the review of notarial acts: 1927 to date...act i of 2011: various laws (notarial acts, archives and...

1

THE REVIEW OF NOTARIAL ACTS:

1927 TO DATE

RYAN CALIGARI

Thesis submitted in partial fulfilment of the Degree of

Doctor of Laws

Faculty of Laws

University of Malta

May 2015

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ABSTRACT

This thesis focuses on the system of review of notarial acts provided by the Notarial

Profession and Notarial Archives Act1 making a comparative analysis between the old

system as it stood prior to Act XXIV of 2011 and the overhauled one after the amendment

by this important Act.

Chapter 1 presents a historical approach to this system as from 1927 till 2011 by exposing

the major developments in this subject through an examination and an explanation of the

significant legislative amendments which took place during this period. Chapter 2 evaluates

the extent of the effectiveness of the old system and identifies its defects. In addition, this

Chapter also puts to light any consequences which emerge from it and discusses any

temporary legislative measures which the Legislator took in order to circumvent its

shortcomings before the introduction of Act XXIV of 2011.

Chapter 3 outlines the main innovations to the overhauled system which started off on the

1st January, 2013. It compares and contrasts the new system with the old one, exposing

important changes and improvements are exposed.

Chapter 4 delves into and examines other systems of review which are established in other

countries having civil-law notaries. This Chapter involves a lot of important information

regarding these systems which may be implemented in our law in order to improve our

system of review.

Chapter 5 tackles the subject from its practical point of view. The information found in this

Chapter was obtained by means of a questionnaire distributed amongst five review officers.

By giving out the results, this Chapter aims at perceiving a general overview of the

practical difficulties which the review officers encounter during the current system of

inspection and review of notarial acts.

Keywords: Comparison, Overhaul, Enhancement, Efficiency, Enforceability.

1 Chapter 55 of the Laws of Malta.

4

I dedicate this thesis,

To my late beloved grandfather, for instilling the importance of hard work and

higher education,

To my loving parents and brother for the support and encouragement of

reaching my dream,

To my dearest fiancée Thelma for her patience and understanding.

5

TABLE OF CONTENTS

DECLARATION OF AUTHORSHIP .................................... Error! Bookmark not defined.

ABSTRACT ............................................................................................................................... 3

DEDICATION……………………………………………………………………….……..4

TABLE OF STATUTES .......................................................................................................... 9

JUDGEMENTS ....................................................................................................................... 11

ACKNOWLEDGMENTS ...................................................................................................... 13

LIST OF ABBREVIATIONS ................................................................................................ 14

INTRODUCTION ................................................................................................................... 15

1.1 Aim ......................................................................................................................................15

1.2 Methodology .......................................................................................................................15

1.3 Scope and Limitations .........................................................................................................16

1.4 Sources ...............................................................................................................................17

CHAPTER 1............................................................................................................................. 19

HISTORY OF LEGISLATION REGULATING THE INSPECTING OF NOTARIAL

ACTS, REGISTERS AND INDEXES ................................................................................. 19

1.1 A Legislative Overview .........................................................................................................21

2.1 The Composition of the Court of Revision of Notarial Acts ...................................................22

2.2 The Duties and Powers of the Court of Revision of Notarial Acts..........................................24

2.3 The Inspection of Notarial Acts, Registers and Indexes ........................................................27

2.4 The Disciplinary Punishments ..............................................................................................29

3.1 A Concluding Observation ..................................................................................................31

CHAPTER 2............................................................................................................................. 32

HOW EFFECTIVE WAS THE PRE-2011 SYSTEM OF REVIEW OF NOTARIAL

ACTS? ....................................................................................................................................... 32

6

1.1 A Practical Perspective ........................................................................................................32

1.2 Consequences of a Doomed System ....................................................................................36

2.0 The Notarial Acts (Temporary Provisions) Act, 1999 ............................................................38

2.1 The Raison d’Être of this Law ...............................................................................................38

2.2 The Appointment of the Special Commissioner ...................................................................39

2.3 The Three Different Steps ....................................................................................................41

2.4 A Good Step in the Right Direction? .....................................................................................43

CHAPTER 3............................................................................................................................. 45

THE REFORM IN THE SYSTEM OF REVIEW OF NOTARIAL ACTS .................. 45

1.1 The Role of the Notarial Council ..........................................................................................46

2.1 The Overhauled System of Review of Notarial Acts ..............................................................49

2.2 The Enforcement of the System ...........................................................................................55

3.1 The Court of Review of Notarial Acts ...................................................................................58

4.1 Disciplinary Punishments .....................................................................................................61

5.1 Was the Reformed System a Success? .................................................................................62

CHAPTER 4............................................................................................................................. 64

THE SYSTEM OF REVIEW OF NOTARIAL ACTS IN OTHER STATES............... 64

1.1 Italy .....................................................................................................................................64

1.2 Belgium ...............................................................................................................................68

1.3 Netherlands ........................................................................................................................71

2.1 The Way Forward? ..............................................................................................................74

CHAPTER 5............................................................................................................................. 76

THE REVIEW OF NOTARIAL ACTS .............................................................................. 76

A PRACTICAL OVERVIEW............................................................................................... 76

1.1 Methodology .......................................................................................................................76

2.1 Questions 1, 2, 3 and 4 ........................................................................................................77

7

2.2 Understanding the Results ..................................................................................................77

3.1 Question 5...........................................................................................................................78


4.1 Question 6...........................................................................................................................79


5.1 Question 7...........................................................................................................................80


6.1 Questions 8, 9 and 10 ..........................................................................................................82


7.1 Questions 11, 12 and 13 ......................................................................................................84


8.1 Question 14 .........................................................................................................................85


9.1 Question 15 .........................................................................................................................86


10.1 Question 16 .......................................................................................................................87

10.2 Understanding the Results.................................................................................................87

11.1 Question 17 .......................................................................................................................88


12.1 Question 18 .......................................................................................................................89


13.1 Question 19 .......................................................................................................................91


14.1 Question 20 .......................................................................................................................92


15.1 Question 21 .......................................................................................................................93

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16.1 Question 22 .......................................................................................................................94


17.1 Question 23 .......................................................................................................................94


18.1 Questions 24 and 25 ..........................................................................................................95


19.1 Question 26 .......................................................................................................................96


20.1 Question 27 .......................................................................................................................97


21.1 Question 28 .......................................................................................................................98


22.1 Final Observation ..............................................................................................................99

CONCLUSION ...................................................................................................................... 100

1.1 Main Conclusion ................................................................................................................100

1.2 Recommendations for Future Amendments ......................................................................103

APPENDIX I .......................................................................................................................... 107

Interview with Notaries and Review officers. ................................................................... 107

APPENDIX II ........................................................................................................................ 108

Questionnaire for Review Officers. .................................................................................... 108

APPENDIX III ....................................................................................................................... 116

Consent for Participation in Interview(s) Research ........................................................ 116

APPENDIX IV ....................................................................................................................... 119

Consent for Participation in Questionnaire for Review Officers. ................................. 119

BIBLIOGRAPHY ................................................................................................................. 122

9

TABLE OF STATUTES

Maltese Statutes

Primary Legislation

Act XI of 1977: Amendment and Repeal of Laws Acts, 1977.

Act VI of 2001: Legal Procedures Act, 2001.

Act X of 1999: Notarial Acts (Temporary Provisions) Act, 1999.

Act XXXIV of 1979: Notarial Profession and Notarial Archives (Amendment) Act, 1979.

Act XXIV of 2011: Notarial Profession and Notarial Archives (Amendment) Act, 2011.

Act XIX of 2012: Notarial Profession and Notarial Archives (Amendment) Act, 2012.

Act I of 2011: Various Laws (Notarial Acts, Archives and Profession) (Amendment) Act,

2011.

Duty on Documents and Transfers Act, Chapter 364 of the Laws of Malta.

Notarial Profession and Archives Act, Chapter 55 of the Laws of Malta.

Notarial Profession and Archives Act, 1927, Chapter 92 of the Laws of Malta, Revised

Edition, 1942.

Notarial Acts (Temporary Provisions) Act, Chapter 408 of the Laws of Malta.

Ordinance XXXI of 1946: Notarial Profession and Notarial Archives (Amendment)

Ordinance, 1946.

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Secondary Legislation

Legal Notice 408 of 2007: Adaptation of Laws (Chapters 51 - 100) Order, 2007.

Legal Notice 130 of 2009: Deposit of Uninspected Notarial Acts Regulations, 2009.

Italian Statutes

Il Regolamento di Esecuzione della Legge Notarile, (R.D. 10 settembre 1914, n° 1326 -

Approvazione del regolamento per l'esecuzione della L. 16 febbraio 1913, n. 89,

riguardante l'ordinamento del notariato e degli archivi notarili.)

Ordinamento del Notariato e degli Archivi Notarili (Legge 16 febbraio 1913 n.89)

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JUDGEMENTS

Edward Farrugia u Martu Lourdes Farrugia vs. Nutar Pierre Falzon, Court of Magistrates, per M.

Scerri Herrera, 2nd

October, 2013.

Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal Judicature) (Gozo), per Mag. Camilleri,

16th January, 2013.

Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal Judicature) (Gozo), per Mag. Camilleri,

30th April, 2013.

Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal Judicature) (Gozo), , per Mag. Camilleri,

1st April, 2014.

Il-Pulizija vs. Dr. Philip Said, Court of Magistrates (Criminal Judicature), per M. Stafrace, 2nd

December, 2013.

Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.

Demicoli, 21st November, 2006.

Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Vella,

25th October, 2007.


Demicoli, 23rd

June, 2008.


Quitano, 25th June, 2008.


Quitano, 1st July, 2008.


Demicoli, 25th July, 2008.

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Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Scerri

Herrera, 5th August, 2008.

Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Grixti,

30th October, 2008.

Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Grixti,

2nd

March, 2009.


Demicoli, 4th May, 2009.


Grima, 30th November, 2009.

Il-Pulizija vs. Sandro Schembri Adami, Court of Criminal Appeal, per Mag. De Gaetano, 4th June,

2010.


Demicoli, 3rd

June, 2011.


Hayman, 12th February, 2013.

Il-Pulizija vs. Charles Vella, Court of Magistrates (Criminal Judicature), per Mag. Demicoli, 27th

September 2012.

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ACKNOWLEDGMENTS

I would like to express my sincere gratitude to my tutor Notary Dr. Clinton Bellizzi BA,

LL.D. for his patience, guidance and advice throughout the past ten months. His guidance

helped me a lot during the research and the writing of this thesis.

I am also grateful to all those Notaries and review officers who participated in the interview

and questionnaire. Their vast knowledge and experience in the area of my study has been

indispensable for the writing of this work.

Besides, I would like to extend my thankfulness to the Notarial Council whose assistance

was indispensible when dealing with the comparative aspect with other countries.

Lastly, I also wish to thank the staff of the Melitensia Library at the University of Malta.

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LIST OF ABBREVIATIONS

AG Attorney General

Art. Article

BFT Bureau Financieel Toezicht (Financial Supervision Office)

Cap. 55 Chapter 55 (Notarial Profession and Archives Act) of the Laws of Malta.

Cap. 364 Chapter 364 (Duty on Documents and Transfers Act) of the Laws of Malta.

Cap. 408 Chapter 408 (Notarial Acts (Temporary Provisions) Act) of the Laws of

Malta.

OL Old Law

COM Court of Magistrates

CRNA Court of Revision of Notarial Acts

ENN European Notarial Network

Ibid ibidem

KNB Koninklijke Notariële Beroepsorganisatie (Royal Dutch Notarial Association

of Civil-law Notaries)

OUP Oxford University Press

per per curiam

v / vs versus

WWFT Wet ter voorkoming van witwassen en financieren van terrorisme (Money

Laundering and Terrorism Financing (Prevention) Act)

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INTRODUCTION

1.1 Aim

The objective of this thesis is that of examining and discussing the legislative amendments

which took place as from 1927 to date which regulate specifically the review of notarial

acts and wills, in order to determine whether the current system of review is working

effectively and if in the affirmative to what extent. Besides, throughout this thesis, answers

will be given to questions as to what prompted the Legislator to radically change this

system by Act XXIV of 2011, what were its pitfalls, how were these addressed and whether

the new system has succeeded in solving the problems which the old system generated. In

addition, important and significant improvements are put forward.

The thesis is aimed to first give a legal-historical outline of the review of notarial acts and

then examines it through a critical point of view while comparing it with the latest

amendments brought by Act XXIV of 2011, with the intention of bringing to light its

shortcomings and pitfalls. It then passes on to adopt a comparative approach between the

new system which was overhauled by this Act and other systems of other countries. In

addition, improvements of the current system are sought through the opinion of five review

officers who mostly were also visitors in the old system of pre-2011.

1.2 Methodology

Throughout the whole thesis consultation was made with primary and subsidiary

legislation. Yet, in order to answer the thesis questions, it was essential to gain qualitative

information regarding this subject and for this reason it was felt that two of the best

methods of obtaining this kind of information were through the conducting of interviews

and the distribution of questionnaires.

16

It was important to have the say of these experienced minds who were interviewed. These

persons include practicing Notaries who largely experienced the old system, a review

officer who before 2011 was also a visitor, the Acting Chief Notary to Government and an

ex-President of the Notarial Council.2 These individuals have helped a lot in painting a

detailed picture of the practical shortcomings of the old system of review.

In order to deal with the current system of review from its practical perspective, it was

essential to collect comparable information from a limited number of persons who deal

with this subject matter constantly. Hence questionnaires were distributed amongst review

officers whose opinion was of huge significance to this thesis as opinions and suggestions

for improvements were shared.

In obtaining information regarding cross-border systems of other states, recourse was made

to the assistance of the European Notarial Network (ENN) by means of the extensive

collaboration of the Notarial Council.

1.3 Scope and Limitations

Firstly, this thesis does not focus on the generality aspect of supervision over Notaries or on

the extent of Notarial responsibility because these have been already been tackled in other

theses.

In addition, for the purposes of keeping the thesis under the word limit, only the most

important articles, sub-articles and amendments were discussed and examined. In so far as

the Court of Revision of Notarial Acts is concerned, it has been only tackled from the

review of notarial acts‟ point of view.

2 Due to the fact that one of these persons interviewed has passed away during the writing of this thesis, the

consent form was signed by his son.

17

Due to the fact that this subject is very specific and its legal literature is very sparse, few

sources were found, especially when it comes to the comparison aspect with the systems of

other states. Even when contacting the ENN, out of twenty two countries, only three of

them replied to the questions sent and Chapter 4 had to be only based on this information

provided. Hence, the comparison was only made with the Italian, Belgian and Dutch

systems.

Another constraint was that some review officers and Notaries refused to be interviewed

and to participate in the questionnaire.

1.4 Sources

This thesis has been largely formulated on the basis of various archival, printed and

published material. One of the primary sources for this study was the Notarial Profession

and Notarial Archives Act which Articles dealing with the review of notarial acts were

compared with abrogated legislation which was mostly found at the Melitensia Library,

University of Malta. The Notarial Acts (Temporary Provisions) Act was also consulted as

one of the main primary legislative sources.

Other sources vary from unpublished theses to case law regarding the effects which the old

system of review had on the general public. Besides, parliamentary debates were also

consulted in order to shed light on both the discussions which took place in the Maltese

parliament regarding the necessity of introducing a temporary measure in 1999 to solve the

problem of uncollected notarial acts and also on the discussions regarding the needed

overhauled system which started off in 2013 by Act XXIV of 2011.

Books and internet articles were consulted during the writing of the thesis but mostly when

discussing the foreign systems of review in Chapter 4. One of the main references as a

primary source of information throughout the whole of this thesis was the use of the

information obtained from interviews which were conducted with individuals who have a

large experience in the review of notarial acts. The use of the questionnaires is another

18

important source which is used in Chapter 5 in order to have vital information being shared

amongst review officers whose opinions were used to substantiate legislative proposals in

the conclusion of this thesis.

19

CHAPTER 1

HISTORY OF LEGISLATION REGULATING THE

INSPECTING OF NOTARIAL ACTS, REGISTERS AND

INDEXES

The office of the Notary Public is vital in society due to its main components of impartiality

and independence. These two attributes give the Notary a super partes dimension, meaning

that he cannot take sides. The elements of impartiality and independence aim to enhance

the integrity of this profession which its ultimate purpose is of preventing future litigations

and disputes.3 In fact, as Carnelutti rightly states, “Tanto piu‘ notaio, tanto meno giudice.‖

4

Article 25 specifies that one of his functions is of being a public officer who is capable of

attributing public faith to acts inter vivos and wills. Hence, this role carries with it certain

special obligations on part of the Notary:

―Egli percio‘ e‘ un pubblico ufficiale, e, esercitando una funzione di pubblico potere, e‘

soggetto, per la importanza e la esclusivita‘ di essa, a condizioni ed obblighi speciali.‖6

The raison d‟etre of this public faith envisaged in the notarial profession is trust. The

importance of trust in this office cannot be emphasized enough as it is crucial that the

Notary is trusted by the public and if such public faith is jeopardized, the notarial

profession would likewise be endangered.7 Similarly, it is also fundamental to the

community because for it to function properly it necessitates legal certainty and security.

3 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387). 4 Consiglio Notarile di Santa Maria Capua Vetere, „Il Ruolo del Notaio‟

accessed on 8th October, 2014; This means

that the function of a Notary in society results in less chances of resorting to the Court. 5 Cap. 55.

6 Ettore Protetti e Carmine Di Zenzo, La legge notarile Commento con dottrina e giurisprudenza delle leggi

notarili (Giuffre Editore, 1995) 5; Hence, because of the fact that he is a public officer and therefore he

exercises a public function power, he is subject to special conditions and obligations. 7 Daniel John Bugeja, „The Notion of Public Faith and the Office of Notary Public‟ (LL.D thesis, University

of Malta, 2010) 72.

20

In Malta the office of the Notary had always a position of trust. As Hon. Owen Bonnici

once stated;

„In-nutar ghandu a position of trust…Nahseb li n-nutara huma

professjonisti fdati daqs it-tobba, u n-nies jistennew li n-nutar jaghtihom

servizz tajjeb biex ipattilhom ghal-fiducja li huma ghandhom fih. Il-professjoni ta‘ nutar mhijiex pozizzjoni normali.‟

8

However, how far has the Notary retained this position of trust? In an article entitled „We

were duped by our Notary‟ a couple expressed their disappointment when they were

informed that the property which they bought two years earlier, was not registered by the

Notary in their name. This case proves that the trust which the notarial profession has

always enjoyed, can easily be circumscribed and that something needed to be done not only

to sanction abuses but also to prevent them from occurring in the first place.9 On this point,

as will be discussed later in this thesis, Hon. Jose Herrera expressed his concern about the

social disorder which these few Notaries managed to create.10

Hence although the Notary is an independent and impartial public officer, still his office

and notarial acts need to be supervised and inspected. In fact it is this role as a public

officer which necessitates a supervisory authority. The more important is the role of a

Notary in society, the greater is the need for an effective system of supervision. Indeed, the

trust of the public in this profession depends on both a functional system of review of

notarial acts and of an effective enforcement mechanism entrusted to the Court of Revision

of Notarial acts. However does our law cater for this and if yes to what extent?

8 Parliamentary Debate of 11th October, 2011 (Sitting No. 391); The Notary has a position of trust. Hon. Owen

Bonnici thinks that Notaries are professionals trusted on the same level of Doctors and the public expects that

the Notary gives a good service as a consequence of the trust which they have in such profession. The profession of the Notary is not a normal position. 9 Claudia Calleja, „We were duped by our Notary‟ The Sunday Times (Malta, 20 March 2011).

accessed on 9th October, 2014. 10 Parliamentary Debate of 11th October, 2001 (Sitting No. 391).

21

1.1 A Legislative Overview

An attempt to have a functional and effective system of inspection of Notarial acts even

existed in the nineteenth century, thus prior to the enactment of Chapter 5511

which today

regulates this profession. Ordinance V of 185512

required that after the public deeds were

inspected, they were placed in the Notarial Archives. However this provision was never

enforced mainly due to the failure of the CRNA which did not carry out the inspection on

individual Notaries twice yearly as it was duly expected by law. In fact as from 1906 it was

clear that regrettably „the revision….was very much in arrears.‟13

By Act XI of 1927 the Government enacted Chapter 92 of the Laws of Malta entitled

„Notarial Profession and Notarial Archives Act‟. The supervision over Notaries, Archives,14

and the Public Registry was regulated by Articles 109 to 127.15

From 1927 till 2011, there

were numerous amendments regarding this area particularly when it comes to the

inspection of the notarial acts, registers and indexes.16

Together with the inspection of these

acts, the Court of Review of Notarial acts has also experienced changes. While these

amendments were implemented in order to improve the system of review, in 2011 it was

considered that it needed to be radically changed. In fact by Act XXIV of 2011, the system

was drastically modified. However why did the Legislator feel this necessity? Was the

system out-dated to cater for the ever increasing obstacles in this profession? In order to

answer this question, one needs to analyse the old system of review and pinpoint its

shortcomings. Indeed, while this Chapter will explain in detail the amendments of the

system of review until 2011, Chapter 2 will determine and identify its defects.

11 The Notarial Profession and Notarial Archives Act. 12 Art. 100. 13 Michael Refalo, The Maltese Nineteenth-Century Notary and his Archives (Book Distributors Limited,

2014) 87-88. 14

In this thesis, Archives refers to the Notarial Archives. 15 Cap. 55. 16 From 1927 until 2007 there were a number of amendments to the Notarial Profession and Notarial Archives

Act which are not relevant for the purposes of this thesis. These amendments were made through Ordinance

No. XI of 1937; Acts XXXI of 1966, LVIII of 1974, XIII of 1983, XIX of 1988, VIII of 1990 and Act IX of

2000; Legal Notices 4 of 1963, 46 of 1965, 148 of 1975, 181and 186 of 2006 and Legal Notice 408 of 2007.

22

2.1 The Composition of the Court of Revision of Notarial Acts

Article 10917

stipulated that the supervision over Notaries, the Notarial Archives and the

public Registry was entrusted to a special Court called „Court of Revision of Notarial Acts‟.

This was ‗composed of three or more members called Visitors, being Judges, or

Magistrates of Judicial Police, to be appointed yearly by the Head of Government, in the

month of December, for the following year.‘ They were called „Visitors‟ because they were

expected to carry out surprise visits to the offices of Notaries and to the Notarial Archives.

However in practice this was rarely made.18

More importantly, this Court was duly

constituted when all the Visitors sat together. In addition, these Visitors had also their own

and separate powers when it comes to the inspection of the notarial acts. In fact they were

empowered to proceed with the inspections separately from the Court19

and to impose

punishments such as admonition, reprimand or a fine.20

However, this unfettered discretion

can be criticized in many ways. Firstly, it is true that a Judge or Magistrate has authority in

society but still he alone is not a Court of Law. In fact the law specifically stated that the

CRNA is not constituted unless all the Visitors sit together. Therefore, the fact that the

Visitor alone can impose punishments without having another one overseeing his actions,

may act against the principle of rule of law. Besides, are Judges and Magistrates the perfect

candidates to inspect the notarial acts? Although they have experience through their

profession, still one needs to assess whether their profession is sufficient to carry out this

duty of inspection. Undoubtedly, the primary duty of a Magistrate or Judge is to judge and

decide a particular case. However, does this really coincide with the profession of

inspecting acts which in the first place it demands experience in the field of Notarial Law?

Perhaps the best possible approach is to have experienced ex-Notaries to carry out the

inspection since this occupation necessitates vast knowledge in the Notarial Law field.21

17 Today this is Article 110. 18

Interview II 6. 19 In this thesis, Court refers to the Court of Revision of Notarial Acts. 20 Cap. 55, Art. 110 of the old law. By the Emergency Ordinance VII of 1958, Articles 109 and 110 were

amalgamated into one and the wording of the law was changed. However its main important substance

remained the same. 21 Interview III 1.

23

Another debatable point of view comes to play when discussing the period of the Visitor‟s

appointment. Traditionally the Visitors were appointed each year for the following year.

Consequently, each year different Visitors could be appointed. This could prejudice the

quality of the review since each year different Judges or Magistrates could be appointed

which do not have any previous valuable experience in the system of review. However by

the 197922

amendment, the Minister responsible for Justice had the power to appoint the

Visitors „for such period as may be specified in their appointment‟.23

Therefore by 1979,

the Visitors could be appointed for more than one year, which period was left at the

discretion of the Minister. Significantly, the law specified that the Visitors shall not all be

Judges and Magistrates but there must be the appointment of at least an Advocate and a

Notary having practiced his profession for at least seven years. Correctly, the Legislator

realized that this legislative area necessitates a professional whose experience is that related

exclusively to Notarial Law. In addition, to protect against conflict of interest, any

appointed Notary had to resign from his office. This amendment is fundamental because it

is imperative that experienced minds in this field would also contribute to the inspection of

the acts. Besides, the law fairly wanted to attain a balance in the sense that while accepting

Notaries and Advocates to be appointed as Visitors, still the CRNA had to be presided by at

least a Judge or Magistrate when deciding a case.

Another positive perspective of this amendment was the introduction of fees for the

supervision and inspection. Such fees were to be paid to the Registrar of the CRNA by the

Notaries. Until 1979, the Visitors were not paid for the inspections and this may have

resulted in poor inspection quality. However, in a rather controversial way, while a Notary

had to resign from his office, neither Judges, Magistrates nor Advocates had to retire from

their profession if they are appointed as Visitors. This could have serious repercussions

because there could be the possibility of considering the inspection as a method of making

extra money rather than discharging their duties as Visitors. Therefore, the best approach is

to have retired Judges and Magistrates presiding the CRNA;

“...min hu imħallef jew maġistrat sedenti m’għandux ikollu introjtu

22 Act XXXIV of 1979. 23 Ibid.

24

sussidjarju. Inti stajt tuża din il-prassi bħala karrotta billi lil imħallef partikolari tagħtih dik il-kariga biex jeżamina l-atti nutarili u lil imħallef ieħor, forsi għax jagħti sentenzi li inti ma tkunx taqbel magħhom, ma tagħtihx atti nutarili biex tinkih. Forsi fl-antik kienu jsiru l-preferenzi fil-ġudikatura b’dan il-mod, u din hija xi ħaġa ħażina. Għalhekk din il-qorti, li hija qorti importanti ħafna, kienet ġiet ristrutturata.” 24

In fact this was partially remedied in 2001,25

when the legislator felt the need that the

Magistrate or Judge appointed as a Visitor had to be a retired one. However, as it is argued

later on in this thesis, until 2001 the situation of the inspection of acts had already suffered

a number of crippling setbacks. Besides, it did not say anything regarding the appointment

of an Advocate implying that a practicing Advocate could still be appointed as a Visitor

without retiring from his profession. However, was this problem solved in later

amendments?

2.2 The Duties and Powers of the Court of Revision of Notarial Acts

The main duty of the Court was to determine whether the Notary, the Archivist and the

Director of the Public Registry carried out their duties according to law and if it resulted

otherwise, it had the power to apply penalties. Besides, if there was an omission on the part

of the Notary or Archivist, as the case may be, the Court had the power to punish him with

a suspension from his office until he complies and remedies the omission.26

In addition, if

during this suspension he continues to practice as Notary, he would be deprived from his

office.27

Moreover, Article 131 stated that a Notary who during a suspension issues a copy

or extract, ―shall be liable to a fine (ammenda) from eleven euro and sixty-five cents

(11.65) to forty-six euro and fifty-nine cents (46.59).‖ Therefore apart from being deprived

24 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387); The CRNA stated that who is presiding as a

Judge or Magistrate shall not have a subsidiary income by giving him notarial acts because one could give

this „bonus‟ to a particular Judge, with whose judgments one agrees, while another Judge, with whose

judgments one tends to disagree, would not be given notarial acts and have this subsidiary income. Maybe traditionally these preferences happened, and this is a bad thing. Therefore this Court, which is very important

Court, was restructured. 25 Act VI of 2001. 26 Cap. 55, Art. 124 of the old law. 27 Cap. 55, Art. 138 of the old law.

25

from his office, he shall also be liable to this fine. Nonetheless, considering the

authoritative nature of the Court, is this fine adequate and sufficient? Would it make more

sense if there is a more effective enforcement procedure in the first place? One needs to

analyze whether in case of omissions by the Notary, suspension from office is really

enough, especially in today‟s society. As it is discussed in Chapter 3, Act XXIV of 2011

catered for this problem and amended this provision so as to reflect these days reality.

According to Article 125 of the OL,28

the Minister for Justice or any person could bring to

the attention of the Court any breach of the law, any abuse, negligence or irregularity

committed by the Notary or by the Archivist. Upon ascertaining summarily on such

evidence, the Court would order the service of such application onto the Attorney General.

If such contravention is such that it demanded a heavier penalty than a caution or a

reprimand, the Court would decide whether further proceedings were required. In the

affirmative case, such application would be served on the Notary or Archivist, as the case

may be, allowing him a period of fifteen days within which to file a statement of defence. If

the latter is considered to be insufficient by the Court, then he would be summoned before

it and after hearing him and the Attorney General, it would decide the case.

Any decision, decree or order of the said Court had to be served onto the Minister for

Justice and on the Archivist or Notary as the case may be, which then could file for an

appeal29

within thirty days from the day of service.30

In deciding the case, the general rule

was that the CRNA proceeded in camera saving the exceptions of cases of suspension or

deprivation from office, in which cases proceedings were to be held in public.31

Remarkably, during the execution of its duties, this Court shared a number of similarities

with the Court of Magistrates of Judicial Police. In fact it shared the same registrar32

and in

execution of its orders for the adherence of the Notarial Law,33

it had the same powers of

28 In this thesis, OL refers to the old Articles of Chapter 55 from 1927 till 2011. 29

Regarding the fees payable to the registry of the Court of Appeal, Act VI of 2001 introduced Article 112A which provides that these may be established by the Minister for Justice. 30 Cap. 55, Art. 111 and 112 of the old law. 31 Cap. 55, Art. 113 of the old law. 32 Cap. 55, Art. 114 of the old law. 33 The Notarial Profession and Notarial Archives Act, 1927.

26

the Court of Magistrates.34

This similarity however could be seen from two opposite

viewpoints, being that the Legislator wanted to give so much prominence to this newly

established CRNA that it desired that this Court shares the same tools of the COM or it did

not want to give the CRNA its own autonomous character as a Court of Law but wanted it

to be a branch of another Court.

However an essential power granted solely to this Court is that which is envisaged in

Article 126 of the OL. In the case of death, cessation, suspension or incapacitation of a

Notary or in default of the appointment of a keeper in the absence of a Notary from Malta,

on information given by anyone the Court had the ex officio power to order the seizure of

the acts, registers and indexes in his possession and deposit them in the Archives. This

power is likewise extended to a case where although a Notary has not been incapacitated

yet, still the Court has sufficient reasons to believe that he is unable to perform his

functions due to insanity or any other infirmity. Moreover, in order to enforce any seizure

of acts ordered by the Court, it had the power to order a search in any place where it has

reasonable belief that acts, registers and indexes might be found.35

The law also provided that whoever possesses acts or registers of deceased or absent

Notaries or knows that similar acts or registers are in the possession of others, shall be

bound to notify the Court against the penalty of a fine (ammenda) not exceeding five

pounds sterling.36

However, considering the gravity of such omission, this amount37

is

considered to be rather ridiculous. In fact, this was eventually increased.38

34 Cap. 55, Art. 113 of the old law. 35 Cap. 55, Art. 126 of the old law. 36 Cap. 55, Art. 127 of the old law. 37 By Legal Notice 408 of 2007, this amount was converted into €11.65. 38 By Act XXIV of 2011.

27

2.3 The Inspection of Notarial Acts, Registers and Indexes

Besides having the power to inspect the acts, registers, books and indexes of the Notary of

any period,39

the Court was also empowered to carry out a general inspection which

occurred twice a year, one from the first of May, while the other from the first of

November.40

This general inspection had the objective of ensuring that the law was

observed in so far as the drawing up and preservation of the acts, registers and indexes is

concerned and that stamp-duties had been collected.41

As opposed to the case of an inspection of the Archives or of the Public Registry, the

Notaries were called upon by means of a formal subpoena issued in the name of the Court

at least fifteen days before the date fixed for the inspection.42

The Notary was obliged to

appear either personally or by means of a special attorney. If the Notary did not appear

when subpoenaed by the Court, the latter was empowered to issue a warrant of escort

against him and order the seizure of the acts, registers, books and indexes which he was

ordered to produce in the first place.43

The subpoena had to contain the acts, registers and

indexes which the Notary was bound to exhibit and the day and hour on which he had to

appear. Once the Notary produced them, the Court would carry out their inspection.44

By

Act II of 1983, another sub-article was introduced whereby the Notary was bound to

present also the writ of subpoena to the Registrar of the Court and after that the latter would

have written on it the number of volumes produced, the Notary would retain this writ of

subpoena.45

Eventually, the registrar had to deposit the original acts together with the

respective indexes in the Archives.46

39 Cap. 55, Art. 122 of the old law. 40 Cap. 55, Art. 117 of the old law. 41

Ibid. 42 Cap. 55, Art. 120 of the old law. 43 Cap. 55, Art. 123 of the old law. 44 Cap. 55, Art. 121 of the old law. 45 Article 121 was subsequently deleted by Act XXIV of 2011. 46 Cap. 55, Art. 117 of the old law.

28

Furthermore, the CRNA was empowered to inspect the Archives, the Public Registry or the

office of any Notary without any previous notice.47

In 1946, this provision was amended in

order to include the office of the AG. Whenever the latter requested the Court to carry out

such inspection, the Court was obliged carry out this inspection. Therefore this provision

could have effect either through the discretion of the Court if it considers it necessary to do

so, or through an order by the AG, in which case the Court had no option but to execute his

orders. He could indicate to the said Court ―the day and time or the period of time on, at,

within or as from which the visits and inspections are to be made, the particular acts,

registers and indexes which are to be inspected.‖48

The introduction of the AG in this

respect can be seen as a kind of safeguard against the previous absolute Court‟s discretion

to carry out inspections without notice. While the older law specified that only the Court

had this option, by this amendment, the AG is also granted this authority. Rightly, the

Legislator took a part of the discretion enjoyed by the Court and granted it to the

representative of society par excellence so as to create a system of checks and balances. In

addition, Ordinance XXXI of 1946 introduced another sub section which specified that ―In

the case of visits and inspections mentioned in this section, the provisions of sections 112,

113, 114, 118, 120, 121, 126 and of subsection (2) of section 119 of this Act and the

provisions of section 22 of the Stamp Duties Ordinance (Chapter 68) shall apply.‖

Accordingly, during an inspection without previous notice, the Visitor had to countersign

each volume which he inspected and after that the Court had determined whether the law

was observed and stamp duties were paid, it drew up in duplicate a special procès-verbal of

the inspection. Besides, by Articles 11249

and 126, during this inspection its composition

and duties remained the same. Afterwards, its decision had to be notified to the AG and to

the Notary who had a right of appeal within thirty days from the service thereof. Regarding

an inspection to the Notarial Archives, this section made reference to Article 118.50

At the end of each inspection, the Court had to draw up in duplicate a special record of the

inspection, one to be retained by the Court and the other to be transmitted to the Minister

47 Cap. 55, Art. 115 of the old law. 48 Ordinance XXXI.1946.9. 49 The reference to Article 112 in this Section was deleted by Act XI of 1977. 50 Cap. 55, Art. 116 of the old law.

29

for Justice.51

Such record had to be signed by the Notary while the Visitor countersigned

each volume of the original acts, registers and indices of the Notary.52

Interestingly, the law

did not make any reference as to the type of inspection it was referring to and therefore it

can be safely assumed that these two Articles applied in each and every case of an

inspection whether it is a general inspection, an inspection without any previous notice or

an inspection to the Archives.53

Regarding the inspection to the Notarial Archives, Article 116 of the OL stipulated that the

Court was obliged to inspect them every year in order to ascertain whether the law was

observed. It had the power to make a special examination to ensure that the law was

respected during the service of the inspection of acts and during the issue of copies and

extracts thereof. Moreover, this special examination was carried out to confirm that the

registers, indexes and the acts deposited in the Archives were kept according to law.54

Lastly, it also checked that the premises of the Archives are kept with due care.55

2.4 The Disciplinary Punishments

The Court is empowered to award disciplinary punishments to Notaries such as admonition

and reprimand,56

fine (ammenda), suspension and deprivation of office57

which are barred

by the lapse of five years from the day on which the contravention was committed.58

Moreover, the law specifies that if these punishments are inflicted, it does not prejudice any

other punishment which is imposed by any other law.59

Therefore, notwithstanding that the

CRNA inflicts a particular punishment, this does not prejudice the criminal or civil action

against the particular Notary.

51 Cap. 55, Art. 118 of the old law. 52 Cap. 55, Art. 119 of the old law. 53 By Act XXIV of 2011 as can be seen later on in this thesis, the Legislator limited Article 118 to inspections

without any previous notice and to inspections of the Notarial Archives. 54 By Act XI of 1977, the Court was no longer obliged to check whether the Notarial acts deposited in the

Archives were kept according to law. 55 Cap. 55, Art. 116 of the old law. 56 This consists in having the Notary reproached and cautioned against committing another offence. 57 These disciplinary punishments had been the same as from 1927. 58 Cap. 55, Art. 142. 59 Cap. 55, Art. 128 and 129.

30

Furthermore, Article 130 stated that if a Notary who has been once admonished by the

Court and subsequently he contravened Article 29, which prohibits the use of et caetera

clauses, such Notary would be liable for each offence by a fine (ammenda) not exceeding

ten shillings.60

However this Article was repealed by Act XXIV of 2011.

The law also provided for a limited number of contraventions which awarded the Notary a

fine (ammenda) not exceeding five pounds. The number of these contraventions varied

during time. In fact while the original Article of 192761

provided for lesser number of

contraventions than those by the amendment of 1940,62

these situations diminished by the

1946 to 1988 amendments. Moreover, besides there being specific reference to particular

scenarios which attract a fine (ammenda), there was also a general provision against any

contraventions of the Notarial Act, which would be punishable by a fine (ammenda) not

exceeding ten shillings.

In so far as the review of acts is concerned, the law provides that if the Notary fails to

preserve the acts due to negligence or if he refuses an inspection of his office by the Court,

he shall be liable to a suspension from one to six months.63

Worse, he would be deprived

from his office if he has willfully failed to preserve the acts and the registers.64

60 Legal Notice 408 of 2007 converted the Maltese liri to Euros. 61 Cap. 55, Art. 131 provided that „The Notary or Archivist, who contravenes the provisions of article 11, of

sub-clause d) of article 12, of sub-clauses a), i) and k) of article 28 and of article

33,34,35,36,42,51,54,56,60,64,65,96,100,101,102,103,104 and 107, is liable to a fine (ammenda) not

exceeding five pounds sterling.

The Notary who contravenes any other provision of this Act is liable to a fine (ammenda) not exceeding ten

shillings.‟ 62 Cap. 55, Art. 131 provided that „(1) The Notary or Archivist who contravenes the provisions of section 11,

paragraph (d) of section 12, paragraphs (a), (i) and (k) of subsection (1) of section 28, sections 34,35,36,37,38

and 44 paragraph (a) or (b) of subsection (1) of section 52, and sections 53, 56, 58, 62, 66, 67, 98, 102, 103,

104, 105, 106 and 109, shall be liable to a fine (ammenda) not exceeding five pounds. (2) The Notary who contravenes any other provision of this Act shall be liable to a fine (ammenda) not

exceeding ten shillings, provided that any Notary who during his suspension or incapacitation, issues any

copy or extract shall be liable to a fine (ammenda) from five to twenty pounds. ‟ 63 Cap. 55, Art. 132. 64 Cap. 55, Art. 138.

31

3.1 A Concluding Observation

It is clear that the system of inspection has undergone numerous legislative changes from

its inception which were crucial in evolving it to cater for the ever increasing problems in

this area. In fact a system which remains the same for a number of years, will reduce its

efficacy until someday it will become obsolete. Therefore every area of law needs to be

changed, improved and evolved in parallel to changes in society and circumstances and if

this is not respected, consequences will follow. Hence an effective and efficient system of

review needs to take a dynamic approach.

It is correct to state that the Legislator introduced a number of important amendments

between 1927 and 2011 in order to improve the system but in practice, were these

amendments enough? Were these changes made at a time when the problems have

increased so much that they were impossible to control? This is what will be discussed and

examined during the next Chapter.

32

CHAPTER 2

HOW EFFECTIVE WAS THE PRE-2011 SYSTEM OF

REVIEW OF NOTARIAL ACTS?

In order to be able to answer this question first one needs to examine this subject from its

practical point of view and bring to light its consequences. Besides, if it resulted that the

system was defective, then it is paramount to identify and address its pitfalls as otherwise it

would remain the same with all its shortcomings negatively effecting society. While the

first step is of understanding the working of the review of notarial acts,65

the second stage

involves identifying its defects and proposing solutions for the future. Therefore, one needs

to examine what these defects were and what were the Legislator‟s suggested remedies.

1.1 A Practical Perspective

The old law provided for a system of review which leaves a lot to be desired. While after

reading the old provisions, one may be tempted to jump to the conclusion that the old

system was an effective one, still one need to examine and analyse the system from its

practical point of view.

At the core of the old system was the anomaly that a Visitor had to be a Judge or Magistrate

in office. From this fact, the leading consequence was that the Judges and Magistrates

already had a lot of work to do in so far as their current calling and when the Legislator

added the inspections of acts to their duties, some of them felt it difficult to catch up with

the latter occupation.66

On this point, it is essential to bear in mind that the effectiveness of

the review largely depends on the type of inspection which the Visitor performs, meaning

that if the Visitor does not carry out his functions in the most efficient manner, the review

65 Which was previously discussed in Chapter 1. 66 Interview IV 11; Parliamentary Debate of 8th June, 1999 (Sitting No. 116).

33

will not be satisfactory.67

This means that the best review would be the one carried out by a

person who can solely concentrate on this function and clearly the fact that a Visitor was

also a sitting Judge or Magistrate, affected the quality of the inspection and thereby the

review in general. Thankfully, this was remedied in 2001 when the Legislator intervened

and specified that the Judges or Magistrates had to be retired ones.

Besides, this system did not make any distinction between acts inter vivos and wills.

Impliedly it meant that the Judges or Magistrates and advocates as Visitors were entitled to

inspect also wills. Yet, should practicing advocates and legal procurators be entitled to

inspect these confidential acts? It is crucial not to underestimate the importance of the

secrecy intrinsic to these acts. Therefore one needed to establish a balance between a

correct inspection of these acts without there being a possibility of their secrecy being

disclosed. Perhaps the best approach to this difficulty was to appoint a separate official who

is trustworthy, professional and whose functions are of inspecting wills only.

Another setback was the number of Notaries against the number of Visitors. At the

beginning, the old system seemed to be functioning properly as there were few Notaries but

eventually when they increased in number especially from the 1980‟s onwards and

concurrently the Visitors dropped from about eight to four in number,68

it resulted in

difficulties because as stated by Hon. Jose Herrera “Meta n-nutara f‘Malta kienu

jammontaw għal madwar żewġ tużżani c-chances li wieħed jiżgarra kienu inqas, imma

meta jkollok pluralita‘ c-chances li wieħed jiżgarra jikbru…”69

Therefore, at the time when

Notaries increased and therefore the chances of mistakes likewise amplified, there was the

need of an effective supervision which was however circumvented by lack of Visitors.

An additional problem was the lack of adequate salary for the inspection of acts. Naturally,

the Visitor was not encouraged to carry out the inspection as it took until 1979 for the

Legislator to intervene and to give them compensation for their work. Nonetheless, as from

67 Interview III 1. 68 Interview IV 2. 69 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387); The greater the number of Notaries, the

greater is the likelihood of mistakes.

34

1979 the salary was very minimal as it amounted to approximately fifty cents70

per act71

and

therefore the problem of satisfactory remuneration still existed. Ultimately, this reflected in

a reduced quality of the review.72

Furthermore, the law provided that the onus of ordering the inspection of acts was on the

Court and not on the Notary himself.73

The Court itself had to inform the Notary by means

of a subpoena to produce to the Court the acts for the inspection and if he fails it was

empowered to order their seizure. Therefore, if the Court did not ask a particular Notary to

present the acts for inspection, the Notary was not obliged to call upon the Court in order

for the inspection to take place.74

In practice, this had huge repercussions because this

meant that the inspection largely depended on the will of the Visitors. On the other hand,

the Notary could out of his own free will, demand that a Visitor inspects the acts and there

were no limitations as to whom of the Visitors he could engage.75

In fact, in the vast

majority of cases, Notaries contacted the same Visitor each time and as a result, there was

the probability that a certain degree of excessive familiarity cropped up between the Notary

and the Visitor which eventually jeopardized the inspection.76

Another contributing factor to the old system‟s ineffectiveness can be seen from the Court‟s

point of view. The CRNA lacked effective administrative penalties which if they were in

place, they would have helped the system of supervision to function properly. As it is

discussed later on in this Chapter, there were few Notaries who abused from the system

because of the reason that there was no real and efficient enforcement mechanism in place.

These cases should have been controlled and suppressed by this Court but since it did not

have the necessary powers and enforcement procedure it was all bark and no bite. The end

result was that the general public suffered from abusive acts done by these few Notaries.77

70 Lm0.50c 71 Parliamentary Debate of 8th June, 1999 (Sitting No. 116). 72

Interview III 2; Interview I 2; Interview II 7. 73 Interview III 2. 74 Ibid., 4. 75 Ibid., 5. 76 Interview II 2. 77 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387).

35

Due to these shortcomings, in the 1970‟s the system started to collapse. There were

Notaries who did not give to the Court the registers, acts and indexes for inspection and

consequently were not deposited in the Archives. Hence they remained in their possession

without being inspected. What is most worrying and perturbing is the fact that accordingly,

the original acts and the registers were kept under the same roof and if a disastrous event

occurred, both the originals and the registers would have been destroyed.78

As properly

stated by Hon. Josè Herrera;

―Kieku ma jezistux il-kuntratti, wieħed jibda jikkonfondi u jgħid: Minn jaf

ta‘ min hi t-tali dar, min jaf jekk hemmx testament, min jaf jekk hemmx wirt!

Dawn huma kollha affarijiet vitali għall-ħajja socjali, ekonomika u

finanzjarja tal-pajjiż. Għalhekk l-atti mhumiex xi ħmerija imma jiddefinixxu

l-ħajja ta‘ pajjiż.‖79

Definitely this was the most alarming and dreadful consequence of the previous inefficient

system of review. Both the original and the register cannot be kept in the same place

because otherwise the Notary would be endangering the social, economic and financial

aspect of the State. Another consequence stemming from this problem was that if a person

wanted to obtain a copy of a public deed, he was forced to resort to the Notary since both

the original and the register were kept by him and the Notary could abuse from this

situation and refuse to issue the copy. Although this event was rare, yet it was possible and

having this likelihood was intolerable.80

Furthermore, there was the possibility that when a

Notary died, his relatives retained those important acts of the originals and their copies until

a Notary keeper was appointed. The fact that these important documents were, even

temporarily, in the hands of a person who was not a Notary, was unacceptable, especially in

the case of public wills whose secrecy could have been divulged.

To point out the seriousness of this social dilemma, in 1999 during a parliamentary debate

Hon. Tonio Borg stated that the minimum figure of notarial acts which had not been

inspected by the CRNA was around 141,660 acts. Since the law81

stated that the Notarial

78

Interview III 1. 79 Parliamentary Debate of 11th October, 2011 (Sitting No. 391); If contracts did not exist, one would be

confused. Contracts are vital to the social, economic and financial aspect of a country. Therefore contracts

define the life of a country. 80 Parliamentary Debate of 8th June, 1999 (Sitting No. 116). 81 Cap. 55, Art. 117 of the old law.

36

Acts had to be first inspected by the Court before they are deposited in the Archives, this

meant that all these acts which were not inspected were still in the possession of Notaries.82

As a matter of fact the old system of review of notarial acts failed its purpose because it

lacked efficiency and effectiveness.83

While the law stated one thing, in practice there was a

large backlog of acts which was still not inspected and deposited in the Archives.

1.2 Consequences of a Doomed System

In order to understand whether the old system of review have functioned properly, one also

needs to examine its consequences. In 2011, whilst debating Act XXIV of 2011, Hon. Jose

Herrera has put forth the following;

―...[I]l-pajjiż kellu diżordni soċjali sħiħ proprju minħabba li dawn l-uffiċjali

pubbliċi tal-ikbar importanza gerfxu f‘xogħolhom. B‘konsegwenza t‘hekk,

kellek nies li ħallsu depożiti sostanzjali fuq konvenji u dawn il-flejjes

għosfru. Kellek nies li ħallsu bolol, u dawn il-flejjes għosfru. Kellek nies, Sur

President, li marru jħallsu l-capital gains tax u l-flus li suppost kellhom

imorru għal din it-taxxa għosfru, kif ukoll kellek nies li l-kuntratt tagħhom

ma ġiex insinwat biex id-depożitu jibqa‘ xi ftit jew wisq fil-kont ta‘ xi nutar

partikolari u b‘hekk jiżdiedlu l-imgħax. Għalhekk nistgħu ngħidu bla tlaqliq

li kellna diżordni sħiħa, jiġifieri ftit nies irnexxielhom jagħmlu diżordni

sħiħa fil-professjoni nutarili.‖84

In fact there were numerous Court cases85

against Notaries who were brought before it for

different allegations which include misappropriation of funds, the negligent and wrongful

82 Parliamentary Debate of 8th June, 1999 (Sitting No. 116). 83 Interview IV 1. 84 Parliamentary Debate of 11th October, 2011 (Sitting No. 391); The State had a social disorder because of

the fact that some of these public officers made mistakes. Consequently, there were persons who paid on a

promise of sale and then this money disappeared. There were people who paid for taxes and this money

likewise disappeared. There were also persons whose contracts were not registered in the public registry in

order for the deposit to remain in the account of a particular Notary. Therefore we can say without any

hesitation that we had a complete disorder. Few individuals managed to disrupt the notarial profession. 85

Please vide the following judgments; Il-Pulizija vs. Charles Vella, Court of Magistrates (Criminal Judicature), 27th September, 2012 per M.Demicoli, Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal

Judicature) (Gozo), 16th January, 2013, per Mag. Camilleri, Il-Pulizija vs. Silvio Hili, Court of Magistrates

(Criminal Judicature) (Gozo), 30th April, 2013, per Mag. Camilleri, Il-Pulizija vs. Silvio Hili, Court of

Magistrates (Criminal Judicature) (Gozo), 1st April, 2014, per Mag. Camilleri, Il-Pulizija vs. Sandro Schembri

Adami, Court of Magistrates (Criminal Judicature), 21st November, 2006, per Mag. Demicoli, Il-Pulizija vs.

37

exercise of the Notarial profession and the using of money given by the parties for different

purposes other than paying the relative taxes. In a nutshell, in some of these cases, the

Court decided that the Notary abused from the trust which the general public has in this

profession and rightly it specified that;

“Il-Qorti tapprezza li anke fil-kamp notarili (bhal professjonijiet ohra) in-

nutar qieghed jahdem taht pressjoni u f‘ambjent ferm kompetittiv, f‘suq

limitat u fejn l-ispejjez dejjem jikbru. Pero‘ din m‘hijiex xi gustifikazzjoni

ghal nuqqasijiet li jsiru fil-qadi ta‘ dmirijietu. Dan iktar u iktar meta wiehed

jifhem li bhala professjonist hu mistenni li jkollu sens qawwi ta‘

responsabbilta‘ u gharfien dwar dak li qieghed jaghmel u r-riperkussjonjiet

li jistghu jsofru l-partijiet, iktar u iktar mehud in konsiderazzjoni li qieghed

jaqdi funzjoni pubblika.‖86

From these judgments one concludes that the Notary enjoys a position of trust in society

and this trust element loads him with more responsibility. Indeed, as a public officer he

enjoys numerous powers which in return demands that he discharges his duties diligently.

However, notwithstanding that he is a public officer and a professional, the Notary is still a

human being and thus he is vulnerable and susceptible of making mistakes.87

This

necessitates an enforcement mechanism against these Notaries who abuse from their

position. Indeed, an effective system of inspection of notarial acts is required in order to

Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 25th October, 2007, per Mag. Vella, Il-

Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 25th June, 2008, per Mag.

Quitano, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 30th October,

2008 per Mag. Grixti, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature),1st

July, 2008 per Mag. Quitano, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal

Judicature), 5th August, 2008, per Mag. Scerri Herrera, Il-Pulizija vs. Sandro Schembri Adami, Court of

Magistrates (Criminal Judicature), 23rd June, 2008, per Mag. Demicoli, Il-Pulizija vs. Sandro Schembri

Adami, Court of Magistrates (Criminal Judicature), 25th July, 2008, per Mag. Demicoli, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature),30th November, 2009 per Mag. Grima, Il-Pulizija

vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 2nd March, 2009, per Mag. Grixti, Il-

Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 4th May, 2009, per Mag.

Demicoli, Il-Pulizija vs. Sandro Schembri Adami, Court of Criminal Appeal, 4th June, 2010, per Mag. De

Gaetano, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 3rd June, 2011,

per Mag. Demicoli, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 12th

February, 2013, per Mag. Hayman, Il-Pulizija vs. Dr. Philip Said, Court of Magistrates (Criminal Judicature),

2nd December, 2013 per M. Stafrace. 86 Edward Farrugia u Martu Lourdes Farrugia vs. Nutar Pierre Falzon, Court of Magistrates, 2nd October,

2013 per M. Scerri Herrera; The Court appreciates that even in the notarial field (like other professions) the

notary is working under pressure and highly competitive environment, limited market and with ever-increasing expenses. But this is not a justification for deficiencies incurred in the performance of his duties.

More so when one understands that as a professional is expected to have a strong sense of responsibility and

knowledge about what is making and the repercussions that may suffer the parties, more and more being taken

into account that he performs a public function.

87 Interview I 5.

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circumvent any possible abuses which is important not only to the Notary but also to

society at large.88

Besides, it is of essence that the review is not only carried out but it must

also be executed well. If there is a bad review, the ultimate aggrieved party would likewise

be the public89

as it happened in some of these judgments.

These Court judgments together with the problem of a large backlog of acts which were

still not inspected and deposited in the Archives, have prompted the Legislator to intervene.

In 1999, in order to address the problem of uninspected acts, by Act X of 1999, it

introduced the Notarial Acts (Temporary Provisions) Act.90

As the name suggests, this was

a temporary measure to collect uninspected acts which were at the Notary‟s possession and

to deposit them in the Archives.

Later on in 2011, it enacted Act XXIV of 2011 which was meant to overhaul the old system

of inspection in order to restrain abuses and to avoid similar situations to occur in the

future. However, how far did this Act go? Did it solve all the problems which the previous

system had? Did it create new ones? This Act will be analysed in Chapter 3.

2.0 The Notarial Acts (Temporary Provisions) Act, 1999

2.1 The Raison d‟Être of this Law

By Act X of 1999, the Legislator enacted the Notarial Acts (Temporary Provisions) Act,

1999 whereby a Special Commissioner was appointed with the primary duty of depositing

in the Notarial Archives all those notarial acts which were still not inspected by the CRNA.

Therefore the main concern of the Legislator at that stage was to collect these acts and not

of carrying out a detailed inspection of them. Indeed, this Act was vital for the essential

requisite of having the original acts in the Archives and the ultimate beneficiary of it is the

Notary, the State and the general public;

88 Ibid.,1. 89 Interview IV 9. 90 Chapter 408 of the Laws of Malta. This was subsequently repealed by Act XXIV of 2011.

39

“Għan-nutara din hija liġi importanti għax se tneħħi minn fuqhom ir-

responsabbilita' li jżommu kemm ir-reġistru kif ukoll l-oriġinal. Hija liġi

importanti wkoll għall-Istat għax l-Istat għandu interess li ma jkunx hemm l-

oriġinal u r-reġistri għand l-istess persuna u ħafna drabi wkoll fl-istess post,

imma tajjeb li l-oriġinal ikun f'post u l-kopja u r-reġistri jkunu f'post ieħor.

Hija liġi importanti anke għall-pubbliku għax issa se jkun moqdi aħjar għar-

rigward dawn l-għexieren ta' eluf ta' kuntratti għax ikun jista' jitlob il-kopja

mhux biss mingħand in-nutar imma wkoll, kif suppost dejjem kien, mingħand

l-arkivista tal-gvern.‖91

This law provided that the Minister responsible for the Notarial Archives was obliged to

appoint a Special Commissioner within two months from the coming into force of this Act

for a period not exceeding three years which may be extended by further periods each of

not more than eighteen months. Moreover, as the Special Commissioner was entrusted to

collect a large amount of acts and after he makes a preliminary inspection, he deposits them

in the Archives, the law also provided that if the circumstances may demand, the Minister

was empowered to appoint further Special Commissioners.92

2.2 The Appointment of the Special Commissioner

The law stated that the Special Commissioner must be either a Judge, Magistrate, a retired

Notary, an advocate, legal procurator or a public officer in Government employment not

below the rank of principal. As rightly stated in the parliamentary debate93

discussing this

law;

‗Fost il-kwalifiki li jissemmew jingħad illi dawn iridu jkunu jew imħallef jew

maġistrat. Jekk se nagħmlu hekk jien naħseb li se jkollha problema għaliex

dawn l-imħallfin jew maġistrati tant ikollhom xogħol x'jagħmlu li dawn l-

affarijiet imbagħad jibdew iqisuhom bħala sekondarji. Jiena nemmen li din

hija waħda mill-problemi prinċipali li hemm fil-Qorti ta' Reviżjoni u

91 Parliamentary Debate of 8th June, 1999 (Sitting No. 116); For Notaries this law is important because it will

remove from them the responsibility to maintain the registry as well as the original. It is also an important law

to the State because the State has the interest that the original and its registry is not kept by the same person and often also in the same place, but it is important that they are kept separately. It is also important for the

general public because it can obtain a copy not only from the particular Notary but also, as it should have

always been, from the Notarial Archives. 92 Cap. 408, Art. 3. 93 Parliamentary Debate of 8th June, 1999 (Sitting No. 116).

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għalhekk m'għandniex nagħmlu l-istess żball fil-ħatra tal-kummissarju

speċjali.‘94

One of the shortcomings of the previous system was that the Judge or Magistrate was not

obliged to retire from his profession before inspecting the acts. Likewise, in this law there

was no reference that the Judge or Magistrate had to be retired and therefore it meant that

he needed to be a presiding one. As it was previously discussed in the last Chapter the

perfect candidate for the inspection is the one who does not have any other occupation.

Thankfully, this was amended by Act VI of 2001 whereby the Judge or Magistrate was

obliged to retire from his profession before being a Special Commissioner. Regarding any

current Special Commissioner who held the office of a Judge or Magistrate, he was obliged

to cease from being a Special Commissioner. Nonetheless the amendment did not state

anything regarding a practicing advocate or legal procurator and therefore despite having a

busy occupation as an advocate or a legal procurator, he could have still held the office of a

Special Commissioner. It did not make sense to have a retired Notary or a retired Judge or

Magistrate but when it came to an advocate or legal procurator the law was silent on the

matter. As both an advocate and a legal procurator were busy in the large majority of cases,

it was best to eliminate this discrepancy and rule that any of these professionals could only

have been appointed as a Special Commissioner provided that he first retired from the other

occupation in order for him to concentrate solely on the large amount of work which the

inspection of acts demanded.

As outlined earlier in Chapter One, it is debatable whether public wills should be inspected

by the same persons who inspect inter vivos acts. Conceivably, separate officers should be

appointed in order to carry out this inspection. Nonetheless, this law did not make such

distinction between inter vivos acts and causa mortis acts,95

meaning that the Special

Commissioner had to make a preliminary inspection of public wills, with one exception. If

94 Amongst the qualifications which are referred to, there is the mentioning that he is to be either a Judge or a

Magistrate. In this case, I think that we would have a problem because these Judges and Magistrates are very busy and they would consider this as being of secondary importance. I believe that this is one of the main

problems in the CRNA and therefore we cannot make the same mistakes in the appointment of the Special

Commissioner. 95 For the purposes of this thesis, the term causa mortis act includes only wills and does not include the causa

mortis declarations.

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a public officer was appointed as a Special Commissioner, he was precluded to carry out

this kind of inspection.

2.3 The Three Different Steps

This law mainly distinguished between three different phases. Rightly, it did not oblige all

Notaries who had uninspected acts to hand them to the Special Commissioner for the

eventual deposit at the Archives because it would have resulted in having large amounts of

acts be deposited at once thereby creating a difficulty of space in the Archives. Therefore it

distinguished between two different periods, one being a facultative one whilst the other