Man claiming payment loses his right of appeal

The Court of Appeal, presided over by Mr Justice Raymond C. Pace, on April, 26, 2012 in the case “Anthony Grech vs Christian Lund”, held, among other things, that there was no appeal from a court decision under Article 166A of Chapter 12 of the Laws of Malta.

The facts in this case were as follows:

The service of notice of the judicial letter was invalid, null and without effect

Anthony Grech filed a judicial letter No. 2515/07, dated May 7, 2007 in terms of article 166A, Chapter 12, against Christian Lund, demanding payment.

Article 166A (2) provides:

“The creditor shall proceed by filing a judicial letter which shall be drawn up in the form established by legal notice by the Minister responsible for Justice and the content of which shall be confirmed on oath by the creditor, either before the registrar or legal procurator appointed as Commissioner for Oaths under the Commissioners for Oaths Ordinance, to be served upon the debtor wherein shall be stated clearly, under pain of nullity, the cause of the claim, the reasons why the claim should be upheld and a statement of facts in support of the claim: Provided that subarticles (3), (5) and (6) of article 187 of this Code may not be availed of to effect the service of the aforesaid judicial letter.”

Article 166A (4) adds:

“Where the debtor does not oppose the claim, within 30 days from the notification thereof to the debtor, or where the debtor only opposes the claim in part within the aforesaid term, the judicial letter shall, for the purposes of any law in respect of the claim so unopposed or the part therein so unopposed, constitute an executive title as if such judicial letter were included in Article 253(a).”

It so happened that Christian Lund was not present in Malta when the court marshall attempted to serve him notice of the judicial letter. The count marshall found a third party in the premises and, instead, notified this third party with the judicial letter.

At issue was whether Mr Lund was duly notified and whether Anthony Grech was entitled to render his claim into an executive title in terms of Article 166A of Chapter 12.

Mr Grech, thereafter, proceeded to enforce his alleged executive title, requesting the issuance of a warrant of seizure.

Faced with this situation, Mr Lund filed an application in court to stop the execution of the executive warrant of seizure.

He stated that, in the first place, he was never notified in person with the judicial letter, as required by law; and that Mr Grech’s judicial act was not an executive title as it had not been duly stamped by the court registrar within the statutory period of 30 days.

Mr Lund put forward the argument that, under Article 166A (1) of Chapter 12, a debtor had to be present in Malta for such action to be successful. Under sub-article (5) of Article 166A, a debtor was entitled to request the court to cancel and declare null and without effect such executive title.

In reply, Mr Grech contested Mr Lund’s application, on grounds that this action should have been taken within 20 days from notification, and not after nearly two years.

Mr Lund, on the other hand, reiterated that the procedure under Article 166A of Chapter 12 could not be followed, as he had never been notified. Non-notification as required by law meant that the judicial letter No. 5289/07 could never be rendered into an executive title, in terms or article 166B.

Article 166B stipulates that:

“(1) A judicial letter issued in terms of article 166A shall not constitute an executive title unless it is registered according to the provisions of this article which shall apply to the registration of such judicial letters as executive titles.

“(2) The applicant for the registration of a judicial letter which qualifies as an executive title shall present to the Registrar of the Court a legal copy of the judicial letter, including evidence of service and a copy of any response received thereto, if any.

“(3) Upon receipt of the documents described in subarticle (2) the Registrar shall examine the documents presented and shall verify whether the debtor has filed a note of reply within the stipulated time and if he is satisfied that the conditions for the registration of the judicial letter as an executive title subsist he shall proceed to register the documents presented in a register to be known as the Register of Judicial Letters as Executive Titles which shall be maintained by the Registrar for the purposes of Article 166A.”

Mr Lund submitted that Mr Grech had acted fraudulently. He said that, despite the lack of notification and that the judicial letter could never be rendered into an executive title, Mr Grech fraudulently and deceitfully still attempted to render his claim into an executive title.

This allegedly was a serious abuse of the procedure which rendered null ab initio the procedure taken by Mr Grech: fraus omnia corrumpit.

Mr Lund said that Mr Grech acted deceitfully when, in his application requesting the issuance of warrant of seizure No. 3515/07, he declared that his judicial letter dated May 7, 2007 was rendered into an executive title on October 10, 2007.

This was completely false, claimed Mr Lund. There existed no executive title, he said. Mr Lund maintained that all action taken by Mr Grech was fraudulent, null and illegal, as Mr Grech never had an executive title.

Mr Grech disagreed, stating that Mr Lund was duly notified according to law. He said that service of notice was effected at Mr Lund’s residence in St Julians, in the hands of a third party.

Mr Lund, on the other hand, disputed ever receiving notice of the judicial letter and allegedly became aware of it at the time of issuance of the warrant of seizure against him. Reference was made to the decision of the Court of Appeal (Inf) “Angela Bartolo noe vs E. Zammit” dated March 30, 2001.

There was no evidence in this case that the third party who had received service was authorised to accept documents on behalf of Mr Lund.

Mr Lund, therefore, contended that notification was not effected according to law: re “M.A Fenech et noe vs Dr P. Scicluna noe” dated June 4, 2009.

On December 3, 2010, the Court of Magistrates decided in favour of Mr Lund. It held that Mr Grech had no right to enforce the judicial letter under Article 166A and that Mr Lund was entitled to oppose its enforcement. It declared that the service of notice of the judicial letter was invalid, null and without effect; and that the judicial letter was not rendered into an executive title.

Aggrieved by the decision of the Court of Magistrates, Mr Grech entered an appeal calling for its revocation. It was not possible for Mr Lund to contest the procedure under Article 166A after the lapse of the statutory period.

Mr Lund, replied, claiming that Mr Grech has no right of appeal from a decision under Article 166A of Chapter 12.

On April 26, 2012, the Court of Appeal gave judgement by dismissing the appeal and by confirming that there was no right to appeal from the decision dated December 3, 2010 in the acts of judicial letter dated May 25, 2007 in the names “Anthony Grech vs Christian Lund”.

The following reasons were given for the court’s decision.

Time limit: The statutory period of 20 days indicated in Article 166A (5) was not applicable nor could it commence to run before the judicial letter was converted to an executive title. There was no executive title, as the judicial letter was not registered in terms of Article 166B of Chapter 12.

Service of notice of the judicial letter: The judicial letter could not be served on Mr Lund in terms of article 166A of Chapter 12, as Mr Lund was not in Malta at that time. It followed, thereafter, that the judicial letter was null and it did not constitute an executive title in terms with article 166A (1) and (2) of Chapter 12.

Right of appeal: Article 166A of Chapter 12 made provision for a sui generis procedure, with the aim of reducing the number of court cases. The proceedings under Article 166A could not be considered as an ordinary litigious lawsuit. Unless an express right to appeal was granted thereof, there could be no appeal from a decision, given in the context of Article 166A of Chapter 12 of the Laws of Malta.

No such right to appeal was granted in Article 166.

Dr Stefano Filletti appeared on behalf of Mr Lund and Dr David Camilleri on behalf of Mr Grech.

Dr Grech Orr is a partner at Ganado & Associates.