that ordered the judicial sale. The Company argued that Article 281 of the Code of Organisation and Civil Procedure (COCP) is not intended for the Court to delve into the merits of the case.

On the other hand Magro presented the rent book, showing that he has been paying rent. However, in a previous judgement Raymond Auto Dealer Ltd -v- Carmelo Magro et, decided on 17 February 2016, which decided that the Hal Qormi property cannot be divided between the parties and therefore, it has to be sold by licitation. The request for the eviction of Magro took place after the judicial sale in June 2018.

The First Court quoted from Edward Pavia -v- Michael Sultana et decided on 5 May 2005, which dealt with Article 281. This article allows a warrant to be challenged if there is a defect in the form, as in the case of the warrant being issued by the wrong court, or in the event of a mistake being found in the forms that are used.

The First Court then held that it cannot enter any longer into the validity of the lease, since this is beyond the scope of Article 281 of the COCP and therefore, it turned down the request to revoke the warrant of eviction.

Magro appealed this decree, arguing that the warrant could not be issued, since it was not supported by a valid title at law, since the court did not order him to vacate the premise. The only order that was given was that the property must be sold by judicial sale. The Company rebutted this by saying that the lease Magro is basing his action on was not accepted in a judgement. Therefore, this issue has been settled by the court.

However, the Court of Appeal was faced with another application, asking it to stay until another action filed by Magro instituted as few days prior, is decided. This new action was filed before the Rent Regulation Board, asking it to decide that he has a valid title. This application was turned down, since the present application concerns the validity of the warrant. These are two different points of law and apart from this the Court has a time limit in which it had to decide the application.

The Court of Appeal held that Article 281 allows someone to attack a warrant if it is filed before the wrong court or else has an incorrect formality and these are the parameters the Court of Appeal is bound to investigate. The application is asking for the warrant to be revoked and not suspended. A suspension may be requested in terms of Article 156 of he COCP.

The Court of Appeal held that Magro is arguing that the warrant is invalid because the judicial sale took place in June 2018, while the request for him to be evicted was filed in 2019. However, the Court did not agree with this argument. Article 357 of the COCP stipulates that the person who takes over a property purchased by judicial sale may evict the person possessing the same property within a year. In this particular case, the company took action well before the year passed. Therefore, the company took action within time and when it had an executive action. The first court had no option but to uphold the request to issue a warrant against Magro.

The Court of Appeal then moved to reject the appeal.

Avv Malcolm Mifsud


Mifsud & Mifsud Advocates 

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