High sulphur content in gasoil justifies seizure

In the writ against the Director General (Customs) and the Attorney General, George Pace held that his company operates cranes and delivers merchandise. For better efficiency he purchases his own fuel to be used for his machines and vehicles and as a result he stores this fuel.

The plaintiff was subject to an inspection by Customs after he purchased the fuel, but the fuel was seized and a seizure note was issued on 4 July, 2011. Pace asked the court to declare that the fuel was his and to order the customs to return the fuel.

The Attorney General defended the action by saying that in accordance with Article 181 of the Code of Organisation and Civil Procedure the office was erroneously included in the action.

It resulted that Customs received a tip off from the Malta Resources Authority that there may be some irregularities about the fuel and in fact 1,050 litres of gasoil were seized. The fuel was analysed and it was found that it contained seven times as much sulphur as was permitted by law.

Ms Justice Anna Felice in her judgment first dealt with the first plea that the Attorney General should not have been a party and quoted Article 181B of the Code of Organisation and Civil Procedure: “181B. (1) The judicial representation of the Government in judicial acts and actions shall vest in the head of the government department in whose charge the matter in dispute falls:

“Provided that, without prejudice to the provisions of this article:

“(a) actions for the collection of amounts due to Government may in all cases be instituted by the Accountant General;

“(b) actions involving questions relating to Government employment or to obligations to serve Government may in all cases be instituted by the Principal Permanent Secretary;

“(c) actions relating to contracts of supplies or of works with Government may in all cases be instituted by the Director of Contracts. 

“(2) The Attorney General shall represent Government in all judicial acts and actions which owing to the nature of the claim may not be directed against one or more heads of other government departments.

“(3) Every application, whether sworn or not, or other judicial act filed against Government shall be served upon each head of a government department against whom it is directed and upon the Attorney General and every time limit for the filing of any reply to any such act by any head of a government department being a defendant or a respondent in judicial proceedings shall not commence to run before the act is served upon the head or heads of the government departments against whom it is directed and upon the Attorney General. The registrar shall not charge any fees for effecting the service on the Attorney General.”

As a result the court upheld the plea that the AG should not be a party to the proceedings.

With regard to the merits of the case the court samples were taken from the gasoil found at the plaintiff’s premises. The scientific evidence showed that the sulphur levels exceeded the limit allowed by seven times. The 2008 regulations on the levels of sulphur stated that the sulphur in diesel should not exceed 0.001% (10ppm). Mr Pace’s fuel had 0.007% of sulphur.

As a result the court justified the Customs authorities in seizing the fuel.

The court commented that this fact does not exclude the plaintiff from taking legal action against whoever sold him the fuel.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates