We all know what the guillotine is, don’t we? The infamous machine used for cutting off people’s heads by means of a heavy blade that slides down in the grooves made in two posts. Generally used during the French Revolution, the term, albeit not referring to the actual machine, is still popular in the courtroom today.
Article 167 of the Code of Organisation and Civil Procedure deals with special summary proceedings, better known in common courtroom parlance as “kawża bil-giljottina”.
In actions within the jurisdiction of the superior courts of Malta, where the demand is solely: (a) for the recovery of a debt ‒ certain, liquidated and due ‒ not consisting in the performance of an act; or (b) for the eviction of any person from any urban or rural tenement, with or without a claim for ground rent, rent or any other consideration due or by way of damages for any compensation, up to the date of the surrender of the tenement, or (c) for the eviction of an operator, lessee or other occupants, including any members of their staff from seagoing vessels or aircrafts, this article provides that it shall be lawful for the plaintiff to request in the sworn application that the court gives judgment allowing his demand, without proceeding to trial.
Wait though. Not so fast. The plaintiff, when bringing an action in terms of this article, must state that, in his/her belief, there is no defence to the action.
In such cases provided for in this article, the sworn application is to contain an order to the defendant to appear before the court on an appointed day and at a stated time not earlier than 15 days and not later than 30 days from the date of service.
If the defendant fails to appear at the hearing so appointed, or if he appears and does not impugn the proceedings taken by the plaintiff, on the ground of irregularity or inapplicability or, having unsuccessfully raised such plea, does not by his own sworn evidence, or otherwise, satisfy the court that he has a prima facie defence, in law or in fact, to the action on the merits, or otherwise discloses such facts or issues of law as may be deemed sufficient to entitle him to defend the action or to set up a counterclaim, the court shall forthwith give judgment, allowing the plaintiff’s claim.
Where leave to defend is given, the action shall be tried and determined in the ordinary course.
In its judgment of June 21, in the names ‘Executive Security Services Ltd v Cavendish Hotels Ltd’, the First Hall of the Civil Court, presided by Mr Justice Christian Falzon Scerri, was tasked with determining judicial proceedings in terms of article 167 wherein the plaintiff was requesting the sum of €43,334.37 by way of payment for services rendered.
At the hearing held on June 21, despite the defendant not having yet been notified, the court drew the plaintiff’s attention to the fact that it had failed to accompany its sworn application, with a statement that in its belief there was no defence to the action. The plaintiff accepted that this statement was indeed missing but argued that in the sworn application it was clearly stated that its claim had never been contested by the defendant.
Such proceedings already place the defendant at a disadvantage by not giving him an automatic right to reply to the case brought against him
In delivering judgment, the court noted the exceptional nature of proceedings brought in terms of article 167; such proceedings, the court stated, move away from the general principle of law that a case should be decided after the court has taken into account the evidence and submissions of the parties to the case.
The court further noted that such proceedings already place the defendant at a disadvantage by not giving him an automatic right to reply to the case brought against him, and even requiring him to be physically present on the day of the hearing to try to convince the court that he has a prima facie defence to bring forward.
In such circumstances, the court noted, it must be careful not to go beyond what the law says and, therefore, bring the defendant at a further disadvantage than that already placed upon him by article 167.
The articles of the law pertaining to special summary proceedings, the court observed are to be observed ad unguem. This means that before a court proceeds with the dispensation of the hearing, it must be convinced that the action brought by the plaintiff complies with the law.
The court, argued Mr Justice Falzon Scerri, should not hesitate or refrain from rejecting a request for summary proceedings if it realises that the action brought by the plaintiff does not fully comply with the requirements of the law. It is the duty of the court to set aside the summary procedure and order that a case take its ordinary course if it finds any lack of mandatory procedural requirements in the sworn application by which the dispensation of the hearing is requested.
The right to be heard is not to be so easily set aside.
Describing the plaintiff’s failure to accompany its sworn application with a statement that in its belief there was no defence to the action as a sin – “dnub kbir” – the plaintiff’s argument that in the sworn application it was clearly stated that its claim had never been contested by the defendant was insufficient.
Such lack of contestation merely meant that the defendant remained passive and did nothing.
Silence on the part of a defendant was not tantamount to admission or lack of potential arguments by way of defence to the claim.
The law, the court stated, is very clear about what kind of statement must be tendered by the plaintiff – one that, in his/her belief, there is no defence to the action. Whatever the reason, in this case, this specific statement was not made by the plaintiff; the plaintiff, therefore, denied itself from resorting to special summary proceedings in terms of article 167.
The court proceeded to refute the request for the case to be treated in terms of article 167 and ordered instead that the case be conducted in the ordinary manner.
Keith Borg is a partner at Azzopardi, Borg and Associates Advocates