A man is facing an indeterminate time behind bars after his own father sought a rare legal measure to have him jailed until he settled a €200,000 civil debt consisting of arrears on rent which his son lacked the means to pay.

Noel Gafà, a 41-year-old technician who ran a business from a garage rented to him by his now-estranged father in 2001, was taken before the Magistrates’ Courts on Wednesday from prison where he had spent the night.

The man and his father, Mario Gafà, have long been engaged in a dispute over the rented premises but matters came to a head after the Court of Appeal, in June 2022, confirmed that the son was to pay the creditor – his father – €69,881 plus interests and costs.

The full amount added up to some €200,000, a sum which the son simply lacked the means to settle.

Months later, his father upped the tempo, persevering in his attempt to get what he was owed.

His lawyers applied for and obtained a warrant in factum in terms of article 385 of the Code of Organisation and Civil Procedure – a rarely-used legal instrument drawing its origins from Roman Law – whereby the court may order the detention of a debtor until he fulfilled court orders.

Father deposits sum to cover cost of detaining son

That warrant was upheld by the First Hall, Civil Court but was enforced only days ago when the father deposited in the court registry a sum necessary to cover the cost of detaining his son at Corradino Correctional Facility for four days. So, after facing great pressure over the past months to reach some sort of agreement with his father to avoid enforcement of the warrant, on Tuesday Noel Gafà got an unexpected visit from the court marshals telling him that there was a warrant to carry out.

And that meant that Noel Gafà was to be escorted to jail.

Noel Gafà cooperated and went along with them, while immediately alerting his lawyers.

Within hours, his legal counsel launched a threefold challenge.

They filed proceedings before the First Hall, Civil Court in a bid to revoke the warrant.

They also filed separate proceedings before the constitutional courts claiming that such “arms twisting” by his own father had resulted in an abusive situation which breached Noel Gafà’s fundamental rights, further requesting an interim measure to obtain his release from jail.

His lawyers made one final bid, resorting to the criminal law procedure known as Habeas Corpus, claiming that Noel Gafà’s arrest was illegal and thus requesting the Magistrates’ Court to order his immediate release.

That final request landed before duty Magistrate Noel Bartolo who, in a late afternoon sitting yesterday, heard submissions by all parties.

Noel Gafà’s lawyers argued that the civil court, which had greenlighted the warrant, had wrongly interpreted the law since the relative article said that such warrant was meant to target someone who failed “to do” something rather than “to give.”

'Son being illegally detained'

The judgment ordering Noel Gafà to pay the pending debt effectively concerned an obligation to “to give” and therefore the son was being illegally and abusively detained in jail, deprived of his personal freedom in breach of his fundamental rights. The other legal remedies sought by his lawyers were likely to take long to reach conclusion and in the meantime Noel Gafà risked remaining behind bars for as long as his father continued to pay for his stay in jail, possibly obtaining an extension of the court order.

Lawyer Ryan Falzon representing Noel Gafa argued that there is no provision in the law that provides for the arrest and imprisonment of a person in connection with that person’s failure or inability to pay a civil debt. Not only this, but fundamental human rights expressly prohibited such unlawful detention. “We are shocked at how the situation was handled. He was detained at Division 6 and escorted to court in handcuffs like a criminal,” he argued. 

The lawyer said that the court was not being requested to revoke the decree of another court, but it needed to establish if Gafa's imprisonment was based on a provision of the law, and if it resulted that it was not, the court had to order his immediate release.

Attorney General lawyer Ramon Bonett Sladden said that there was a warrant issued by the civil court and Noel Gafà’s remedy should be to seek its revocation on the merits.

Lawyer Vanessa Grech, representing the court authorities, pointed out that the marshals had executed the warrant in terms of law.

Lawyer Mario Mifsud, representing the prison authorities, also pointed out that once there was a court order and a prison ticket, Corradino officials had no option but to follow.

“The warrant in factum is issued only until an act ordered by the court is performed…That provision of law does not speak of arrest… He was arrested on the basis of nothing,” argued Noel Gafà’s lawyer, Timothy Bartolo.

After hearing submissions, Magistrate Bartolo retired to chambers and after lengthy deliberation, returned with a decree, reading out the operative part of the decision whereby Noel Gafà’s request was turned down.

Lawyer Jonathan Thompson acted as defence with Ryan Falzon and Timothy Bartolo. Julia Cini represented the Attorney General.  Carina Bugeja Testa represented the State Advocate. Inspector Clayton Silvio represented the police commissioner.