What if the defendant does not answer to my claim or does not turn up in court? This is a common question that a potential plaintiff would query about before instituting a lawsuit. Perhaps the obvious thinking of such a party, who is not familiar with judicial proceedings, is that his case would be stalled because either the defendant decides not to answer his claims or because the defendant does not turn up in court.
The lawsuit does not get stalled if the judicial acts (the lawsuit papers) are legally served upon the defendant. As a matter of fact, the procedural code prescribes the manner in which a judicial service is to be effected – this is held in article 187 of the Code of Organisation and Civil Procedure.
Service may be legally effected through several ways. A copy of the acts may be directly left in the hand of the defendant, whenever such person is found. Such judicial paperwork may also be left at the defendant’s residence, place or work or at the postal address with a family or household member, or with his mandatary. Nonetheless, such paperwork cannot be left with children under the age of 14 years or with people who suffer from mental conditions.
When it comes to lawsuits, such paperwork is not delivered through a postal mode, but the officer charged with the service (il-marixxall) would physically deliver the papers to the defendant’s address that has been indicated in the lawsuit.
Where the first attempt of service fails and, therefore, the legal paperwork does not reach its intended addressee, the officer charged with the service makes two other attempts to serve the copies of the lawsuit to the defendant. The last attempt would be effected after judicial hours. Records of the service proceedings are stamped at the back of the lawsuit paperwork.
If one of these attempts is successful, the defendant’s time to enter a judicial reply is triggered. This time frame is usually 20 days, that starts to run from when the service is effected in terms of the above.
What if the defendant refuses to accept the lawsuit papers? The law punishes such an attitude, and if such refusal is noted by the executive officer, on application of the plaintiff, the court may determine that the judicial paperwork had been legally served. This decree triggers the 20-day time-period mentioned above.
If all the above-mentioned attempts fail and the defendant is consequently unreachable, the court may order that service is effected by affixing a copy of the lawsuit to the door that leads to the defendant’s residence. This mode of service is known as ‘il-proċedura tal-affissjoni u l-pubblikazzjoni’. A copy of these judicial acts is also affixed on public notice boards at local police stations and local council premises. Summary details of the lawsuit are also published in the Government Gazette and in the daily newspapers. Where this procedure is adopted, notification shall be deemed to have been made on the third working date from the posting of the latest publication. Hence, the 20-day period would start to run thereafter.
If the defendant is unreachable, the court may order that service is effected by affixing a copy of the lawsuit to the door that leads to the defendant’s residence
This modality of service of judicial act featured in a recent judgment in the names ‘Spiteri et vs Chetcuti et − delivered by the Court of Appeal on June 9. The claimants had initiated eviction proceedings against the defendants before the Rent Regulation Board. The proceedings initiated by said party were the so-called special summary proceedings (commonly known as ‘il-proċeduri bil-giljottina’).
When these proceedings are adopted, the claimants demand the court to give judgment without proceeding to trial. Therefore, if the giljottina is successfully instituted, the court would deliver judgment on the same date of hearing (following positive notification of the defendant) without adopting the normal norm of hearing evidence from both sides.
The claimants were successful before the Rent Regulation Board in securing the eviction of the defendant from a shop and a store situated in two different localities. At the first instance, the board had proceeded to delve into the merits and decide the case after it was satisfied that the defendant was duly notified of the judicial acts lodged against by the so-called ‘proċedura tal-affissjoni’.
The defendant later filed an appeal and contended that he was at no point served with the judicial act instituting the case against him. His argument was that if the first two attempts of service were unsuccessful, the Rent Regulation Board could not immediately proceed to order that service was effected by the ‘proċedura tal-affissjoni’ and, therefore, the board was unable to proceed with the hearing of the case. The claimants counter-argued that the ‘proċedura tal-affissjoni’, as contemplated under article 187(3) of the Code of Organisation and Civil Procedure, was correctly employed and it was only resorted to after all previous attempts of service were not successful.
The Court of Appeal considered that the officer charged with effecting the service after judicial hours was unable to locate the address indicated, following which the board ordered that service is to be effected by affixing a copy of the lawsuit to the door leading to the defendant’s residence in terms of article 187(3). It resulted that the court officer tasked with the affissjoni (a different officer) was again unable to locate the residence indicated.
The Court of Appeal moreover considered that the defendant failed to furnish proof that contradicted the court officers’ declaration, i.e. that the residence in question could not be found. It proceeded to hold that contrary to what the appellant seemed to suggest, article 187(3) of the COCP in no way contemplates that in these kinds of scenarios, i.e. were a specified residence could not be located, two additional attempts at service should be effected before the court (or, in this case, the board) proceeds to order that the ‘proċedura tal-affissjoni’ be followed.
Article 187(3) is clear and unequivocal and leaves no room for any sort of ambiguities. In this regard, the Court of Appeal concluded that the Rent Regulation Board had resorted to the proċedura tal-affissjoni according to law. As a result, the Court of Appeal turned down the appellant’s claims and confirmed the decision delivered by the board in its entirety.
Mary Rose Micallef is an associate at Azzopardi, Borg and Associates Advocates.