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Eviction cannot be blocked by the Court, if it has already been carried out

The First Hall of the Civil Court turned down a warrant issue request of prohibitory injunction to block an eviction but the court marshals had already changed the locks and deposted the keys

malcolm_mifsud
Malcolm Mifsud
8 September 2017, 8:07am
The First Hall of the Civil Court turned down a request to issue a warrant of prohibitory injunction to block an eviction, when the court marshals had already changed the locks and deposited the keys in court. This was decided by Mr Justice Lawrence Mintoff in Cecil Herbet Jones -v- Charles and Mares Dolores Grech on 29 August, 2017.

Jones filed an application for a warrant of prohibitory injunction in order for the court to block his eviction from his home and that the keys would not be handed to the Grechs. This followed a warrant of eviction which the Constitutional Court suspended provisionally. The Court marshal entered the building just the same and changed the locks. The First Hall of the Civil Court in its constitutional jurisdiction cancelled the decree which suspended the eviction. Jones is claiming that there are other pending actions such as an appeal from the eviction and a retrial of another pending case.

Charles and Maria Dolores Grech filed a statement of defence, stating that this request for a warrant of prohibitory injunction, was the last of a string of actions allowing Jones to remain to live in their property and this was in violation of a judgment delivered by the courts. They pointed out that what was being asked from Jones had already taken place and he has effectively been evicted from the property.

The Court pointed out that in a sitting Jones withdrew the request for the Court to stop the eviction, however, he wanted the courts to refrain from passing the keys to the Grechs.

Mr Justice Mintoff held that in a judgement of 9 February, 2012 and later confirmed on 29 April, 2016, Jones was ordered to return a property in Birkirkara, which was originally rented to his mother, who is now deceased. The Court of Appeal ordered the suspension of the eviction in the retrial proceedings, however, after this decree was cancelled. The Court of Appeal order of eviction was carried out, when the locks were changed and the keys were deposited.  The Court quoted from Article 873(2) of the Code of Organisation and Civil Procedure:

“(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.”

There are three elements that are needed for a warrant to be issued. The first is that the act may be prejudicial to the rights sought by the applicant. The second is that the blocking of that act is required to protect that right, which is that if that act takes place there would be no further remedy for applicant and that right would be lost. The courts have not considered a financial loss irredeemable. This was held in Francis Barbara -v- Carmelo Barbara decided on 13 May, 2014. The third element is that the applicant must have a prima facie right. The Court at this stage is not empowered to investigate whether the right in fact exists. This is a precautionary warrant, therefore, decided before the actual case and this is why this is a summary procedure, once the merits will be investigated in depth.

The Court pointed out that a warrant of prohibitory injunction is a procedure of an exceptional nature. This was held in Charles Mugliett -v- Saviour Bonnici, decided on 25 January, 2005. However, it cannot be used to as an arm twisting tactic, as it is used to block the defendant from using his or her rights.

The elements of a warrant must be all present.

With regard to this particular case, Jones is asking the court to block the return of the keys to the Grechs, however, the former had to show what prejudice he would suffer, if the keys are handed over to the defendants. The issue of the keys was ancillary to the eviction. The keys are handed over as part of the eviction order which does not prejudice the applicant’s right to continue with the constitutional court’s case and the retrial. Furthermore, the Court found it hard to understand how the handing of the keys would prejudice his case indefinitively. The eviction would not affect the outcome of the pending cases, since even if Jones is successful in his actions, he will not lose his right if the warrant is issued. Anyhow, the applicant would remain evicted during the actions.

Therefore, the Court moved to turn down the request for a warrant of prohibitory injunction.

 

Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

 

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.
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