In a judgement delivered on 28 April 2021 by the Court of Appeal, as presided by the Honourable Chief Justice Mark Chetcuti, the Honourable Judge Joseph R. Micallef, and the Honourable Judge Tonio Mallia, the Court of Appeal declared, inter alia, that save for the appearance either personally or through legal representation of a party in foreign judicial proceedings, an application for the enforcement of a non-EU judgement in Malta requires proof that the party cast was resident or domiciled in the State by whose courts the foreign judgement was delivered.

On 15 June 2008, a judgement was awarded by the South Tripoli Primary Court – 2nd Civil Circuit in Tripoli, Libya (the 'Libyan Judgement') in favour of Ahmed Mohamed Ezwawi and against Frank Anthony Cachia (the 'Appellant'). Mr Ezwawi had subsequently filed a lawsuit in the Malta First Hall Civil Court to obtain the local recognition and enforcement of the Libyan Judgement. The lawsuit was filed on the basis of Article 826 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta (the 'COCP') which provides for the enforcement of foreign judgements in the same manner as the judgement delivered in Malta.

Before the Malta court of the first instance, the Appellant had argued, inter alia, that the Libyan Judgement could not be enforced on the basis that:

  1. the Appellant had never been served with the lawsuit filed against him in Libya, and this since he had relocated from and severed all ties with Libya in 2006;
  2. the Libyan Courts had no jurisdiction to deliver the Libyan Judgement since the Appellant, qua defendant in those proceedings, was a Maltese citizen not domiciled in Libya; and
  3. on the basis of Article 811(h) of the COCP, the Libyan Judgement was not enforceable on account of the fact that it conflicted with an earlier final judgement handed down by the Libyan Courts in 2006 on the same subject matter.

The Malta First Hall Civil Court rejected the pleas raised by the Appellant in their entirety, leading to a subsequent challenge of its judgement in the second instance. The Court of Appeal's point of departure was Article 827 of the COCP, which establishes the grounds on which an application for the enforcement of a foreign judgement may be refused:

  1. The provisions of the last preceding article shall not have effect:
    1. if the judgement sought to be enforced may be set aside on any of the grounds mentioned in Article 811;
    2. in the case of a judgement by default, if the parties were not contumacious according to foreign law;
    3. if the judgement contains any disposition contrary to public policy or to the internal public law of Malta.
  2. For the purposes of this article, the plea to the jurisdiction of the court by which the judgement was delivered, may be raised in terms of article 811(d), even though that court may have adjudged upon a plea to its jurisdiction, in the case of any action brought against any person not subject to the jurisdiction of that court by reason of domicile or residence, unless such person had voluntarily submitted to the jurisdiction thereof.

The Court of Appeal proceeded to the first ground of appeal i.e. that the First Hall of the Civil Court had erred in its determination that the Appellant qua defendant to the Libyan proceedings had been validly served with the lawsuit. In terms of Article 811(b) of the COCP, a cause may be retried if the losing party: (a) was not served with the sworn application and (b) did not enter an appearance at the trial. In order to determine whether a party was validly served, reference must be made to the law applicable in the originating State which will, in turn, allow the Malta Courts to determine whether a breach of either natural justice or public policy has been committed. Such process entails an analysis of the judicial acts relative to the service of the Libyan lawsuit on the Appellant qua defendant in the Libyan proceedings. In this respect, the Court of Appeal noted that numerous unsuccessful attempts were made by the Libyan court bailiff to serve the Appellant at his Libyan address. The court bailiff had therefore decided to effect service by means of an administrative procedure under Libyan law. The validity of such service was confirmed in the Libyan Judgement itself. Moreover, the Appellant failed to discharge the onus of proof that service by an administrative procedure in Libya breached either Maltese public policy or the principles of natural justice. On the basis of the foregoing, the Court of Appeal dismissed the first ground of appeal.

The second ground of appeal was based on Article 811(d) of the COCP which allows for the retrial of a cause if the judgement is delivered by a court not seised of the action in the first place i.e. the Libyan Courts lacked jurisdiction to try the cause which led to the Libyan Judgement. The Court of Appeal noted that in accordance with a 1952 judgement in the names of Salvatore Camilleri noe vs Spiridione Mizzi, the enforcement of a foreign judgement required proof to the effect that the party cast was resident or domiciled in Libya at the time. The exception to this requirement was the Appellant's appearance, either personally or through his legal representation, in the judicial proceedings. However, the fact that the defendant did not put in an appearance cannot be interpreted as submission to the jurisdiction of the foreign court in question but rather as a contestation of the same.

In this case, the Court of Appeal observed that the Libyan service certificate clearly indicated that the lawsuit was not served at the defendant's Libyan address since the latter was no longer resident in the country. Furthermore, the Appellant had declared in his affidavit that he had relocated to Malta in 2006 and had not returned to Libya since.

On this basis, the Court of Appeal declared that the Appellant was not resident or domiciled in Libya at the time when judicial proceedings leading up to the Libyan Judgement were instituted in Libya. Any events, including other lawsuits which took place up until 2006, were irrelevant to the second ground of appeal since such events were removed from the Libyan judgement by a period of at least two years.

The Court of Appeal proceeded to uphold the second ground of appeal and it was therefore not necessary to enter into the merits of the third ground.

In delivering judgement, the Court of Appeal upheld the appeal and revoked the judgement delivered by the First Hall Civil Court on 15 March 2018, with judicial costs for both instances to be borne by the party against whom the appeal was lodged.

This article was first published in The Malta Independent.

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