The civil court should always follow its procedure, even if a constitutional law issue is raised. This was held in a judgement delivered by the Court of Appeal delivered by the Chief Justice Joseph Azzopardi and Justices Giannino Caruana Demajo and Anthony Ellul delivered on 27 March 2020 in AIC Joseph Barbara et -v- Myriam Vella and the State Advocate. Both parties had lodged an appeal from a judgement delivered on 18 October 2018, wherein Vella was ordered to vacate her residence since the Housing (Decontrol) Ordinance was in breach of the European Convention on the Protection on Human Rights.
The defendants were ordered to pay the plaintiffs €30,000 in damages and also €400 a month until Vella vacates the premises. Originally the action was filed against Vella only on the premise that she was occupying the property without a title. Vella filed a plea that she had a title under Article 12A of the Housing (Decontrol) Ordinance. The plaintiff asked the Attorney General, today the State Advocate to join the action, since she was of the opinion that Article 12A was in breach of her human right to enjoy her property.
In its judgement the first court was in agreement that Article 12A was in breach of the European Convention and liquidated damages to €30,000 and ordered that the defendant vacate the property within three years, while the Attorney General (AG) pays €400 a month in rent. The Court in this case saw how the plaintiffs had entered into a temporary emphytheusis with the defendant, which expired in 2002. The case was first instituted as a civil action for the defendant to be vacated, but once the plea in terms of Article 12A was raised, the plaintiff asked the court to convert into its Constitutional Jurisdiction.
The Court pointed out that the Maltese courts have recognised that the Housing (Decontrol) Ordinance was intended to protect tenants from being vacated from their residences, but there must be a just balance in that there must be a proportionality of actions. The First Court in its judgement held that it disagreed with the plaintiff that the violation took place in 2002. Before that time the defendant had a title of emphyteusis, however, Article 12A(4) of the Housing (Decontrol) Ordinance says that if the temporary emphyteusis expires before 1 July 2007, the new law applies if the tenant still lives in the property.
Therefore, the breach commenced on 1 July 2007. The AG then argued that the law allowed that the rent would double, however, in this case, it amounted to €52.32 a month. The Court saw previous judgements on this issue and concluded that the interpretation and the application of the Housing (Decontrol) Ordinance was unjust and wrong. Therefore, the plaintiff suffered a breach of her human rights. Vella argued that the European Convention Act, cannot change the Constitution. If there is a conflict between the two, then the Constitution should prevail. The Court can only declare that a piece of legislation is null and void or that it is not compatible with the Constitution and must stop there. According to Article 242 of the Code of Organisation and Civil when a piece of legislation is declared not compatible with the Constitution, the judgement should be sent to the Speaker, who in turn should inform Parliament.
The Court disagreed on this point, since it the Court in its constitutional jurisdiction has wide powers to offer a remedy for the breach in the Constitution. This is found in Article 6 of the Constitution and Article 3(2) of the European Convention. In this case, the Court felt that the appropriate remedy was the vacation of the Defendant from the property. Vella has a right to have a property as her residence, however, this obligation is on the State and not on the Plaintiff. The Court recognised that the Defendant lives off a pension and the Court needs to find a balance between the Plaintiff’s fundamental human rights and Vella’s interest.
Therefore, the Court is giving enough time for the State to find an alternative accommodation for her. Until that time the AG is to pay €400 per month to the Plaintiff as rent. As to the financial compensation the first court awarded, the Court took into consideration the period in which the Plaintiff lost control of her property. The quantum of damages was established on a number of criteria, which included the market value of the property and the market value of the lease.
The AG then appealed this judgement, and the first ground of appeal was that the Plaintiff was not deprived from her property as mentioned in the European Convention. The AG conceded that the Plaintiff was not receiving the commercial rent of the property, but one had to take into consideration a number of issues to arrive to the principle of proportionality. The Court agreed in that one must consider the principle of legality and the public interest. However, when the discrepancy is so wide, then the principle of proportionality was adhered to.
The commercial rent is €4,350 a year, however the Plaintiff was paying €627.90 per annum. Therefore, Article 12A of the Housing (Decontrol) Ordinance was disproportionate and as a result was in breach of the Plaintiff’s human rights. The AG complained of the compensation, it was ordered to pay. The Court of Appeal held that this case was not a constitutional case, but a civil case which raised a constitutional issue. The first court had to decide whether Article 12A was to be applied in regard to the Plaintiff’s claims. The Court should have limited itself to his. The order to vacate the property, was not a result of a breach of the Plaintiff’s human rights, but because the Defendant does not have a legal title to hold on to the property.
This is the only remedy that the Court was asked to give and not compensation. The Court of Appeal warned that it was important that courts follow the procedure, in that if a civil case wherein a constitutional issue is raised, then it should follow the civil law procedure. The Plaintiff also appeals on the ground that the three-year period for the order to vacate to take effect is too long.
The Court of Appeal agreed, as the first Court had to see whether the Defendant has a title or not and if she did not then the court should have ordered that she vacate the property. The Court of Appealed applied Article 741(b) of the Code of Organisation and Civil Procedure and sent the acts to the Rent Regulation Board to see whether she had a title under a different article of the Housing (Decontrol) Ordinance. The Court of Appeal upheld that Article 12A of the Housing (Decontrol) Ordinance was in breach of the Plaintiff’s fundamental human rights. Ordered that the Rent Regulation Board determine whether the Defendant has a title, then removed the compensation and the monthly rent ordered by the previous court.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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