Issue link: https://maltatoday.uberflip.com/i/1515804
12 maltatoday | SUNDAY • 11 FEBRUARY 2024 LETTERS & LAW Letters to the Editor Law Report Why a half-baked project? KUDOS to Infrastructure Malta for pub- lishing its plans for the Paceville junction along Regional Road. The proposed fly- overs and underpasses will ease the con- gestion that develops in this area and will also enable better access to Swieqi and Paceville. The only problem I see is access to Pembroke which is now dependent on the new hairpin junction along St Andrew's Road. The hairpin junction is a definitive improvement on arrangement that was in place before but the CEO of Infrastruc- ture Malta himself has admitted that this upgrade is only able to handle the traffic load as it is today and will probably need to be upgraded in a few years' time. What was needed to complement the Paceville junction flyovers was a tunnel for north-bound traffic beneath the full length of St Andrew's Road. In this way, cars travelling towards Baħar iċ-Ċagħaq will have free passage all the way from the Paceville junction to the Coast Road be- low Madliena. A separate tunnel would provide access to Pembroke by connecting the main north-bound tunnel to Professor Walter Ganado Road thus providing easier access for Pembroke and the St George's Bay area. As things stand, the whole project to improve traffic flow in the Paceville, Swie- qi, St Andrew's area just seems like a half- baked affair. David Borg St Julian's Convoluted league format I am still trying to wrap my head around the proposed format for the Maltese Premier League. It is still un- clear in my head whether one football season will produce one or two win- ners, given that two separate leagues will be played over the whole of the season. If we are going to end up with two winners, I can easily see a situation develop where the winner of the first league, takes a step back and be com- placent in the second league, if not fix matches to the detriment of the game. I feel that such a convoluted format is unnatural to Maltese football, which takes after continental Europe and not South America. Additionally, I cannot see how a new league format can help generate more interest or lead to improved club per- formances. If anything, other measures are required to help clubs become more professional in outlook and struc- ture so that they can invest more in players. N. Agius Birkirkara IN a judgment in the names of Fenech vs Zammit dated 19 January 2024 and hand- ed down by Judge Audrey Demicoli sitting in the First Hall Civil Court, the Court en- dorsed the argument that a party attack- ing an executive warrant with which such party is burdened had to make a distinc- tion between the formality of an executive act and the merits of the executive title leading to that executive warrant. The law provides that when a Creditor has a contract declaring a constitution of debt, such Creditor may proceed to have that contract converted to an executive title, which in lay terms would be equiv- alent to obtaining a judgment without having to go through a full-blown Court case. Once a Creditor has an executive ti- tle, such creditor can proceed against the debtor by issuing an executive warrant in an attempt to secure the debt owed. In the case at hand, the Creditor, Fenech, had followed a procedure by which a con- tract was converted to an executive title and the Creditor subsequently proceed- ed with the issuance of a garnishee order against the debtor. Over a year later, the debtor, Zammit, filed an application based on Article 281 of the Code of Organisation and Civil Procedure (COCP) in the acts of the ex- ecutive warrant in an attempt to attack the validity of garnishee order requesting the Court to nullify the executive warrant. The debtor's application was based on the argument that the contract upon which the Creditor proceeded to obtain an ex- ecutive title was not drawn up in accord- ance with the law and that therefore such contract could not have been converted to an executive title in the first place. The Creditor defended his position by arguing that first and foremost the con- tract in question was a valid contract with which an executive title could be sought, so much so that the Civil Court First Hall had indeed granted such an executive title when this was initially sought and that the defendants had not contested such exec- utive title when this was obtained. How- ever, the Creditor further argued that the legal procedure adopted by the Debtor under the above-mentioned Article 281 of the COCP was not the right procedure to follow for the purposes of attacking the validity of an executive title. The Debtor, citing a number of prior judgments, ar- gued that the procedure in question was not intended to be used for the purposes of investigating the validity or otherwise of the executive title obtained as this would be tantamount to investigating the merits of the same executive title. Rath- er, Article 281 of the COCP was intended for the Court to investigate whether the executive warrant issued in pursuance of such title was issued in accordance with the required formality of the law govern- ing executive warrants, or not. The Creditor argued that the proce- dure adopted by the Debtor limited the Court's powers to investigate whether the executive warrant in question was issued according to the formalities laid down in Article 274 of the COCP, and as such the Court's powers were limited to that exer- cise only, and not to investigate the merits and/or formalities of the instrument used to obtain the executive title. Article 274 mentioned above lists down the formalities required for the issuance of an executive warrant which are: a) The demand for the issue of the warrant shall be made by application; b) Such applica- tion shall indicate the sum being sought; c) Proof of a demand for payment having been made according to law; d) A taxed bill of judicial costs if such are demanded, and; e) The signature of the judge approv- ing the issuance of such executive title. The Creditor argued that in view of the procedure adopted by the Debtor, the nullification of the executive warrant was to follow if and only if one of the formali- ties laid down in Article 274 was missing or defective in the executive warrant. The Creditor stressed that it was not within the Court's power to delve into the merits of the contract between the parties and whether this could have been converted to an executive title or not. Such an ex- ercise, the Creditor argued, could only be carried out if the Debtor had filed a fresh court case against the Creditor seeking the nullification of the executive title or its variation. In its conclusions, the Court upheld the defence that in light of the procedure adopted by the Debtor, its powers were limited to the examination of whether the executive warrant in question had any formal defects or not. It commented on the fact at no point did the Debtor argue or suggest that there was any formal de- fect with the executive warrant and that the application was clearly intended to at- tack the merits of the executive title. As such, after having considered the contents of the application by the Debtor, the reply by the Creditor, the legal argu- ments submitted by the parties' respective legal counsel and consulting a number of judgments on the issue at hand, the judge held in favour of the Creditor and turned down the Debtor's request to nullify the executive warrant. The Creditor was represented by Dr Gi- anluca Cappitta. Distinction must be made between the merits of an executive title and the formality of an executive warrant LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates