The Court of Magistrates Gozo, in its superior jurisdiction, presided over by Magistrate Joanne Vella Cuschieri, in the case Bella Claudia Nicoletta Cassar v Anthony Cassar, on May 12, 2016 acceded to the requests of the applicant and issued the warrant in procinctu.
By a judgment delivered in Malta on March 11, 2014 (application number 95/2012/JD) Bella Claudia Nicoletta Cassar (the applicant) was declared the creditor of Anthony Cassar (the respondent) for the sum of €33,550. Bella Cassar claimed, however, that, although the court had granted this judgment in her favour, she had no means of executing it due to a number of reasons.
The applicant explained that she had already obtained a warrant of seizure over Anthony Cassar’s movables; however, this did not prove to be an effective remedy as there were a number of creditors whose claims ranked before her claim, rendering it impossible for her to obtain funds.
Moreover, Bella Cassar explained that she had also issued a garnishee order; however, no funds were deposited in court by Anthony Cassar and it was highly unlikely that any funds were going to be deposited considering his financial situation. For these reasons, she argued that seeking to obtain funds through the warrant of seizure and the garnishee order was futile and did not prove to be an effective remedy.
In view of the nature of the warrant in procinctu, the applicant further explained how the debt owed to her could be settled through other means. The applicant said that a few years back she and the respondent had leased a property in Fontana from the Department of Lands and for some time they had failed to pay the rent due. In fact the Department of Lands was going to terminate the lease, until the applicant paid the rent owed and started to operate the business again by herself.
For these reasons the applicant requested the court to order the assignment of the rights of the respondent under the lease onto her in consideration of the debt owed.
In simple terms, the warrant in procinctu is a warrant whereby a creditor would ask the court for instructions as to what measures may be resorted to in order to execute a judgment when no other remedy is available. The court commented on the innovative nature of the warrant in procinctu which was introduced into our law in 2006 through Article 388G of Chapter 12 of the Laws of Malta but given effect in 2009.
Article 388G reads as follows:
“(1) Subject to the other provisions contained in Title VII of this Code, the court may, on demand of the party, issue such orders to the Registrar as it may deem necessary for the orders contained in the judgment to be executed:
“Provided that this warrant shall not be issued except after an application has been made to this effect by the creditor and after the court is satisfied that the creditor does not have any other means of execution.
“(2) There shall be clearly indicated in the application the reason for the necessity of such orders and a decree shall be given thereon after that the debtor has been served notice thereof, to which he may file a reply within four days.”
Pursuant to Article 388G (2), after a debtor is served with the warrant, a reply must be filed within four days. The court observed that, in the present case, the respondent had not filed a reply and was contumacious.
Quoting John Patrick Hayman et v Edmond Espedito Mugliett et, decided by the Court of Appeal on June 26, 2009, the court explained that, with the introduction of the warrant in procinctu, the legislator intended to provide an extraordinary means which may be resorted to for the proper execution of a judgment when no other means of execution are available.
The court said that, where a creditor obtains a judgment in his favour but all means of obtaining funds fail, he has at his disposal the option of issuing a warrant in procinctu requesting the court to give such orders to the Registrar as it deems necessary for the orders contained in the judgment to be effectively executed.
The warrant in procinctu is a warrant whereby a creditor would ask the court for instructions as to what measures may be resorted to in order to execute a judgment when no other remedy is available
The court noted that the warrant in procinctu was a welcome introduction in the Maltese legal framework because having a situation where a creditor cannot effectively execute a judgment was unjust; giving the creditor nothing but a judgment which he might as well just frame!
The court further explained that contempt of court proceedings would in no manner help the creditor in the execution of his judgment. Any person, who is found guilty of contempt of court pursuant to Articles 1003A and 997 of Chapter 12 of the Laws of Malta, will on conviction be liable to an imprisonment or a fine – or to both such fine and imprisonment. However, contempt of court proceedings do not allow the court to order the effective execution of a previous court order or judgment in the same manner as the warrant in procinctu.
The court further examined the warrant in procinctu and stated that the legislator did not limit the type or nature of the orders that the court could give, as long as the orders are legal and necessary for the effective execution of a judgment.
However, the court noted that the court’s power to give such orders was subject to two conditions: primarily, the court cannot proceed ex officio but can only give such orders following an application made by the creditor clearly indicating the reasons for the necessity of such orders.
Secondly, the court must also be satisfied that the creditor filing the application has no other means available for the proper execution of a judgment or court order.
In view of this, the court must be very cautious when issuing warrants in procinctu and must make certain that such warrants are issued only if it is proven to the satisfaction of the court that there is no other remedy available and that the warrant in procinctu is a means of last resort.
In determining whether the elements of the warrant in procinctu were satisfied in the present case, the court concluded that the applicant had indeed tried everything legally possible to obtain funds before having instituted the warrant in procinctu.
The court further concluded that there wasn’t any realistic chance that the respondent could pay the amounts due considering the substantial debt owed by him to other creditors including banks.
The court further pointed out that even the fact that it was difficult to notify the respondent and that he did not present a reply to the court application goes to show that he was making it very difficult for the applicant to obtain funds.
The court was convinced that, should it fail to accede to the applicant’s requests in terms of the warrant in procinctu, the applicant would not have any other remedy at her disposal for the effective execution of the judgment granted in her favour. For these reasons the court concluded that the elements of the warrant in procinctu were satisfied and proceeded to examine what the applicant was requesting the court to order.
The court observed that the applicant requested it to order the assignment of the respondent’s rights under the lease onto her, which assignment was in no manner going to affect third party creditor rights.
Moreover, the said assignment could not negatively affect the Department of Lands; to the contrary, the transfer of the lease onto the applicant could prove beneficial taking into account the fact that the respondent had failed to fulfil his obligations under the lease.
For these reasons, the court acceded to the applicant’s requests and issued the warrant in procinctu ordering the Registrar to give effect to the transfer, discontinuance or assignment of the respondent’s rights under the lease of the Fontana premises in favour of Bella Claudia Nicoletta Cassar.
Since Anthony Cassar was contumacious, the court also nominated a curator to appear in his name for the purposes of ensuring the effective execution of the orders given by the court pursuant to the warrant in procinctu.
Rachel Genovese is a trainee advocate at Ganado Adovates.