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12 maltatoday | SUNDAY • 6 SEPTEMBER 2026 LAW MALCOLM MIFSUD Mifsud & Mifsud Advocates Enforcement of an executive warrant should be limited to the executive title IN the case Mary Rose Enri- quez vs Martin Schembri, the Court of Appeal reaffirmed the fundamental principle that an executive warrant cannot travel beyond the boundaries of the ex- ecutive title on which it is found- ed. The judgment was handed down on 1 September 2026 by Chief Justice Mark Chetcuti and judges Christian Falzon Scerri and Josette Demicoli. The dispute arose between two condominium owners over a defective common lift. While Enriquez sought its replace- ment, Schembri and his wife preferred repairing it due to the lower cost. The matter pro- ceeded to arbitration, which ruled in Enriquez's favour and ordered the condominium owners to contribute their re- spective shares towards the installation of a new lift. How- ever, the arbitral award did not liquidate a specific sum paya- ble by Schembri. In July 2023, on the strength of the arbitral award, Enri- quez claimed she was Schem- bri's creditor for €10,347 and sought the seizure and judicial sale of his apartment. The First Hall granted the seizure and ordered the property be sold. Schembri challenged this en- forcement under Article 281(1) Code of Organisation and Civil Procedure (COCP). His central argument was that Enriquez did not possess an executive title for the amount she was attempting to recover. Accord- ing to Schembri, the award merely obliged him to pay his share of the expenses of install- ing the lift; it did not however determine or liquidate that share. The First Hall rejected Schembri's application, leading him to appeal the decision In the appeal, Schembri first argued that the First Hall's de- cree was legally invalid because it had not been delivered in open court, contrary to Arti- cle 281(4) of the COCP, which states that the period for ap- pealing such a decree begins when the decree is read in open court. The decree had been de- livered in camera. The Court of Appeal agreed with him only to a point, how- ever stating that this did not render the decree null or le- gally invalid. Relying on pre- vious case law, including Bank of Valletta plc vs Saviour Mi- callef et, Fabrizio Pirello vs Bare Sport Europe Limited and Sylvia Enriquez vs Francis En- riquez, the court held that fail- ure to read the decree in open court affects the commence- ment of the appeal period, not the validity of the decree itself. However, since Schembri had in fact appealed voluntarily, he had suffered no prejudice from the irregularity. This ground was therefore rejected. The most central issue was the claim of €10,347. Schembri argued that the arbitral award did not order him to pay Enri- quez the amount indicated by her. It merely required him to pay his share of the relevant expenses. The court began from a fun- damental principle of enforce- ment law. This follows from Article 252 of the COCP, which states that where a cred- itor does not possess an execu- tive title in respect of the par- ticular debt being enforced, the warrant should not be issued and if it has been issued, that may constitute a valid basis for setting aside the executive act under Article 281. The court continued to ex- plain that one of the central in- quires permitted in Article 281 is whether the object or subject matter of the warrant is actual- ly supported and covered by an executive title. The Court of Appeal was par- ticularly critical of the reason- ing adopted by the First Hall in reaching its conclusion that the sum of €10,347 constituted a certain, liquidated and due debt. The First Hall had pro- ceeded on the premise that this amount represented Schem- bri's share of the expenses cal- culated on the basis of an esti- mate, which had formed part of the arbitration proceedings. The Court of Appeal, however, considered this premise to be completely erroneous, observ- ing that the amount for which the executive acts had been is- sued was not, in fact, derived from that estimate. Indeed, the court examined the documentation upon which Enriquez had based her request for enforcement. The €10,347 consisted of €8,878, represent- ing Schembri's share of the expenses, €1,065 arising from the taxation of costs, €352 cor- responding to a receipt issued by the Malta Arbitration Cen- tre, and a further €51 claimed as VAT on professional fees. These individual amounts, tak- en together, produced the pre- cise figure for which the execu- tive acts had been issued. This distinction was particu- larly significant when com- pared with the estimate re- ferred to in the arbitral award. That estimate placed the cost of the new lift at €31,200. Giv- en that Schembri and his wife were responsible for one-fifth share, their portion of that esti- mate would have amounted to €6,240, rather than the €10,347 subsequently sought by Enri- quez. The court further noted that the statement of expenses produced at the enforcement stage showed that the company responsible for supplying and installing the lift had actually been paid €37,385, an amount which itself exceeded the esti- mate considered during the ar- bitration proceedings. Consequently, the Court of Appeal held that the First Hall had failed to carry out the es- sential inquiry required in proceedings of this nature— whether the actual object of the executive warrant, the €10,347 claimed by Enriquez, was covered by the executive title constituted by the arbitral award. Rather than determin- ing whether each component of the amount claimed fell within the scope of that award, the First Hall had rejected Schembri's application on an incorrect factual premise. Significantly, however, the Court of Appeal did not con- clude that the entire sum of €10,347 was necessarily unen- forceable. Instead, it held that the necessary examination had simply not yet been properly undertaken. In order to preserve the par- ties' right to a double exami- nation, the court set aside the First Hall's decree and remit- ted the proceedings for a fresh determination. In reconsidering the matter, the First Hall was directed to determine whether each in- dividual entry making up the €10,347 was covered by the operative part of the arbitral award. The Court of Appeal specif- ically instructed it to consider whether the expenses and oth- er supporting documents fell within the award, whether any of the claimed expenses, par- ticularly those relating to judi- cial costs, had been duplicated, and whether the €51 claimed as VAT on professional fees could properly be included within the object of the executive warrant. Law courts (Photo: James Bianchi/MaltaToday)