A warrant of prohibitory injunction will only be issued by the Court when the conditions outlined in the Law are cumulatively satisfied. This was outlined in the judgement Simone Schembri vs CSJ Limited decided by The First Hall, Civil Court on 09th December 2022. The Court was presided over by Judge Audrey Demicoli.
The applicant was in the process of acquiring a commercial yacht from the defendant and already paid a partial sum for the purchase of the said yacht.
However, the director of the defendant company refused to appear for the contract because he wanted the payment to be made in his name and not in the name of the company.
The plaintiff did not accept this because ultimately, the yacht is the company’s property and not personally his. Mr Schembri decided to file a judicial letter whereby he gave the company two days to appear on the contract for the transfer of ownership of the yacht and to hold the company liable for damage and loss he is suffering or may suffer.
He then decided to present an application before the Court to issue a warrant of prohibitory injunction to prevent the defendant company from assigning or selling the yacht.
In it’s reply, the defendant company stated that the Warrant of Prohibitory Injunction was null because it did not follow the form, which is established in the law, and that it should have been a warrant of seizure because the elements of a warrant of prohibitory injunction were not satisfied.
The Court quoted Article 873 from the Code of Organisation and Civil Procedure which states that “the object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant. The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.”
Thus, the Court outlined that there are three elements that must be satisfied for it to issue a warrant of prohibitory injunction.
Firstly, the Court must examine whether there is proof to show that the applicant has any prima facie right. Secondly, the Court must be convinced that the warrant is necessary in order to protect the rights which the applicant claims to have.
Lastly, the Court must be convinced that what the applicant is asking for, that the respondent company is inhibited from doing, may cause prejudice to him in the event that the warrant is not issued.
It expressed that these elements leading to the issuing of the warrant are cumulative. Therefore, if one of the conditions is absent, the Court is obliged to reject the application because it uses a restrictive interpretation.
The issuance of warrant of prohibitory injunction is considered to be an exceptional and extraordinary procedure because it is issued at a point in time when the claim has not yet been legally ascertained.
Furthermore, the Court must determine whether the act being carried out by the respondent company is prejudicial to the prima facie right of the applicant, before issuing the warrant.
The prejudice that the applicant would suffer if the warrant was not issued has to be irremediable for the Court to order the issuance of a warrant of prohibitory injunction.
In this judgement, the Court outlined that Mr Schembri’s application lacked vital information that could have shed further light on his position. He failed to include the invoices which show that he had partially paid for the yacht and did not provide the Court with any documents showing that the defendant company actually owns the yacht.
Therefore, the Court concluded that the first condition for the issuance of a warrant of prohibitory injunction was not satisfied because the applicant failed to prove to the Court that he has a prima facie right.
Subsequently, it refused to order the issuance of the warrant of prohibitory injunction since the conditions outlined in the law were not cumulatively satisfied.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article may also be accessed on Malta Today.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
