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Once the merits of a case have been decided, the court cannot reopen the same issues, when a warrant intended to enforce a judgement has been issued. This was held by the Family Court presided by Mr Justice Neville Camilleri in Mary Saliba -v- Charles Saliba. The decree was delivered on 17 November 2021.

Charles Saliba filed an application for the eviction warrant issued by Mary Saliba to be suspended and revoked.

Mary Saliba replied by stating that the judgement delivered by the Court is executive title and in this judgement, two garages were assigned to her. Therefore, she was entitled to issue a warrant of eviction against Charles Saliba.

The judgement is final and enforceable. She also claimed that she never renounced to her share of the community of acquests.

The Court analysed the evidence brought before it.

Both parties were married and separated by a judgement of the Court of Appeal on 25 May 2012. The Court held that Charles Saliba was to blame for the separation and Mary Saliba was assigned two garages in Marsascala. The parties signed a private writing on 24 February 2014 where it was agreed that the husband would pay his estranged wife over €44,000 and the maintenance was to change.

As to the claim that the warrant should be suspended, Mr Justice Camilleri quoted from a previous judgement in the names of Bank of Valletta plc -v- Antoine Vassallo et which held that Article 276 of the Code of Organisation and Civil Procedure allows a warrant for the enforcement of an executive title not to be suspended.

As to whether the warrant of eviction may be revoked, the Court looked at caselaw. In Victor Fenech et -v- Anthony Fountain et decided on 30 November 2012, the Court held that Article 281 of the Code of Organisation and Civil Procedure (COCP), stipulates that a warrant may be revoked if there is a defect in form, such as if it was issued by the wrong court. In Victor Fenech -v- Anthony Fountain et on 20 June 2012, explained that Article 281 of the COCP is a special procedure that allows the revocation of a warrant for a valid reason at law.

This valid reason is when there are defects in the acts of the warrant. If the items seized in terms of the warrant are not of the debtor, and has no effect on the warrant is there is no prejudice. To attack the validity of a warrant one would have to institute a new action in court.

When in 2006, there was an amendment to Article 281 to include the notion that another party may be interested in revoking the warrant, them the reasons for such revocation were widened.

The Court entered into the issue of the article of law prior to Article 281 of the COCP. It was numbered 283A. In Edward Pavia v Michael Sultana the Court held that it was not the intention of the legislator to allow that warrants of executive titles be attacked or revoked or the merits of the case. The warrant may be attacked if it is issued by the wrong court or else there is an error in the form.

With regard to the case in hand the separation judgement assigned to garages to Mary Saliba and what her husband is asking is to re-open the issues once again.

The Court further quoted from another decree in Mario Micallef v Angele Micallef decided on 20 November 2013 held once a final judgement is delivered and the merits of the case are decided, the Court cannot become a Court of revision on the merits of the case. The Court must be careful not to change what was decided by the Court treating the case.

The Court agreed with this and held it would not enter into the issues of separation between Mary and Charles Saliba. The caselaw does not allow the warrant to be suspended and revoked.

The Court then moved to dismiss Charles Saliba’s demands.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

This article may also be accessed on Malta Today.

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