Distinction must be made between the merits of an executive title and the formality of an executive warrant

In a judgment in the names of Fenech vs Zammit dated 19 January 2024 and handed down by Judge Audrey Demicoli sitting in the First Hall Civil Court, the Court endorsed the argument that a party attacking an executive warrant with which such party is burdened had to make a distinction between the formality of an executive act and the merits of the executive title leading to that executive warrant.

The law provides that when a Creditor has a contract declaring a constitution of debt, such Creditor may proceed to have that contract converted to an executive title, which in lay terms would be equivalent to obtaining a judgment without having to go through a full-blown Court case. Once a Creditor has an executive title, such creditor can proceed against the debtor by issuing an executive warrant in an attempt to secure the debt owed.

In the case at hand, the Creditor, Fenech, had followed a procedure by which a contract was converted to an executive title and the Creditor subsequently proceeded with the issuance of a garnishee order against the debtor.

Over a year later, the debtor, Zammit, filed an application based on Article 281 of the Code of Organisation and Civil Procedure (COCP) in the acts of the executive warrant in an attempt to attack the validity of garnishee order requesting the Court to nullify the executive warrant. The debtor’s application was based on the argument that the contract upon which the Creditor proceeded to obtain an executive title was not drawn up in accordance with the law and that therefore such contract could not have been converted to an executive title in the first place.

The Creditor defended his position by arguing that first and foremost the contract in question was a valid contract with which an executive title could be sought, so much so that the Civil Court First Hall had indeed granted such an executive title when this was initially sought and that the defendants had not contested such executive title when this was obtained. However, the Creditor further argued that the legal procedure adopted by the Debtor under the above-mentioned Article 281 of the COCP was not the right procedure to follow for the purposes of attacking the validity of an executive title. The Debtor, citing a number of prior judgments, argued that the procedure in question was not intended to be used for the purposes of investigating the validity or otherwise of the executive title obtained as this would be tantamount to investigating the merits of the same executive title. Rather, Article 281 of the COCP was intended for the Court to investigate whether the executive warrant issued in pursuance of such title was issued in accordance with the required formality of the law governing executive warrants, or not.

The Creditor argued that the procedure adopted by the Debtor limited the Court’s powers to investigate whether the executive warrant in question was issued according to the formalities laid down in Article 274 of the COCP, and as such the Court’s powers were limited to that exercise only, and not to investigate the merits and/or formalities of the instrument used to obtain the executive title.

Article 274 mentioned above lists down the formalities required for the issuance of an executive warrant which are: a) The demand for the issue of the warrant shall be made by application; b) Such application shall indicate the sum being sought; c) Proof of a demand for payment having been made according to law; d) A taxed bill of judicial costs if such are demanded, and; e) The signature of the judge approving the issuance of such executive title.

The Creditor argued that in view of the procedure adopted by the Debtor, the nullification of the executive warrant was to follow if and only if one of the formalities laid down in Article 274 was missing or defective in the executive warrant. The Creditor stressed that it was not within the Court’s power to delve into the merits of the contract between the parties and whether this could have been converted to an executive title or not. Such an exercise, the Creditor argued, could only be carried out if the Debtor had filed a fresh court case against the Creditor seeking the nullification of the executive title or its variation.

In its conclusions, the Court upheld the defence that in light of the procedure adopted by the Debtor, its powers were limited to the examination of whether the executive warrant in question had any formal defects or not. It commented on the fact at no point did the Debtor argue or suggest that there was any formal defect with the executive warrant and that the application was clearly intended to attack the merits of the executive title.

As such, after having considered the contents of the application by the Debtor, the reply by the Creditor, the legal arguments submitted by the parties’ respective legal counsel and consulting a number of judgments on the issue at hand, the judge held in favour of the Creditor and turned down the Debtor’s request to nullify the executive warrant.

The Creditor was represented by Dr Gianluca Cappitta.