In a judgement in the names of Al-Masri Agostina vs Valenzia Dr Benjamin Et Noe handed down by the Civil Court (Family section) the Court upheld the argument that a retrial can only be granted in exceptional circumstances and this mechanism in the law cannot be used as a means of obtaining a further stage of appeal.
The plaintiff had initiated separation proceedings against her husband on the grounds that her husband had abandoned her and her son and had even absconded from the island and that she had lost contact with her husband for a number of years prior.
Since the plaintiff’s husband was absent from Malta and the plaintiff could not establish any form of contact with him, the defendant was represented by deputy curators appointed by the Court. The plaintiff successfully obtained personal separation from the defendant, wherein the defendant was also ordered to pay maintenance to the plaintiff.
Following the judgement, no appeal was filed by either party within the term allowable by law. However, after the lapse of such time, the husband suddenly filed a request in front of the Family section of the Civil Court to request a retrial of the separation proceedings.
In his application for retrial, the husband had claimed that he had returned to Malta after spending some time in Syria and Libya during the civil wars in those countries. He claimed that during his time abroad he had kept contact with his wife and that it was his wife herself who had warned him not to make contact with her and not to come to Malta. He claimed that she always had a mobile number with which she could communicate with him or indicate this number to the appointed curators.
He also claimed that he kept regular contact with his wife and also passed on several payments through third parties to her whilst he was abroad and that she had also requested him to make an official letter concerning his absence so that she may collect financial support from the Government.
The husband further claimed that his wife had a relationship with a third party and that therefore she had no right to demand payment of maintenance.
The husband went on to claim that he became aware of the judgement concerning his and his wife’s separation only after checking at the Court registry through the assistance of his friend.
Therefore, the husband argued that his wife had obtained the judgement by deception since she failed to give him adequate notice of the proceedings or to give his phone number to the curator. In light of all of these claims, the husband requested that the separation proceedings be annulled and that these be re-heard afresh.
The wife responded by denying all the claims made by her husband and stuck to the facts that she had claimed when she initiated separation proceedings. Moreover, the wife responded that although she had lost contact with her husband prior to initiating separation proceedings, the husband had knowledge of the separation proceedings before the judgment was handed down and he knew about the facts and the effects of the judgment before the term for appeal term had expired.
Therefore, the on the basis of these facts the wife argued that the husband’s remedies were for her husband to either dispute the case whilst it was ongoing, or alternatively to file an appeal on time. She further held that in default of her husband utilizing these options, her husband was now trying to appeal the judgment under the disguise of a retrial.
The wife further responded by stating that the requisites for a retrial did not result in this case, especially on the basis alleged by the husband which were that the judgement was obtained by deceit and that he was not notified according to law.
With reference to these grounds for retrial, the Code of Organization and Civil Procedure states the following:-
A new trial of a cause decided by a judgment given in second instance or by the Civil Court, First Hall, in its Constitutional Jurisdiction, may be demanded by any of the parties concerned, such judgment being first set aside, in any of the following cases:
(a) where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;
(b) where the sworn application was not served on the party cast, provided that, notwithstanding such omission, such party shall not have entered an appearance at the trial;
Having heard several witnesses and considered all evidence that was produced over a span of four years, the Court concluded that the husband did not submit evidence showing that his wife had obtained the judgment against him by deception, or that he had not been notified in accordance with the law. Nor was there any proof that the wife had not passed the correct information to the deputy curators to make contact with the husband.
The Court further declared that considering the evidence submitted by the husband himself, it appears that he knew about the separation proceedings for sure before the term of the appeal passed.
The Court further agreed with the wife in saying that the husband was seemingly trying to appeal the judgement by invoking the retrial mechanism. The request for a retrial was ultimately rejected by the Court.
Interestingly, in its conclusions, the Court declared that an application for retrial should not last four years to be determined. Either there is a reason for the request, or there is not. It is simply a matter of fact that can easily be proven. In this case it was evident that there was no basis for the retrial request.
The plaintiff was assisted by Dr Gianluca Cappitta.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article may also be accessed on Malta Today.
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