Not any action may be used for the purposes of a retrial, in terms of Article 811 of the Code of Organisation and Civil Procedure. This was held in Pawla Zerafa et v Raymond Formosa et decided on 20 May 2021 by the First Court of the Civil Courts presided by Judge Joanne Vella Cuschieri.
The Plaintiffs had told the Court in their sworn application the Defendants had instituted an action Raymond Formosa et v Michael Zerafa et in 2006 since Formosa alleged that Zerafa were illegally occupying their property in Zawri Lane in Pieta’.
Zerafa made reference to a 1987 contract where he had purchased 27 square meters of Zawri Lane. Formosa had purchased properties in the same areas in 1979, 1982 and in 2001.
Zerafa, in their application made reference to both the Court appointed architect’s report and the judgement of the First Hall of the Civil Courts in the abovementioned action, held that Formosa owned 87 square meters. This was confirmed by the Court of Appeal.
The Zerafas concluded that the issue between the two families has not been resolved and that the Formosas built a wall in their property in Zawri Lane.
The Zerafas asked the Court to indicate which part of Zawri Lane is this and to order the removal of any construction built on their land.
The Defendants, Formosa, held that this issue had been decided by the Court of Appeal in a previous case between the two families.
In a preliminary judgement on 28 February 2014 which confirmed that the issue concerning the property’s title was res judicata and therefore, decided by another court judgement. This was confirmed by the Court of Appeal.
The Court made reference to the Parties’ submissions and pointed out that the Plaintiffs attempted to raise the issue again on the title of the property of Zawri Lane irrespective of the fact that this issue was decided on a couple of times. Zerafa argued that the Court made a mistake and that in this case Raymond Formosa admitted that Zawri Lane is not his.
The Zerafas submitted that once there was this declaration the Court had to reconsider its position. The Court disagreed in that the action is not a retrial. The Court has a number of judgements before it where the court established that this property belongs to the Formosas.
The Court held that if the Plaintiffs felt that they had a case of trial due to new evidence, or else any other cause for retrial under Article 811 of the Code of Organisation and Civil Procedure, then they have a right to proceed according to law. However, they cannot expect that this takes place in this action.
The Court then is limited in investigating whether the Formosas built anything on the Zerafas property. In fact the Court appointed an architect and a lawyer as its experts. The Court appointed architect who concluded that after seeing the judgements and the contracts, all construction works were carried out in the property of the Defendants, Formosa.
This was seconded by the Court appointed legal expert. The Court also analysed plans and photographs submitted and also came to the same conclusion. The Court quoted Article 434 of the Civil Court, which reads:
“434. Every person may construct any wall or building on the boundary-line of his tenement, saving the right of the neighbour to acquire co-ownership of the wall as provided in article 418.”
The Court then moved to uphold the Defendant’s pleas and reject the Plaintiffs claims.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article is available on MaltaToday.
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