A warrant of prohibitory injunction may be issued once that the three (3) elements are all adhered to. This was held in a decree issued by Mr Justice Joseph Zammit McKeon presiding the First Hall of the Civil Court in Pierre and Sonia Tanti -v- Simon and Lucienne Zammit. This was delivered on 20 March 2020.
The applicants, the Tantis, asked the Court to block any sale or any type of transfer of a berth in Msida Creek, Msida. The defendants did not oppose the facts of the case, but objected that the warrant of prohibitory injunction be issued purely on legal considerations.
In the proceedings, Dr Austin Gauci Maistre, company secretary of the Creek Development Limited, the operator of the marinas in Ta’ Xbiex and Msida, had testified. He explained that if a person needs a berth, he or she would have to apply to the company. The company will then issue the rates and if accepted a contract is drawn up. All berths are issued on a temporary basis, with a limited time period. This would be subject to renewal.
There is a distinction between berths which were given by the Transport Malta, before the company took over the operation of the marina and those berths given by the company. In the former case, the contract stated that the berths were automatically renewed, only when the berth holder decided not to renew it. In these cases, if a boat is sold, it may be sold on its own or else with the berth. In this latter case, the company would need a copy of the sale of the boat. The vendor and purchaser would go the company’s offices and assign the assignment. Boats sold with berths are more expensive, than without.
The berth in question is one which was given by Transport Malta in the past.
Mr Justice Zammit McKeon, referred to Article 873 of the Code of Organisation and Civil Procedure, which reads:
“873. (1) 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.
Inquiry of court.
(2) 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.”
Therefore, a Court is prohibited from issuing a warrant if is not protecting the rights of the applicant and the level of evidence required is prima facie, meaning on the face of it. The third element is that if the Court does not issue the warrant the prejudice cannot remedied.
Case-law, has discussed all the elements of a precautionary warrant. In Grech pro et noe -v- Manfre, the Court of Appeal held that the prima facie is an objective notion and not subjective, depending on the judge’s discretion.
According to Xuereb noe -v- Hili noe, decided by the Commercial Court on 22 September 1994, the need to file a precautionary warrant should be in exceptional circumstances.
Furthermore, the procedure to have a precautionary warrant confirmed should be done summarily and this is why the law sets short time limits. The parties are not asked to produce all the evidence concerning the merits of the case, but merely that there exists a right.
As to the merits of the application for the warrant, the Court analysed the contract between the parties. In the where the spouses Zammit bound themselves to sell the boat together with the pontoon at no charge. This had to take place within three (3) years. There is not contestation that money was exchanged and that there was a sale of a boat. The only defence that the Defendants put up was that the agreement was null and void, since the underlying agreement was illicit and prohibited at law. The Court held that it would not discuss and decide on the merits of whether the agreement was null and void, however, it concluded that there is a right to protect until these proceedings are concluded.
Furthermore, the Court noted that the applicants are not asking for damages, but for the dependants fulfil its contractual obligations, meaning the transfer of the berth. As to whether if the warrant is not issued there will be no remedy, the Court was also satisfied, since if the berth is transferred, then the applicants’ right would be unenforceable.
The Court then moved to uphold the request to issue a warrant of prohibitory injunction for the transfer of the berth
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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