Some opine that conflict, in nature, is inevitable. In organised society, courts of law exist so that disputes may be settled in a civil manner. Having said that, no one is ever thrilled to be served with a judicial act. In truth, which reasonable person would enjoy the threat of being sued? One may also dare to assert that the threat of being sued can be more anxiety-inducing than the lawsuit itself. Indeed, once a lawsuit is filed, one may start to come up with an adequate strategy for it.

So what happens if someone warns another person via say, a judicial letter or protest, of judicial action against him but then nothing happens? Is one expected to simply sit and wait until the dreaded day arrives? Not exactly.

The law provides for this scenario in Article 403 of the Code of Organisation and Civil Procedure in what is known as a jactitation suit (jattanza).

It stipulates that where a person makes a claim against another via a judicial act or otherwise in writing, and one wishes to be freed from it, one may within one year file a sworn application asking the court to fix a timeframe within which the person making the claim has to sue. The timeframe cannot exceed three months.

This means that the person who originally sent the claim in writing would have three months from the court's decision to file the lawsuit. Article 403 holds that failure to proceed with the lawsuit within that specified time quashes the possibility of proceedings against the same party on that claim in the future.

The idea behind this law is for the person making the claim not to drag his or her feet in filing the lawsuit.  

A judgment in the case Association of St. Angelo Mansions Owners (ASAMO) vs. St. Angelo Mangions Block 5 Association’ decided by the Civil Court First Hall on April 14, 2023 dealt precisely with this matter.

In its sworn application, the plaintiff association explained that St. Angelo Mansions is a residential complex in Vittoriosa composed of 13 blocks of apartments, underlying car spaces and garages as well as external parking at street level. ASAMO administers the common parts of the complex. At the same time, each individual block is administered by a particular association. The defendant association is such an example, meaning it administers Block 5. According to ASAMO’s statute, whoever owns an apartment in the complex is a member of ASAMO.

On December 16, 2020, the defendant association (i.e. St. Angelo Mangions Block 5 Association) filed a judicial protest against the plaintiff association (ASAMO), alleging that it had usurped the powers of the defendant association and called upon it to cease and desist from collecting dues from the respective owners.

Essentially, the defendant association claimed through the judicial protest that not all members of the defendant association were part of the plaintiff association (ASAMO) and that the plaintiff association was exercising powers that actually belonged to the defendant association (i.e. St. Angelo Mangions Block 5 Association).

On January 28, 2021, the plaintiff association filed a counter-protest denying all claims and allegations. Despite this, the defendant association still insisted that its members had a right not to pay ASAMO its annual dues and ASAMO was facing resistance in the process of collecting said dues from some of the owners of apartments in Block 5. Having said that, no lawsuit was filed by St. Angelo Mangions Block 5 Association against ASAMO on this basis. The situation thus remained very unclear.

This led ASAMO (plaintiff association) to file a jactitation suit against St. Angelo Mangions Block 5 Association (defendant association) on June 21, 2021.

The defendant association responded to the jactitation suit by stating that one of the essential elements for such a suit to succeed was absent. It argued that in the judicial protest it was not vaunting any right or pretension. It was simply reacting to the plaintiff’s association's ‘abusive and illegal behaviour’ and the judicial protest was not spontaneous but the result of provocation by the same plaintiff association.

Therefore, the Civil Court First Hall had to examine these circumstances in light of the essential elements for a jactitation suit to succeed.

The court examined all documentary evidence provided as well as witnesses produced. It also referred to previous judgments on the matter.

It explained that six elements need to subsist:

1) The plaintiff must possess the thing or matter cautioned;

2) The defendant must have presented a claim on the same thing or matter;

3) The claim must be spontaneous, and not provoked by the plaintiff’s behaviour;

4) The claim must be capable of being exercised judicially;

5) The claim must have a defined specified scope; and

6) The claim must not be conditional.

The court found that the true bone of contention in this case was the third element – the element of spontaneity. It remarked that ironically, despite the defendant association insisting that the judicial protest was a result of provocation and was not spontaneous, there were witnesses produced by same who confirmed that this was not the case.

Therefore, after delving into each element and applying them to the circumstances at hand one by one, the court proceeded to accede to the claims of the plaintiff association. It gave the defendant association three months within which to file a lawsuit against the plaintiff association on the pretensions mentioned in the judicial protest.

If the defendant association fails to sue the plaintiff association within the established timeframe it will permanently lose the right to do. It must sue now or forever hold its peace.

This judgment may still be appealed.

Dr Celine Cuschieri Debono is an associate at Azzopardi, Borg & Associates Advocates.