The warrant of Prohibitory Injunction, also referred to in Maltese as ‘Mandat ta’ Inibizzjoni’ is a precautionary act issued by the court which restrains a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.

Therefore, it follows, that this type of warrant cannot be used to restrain a person from not doing anything now can it be used in order to force a person to act.

The warrant of Prohibitory injunction can only act as a precautionary warrant.  As has been stated by the court in various cases, one of which is ‘Falzon v. Zahra Limited et. (First Hall Civil Court, 2010), there are four types of warrants of Prohibitory injunction, which are the following: 

  1. The ‘General’ warrant of Prohibitory injunction – Article 873(2) of Chapter 12 of the Laws of Malta
  2. The ‘Alienatory’ warrant of Prohibitory injunction – Article 874(3) of Chapter 12 of the Laws of Malta
  3. The warrant of Prohibitory Injunction in cases of personal separation – Article 876 of Chapter 12 of the Laws of Malta; and
  4. The Warrant of Prohibitory injection to prevent a person from taking a minor outside of Malta – Article 877 of Chapter 12 of the Laws of Malta

Two conditions must concur for a warrant of Prohibitory injunction to be issued: -

  1. The warrant must be issued in order to preserve the rights of the applicant; and
  2. Prima Facie, such person must appear to possess such a right.

So, what are the instances wherein such a warrant may be demanded?

  • Claims of the Creditor

A warrant of Prohibitory injunction may be demanded by a creditor in order to secure a debt or any other claim not amounting to not less than €11,647. The object of such warrant is to restrain the debtor from selling, alienating, transferring, or disposing inter vivos such property by onerous or gratuitous title, or in any manner creating a burthen or real and/or personal rights.

In such cases pertinent to immovable property, the application for the warrant of Prohibitory injunction shall contain the particulars relating to the person against whom it is directed that are required by law in respect of the registration of a transfer of immovable property.

The warrant shall, upon its issuance and at the expense of the applicant, be served by a Notary Public, or any person indicated by the applicant, within 24 hours on the Director of the Public Registry and the Land Registry, and such warrant must be registered in the books kept for such purpose.

In the case of Papadopoulou et v. Director of Lands et. (First Hall Civil Court, 2010) The court stated that a warrant of Prohibitory injunction of this nature must be registered by the Director of Public Registry immediately after he is notified of the said warrant.  (The judgement uses the word ‘minnufih’.) If the registration does not take place immediately, the consequences are that the said warrant of Prohibitory injunction would not temporarily halt the act taking place.

The effect of this all is that any future sale, alienation, transfer or disposal of immovable property to which the warrant refers shall be void and to no effect. The warrant in question shall, unless previously revoked or otherwise ceasing to be in force, have effect for a period of one year from the date of final judgement in favour of the creditor in his action for the recovery of the debt or claim.

  • Claims of the Spouse

A warrant of Prohibitory injunction may also be demanded by a spouse against the other spouse in cases of personal separation, either before or after the institution of a suit for personal separation (or, it is presumed, divorce too) The warrant aims to restrain the other spouse from selling, alienating, transferring, or disposing inter vivos whether by onerous or gratuitous title any shareholding in any commercial partnership if this is part of the community of acquests. 

The warrant may also be brought against the commercial partnership itself if the said spouse has a majority shareholding. The warrant may also restrain the other spouse from contracting a debt or suretyship which is a charge on the community of acquests. The aforementioned demand may be made at any time after the filing of the application before the Civil Court, and until final judgement has been given in any such action for separation.

The spouse against whom the warrant is issued, as well as any partnership referred to in the warrant and any interested party, may, by application, ask the court to revoke or vary the said warrant.

  • Claims against a minor

A warrant of Prohibitory injunction may also be issued to restrain any person from taking any minor outside Malta. In such cases the warrant must also be served on the following entities/persons: The person enjoying legal or actual custody of the said minor, the commissioner of police, the officer charged with the issuance of passports.

How is the Warrant of Prohibitory injunction executed?

The application shall be served on the party against whom it is issued, who shall file a reply thereto within ten days. The court may, however, in urgent cases, reduce the said period of ten days; and furthermore, in default of opposition, the court may accede to the demand for the issuance of the said warrant.

The court may initially issue provisionally a warrant for a short period, under the terms and conditions as it may deem necessary, and subsequently decide about the matter in a definitive manner.

The court shall decide on its merits within the shortest time possible, but not later than one month from the day when the warrant had been filed and confirmed on oath, and the parties have been duly notified. 

Can the Warrant be revoked?

 A warrant may be revoked either totally or partially on the following grounds:

- The precautionary act ceased to be in force; 

- Any one of the conditions required by law for the issue of the precautionary act does not in fact subsist; 

- Other adequate security is available to satisfy the claim of the person at whose request a precautionary act was issued; 

- It is shown that the amount claimed is not prima facie justified or is excessive;

- The security provided is deemed by the court to be sufficient; 

- It is shown to be unreasonable to maintain the precautionary act, whether in whole or in part, or that this is no longer necessary or justifiable

For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella

You may also wish to read the following article on the Warrant in Factum

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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