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maltatoday | SUNDAY • 6 AUGUST 2023 11 LAW CLASSIFIEDS THE Court of Appeal upheld a plea that the case has already been decided on (res judicata), since there existed the three el- ements that make up this plea. This was held in Michael Chet- cuti v Miller Distribution Limit- ed and Victor Chetcuti. The judgment was delivered by the Court of Appeal on 1 August 2023, presided over by Chief Justice Mark Chetcuti and Judg- es JR Micallef and Tonio Mallia. The appeal was lodged after the First Hall of the Civil Court held on 28 October 2021 that the case at hand was res judica- ta. The Plaintiff had originally explained in his sworn applica- tion that he was employed with his father Victor Chetcuti. His father purchased newspapers and magazines from Miller Dis- tributers Limited. In November 2014, the company filed an ex- ecutive judicial letter in terms of Article 166A of the Code of Organisation and Civil Proce- dure. The company was claim- ing a payment of almost €20,000 from the plaintiff. He later filed an action against the company since this judicial letter was not notified to him personally. In May 2018 Miller Distributers instituted an action in the Mag- istrates Court against Michael Chetcuti. Chetcuti instituted another action in the First Hall of the Civil Court, asking that the 2014 judicial letter be de- clared null. The company filed a statement of defence, in which it stated that this case was already decid- ed in a judgment delivered on 5 November 2018 and therefore was res judicata. The First Court upheld this plea. The Court pointed out that there are three elements for a successful res judicata plea. Ac- cording to Ignio Trapani Galea Feriol v James Agius et, decided by the Court of Appeal on 2 Ju- ly 1996, the parties must be the same, the same issue and object dealt with. Judgments should conclude disputes once and for all. Once there is a judgment the dispute cannot continue or be reopened. This is an issue of public order. In this case the plaintiff failed to contest the judicial letter in terms of Article 166A(5) of the Code of Organisation and Civil Procedure (COCP). Once the Court decided on the contes- tation, then that decree is con- sidered equal to a judgment or a definitive decree. Apart from this there are two further judg- ments – one in the first instance and the second in the Court of Appeal. Therefore, the res judi- cata plea is admissible as long as the elements exist. There is no doubt that the par- ties to these actions are identi- cal. Furthermore, the cause of the claim is also identical. Pro- fessor Caruana Galizia in his Notes on Civil Law held that the cause is the title on which the demand is based. The scope of the actions between the parties is to nullify the judicial letter and stop its effects. The third element is when the object of the action is identical to the previous actions. This was confirmed in Raba Construction Limited v Cutajar Construction Company Limited. If the aim of the action is to arrive to the same aim, then the case is res judicata. Michael Chetcuti appealed this judgment on two counts. The first is that the first court did not make the distinction between an executive title and a court judgment and the second is that the elements of res judicata are not applicable to this case. The company replied by disagreeing with the appeal. The Court pointed out that this case concerns the judicial letter where the company is claiming €19,450 representing merchandise sold to him. There was no reply to the judicial letter and a garnishee order was filed in April 2016. An application was then filed for immoveable property to be auctioned by the Court. The judicial sale was sus- pended and another action filed before the Magistrate's Court. The Plaintiff's claims were turned down by the Magistrates' Court and the Court of Appeal. The Plaintiff filed this case ask- ing the court to decide whether the same judicial letter is null and void. The Court of first in- stance explained that a decree of a judicial letter of Article 166A is equivalent to a judgment of a final decree. The Court of Appeal held that this position is correct, because procedures under Ar- ticle 166A(5) of the COCP is a litigation procedure. A decree under this article 166A(5) is a judgment according to Article 23 of the COCP, as it is read in public and when read it is final. Therefore, the decree of the Magistrates' Court has all the characteristics of a judgment. Therefore, this ground of appeal was not being upheld. As to the ground of appeal that the elements of res judica- ta do not exist, the Court quot- ed from Dr Jose Herrera noe v Anthony Cassar et noe decided on 5 October 1992. It held that a res judicata judgment cannot be appealed from. The Court of Appeal re-exam- ined the evidence produced and saw that the three elements of res judicata do exist and upheld the plea of res judicata. Court of Appeal explains the three elements of the plea of res judicata LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET SHOP TO LEASE - Class 4 B 60 sqm corner shop to lease in San Gwann. Key money €49,888 and €40 a day rental. Call on 79703404. XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. Phone 79493021, 79426883, 77481592 or 77484029 SERVICES COLLECTIBLE items such panini albums and loose stickers, old postcards and posted envelopes, medals, militar- ia, coins and paper money, books, toys, stamps, badges, paintings, gold & silver items etc. Call on 21310238, 99246632. 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