MaltaToday previous editions

MT 18 September 2016

Issue link:

Contents of this Issue


Page 46 of 59

47 maltatoday, SUNDAY, 18 SEPTEMBER 2016 Opinion A warrant of seizure was revoked after the Court found that the Attorney General had ordered the seizure of merchandise following a request from the Polish authorities. This was decided by Mr Justice Silvio Meli on 7 September 2016 in Yieh Corporation Limited of China, represented by Dr Antoine Cremona -v- CMA CGM Agencies Worldwide representing SA CMA CGM of Marseille, France. In his application the Yieh Corporation explained that in June 2016, it was notified by an order of the Attorney General in Malta, which was enforcing an order from the Public Prosecution of Warsaw, Poland, according to the regulations on the enforcement of order in the European Union. The defendant company was ordered to release merchandise listed in two bills of lading. This order was made to protect the interests of the applicant company, since it is a victim of a fraud. Notwithstanding this order the defendant company was being accused of blocking this order, since the defendant company requested a warrant of seizure. The applicant company claimed that these actions were abusive and intended to move the merchandise outside Malta. The applicant company requested the Court to order the defendant company to desist from blocking the execution order and to revoke the warrant of seizure. The defendant company, in its statement of defence, claimed that the applicant company was not making use of the correct procedure, since it had to apply for a counter warrant. However, it denied abusing the judicial process and that the criminal proceedings in Poland should not affect the civil proceedings here in Malta. Mr Justice Meli analysed the evidence of the case and held that the Attorney General (AG) did issue an enforcement order on the merchandise after receiving a request from the Polish authorities. The AG did not have an option but to comply with this request. Following verifications, a number of items were found in a container at the Freeport. It seems that was a serious case of fraud and both parties are involved in a number of international judicial actions. The Court pointed out that this particular action very much depends on the order issued by the AG. There is no contesting that the order issued was a legitimate one and according to law. Therefore, the warrant of seizure requested and given was intended to disturb the AG's legitimate order and therefore the applicant company managed to prove its case. Mr Justice Meli, presiding over the First Hall of the Civil Courts, ordered that the defendant company desist from taking actions intended to block the release of the merchandise in favour of the applicant company and also ordered that the warrant of seizure be revoked. Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates A planning application entitled: 'To sanction part of field as horse training track and haystore and to construct stables with paddocks' was initially turned down by the then Environment and Planning Commission in 2011. The submitted drawings showed five stables (with paddocks alongside) together with a manure clamp, an underlying rainwater reservoir and a cesspit. Moreover, the site was to be surrounded by a 'training track '. In its decision, the Commission found that 'the proposed development is not likely to lead to an environmental improvement of the site' and therefore ran counter to paragraph 1(f ) of the stables policy at the time. As a reaction, applicant filed an appeal before the Environment and Review Planning Tribunal. In his detailed submissions, applicant argued inter alia that he 'had been trying to find a suitable site with the intention of utilizing it as a paddock for his horses and ultimately for the erection of their stables.' Applicant went further to explain that this was the only site available, being close to his place of residence. Moreover, it was pointed out that the land in question was 'degraded ' for a long period of time. Also, applicant insisted that his intentions were 'to have a safe and comfortable place for the keeping and training of his horses', which he would deliver to Marsa 'by appropriate horse cabins.' Concluding, applicant rebutted the Authority's allegations, insisting that the site would be 'upgraded ' since a substantial area (amounting to 750 square metres) was to be landscaped 'with different kind of trees mainly olive and citrus trees and also conifers.' In reply, the Authority reiterated that the proposed development could not be justified 'as a means of improving the state of the site', because the site was officially designated as an area of agricultural value despite its current abandoned state. The Authority went further to observe that applicant had committed further illegalities and asked the Tribunal to dismiss the appeal since planning applications may only be determined if the 'illegalities' are either removed or subject to a sanctioning application. In this case, it was alleged that the pin pointed illegalities, having been carried out at a later stage, could not form part of the current application. In its assessment, the Tribunal immediately observed that the appeal should be dismissed once the Authority had alleged that applicant had persisted with the illegal development. Moreover, the Tribunal held that the proposal was also tantamount to 'inappropriate development' in terms of Structural Plan Policy SET 11. Against this background, the Tribunal rejected the appeal. Nonetheless, the decision was appealed before the Court of Appeal. Applicant felt that the Tribunal had failed to substantiate the Authority's allegations where it was stated that he had committed 'further illegalities' pending the Commission's decision. Indeed, the Court agreed with applicant and ordered the Tribunal to reassess the case. This time round, the Tribunal took a different approach. It was immediately noted that the Agricultural Department had not objected to the proposal during the actual application process. In this light, the site was not deemed to qualif y as 'good arable land '. Unlike in the previous instance, the Tribunal now decided that the Authority should issue the permit. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law Stables issued following court direction Malcolm Mifsud Robert Musumeci Applicant felt that the Tribunal had failed to substantiate the Authority's allegations Applicant insisted that his intentions were 'to have a safe and comfortable place for the keeping and training of his horses' Civil procedures cannot be used to block criminal proceedings This order was made to protect the interests of the applicant company, since it is a victim of a fraud

Articles in this issue

Archives of this issue

view archives of MaltaToday previous editions - MT 18 September 2016