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8 maltatoday | SUNDAY • 8 SEPTEMBER 2024 LETTERS & LAW Letters to the Editor Law Report Project Green going weak in the knees PROJECT Green is the agency set up by the government last year to push ahead with its flagship projects to shift main roads underground. The projects, which were detailed in the 2022 election campaign, included Floriana's St Anne Street, the main road in San Ġwann and the roofing over of the road leading into the Santa Venera tunnels. These and several other projects had to create new open spaces and gardens in town centres, while allowing cars to pass beneath them. They also prospected underground car parks. However, according to news reports it appears that Project Green, which is barely two years old, has gone weak at the knees. The proposed San Ġwann project for which plans had been submitted with the Planning Authority is being rethought, while the construction of a tunnel below St Anne Street in Floria- na has been scrapped. I don't know whether all the major urban greening projects listed in the Labour manifesto have been put on the backburner but it sure feels like the pressure from the excessive deficit procedure to cut spending is already being felt. Melvin Farrugia Msida Inaccessible pavements IN the effort to improve the quality of life of persons with a disability and pen- sioners, the authorities must partner with local councils to deliver safe and accessi- ble pavements. Unfortunately, there doesn't seem to be a standard on how these should be built. Pavements slope down and up depending on the garages that abut on them and are often cluttered with planters, poles, mer- chandise stands and street signage that make them difficult to navigate. Pavements should not be viewed as an afterthought when resurfacing or building streets but should form an integral part of the landscape and serve their primary function as safe passageways for pedestri- ans of different abilities. R. Zahra Gharghur THE party subject to a precautionary war- rant, such as a garnishee order must choose carefully which procedure to use in order to ask the court to revoke it. This was held in a judgment delivered by the Court of Ap- peal on 3 September 2024 in MPM Capital Investments Limited, Alexander Mangion and Melvyn Mangion vs Alfred Anton Za- rifa and Oleba Viktorivna known as Elena Zarifa. The Court of Appeal was presided by the Chief Justice Mark Chetcuti and judges Christian Falzon Scerri and Josette Demico- li. The case concerns a garnishee order issued by the First Hall of the Civil Courts in Jan- uary 2019 and whether it could be revoked and whether the party who issued the war- rant should pay for damages. The Plaintiffs filed a sworn application after the Zarifas filed a garnishee order for over €3 million. They claimed the Plaintiffs hand mismanaged their money. They ar- gued that Article 836(b) and (f) of the Code of Organisation and Civil Procedure applies. The Court turned down their application. The Zarifas had issued a warrant of prohibi- tory injunction against the Plaintiffs, but the Court had revoked it. The Plaintiffs argued that the garnishee order was pointless and contrary to law. The true intention was re- venge since the Plaintiff had issued another garnishee order against the Zarifas, there- fore, they issued one in return. The Plaintiffs asked the court to revoke the warrant and to liquidate the damages they suffered. The Defendants, the Zarifas, filed a state- ment of defence and held that the law pro- vides that the warrant should be examined prima facie (on the face of it) and the mer- its of the case should be dealt with in the case proper. Furthermore, the present case should only examine whether the Court issued the warrant according to law and should not examine the merits of the action being requested. The Defendants also ar- gued that they had a right to safeguard their interest. The Court of First Instance in its judgment first made reference to Article 836(5) of the Code of Organisation and Civil Procedure, which states that there is no appeal or con- testation on any decree on counter-warrant. The only option left was for the plaintiffs to file the action, in which they asked for the revocation of the warrant. The Court quoted from Joseph Camilleri et vs Antho- ny Gove et decided by the First Hall of the Civil Court, in which the court is to exam- ine the evidence on a prima facie level. The merits are to be examined in another action. The Plaintiffs have to prove that the basis on which the warrant was issued does not exist any longer. This was echoed in Grazi- ella Attard et vs Khaled Barkat Zaky Ahmed Abdelrazek et on 7 August 2017 and other judgments. The First Hall of the Civil Court pointed out that the Plaintiffs did not complain that when the warrant was issued the principles of natural justice were not adhered to or the law was not followed. The Plaintiffs seem to ask the court to reconsider the reasons why the warrant was issued. The Court held that it cannot reconsider its position, if the Plaintiff failed to show valid reasons that the warrant should be withdrawn. The Court pointed out also that when discussing the warrant, they were given an opportunity to make submissions. The Plaintiffs appealed this judgment. The grounds of the appeal were that there was sufficient evidence to show that the garnish- ee order was substantially wrong. It was is- sued as a pay back. The evidence produced showed that the Defendants did not make any loss on their investment and therefore no damages were sustained. Furthermore, there was no evidence to show that the garnishee order of over €3million was nec- essary. They also argued that the evidence showed that the Zafiras dealt with the Plain- tiff company and not with the shareholders personally. The Court of Appeal stated that it disa- greed with the Court of First Instance when it held that the request to remove a garnish- ee order depends on whether the request to remove the decree was turned down to re- voke the warrant. The request to remove the garnishee may be entertained if the request to revoke the decree dismissed the request to revoke the warrant. The Court of Appeal said that this type of action is often used. The decree ordering a precautionary warrant such as a garnishee order is not definitive neither is it an inter- locutory decree. This decree does not bind the court neither is it incidental to the ac- tion. The decree is limited to the acts of the warrant and not part of the court case. If the decree is not interlocutory, then it cannot be appealed. This was held in osa Borg vs Dr Frank Chetcuti et noe, decided on 8 Febru- ary 1946. There are two instances when a precau- tionary warrant may be revoked. The first is by a simple application based on one of the reasons listed in Article 836(1) of the Code of Organisation and Civil Procedure (COCP). The second is that if the ground is not found in Article 836(1), a sworn ap- plication has to be filed, asking the court to revoke or amend the warrant. In this case, the Plaintiffs used the second method asking it to revoke the warrant and to revoke the decree turning down the revo- cation. By using this procedure, they cannot invoke Article 836(1) of the COCP, but an- other ground has to be found. As to the decree which turned down the request to revoke the warrant, the Court would have to investigate whether the prin- ciples of natural justice were adhered to, if there was a breach of a law, or else an ob- vious mistake or else if the decision to issue the warrant beyond what was asked of it. The Plaintiffs in this case are asking the Court to revoke the garnishee order based on Article 836(1)(d) of the COCP. There- fore, as explained the Court of Appeal can- not entertain this request once they chose to file a sworn application. The Court held that there is no ground to revoke the garnishee order when the Plaintiffs first filed an appli- cation to revoke the garnishee order, they did not list Article 836(1)(d) of the COCP. The Court then moved to turn down the appeal. The different approaches to revoke a garnishee order LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates