Posted Friday, July 26, 2019
A right not falling precisely within original claim may be decided upon by Courts

The Court of Appeal in its judgment of 12th July 2019 has confirmed that the Inferior Courts may adjudge on a right although not falling precisely within the original claim. This was declared by the Court of appeal in a case in the names of Walters et vs Demar Properties et, decided by Judge Anthony Ellul.

The case revolves around damages which resulted to the floor tiles of a property after the purchase of a tenement by the plaintiffs from the defendants. The property in question was purchased on 15th April 2013, at the time of which the property was in an advanced shell form state and in which the flooring of the property had already been completed by the defendants. Towards April 2016, a defect in the flooring of the apartment was becoming apparent in several areas of the property as the flooring began to vault.

The plaintiffs had not only consulted with an architect and a labourer to have a look at this damage for their assessment, but they also immediately contacted the defendants to have a look at it themselves with a view of finding an amicable solution. In the absence of an amiable agreement between the parties, the plaintiffs filed a judicial protest which was then followed by a civil case against the plaintiffs. By the time the civil case was filed by the plaintiffs, the severity of the damage grew further and in view of the urgent need of repairs, the plaintiffs carried out the necessary repairs at their own cost.

In their request to the First Court, the plaintiffs had demanded that they be refunded for the expense which they had incurred to correct the bad workmanship carried out by the defendants prior to the sale of the said property. To this effect, the plaintiffs had requested the Court to liquidate damages to the tune of €8,517.74.

During the course of proceedings before the First Court, the architect and labourer which had assessed the damage testified and both confirmed that the damage which resulted in the tiles of most parts of the property was a result of the wrong combination of tiles with its underlying sub-base mixture which was meant to hold it firm to the ground. As a result of this bad combination, the effect of the local climate on the tiles was such that these did not have enough room to expand and the right conditions to stay in place but rather the tiles began to detach from the ground and vault.

The defendants’ main argument in countering the claim was anchored around the point that the actions which the plaintiffs could have pursued in such a situation were either the actio redhibitoria or the actio aestimatoria. The actio redhibitoria is an action to cancel a sale in consequence of defects in the thing sold. The goal of this action is to compel complete restitution to the seller of the thing sold, and to give the buyer back the amount paid. The actio aestimatoria is an action which compels the seller to reduce the contract price and reimburse the buyer such reduced sum, but not to cancel the sale. The defence also raised the plea that the case was time-barred since the action had to be instituted within one year from the date of the contract.

The First Court, presided by Magistrate Caroline Farrugia Frendo, asserted that that the claim made by the plaintiffs was in such a way that they were seeking a compensation for the urgent repairs which they had to do carry out as a result of the serious defects.

The First Court pointed out that the one-year prescription period starts running upon the moment that the defect becomes apparent, and not from the contract. The Court thus rejected this defence by noting that the plaintiffs had first noticed such defect around April 2016 and both the judicial protest and the civil action were filed by the end of that same year. The First Court also concluded that the action was in itself an action ‘actio aestimatoria’  since the plaintiffs had proved that the resulting damage central to the case was indeed a hidden one and one which the ordinary man could not have easily verified at the time of purchase. Moreover, it was established that the defect was a grievous one and which implied that had the purchasers been aware of such defect, they would have reasonably paid less for the property.

Furthermore, the First Court concluded that this was not the first instance that the Courts decided on cases of a similar nature and that this is done for the sake of practicality, in the sense that when a claim is made which does not exceed the Court’s competence, it would be fairer to decide on the issue rather than imposing further costs on the plaintiff to simply have the case decided by a different Court. In its conclusion, the First Court held that the monetary claim being sought was a realistic one and awarded the plaintiffs damages in the sum of €8,100.

Aggrieved by such decision, the defendants filed an appeal basing their arguments on the same legal points raised in front of the First Court. The Court of Appeal quoted Article 213 of the Code of Organisation and Civil Procedure which dictates that in Courts of first instance in their inferior jurisdiciton, where the claim as stated in the application has not been made to appear, but nevertheless, another right has been made to appear although such other right does not fall precisely within the terms of the claim as originally framed, the court may adjudge upon such other right so made to appear on the same application. In simpler terms, this means that in front of the inferior Courts, the Courts may adjudge on a right, although not falling precisely within the original claim.

In its conclusion therefore the Court of Appeal cemented the conclusion of the First Court.

Avv. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article can also be accessed on MaltaToday
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