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| SUNDAY • 12 JANUARY 2020 maltatoday 13 Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates SINCE the plea of res judicata is meant to stop an action from being decided by a Court, it must be inter- preted restrictively, such that in the case of doubt the judge should de- cide against this plea. This was held by the First Hall of the Civil Court in the case Joseph Zammit et. vs Reverendu Dun Karm Busuttil on the 8th of January 2020 presided by Mark Chetcuti. The Court heard the pleas by the plaintiff who had previously been in Court against the same Dun Karm Busuttil on an issue regarding the division and assignment of a prop- erty. According to a judgement by the Civil Court on the 7th of July 2010, it was decided that the plaintiffs were debtors of the defendant and that the division of the property should take place. In the judgement on the 24th of May 2016, the Court ordered the plaintiffs Zammit to pay the tax ex- penses owed for the division, the expenses for the curators and other judicial expenses. The couple did not appeal from these decisions. In the new application, the plain- tiffs complained that the contract of division was published without their presence and that the shares of the parties were not equal. Therefore, they plead to the Court to revoke and annul the present di- vision contract and to nominate a legal expert to value the property, in order for a new and fairer contract to be drafted. The defendant held that the case was already res judicata, and there- fore that it had already been decid- ed, and plead for the Court to reject the application by the couple. The Court explained that in line with article 730 of the Code of Or- ganisation and Civil Procedure, the plea of res judicata has to be heard and decided on separately from the rest of the pleas as it is a preliminary plea. It was held that in order for the plea of res judicata to be accepted, it must be found that the present case has the same object (eadem res), the same parties (eadem personae) and the same merits (eadem causa petendi) as a judgement which has already been decided. All three elements must subsist in order for the plea to be accepted and for the new application to be rejected. By reference to the judgement Rabat Construction Ltd vs Cutajar Construction Company Ltd (2002) the Court explained that in relation to having the same object, the new case must incorporate that the re- quested object in the new case be identical to that in the preceding. In relation to this the Court stated that in the previous judgement the court established already that a debt was due to the defendant and estab- lished the amount of the debt due by the couple. The judgement also dealt with how the property was to be divided and technical experts has already valued the property, to which the couple put forward no appeal. In relation to the requirement of eadem personam, the Court noted that the parties in all three applica- tions were the same. Finally, in relation to the require- ment of eadem causa petendi, the Court held that what is being asked for in the plaintiffs' pleas is identi- cal to what the first two Courts had already decided on, which was, to establish how the property was to be divided. The Court could not therefore re- examine this plea since it had al- ready been decided and the couple had not appealed from that judge- ment either. The Court therefore concluded that there was nothing left to value that had not already been valued and divided, so much so that the First Court had ordered that the rest of the property which had not been decided on remain in common. Therefore the Court accepted the plea of res judicata and ordered all costs to be paid by the applicants. Court outlines the essential elements needed for a judgement to be found "res judicata" LAW LAW & PLANNING maltatoday Get the critical perspective on politics, culture and society Be the first to enjoy our print newspaper with a subscription Understanding each other from a different perspective: our journalists and columnists will provide you with expert reporting, analysis and commentary. Order now at maltatoday.uberflip.com