Court allowed Transport Malta to asphalt a private yard

The First Hall of the Civil Court turned down a request for a warrant of prohibitory injunction against Transport Malta, because the law prohibits such requests.

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Malcolm Mifsud
26 December 2014, 8:00am
This was decided by Mrs Justice Lorraine Schembri Orland in Leonarda Muscat and Maria Farrugia -v- Lourdes Diacono, George Diacono, Redeemer Diacono, Leornard Diacono, the Malta Transport Authority and the Commissioner of Lands on 16 December, 2014.

The applicants had filed an application for the court to issue a warrant of prohibitory injunction in order to stop the defendants from entering a courtyard or private road in Hal Kirkop and also for them not to carry out any type of works in the same property. The applicants argued that this property is their private property, which is used as access to their own individual properties.

Transport Malta (TM) replied by saying that it is an authority which has legal obligations, which are in the public interest. It explained that this courtyard is already a scheme road. TM is bound to act in accordance with the Authority for Transport in Malta Act, which includes provisions on how it is to maintain roads, plan and administer them. This particular schemed road went through the MEPA procedure and TM was merely consulted with. TM cannot ask for the property to be expropriated. According to law it is the owners of the adjacent road which is bound to form the new road and compensate the owners.

The Commissioner of Lands was not meant to be a party in this action since it was not he who asked for the expropriation of the land.

The Diaconos objected to the warrant of prohibitory injunction, since the yard is in fact a schemed road, with various houses along it.

Mrs Justice Schembri Orland examined the facts of the case where the defendants Diacono had applied to the MEPA to demolish a dividing wall and build a house and a garage, which building permit was issued. She also noted that there is no expropriation of the schemed road, however TM had started to asphalt the road. It is not contested that this property belongs to the applicants and the defendants Diacono do not have any right on the same property.

The Court then considered that a warrant of prohibitory injunction is intended to stop a person from prejudicing the applicants’ rights. According to Article 873 of the Code of Organisation and Civil Procedure, there are two elements to this warrant. The first is that the warrant will protect the applicants’ rights and if this is not issued the applicants will suffer prejudice. The second is that the applicants have prima facie rights. These two elements must both exist and if one does not exist the warrant will not be allowed.

However, Article 873(3) reads:

(3) The court shall not issue any such warrant against the Government or authority established by the Constitution or any person holding a public office in his official capacity unless the authority or person against whom the warrant is demanded confirms in open court that the thing sought to be restrained is in fact intended to be done and the court is satisfied, after hearing the explanations given, that unless the warrant is issued the prejudice that would be caused to the person suing out the warrant would be disproportionate when compared with the actual doing of the thing sought to be restrained.

Therefore, here the law is providing a further two elements with regard to the warrant filed against the government and these are that what is being stopped will in fact take place and that the prejudice that will be caused is disproportionate to what is to take place.

The court also emphasised that this procedure is a summary procedure and if upheld does not mean that the claim has been proved, but must be followed by a lawsuit, which will enter into the merits of the case.

In this particular case it is a fact that the property is private property and no party may usurp the property of others without their consent, and no expropriation took place. The yard was merely schemed and therefore, the applicants did not lose any other of their rights. Therefore, the applicants proved prima facie that their rights will be prejudiced if the works are carried out by the defendants, Diacono. However, with regard to TM which is a public entity, which according to a legal notice may carry out works on private roads and therefore, it does not give rights to third parties which are not owners.     

Therefore, the Court upheld the defendants’ request for a warrant of prohibitory injunction be limited to the defendants Diaconos.

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Malcolm Mifsud is a partner at Mifsud & Associates.