Issue link: https://maltatoday.uberflip.com/i/1409324
maltatoday | SUNDAY • 12 SEPTEMBER 2021 18 COMMERCIAL THE execution of a judgement should not prejudice a person, who was not a party to a court action in the case in which the judgement was delivered. This was held in a decree delivered by Mr Justice Ian Spiteri Bailey in JL Tobacco Com- pany Limited -v- Bernadette Licari, Direttur Generali (Qrati), Regis- tratur Qrati u Tribunali Civili u Marixxal Manolito Paul Briffa on 2 September 2021. In its applicant, the applicant company asked the First Hall of the Civil Court to bar the defendant Bernadette Licari from executing a decision by the Court of Appeal on 23 April 2021 in Bernadette Licari -v- Combined Industries Limited. The Court had ordered the compa- ny to vacate a property in Cospicua, since JL Tobacco Company Ltd was not part of this action. The Court pointed out that Arti- cle 873 of the Code of Organisation and Civil Procedure states that a warrant of prohibitory injunction is aimed at stopping another party from doing something. This is is- sued if the Court is satisfied that it is essential to protect one's rights and prima facie that party has a right to protect. In Grech pro et noe -v- Manfre decided on 14 July 1988. These two requisites are ob- jective and does not depend on the court's discretion. Article 873(3) of the Code of Organisation and Civil Procedure (COCP) reads: "(3) The court shall not issue any such warrant against the Government or authority estab- lished by the Constitution or any person holding a public office in his official capacity unless the au- thority or person against whom the warrant is demanded confirms in open court that the thing sought to be restrained is in fact intended to be done and the court is satisfied, after hearing the explanations giv- en, that unless the warrant is issued the prejudice that would be caused to the person suing out the warrant would be disproportionate when compared with the actual doing of the thing sought to be restrained." In 2006 the COCP was amended which removed the requisite that the prejudice had no remedy, but it is now sufficient to show that the action would prejudice is dispropor- tionate to the damage caused to the applicant. If the Court upholds the warrant, this does not mean that the right has been proved and vice ver- sa, if the court does not uphold the request to issue a warrant, it does not mean that the right does not ex- ist. In this case, the Court of Appeal judgement allowed Licari to expel Combined Industries Limited from a property in Cospicua. JL Tobacco is not claiming that it has a title on the property, but it was not a par- ty to the action to expel it from the property. The Defendants objected that the warrant be issued. Licari is claiming that once the Rent Regula- tion Board (RRB) and the Court of Appeal decided to expel the tenant, this also effects the subtenants. The Court administration held that it should not be a defendant, since it is simply executing a court order. The Court disagreed, since the warrant against the Court administration is not contrary to law. The Registrar of Courts pointed at Article 281 of the COCP, which gave the Applicants an alternative remedy. The applicant could have filed an application, which would include detailed submissions asking the court to revoke the warrant. Mr Justice Spiteri Bailey quoted from Edward Pace -v- Michael Sul- tana decided on 5 May 2005, which held that the law does not explain what would be a just reason to re- voke a warrant, but one would say that it would take place if it is issued by the wrong court. Article 281 is intended to revoke warrants where there would be errors when apply- ing for a warrant. On the merits of the case the Court quoted Article 8 and 9 of the Reletting of Urban Property (Reg- ulation) Ordinance, which allowed an owner to take back possession of a rented property after a decision from RRB. In this case, this is what happened as Licari has a right to expel Com- bined Industries Limited from her property. In the proceedings before the RRB, the issue arose on the sub- lease and the court decided that the sublease was not legitimate. However, irrespective of this JL Tobacco Limited was not called in- to suit, although it had a direct in- terest in the action. The defendants referred to Article 384 of the COCP, which states that an eviction warrant may be execut- ed against the tenant or the person occupying the property and as such JL Tobacco Company Limited may be evicted. The Court pointed out that the de- fendants Licari have a right to evict Combined Industries Limited and have asked the court to execute this sentence. What is being contested is whether the Applicant, JL Tobacco should have been called into suit. In Culub Chatlani -v- George Grixti, the Court had held that a judge- ment cannot be executed against a person who was not a party to the action. JL Tobacco is claiming that this is what is taking place. As such the Court in this case, is of the opinion that JL Tobacco does have a prima facie right to protect, since it has possession of the property in question. The Court then moved to uphold the request to issue a warrant of prohibitory injunction. Judgements should not be executed against persons not party to court actions LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates 3 ZVART paintings unveiled at Żejtun Home THREE paintings by artist Jo- seph Baldacchino were recently unveiled at the Żejtun Home as part of the Nazzareno Vas- sallo Art (ZVART) initiative, launched by the Vassallo Group to celebrate its 75th anniversary this year. This is the third ZVART ini- tiative commissioned by Care- Malta. A sculpture by Wal- lace Falzon, The Heart Giver, was unveiled in March at the group's head office in Mosta, followed by a painting by Jessi- ca Debattista, entitled Red Pil- lar Box, at Casa Arkati in June. Passionate about local histo- ry, folklore and culture, Bal- dacchino, 71, born in Żejtun, enjoys creating art that re- flects tradition, custom and life around him. In fact, a number of his works reflect Żejtun's history. Baldacchino's paint- ings, aptly entitled 'Nostalgia of Żejtun', feature the Żejtun Bus, the Żejtun Coin and The Lieutenant's Garden. The red bus, in use from 1930-1945, with a green stripe, is reminiscent of the old Że- jtun route. Many will also re- member the 'Żejtun Coin', an aluminium coin manufactured by the parish at the beginning of the 20th century, which was used by people Mass or other religious functions, in order to be given a chair to sit on. After being in circulation for about five years, this coin ceased to be used as it was considered to be illegal. The well-known botanic garden, Il-Ġnien tal-Kmand, built in 1802, was a public place fami- lies from Żejtun could enjoy. It became a popular spot for cou- ples in love many years later, in the mid-20th century. Mr Baldacchino, who lives opposite the Żejtun Home, said he was honoured to have his paintings in the home's foy- er. "Especially since I consider myself to be part of this gen- eration, sharing such beautiful memories of the past. I am pas- sionate about Maltese history, therefore this means a lot to me."Nazzareno Vassallo, chair- man of the Vassallo Group – accompanied by Pio Vassallo, CEO of the Vassallo Group, Natalie Briffa Farrugia, Care- Malta's CEO, members of the ZVART committee and senior management teams – also un- veiled Żejtun's coat of arms, made out of kite paper by Car- melo Zammit, who has been a resident at the Żejtun Home since 2017. Committee mem- bers of the home's residents' association were also present.