Issue link: https://maltatoday.uberflip.com/i/1498713
maltatoday | SUNDAY • 7 MAY 2023 11 LAW CLASSIFIEDS IF the same parties to a case, are before the Court of Appeal, then the Court of first instance of another case which is iden- tical, may be suspended in or- der 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 ex- plained that HSBC had lent Lm46,000 to the Defendants, Claire and Matthew Borg. They signed the contract on 12 August 2004 and the Plainiffs were guarantors on the loan. The Plaintiffs paid all the loan and asked to be refunded from the Defendants. Claire Bonnici filed a state- ment 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 Ap- peal is being asked to overturn the judgement which ordered that both defendants pay this Debt. Claire Bonnici is asking the Court that the communi- ty of acquets 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 oth- er pleas on the action pending before the court. Mr Justice Toni Abela ana- lysed 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 pay- ment tendered by a third party, if the debtor is benefited there- by." 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 insti- tuted 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 Plain- tiffs. The Court also noted that the sworn application was al- most 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 pru- dent 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 is- sues 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 de- livers its judgement. The Court held that it was aware that it would paralyze the case, but there was a possi- bility with its judgement there would be an injustice. The Court has an option to sus- pend the case in terms of Arti- cle 199(4) and Article 964(1) of the Code of Organisation and Civil Procedure and was avail- ing 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. 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