Plaintiff must take an oath on the sworn application

Procedural rules are strict and must be strictly observed, according to the judgment delivered by Judge Mark Simiana in the case MGD vs LD, decided on 11 July 2025.

MGD, the plaintiff, and LD, the defendant, were married but separated via a court judgment on 31 October 2017. The marriage dissolution led to multiple court decisions on the division of assets, including a garage. The separation judgment specifically assigned the garage to LD subject to certain conditions.

LD was required to pay MGD €594 and assume all the remaining debt associated with the garage. LD had to ensure MGD was freed from all obligations under the mortgage taken out to purchase the garage.

This was a conditional assignment, meaning LD would obtain full ownership of the garage only once these conditions were met and a proper public deed was executed to formalise the transfer.

Despite the Family Court’s clear directions, no formal contract was drawn up or published to complete the legal transfer of MGD’s share in the garage to LD. Nonetheless, LD took possession of the garage anyway and the loan secured on the garage remained in MGD’s name and continued to make payments on it from her personal bank account.

Eventually, the plaintiff discovered that the defendant had sold the garage to a third party by deed dated 19 October 2021, despite the formal transfer to LD never having been completed. The sales deed included an incorrect statement that the garage had been assigned to LD by virtue of a deed dated 31 October 2017.

The notary who published this deed relied on a statement provided to her about a previous transfer which did not exist, and she was exempted from examining title because the purchaser, waived that requirement under Article 84C of the Notarial Profession and Notarial Archives Act.

However, the transfer of the garage to LD never took place, which essentially meant that MGD remained the legal co-owner of the property. Even so, the defendant treated the separation judgment as though it ordered the transfer outright and proceeded to sell the garage.

MGD asked court to declare the 2021 sale of the garage null and void and rescind the contract. Furthermore, she also requested the court to order the defendant to refund all payments she made to HSBC Bank on the loan and life insurance, as required by the 2017 judgment.

The defendant argued that the plaintiff’s initiating application was procedurally defective because it lacked the formal sworn confirmation required by law under Article 156 of the Code of Organisation and Civil Procedure (COCP).

This article states that sworn application must be confirmed under oath before the Registrar or a commissioner empowered to administer oaths.

The law treats this requirement as an issue of public order, meaning it is mandatory and strict. Even if the opposing parties do not object, the court is duty-bound to raise the issue ex officio, as procedural rules are binding on both litigants and the court itself.

The formal oath serves to attach legal weight to the statements in the application. Without this, the opposing parties cannot rely on the truthfulness of the application’s contents as formally attested. If courts tolerated the omission of the oath, they would effectively allow litigation to proceed on potentially unsubstantiated or unreliable grounds.

Ruling on LD’s preliminary objection, the court found that this defect in MGD’s application was not a mere irregularity but a fundamental nullity affecting the very validity of the action. Citing jurisprudence, the court stated that procedural formalities of this nature ensure solemnity, truthfulness and seriousness in litigation.

The court ruled that the initial defect in the plaintiff’s application could not be overcome by affidavits and her testimony during the case.

As a result, the court upheld the preliminary objection raised by the defendant and dismissed the plaintiff’s entire lawsuit outright, without entering into an evaluation of her substantive claims. The court also ordered that the plaintiff must pay the legal costs of the proceedings.