PDF of Act as amended to Act II of 2012

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CODE OF ORGANIZATION AND CIVIL PROCEDURE [CAP. 12. 1
CHAPTER 12
CODE OF ORGANIZATION AND CIVIL PROCEDURE
To amend and consolidate the Laws of Organization and Civil Procedure.*
1st August, 1855
ORDINANCE IV of 1854 as amended by Ordinances: V, VII and X of 1856, XII of 1857, XI
of 1858, XI of 1859, IV of 1862, III of 1863, V of 1864, IV of 1865, IV of 1868, IX of 1871, VII
of 1876, I, VI and VII of 1880, XV of 1885, IX of 1886, VII of 1892; the Malta (Use of the
English Language in legal proceedings) Order-in-Council, 1899; Ordinances: XV of 1900, VI
and VIII of 1901, II and VIII of 1903, V of 1904, IV of 1905, XV of 1913, I, II and XVII of
1914, II of 1916; Government Notices: No. 340 of 1916, No. 162 of 1917; Ordinance XII of
1918; Government Notices: Nos 136 and 137 of 1919, No. 203 of 1920; Acts: XVI of 1922, IV
and XII of 1924, XIII of 1925, XI, XVI and XX of 1929; Government Notices: Nos. 78 and 475
of 1929; Act XI of 1932; Government Notice No. 105 of 1933; Ordinances: IV, XVI, XIX, XXXI
and XXXIII of 1934; Government Notice No. 393 of 1934; Ordinance XXVIII of 1935;
Government Notice No. 138 of 1935; Ordinances: XXI of 1936, XXXVI of 1938, III and XXIX
of 1939; Government Notice No. 549 of 1939; Ordinances: II and XV of 1940; Government
Notice No. 249 of 1941; Ordinances: XI and XII of 1942; Government Notice No. 653 of 1942.
Incorporating also Ordinance II of 1868 as amended by Ordinance VI of 1895.
The Code was subsequently amended by Government Notice No. 199 of 1944; Ordinance II
of 1947: Acts: LIII and LXII of 1948: Government Notice No. 139 of 1949; Act XXIX of 1952;
Government Notice No. 33 of 1953; Act II of 1954; Ordinances: IV of 1961, XXI and XXV of
1962; Act XXII of 1963; Legal Notice 4 of 1963; Acts: XIII and XV of 1964, XIX and XXXII of
1965; Legal Notice 46 of 1965; Acts: XXXI of 1966, XX of 1968; Legal Notices: 2, 7 and 9 of
1968; Acts: I and XXI of 1969, XXVII of 1970, XXIII and XXX of 1971; Legal Notice 78 of
1971; Acts: XI and XLVI of 1973, V, VII, XXXV and LVIII of 1974, X and XXIV of 1975; Legal
Notices: 148 and 154 of 1975; Acts: XVIII and XXII of 1976, XI and XXVII of 1977, XII of
1978, XXVII of 1979; Legal Notices: 29 and 95 of 1979; Acts: XI, XIV and XXXI of 1980;
Legal Notices: 49, 99 and 102 of 1980; Acts: VIII, XLIX and LII of 1981; Legal Notices: 56
and 96 of 1981; Act XVI of 1982; Legal Notice 42 of 1982; Acts: XIII and XV of 1983, IV and
XI of 1984, XII, XIII and XX of 1985, V and XXXIX of 1986; Legal Notices: 3 of 1986, 1 of
1987, 28 of 1988, 120 of 1989; Acts: VIII of 1990, XVII of 1991; Legal Notice 116 of 1992;
Acts: XXII of 1992, XXI of 1993, XI of 1994 and V of 1995; Legal Notices 91 and 190 of 1995;
Act XXIV of 1995; Legal Notice 18 of 1996; Acts II and IV of 1996; Legal Notices: 121, 122,
124, 153 and 154 of 1996; 149 and 226 of 1997; Acts XI and XVIII of 1999; Legal Notices 1,
142 and 197 of 2000, and 8 and 34 of 2001; Acts: IV and VI of 2001, III, XVIII and XXXI of
2002, and XVII of 2003; Legal Notices 383 of 2003 and 248 of 2004; Acts III, IX, X, XVI and
XVIII of 2004, and XIII and XXII of 2005; Legal Notices 277, 290 and 342 of 2005; Acts I, XI,
XIV and XVI of 2006; Legal Notices 68 and 181 of 2006; Acts VII, VIII and XXXI of 2007;
Legal Notice 407 of 2007; Acts III and XV of 2008; Legal Notice 36 of 2009; Acts I, XII, XV
and XXIII of 2009; Acts V, VIII and IX of 2010; Legal Notice 447 of 2010; Act VI of 2011;
Legal Notices 371 and 372 of 2011, and 79, 158 and 218 of 2012; and Act II of 2012.
*This Code, enacted by Ordinance IV of 1854, was promulgated by Proclamation No. VI of the 1st of May,
1855.
2 CAP. 12.] CODE OF ORGANIZATION AND CIVIL PROCEDURE
ARRANGEMENT OF CODE
Articles
Short title 1
BOOK FIRST
Title I. Of the Courts of Justice generally 2-30
Title II. Of the Superior Courts 32-46
Title III. Of the Inferior Courts 47-56A
Title IV. Of the Executive Officers of the Court 57-73
Title V. Of the Legal Profession 78A-97C
BOOK SECOND
OF THE PROCEDURE IN THE COURTS OF
JUSTICE OF CIVIL JURISDICTION
General Provisions 98-124
PART I
OF THE ORDINARY MODE OF PROCEDURE
IN CONTENTIOUS MATTERS
General Provision 125
Title I. Of the Mode of Procedure by Application for Appeal 142-153
Title II. Of the Mode of Procedure by Sworn Application 154-160
Title III. Of the Ordinary Mode of Procedure in Contentious Matters
as applied to the respective Courts 161-173
Title IV. Provisions applicable to Written Pleadings and other Acts
of Procedure 174-193
Title V. Of the Trial of Causes 193A-215
Title VI. Of Decrees, Judgments and Appeals 216-251
Title VII. Of the Enforcement of Judgments and other Executive
Titles 252-395
Sub-title I. General Provisions 252-281
Sub-title I. Of the Warrant of Seizure of Movable Property 282-304A
Sub-title II. Of the Warrant of Seizure of Immovable Property 305-311
Sub-title III. Of the Warrant of Seizure of a Commercial Going Concern 312-312K
Sub-title IV. Of Judicial Sales by Auction 313-357
Sub-title V. Of Court Approved Sales for Ships, Vessels and Aircraft 358-364
Sub-title VI. Of the Executive Garnishee Order 375-383
Sub-title V. Of the Warrant of Ejectment or Expulsion from Immovable
Property 384
Sub-title VIII. Of the Warrant In Factum 385-388
CODE OF ORGANIZATION AND CIVIL PROCEDURE [CAP. 12. 3
Articles
Sub-title X. Of the Executive Warrant of Arrest of Sea Vessels 388C-388D
Sub-title XI. Of the Executive Warrant of Arrest of Aircraft 388E-388F
Sub-title XII. Of the Warrant In Procinctu 388G
Sub-title VII. Of the Rendering of Accounts and Liquidation of Fruits 389-395
Title VIII. Of Certain Special Proceedings 396-469A
Sub-title I. Of Reconvention 396-402
Sub-title II. Of Jactitation Suits 403-415
Sub-title III. Of Competing Claims 416-435
Sub-title IV. Of Uncertain or Unknown Heirs 436-447
Sub-title V. Of Disentail 448-459
Sub-title VI. Of Causes of the Government 460-469
Sub-title VII. Judicial Review of Administrative Action 469A
PART II
OF THE MODE OF PROCEDURE BEFORE THE
COURT OF VOLUNTARY JURISDICTION
General Provisions 470-489
Title I. Of Disentail by Decree of Court of Voluntary Jurisdiction 490-498
Title II. Of the Disencumberment of Immovable Property by the
Procedure of Edicts 499-511
Title III. Of the Appointment of Tutors, Curators and other
Administrators 512-519
Title IV. Of Interdiction and Incapacitation 520-527
Title V. Of the Presentation and Publication of Secret Wills 528-535A
Title VI. Of the Declaration of the Opening of a Succession 536-540
Title VII. Of the Inventory 541-549
Title VIII. Of the Execution of Acts in pursuance of Decrees of the
Court of Voluntary Jurisdiction 550-555
Title IX. Of the Taxation of Certain Fees 556-557
BOOK THIRD
OF CERTAIN MATTERS RELATING TO
JUDICIAL PROCEDURE
Title I. Of Evidence 558-727
Sub-title I. Of Witnesses 563-.626
Sub-title II. Of Documentary Evidence 627-636
Sub-title III. Of the Demand for the Production of Documents 637-643
Sub-title IV. Of Referees 644-682
Sub-title V. Of Inspection In Faciem Loci 683-692
Sub-title VI. Of the Proof by Admission or by Reference to the Oath of
the other Party 693-727
4 CAP. 12.] CODE OF ORGANIZATION AND CIVIL PROCEDURE
Articles
Title II. Of Pleas 728-805
Sub-title I. Of Pleas Generally 728-732
Sub-title II. Of the Challenge of Judges and Magistrates and of
Surrogation 733-740
Sub-title III. Of Pleas to the Jurisdiction 741-777
Sub-title IV. Of the Plea as to the Capacity of the Plaintiff or Defendant 780-788
Sub-title V. Of the Plea of Nullity of Judicial Acts 789-790
Sub-title VI. Of Pleas in Spoliation Suits 791
Sub-title VII. Of the Plea of Lis Alibi Pendens or of Connection of
Actions 792-794
Sub-title VIII. Of the Plea as to Beneficium Excussionis 795-801
Sub-title IX. Of the Plea of Falsification 802-805
Title III. Of the Change of Parties by Death, etc. 806-810A
Title IV. Of New Trial 811-825
Title V. Of the Enforcement of Judgments of Tribunals of Countries
outside Malta 825A-828
Title VI. Of Precautionary Acts 829-877
General Provisions 829-838B
Sub-title I. Of the Warrant of Description 839-845
Sub-title II. Of the Warrant of Seizure 846-848
Sub-title III. Of the Warrant of Seizure of a Commercial Going Concern 848A-848B
Sub-title IV. Of the Garnishee Order 849-854
Sub-title V. Of the Warrant of Arrest of Sea Vessels 855-865
Sub-title IV A. Of the Warrant of Arrest of Aircraft 865A-865K
Sub-title V. Of the Warrant of Prohibitory Injunction 873-877
Title VII. Of the Protest and Judicial Letter 889-892
Title VIII. Of Security 893-905
Title IX. Of Discontinuance 906-910
Title X. Of the Admission to Sue or Defend with the Benefit of
Legal Aid 911-926
Title X A. Of Legal Aid (Cross-Border Disputes) 928A-928H
Title XI. Of Curators 929-942
Title XII. Of Deposits 943-951
Title XIV. Of the Intervention and Joinder of Parties 960-962
Title XV. Of the Desertion of Causes 963-967
Title XVI. Of Arbitration 968-969
Title XVII. Of the Respect due to the Court 988-1003A
Title XVIII. Of Judicial Costs 1004-1006
Title XIX. Of Forms 1007-1008
Repealing Provision 1009-1009B
SCHEDULES
CODE OF ORGANIZATION AND CIVIL PROCEDURE [CAP. 12. 5
Schedule A. Tariffs referred to in the Code of Organization and
Civil Procedure.
Schedule B. Forms.
Schedule C.
6 CAP. 12.] CODE OF ORGANIZATION AND CIVIL PROCEDURE
Title. 1. The title of this Code is Code of Organization and Civil
Procedure.
BOOK FIRST
Title 1
OF THE COURTS OF JUSTICE GENERALLY
Civil courts of 2. (1) The courts of justice of civil jurisdiction for Malta are
justice. either superior or inferior. Each court may be divided into different
Amended by:
sections.
XXII. 1976.4;
XXXI. 2002.3.
(2) Unless otherwise established by law, the President of Malta
may by Order establish the sections of each Court, and designate the
categories of cases assigned to each section; and may by subsequent
Order amend, revoke or substitute such Order.
(3) Saving any other provision of law, the courts of justice of
civil jurisdiction are exclusively vested with the judicial authority
in civil matters within the jurisdiction of the tribunals of Malta.
Superior courts. 3. The superior courts are:
Amended by:
XIII. 1964.2. (a) the Civil Court;
Substituted by:
(b) the Court of Appeal; and
L.N. 148 of 1975;
XXIV. 1995.2.
(c) the Constitutional Court.
Inferior courts. 4. The inferior courts are:
Amended by:
XV.1913.1; (a) the Court of Magistrates (Malta) for the Island of
VIII. 1990.3. Malta;
(b) the Court of Magistrates (Gozo) for the Islands of
Gozo and Comino.
Jurisdiction of 5. (1) Save as otherwise provided by law, the jurisdiction of
superior and the superior courts is general for Malta.
inferior courts.
Amended by: (2) The jurisdiction of the inferior courts is limited to
IX. 1886.1.
particular places.
Constitution of 6. (1) The Chief Justice and President of the Court of Appeal
superior courts. and all other judges shall sit in the superior courts as by law
Amended by:
provided.
IX. 1886.2;
IV. 1905.2;
(2) Besides the Chief Justice, the judges of the Superior Courts
XV.1913.2;
XVII.1914.1; shall be thirteen or such greater number as the President of Malta
XXXI.1934.2; may by Order prescribe.
XXVIII.1935.2.
Substituted by:
XIII. 1964.3;
L.N. 148 of 1975.
Amended by:
XXII. 1992.2.
CODE OF ORGANIZATION AND CIVIL PROCEDURE [CAP. 12. 7
7. (1) The magistrates shall sit in the inferior courts. Constitution of
inferior courts.
(2) The Chief Justice may designate one of the magistrates as Amended by:
Senior Magistrate; such designation shall be for a specified time or IX.1886.3.
Substituted by:
until another magistrate is so designated.
XIII.1964.4.
Amended by:
(3) Without prejudice to the provisions of this Code or of any
VII. 2007.2.
other law prescribing the court or courts in which a magistrate shall
sit, the Senior Magistrate shall perform such duties and functions as
may be assigned by the Chief Justice or as may be provided by any
law for the time being in force.
8. (1) Saving the cases expressly provided for in this Code, Judges may not
the judges shall not, except in open court, either directly or communicate with
suitors, etc.
indirectly, hold any communication with any suitor in any of the
Amended by:
courts, or with any advocate, legal procurator, or other person on L.N. 46 of 1965;
behalf of such suitor, in regard to any suit which is pending at the LVIII. 1974.68;
L.N. 148 of 1975;
time, or is about to be commenced or prosecuted. Nor shall they, XXXI. 2002.4.
without the permission of the President of Malta, first had and
obtained on an application to that effect, act as advocates or in any
case give counsel or advice in regard to any suit which they know
to be already commenced, or which they foresee as likely to
commence.
(2) The provisions contained in this article shall not apply in Exceptions.
the case of lawsuits concerning any of the parties mentioned in
article 734(a), (b), (c) and (e).
(3) Nothing in the preceding subarticle shall be deemed to
preclude a judge or magistrate from communicating with the
advocate or legal procurator of a party in connection with any
matter concerning the management of a cause pending before the
judge or magistrate:
Provided that a magistrate shall not be debarred from
holding any communication for the purposes of any inquiry into
any criminal matter when such magistrate is holding an inquiry
under Title II of Part I of Book Second of the Criminal Code. Cap. 9.
9. Moreover, it shall not be lawful for any of the judges to act Judges may not act
as an arbitrator, or to accept any tutorship or other administration as arbitrators etc.
Amended by:
except activities within the Judicial Studies Committee or such as
L.N.148 of 1975;
may be assigned to him by law. VII. 2007.3.
10. (1) The judges shall, before entering on the execution of Oaths of allegiance
their office, take, before the President of Malta, the oath of and of office to be
taken by judges.
allegiance set out in the Constitution of Malta and the following
Amended by:
oath: XIII.1964.5;
L.N. 46 of 1965;
LVIII. 1974.68;
L.N. 148 of 1975;
XII.1978.2;
XXIV. 1995.3;
XXXI. 2002.5.
Oath of Office Form of oath of
office.
I........... do swear that I will faithfully perform the duties of
Judge without favour or partiality, according to justice and right,
and in accordance with the laws and customs of Malta, to the
8 CAP. 12.] CODE OF ORGANIZATION AND CIVIL PROCEDURE
honour of God and the Republic of Malta, and that I will not hold,
either directly or indirectly, any communication with any suitor in
any of the Courts, whether superior or inferior, his Advocates or
Legal Procurators, or with any other person on behalf of such
suitor, in regard to any suit pending or about to be commenced or
prosecuted in any of the said Courts, except in open court, saving
the cases expressly provided for by law; and that I will disclose in
open court, and make known to the President of Malta any such
communication as may be made to me. And I do further swear that I
will not act, either directly or indirectly, as an Advocate, or
arbitrator, nor give in any case counsel or advice to any person in
regard to any suit already commenced or to be commenced in any
of the said Courts, saving the cases excepted by law, without the
permission of the President of Malta first had and obtained upon an
application to that effect. So help me God.
(2) Where any communication as is referred to in the form of
oath contained in sub-article (1) consists in an anonymous letter or
in a letter the writer whereof cannot be readily identified, or where
any such communication contains insulting or offensive
expressions, the judge who received the communication need not
read out the communication in open court but may instead disclose
in open court the fact of such receipt and shall in any case make the
content thereof known to the President of Malta.
Distribution of 11. (1) The President of Malta shall assign to each of the
duties of judges. judges his duties by assigning to him the court or the chamber of
Amended by:
the court or section in which he is to sit ordinarily, and may transfer
I.1914.1;
XII.1918.2; a judge from one court or chamber or section of a court to another:
XII.1964.6;
L.N. 46 of 1965; Provided that a judge may be assigned to sit ordinarily in
XXIII.1971.2; more than one court or more than one chamber or section of one or
LVIII. 1974.68;
L.N. 148 of 1975; more courts.
XXII. 1992.3;
XXXI. 2002.6. (2) The President of Malta is also empowered to surrogate a
Substituted by: judge in case of a vacancy in the number of judges.
VII. 2007.4.
(3) Where more than one judge is assigned to sit ordinarily in a
court, or in a chamber or section of a court, the distribution of
duties in general between the said judges shall be made by the
Chief Justice, and the registrar shall assign cases and other judicial
acts to the judges as directed by the Chief Justice:
Provided that, except where cases or judicial acts are
assigned according to general directives or according to rules made
pursuant to subarticle (6), where the Chief Justice may be
challenged or may abstain from taking cognizance of a case for any
of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and
(iii), (e) and (g), the assignement of such a case shall be made by
the Senior Administrative Judge referred to in subarticle (11).
(4) Whenever any judge, other than the Chief Justice, is
challenged or otherwise lawfully impeded, the Chief Justice shall
assign another judge to take cognizance of the case:
Provided that, except where cases or judicial acts are
assigned according to general directives or according to rules made
pursuant to subarticle (6), where the Chief Justice may be
CODE OF ORGANIZATION AND CIVIL PROCEDURE [CAP. 12. 9
challenged or may abstain from taking cognizance of a case for any
of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii) and
(iii), (e) and (g), the assignement of a judge to take cognizance of
that case shall be made by the Senior Administrative Judge referred
to in subarticle (11).
(5) Without prejudice to the provisions of article 12(2), and
except where cases and judicial acts are assigned according to
general directives or according to rules made pursuant to subarticle
(6), where the Chief Justice is challenged or otherwise lawfully
impeded, the Senior Administrative Judge referred to in subarticle
(11) shall assign another judge to take cognizance of the case.
(6) The Rule-Making Board established under article 29 may
make rules providing for the manner of the distribution of cases and
other judicial acts for the purposes of subarticles (3), (4) and (5).
(7) Any assignement, transfer or subrogation made by the
President of Malta, and any distribution of duties in general, and
the assignment of cases pursuant to a challenge or abstention made
by the Chief Justice or, as the case may be, by the Senior
Administrative Judge referred to in subarticle (11), shall be deemed
to have been properly and sufficiently notified for all purposes if
notice thereof is posted in such registry as the Minister may under
article 27 prescribe for the purpose before or at the beginning of the
period during which such assignment, transfer, subrogation or
distribution is to take effect.
(8) The registrar shall keep a record of all notices posted up in
terms of the last preceding subarticle and of the date of such
posting.
(9) Where any dispute arises as to whether a case or other
judicial act is to be assigned to one judge or to another judge sitting
in the same court or in the same chamber or section of a court, or
when a dispute arises as to which chamber or section of a court is to
deal with a particular case or a particular judicial act, the matter
shall be referred to the Chief Justice who shall, in camera,
determine the judge or chamber or section to which the case or
judicial act shall be assigned. The determination by the Chief
Justice shall be registered in the records of the case and shall be
final:
Provided that where the Chief Justice may be challenged or
may abstain from taking cognizance of that case or judicial act for
any of the reasons mentioned in article 734(1)(a), (b), (c), (d)(ii)
and (iii), (e) and (g), the determination shall be made by the Senior
Administrative Judge referred to in subarticle (11).
(10) When more than one judge is assigned to sit in a chamber or
section of a court not being an appellate court, the Chief Justice
may designate one of the judges as President of that chamber or
section; such designation shall be for a specified time or until
another judge is so designated. The Judge so designated shall
perform such duties and functions as may be assigned by the Chief
Justice or as may be provided by any law for the time being in
force.
10 CAP. 12.] CODE OF ORGANIZATION AND CIVIL PROCEDURE
(11) For the purposes of this article, and in order to perform the
duties listed in this article, the Chief Justice shall nominate a
Senior Administrative Judge.
Applicability of 12. (1) The provisions of articles 8, 9, 10 and 11(1) shall,
certain provisions mutatis mutandis, also apply to the President of the Court of
to President of
Appeal.
Court of Appeal.
Amended by:
(2) Whenever the President of the Court of Appeal is, in the
I. 1914.2;
XXXI. 1934.3; cases provided for by law, challenged or otherwise lawfully
XIII. 1964.7; impeded, the senior of the judges constituting the Court of Appeal
XXXI. 2002.7;
VII. 2007.5. shall be the President of that court.
Appointment of 13. Repealed by XXXI. 2002.8.
supplementary
judges.
Amended by:
XII.1918.3;
XXXI.1934.4.
Substituted by:
XIII.1964.8.
Amended by:
LVIII.1974.68.
Oaths to be taken 14. Repealed by XXXI. 2002.8.
by supplementary
judges.
Amended by:
XV.1913.3;
XII.1918.4;
XIII.1964.9;
L.N. 46 of 1965;
LVIII.1974.68.
Applicability of 15. The provisions of articles 8, 9, 10 and 11 shall, mutatis
certain provisions mutandis, apply to magistrates; and the references to the Senior
to magistrates.
Administrative Judge in subarticles (3), (4), (7) and (9) of article 11
Amended by:
XV.1913.5; shall be construed as references to the Senior Magistrate referred to
IV. 1924.3; in article 7(2).
VIII. 1990.3;
XXIV. 1995.4.
Substituted by:
XXXI. 2002.9;
VII. 2007.6.
Judges and 16. It shall not be lawful for any judge or magistrate to carry
magistrates may out any other profession, business or trade, or to hold any other
not hold other
office of profit whatsoever, even though of a temporary nature,
offices of profit.
Exceptions. with the exception of any judicial office on any international Court
Amended by: or tribunal or any international adjudicating body, the office of
IV. 1868.1;
XV. 1913.5; examiner at the University of Malta.
IV. 1924.4.
Substituted by:
XXIV. 1995.5.
Amended by:
XXXI. 2002.10.
Oaths to be taken 17. Repealed by XXXI. 2002.11.
by magistrates.
Amended by:
XV.1913.5;
IV.1924.5;
L.N. 46 of 1965;
LVIII. 1974.68;
L.N.148 of 1975;
XII.1978.3.