Legal tradition has conceived many elaborate terms to describe legal institutes or procedural instruments. These ostensibly complex words often have historical connotations – take ‘subbasta’ for example, which derives out of the term ‘sub hasta’, meaning the spot at the bottom of a spear fixed to the ground, where in Roman times, auctioning of enemy loot took place.

Occasionally, however, legal instruments are simply known by the article at law where they are found. Ask any lawyer worth his salt and he will know exactly what you are referring to if you cite article 469A (judicial review against an administrative act), article 495 (forcing a sale among co-owners) or article 1357 (executing a promise of sale).

In terms of popularity, article 166A of the Code of Organisation and Civil Procedure (COCP) reigns atop all of these, for indeed, it gives rise to a prominent procedural tool which is literally known by the moniker ‘letter 166A’, and by no other name.

Where someone is a creditor of a debt that does not exceed €25,000, he can file a judicial letter against the debtor under this article at law, informing him clearly that if he does not reply within 30 days from service upon him of the said judicial letter by presenting a note in the record of the said judicial letter rebutting the claim, such judicial letter shall constitute an executive title. This means that the money will be due the same way as if the creditor would have obtained a final judgment against the respondent.

This is a potent tool, for it may allow a creditor to get a judicial title capable of being enforced, literally within 30 days.

Of course, the law takes precautions against abuses; for instance, the letter has to rigorously follow a certain form, it has to be confirmed on oath and it shall clearly inform the respondent of his right to oppose it.

Moreover, subarticle (5) provides that any executive title obtained according to the provisions of this article may be rescinded and declared null and void if upon a request by application in the Court of Magistrates (Malta) or in the Court of Magistrates (Gozo), as the case may be, to be filed within 20 days from the first service upon him of any executive warrant or other judicial act based on the said title, the court is satisfied that he was not properly notified or that the judicial letter did not contain one of the requisites in the law.

The exclusivity of the applicability of subarticle (5) was the matter in the case decided by the Civil Court, First Hall on July 9, in the names of ‘Frank Azzopardi v Carmen Pace’.

The attentive reader would have immediately started to ask a pertinent question: why was the case decided by the Civil Court, First Hall, when subarticle (5) directs the complainant to the Court of Magistrates?

Indeed, that before the court was not an application under article 166A(5) but a proper lawsuit filed before the superior courts.

The respondent had in the past filed a judicial letter under article 166A, claiming that the plaintiff owed him €15,471.20 in connection with the purchase of a calf. The plaintiff failed to reply within 30 days and, as a result, the respondent had obtained an executive title.

The letter has to follow a certain form, it has to be confirmed on oath and it shall inform the respondent of his right to oppose it

Eventually, the plaintiff filed a lawsuit. He claimed:

(i) that the oath taken by the creditor on the judicial letter was erroneous and untruthful;

(ii) that the amount claimed had already been paid; and

(iii) that as a result, the court ought to invalidate the executive title and order the debtor to refund what was paid in excess.

Admittedly, the debtor was in a bit of a pickle. Let us assume for a moment that it was true that the sum mentioned in the judicial letter was not due: article 166A(5) allows the debtor to act within a certain time frame only (within 20 days from the first service upon him of any executive warrant or other judicial act based on the said title) and only to obtain a declaration that the executive title obtained through article 166A is null and void and not to demand a refund of any sum (plus interest) that the creditor would have managed to receive irregularly. That would have to be requested in a separate lawsuit.

However, this does not seem to be the reason why the plaintiff filed the case this way. Originally, the debtor had already proceeded before the Civil Court, First Hall, only to later withdraw the lawsuit. Then he filed an application in terms of article 166A(5) before the Court of Magistrates but his application was rejected. He had appealed but the appeal was declared as being procedurally inadmissible.

This was his fourth attempt at contesting the judicial letter, in what was clearly a strenuous pursuit against the myriad procedural barriers he had to face. The idea was that the court’s margin of powers is wide and ample and, as a result, it could decide this case, no matter what.

However, the court stated that the action could not be acceded to. An executive title obtained under article 166A may only be contested as provided by law and the court’s general powers are not sufficient to oust the limits the law placed on it.

Moreover, the plaintiff had already done the procedure in terms of subarticle (5) and he now could not replicate the same causes before another court, not to mention that the decision of the Court of Magistrates previously undertook had reached finality and could no longer be contested. The court stated that the procedure allowing one to contest an executive title obtained through article 166A had been exhausted and there was nothing else to be done.

It further quoted article 166A(6), which states that “no opposition other than that specifically provided for in subarticle (5) shall stay the issue or execution of any executive act obtained thereunder or the paying out of the proceeds of any warrant or sale by auction carried out in pursuance thereof”. Any complaint about the executive title had to be raised at the proper stage, that is within the 30 days from the service of the judicial letter.

As a result, it rejected the case and ordered the plaintiff to pay the costs of the case.

The plaintiff filed an appeal.

Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.