Issue link: https://maltatoday.uberflip.com/i/904009
50 maltatoday SUNDAY 19 NOVEMBER 2017 T his was held by the First Hall Civil Court as presided by Honourable Judge Anna Felice in its judgement of the 15th November 2017 in the names of Joginder Singh Dhingsa v Anthony Grech et. The facts of the case revolved around a sum of money amounting to £25,000 (equivalent to €34,250), that the plaintiff had loaned to his wife's sister, Anna Grech and her husband Anthony Grech (defendants in this case) between the 23rd November 1999 and the 22nd December 2000. The plaintiff argued that the loan was made since the defendants had some financial problems. The parties had not agreed upon a specific timeframe within which the said repayment had to occur, however, the defendants promised to return the sum. From time to time, the plaintiff requested the repayment of the sum owed to him but the defendants remained in default. In May 2014, it transpired that the defendants had sold an apartment which Anna Grech had inherited and therefore the plaintiff requested repayment but the defendants told him that the proceeds from the sale had been re-invested in an immovable property and they were not in a position to return the money at that time. On the 23rd March 2015, the plaintiff sent a legal letter requesting them to repay the sum loaned. In turn, the defendants claimed that the sum was given to them as a gift by title of donation and not a loan. Following this, the plaintiff filed this case before the Court where he sought the repayment together with interest. In their sworn reply, the defendants apart from alleging that the sum of money was given to them as a gift by the plaintiff, they also raised the preliminary plea that the action was time barred in terms of article 2156 (d) and (e) of the Civil Code since more than five years had elapsed since the money had been passed on to them and they had never been served by a judicial act in relation to this claim before being served with the present sworn application. In fact, the said provisions of the law state that actions for the payment of interest on sums taken on loan and actions for the return of money given on loan, which loan does not result from a public deed, are time barred by the lapse of five years. From the acts of the case, it resulted that on the 14th May 2014 the plaintiff had exchanged some text messages with Anna Grech. In one of these messages Mrs Grech said "I will give you money back but I don't have them". The plaintiff 's lawyer argued that this text message amounted to an acknowledgement of debt since as per article 2133 of the Civil Code "prescription is interrupted if the debtor or possessor acknowledges the right of the party against whom such prescription had commenced". The defendant's counsel, however, reiterated that the prescriptive period of five (5) years had already elapsed when these text messages had been sent and therefore it could not be deduced that these text messages amounted to an acknowledgement of debt thereby interrupting prescription. The Court referred to the Court of Appeal (Inferior Jurisdiction) judgement Austin Psaila v Lother Slabick of the 9th February 2005 where it was held that as per our legal doctrine and jurisprudence the acknowledgement of a debt must result from an explicit declaration or other fact which implies the existence of a right against the debtor which may include the promise of payment. Moreover, in order for an acknowledgement of debt to be deemed as having interrupted prescription it must be made voluntarily, knowingly, unequivocally and explicitly and all four of these requisites must necessarily co-exist in the same act. Lastly, the burden of proof rests upon the plaintiff to prove that the act is tantamount to an acknowledgement of a debt. Additionally, the Court cited the judgement of the Court of Appeal dated the 14th January 2002 in the names Joseph Abela v Francis Cassar which states that the argument that a prescriptive period which had elapsed could not be interrupted was incorrect. Where a debtor acknowledges a debt following the expiration of the prescriptive period, then that acknowledgement implies that the debtor would have renounced to that prescription and therefore, as in the case of interruption, prescription may start to run once again. Strictly speaking it may be said that here one is not speaking of an interruption of prescription per se but a renunciation to that timeframe on the part of the debtor, which in practice has the same effects. In view of the above, the Court held that when these principles are applied to the present case, it results that the defendants had renounced to the prescriptive period when they had acknowledged that they were plaintiff 's debtors via text messages. The Court considered that no evidence was brought forward contesting the content of the text messages in question and there was no reason to doubt their authenticity and therefore the defendants' preliminary plea of prescription was not upheld. When deciding upon the merits of the case and since the versions of the parties were contradictory in nature, the Court held that when delivering judgement the Court must examine whether any one of the versions, in light of the usual criteria of credibility, consistency and probability, should exclude the other version even on a balance of probabilities since these are generally sufficient to convince the adjudicator in cases of a civil nature. In this case, the Court held that from the totality of evidence presented during the pendency of this case and upon a balance of probabilities the version of the plaintiff was more credible and therefore whilst upholding the plaintiff 's requests it ordered the defendants to pay him the sum of £25,000 (€34,250) together with interest since the date of filing of this case since the parties had not previously agreed on a particular date as to when the repayment had to be made or when the interest became due. Dr Catherine Mifsud Associate Mifsud & Mifsud Advocates Opinion T he Planning Authority had turned down a request for the change of use of a showroom to a 'place of worship' in furtherance to a planning application submitted by a religious organisation known as 'The General Council of the Assemblies of God, Malta'. To support its decision the Planning Commission gave the following reasons: 1. The proposal ran counter to the provisions of Policy CG14 of the Central Malta Local Plan which does not permit places of worship on a site located within an area zoned as a Commercial Area; 2. The proposed use (place of worship) would invariably result in unacceptable adverse impacts on the area; 3. The proposal was in breach of Thematic Objective 10.6 of the Strategic Plan for Environment and Development; 4. The proposal failed to meet the requirements set out in policy DC 15 as it did not provide the required car parking spaces, thus envisaging 'unacceptable additional on-street car parking which would not be in the interests of the amenity of the area.' In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. Applicant, now appellant, submitted that he was acting on behalf of the Evangelical Alliance of Malta, a local religious organisation which is a member of the World Evangelical Alliance having 129 churches and more than 600 million members worldwide. Appellant went on to explain that the organisation has, at present, 80 Maltese members. Furthermore, the Tribunal was reminded that the Planning Directorate was in favour of the application, adding that 'the freedom of worship is a fundamental right of all citizens sanctioned by the Constitution of Malta and the European Convention on Human Rights.' Therefore, the Authority was wrong to assert that the application was objectionable on the pretext that there is no specific policy in force which' identifies and designates' areas for the siting of places of worship. Reference was also made to the General Policy Relating to Regeneration/Consolidation Initiatives (policy Fl-GNRl-l), which, according to appellant, allowed a departure from established policies provided there is adequate justification. Applicant also maintained that the premises will be used between 7.30pm and 8.30pm during weekdays and between 10.30am and noon on Sunday mornings. With regard to parking considerations, appellant pointed out that the premises were situated close to the Park and Ride complex in Blata l-Bajda and also close to Gattard House 'which can easily take up to 100 cars'. In reply, the Authority stood firm with its decision to turn down applicant's request. The case officer representing the Authority held that 'the fundamental right for the appellant to exercise one's right to practise one's own religion does not give the appellant the automatic 'right' to surpass Planning Laws and Policies'. In its assessment, the Tribunal, however, observed that the premises were located in a busy area characterised by a multitude of commercial outlets including showrooms, offices and shops. Consequently, the Tribunal opined that the 'residential amenity' was not at stake. Moreover, the Tribunal agreed that the premises were indeed located in the vicinity of a public parking where a substantial number of vehicles could be safely accommodated. Against this background, the Tribunal ordered the Authority to issue the permit. Dr Robert Musumeci is an advocate and a perit robert@robertmusumeci.com Robert Musumeci Catherine Mifsud mmifsud@mifsudadvocates.com.mt Period of prescription may be interrupted even after it elapses 'Place of worship' approved in Blata l-Bajda Premises are located in a busy area characterised by a multitude of commercial outlets