Issue link: https://maltatoday.uberflip.com/i/1536968
IF a party fails to produce evidence on what it alleges, the court cannot uphold that request. This was held in a Court of Appeal judgment delivered on 23 June 2025 in the case Godwin Schembri vs Lawrence Theuma. The Court was presided by Chief Justice Mark Chectuti and judges Giannino Caruana Demajo and Anthony Ellul. The appeal was from a judgment delivered by the First Hall of the Civ- il Court where the Defendant's pleas were turned down and so was his counter-claim. The Plaintiff sued the Defendant over a violent incident that took place in June 2008, where the Defendant at- tacked the Plaintiff and caused griev- ous injuries to his face, causing per- manent disability. The Plaintiff asked to be compensated for damages. The Defendant pleaded that the claim was time barred. He also argued that he did not attack the Plaintiff and it was the other way round. In fact, the Defendant filed a counter-claim against the Plaintiff by asking damag- es from him. In its judgment, the First Hall of the Civil Court of 24 October 2017 held that the injuries sustained by the Plaintiff were compatible with injuries made by broken glass and a bite. The Defendant sustained slight injuries. The Plaintiff suffered 3% permanent disability, but failed to present evidence of his age and in- come. Therefore, the court could not calculate the damages. The Plaintiff appealed the judgment on the grounds that damages must be liquidated. The Defendant agreed with the first court in that it was im- possible to calculate damages. However, the Defendant filed a cross-appeal on the grounds that the first court was not correct to blame him for the incident and that the plea of prescription should be upheld. The Appeals Court first dealt with the cross-appeal. The Defendant maintained that he did not attack the Plaintiff and the injuries sustained were a direct result of the Plantiff's illegal and abusive actions. The De- fendant claimed that the first court ignored eyewitnesses and based its conclusions on the entity of the Plaintiff's injuries. The Defendant said he bit the Plaintiff only to repel his attack. The Court of Appeal may revise the evidence without undermining the first court's analysis of the facts. If the first court's analysis is based on the evidence produced, then the Court of Appeal should ignore the discre- tion of the first court in arriving at its own conclusion. The Court of Appeal looked at the two eyewitnesses who were present for the incident and the Defendant's affidavit. The three ex- plained that the Plaintiff attacked the Defendant and all tried to remove the Plaintiff off the Defendant. The med- ical certificate issued for the Plaintiff showed that he had a bite on the left side of his chin and missing flesh. The injuries were classified as grave. The Court of Appeal held that it was swayed by the medical certificates. The Magistrates Court's judgment, which was not exhibited, stated that the Defendant caused permanent disfigurement. This brought with it a punishment of a maximum of nine years imprisonment. Article 688 of the Criminal Code establishes the prescription period based on the maximum punishments. Therefore, the prescription period is 10 years. Therefore, the first court was correct to state that the action was within the prescription period. On the oth- er hand, the first court held that the Defendant's counterclaim was time barred. The First Court held that the pun- ishment for slight bodily harm is three months imprisonment, therefore the two-year prescription period applies. The Court of Appeal analysed the evidence to see whether the injuries suffered by the Defendant were griev- ous. However, it was established that the Defendant was responsible for the fight and therefore, the ground of appeal was turned down. As to the Plaintiff's appeal on dam- ages, the first court had pointed out that the Plaintiff failed to produce ev- idence of his age and income. Article 562 of the Code of Organisation and Civil Procedure states who alleges a fact must prove it. Therefore, since no evidence of the damages which were a consequence of the injuries was produced, the court could not liquidate the damages by awarding a sum of money. The court turned down the Plain- tiff's appeal. MALCOLM MIFSUD Mifsud & Mifsud Advocates 8 maltatoday | SUNDAY • 29 JUNE 2025 OPINION & LAW Manoel Island: Who is misrepresenting the facts? Arnold Cassola Arnold Cassola is chairperson of Momentum Court cannot fill in with evidence a party failed to produce THE company announcement 205 issued by MIDI plc on the Malta Stock Exchange on 25 June 2025 accuses my earlier article of being speculative in nature. In actual fact, it was MIDI plc's prospectus for the €50,000,000 4% Secured Bonds 2026, dated 28 June 2016 that was of a highly speculative nature. The question is: Was such a bond suitable for sale to retail investors such as the pension- ers mentioned by the prime minister? Was the bond mis-sold when the nature of the compa- ny's business was so speculative? While in the prospectus MIDI did indeed list the power of government to rescind the emphy- teutical deed after 31 March 2026, it was also made clear that the company was still in the process of choosing a firm to draw up the con- cept for the development. There was no plan for the Manoel Island project. There was no mon- ey in place to finance the project. MIDI could not raise the finance on its own and it was clear that they needed third parties to carry out the project. They had no permits in hand as they did not even know what they were going to do on Ma- noel Island. Given that they had no plan, they had no idea whether they could eventually reach the contractual completion date before fines would start kicking in and by the date that the government's power to rescind would come in- to effect. As I said in my previous article, not one cent of the proceeds from the 4% Secured Bonds 2026 was used in the Manoel Island project. The proceeds went to repay earlier bonds and loans from local banks. MIDI did not deny any of this. To top it all, no mention in the prospectus was made as to the source of funds for the redemp- tion of the bond. Was such a highly speculative bond suitable for sale to the pensioners mentioned by the prime minister? Did MIDI ever once explain to the public that the Outline Development Permit PA 9407/17 was annulled through their own misdeed? Did they explain to the market the impact on their ability to reach the 31 March 2026 deadline when the emphyteutical grant could be rescind- ed? MIDI are making a big emphasis on their claim for extra time. That is not a matter for me to judge but for a court of law or an independent arbitration panel to decide upon after all parties state their case. With regards to the 2024 financial statements, MIDI themselves admitted that "discussions with government are ongoing with regards to the specific remedies available in the Deed of Emphyteusis entered into on 15 June 2000… to the extension to the substantial completion date detailed in the deed for the entire development." In the last notice MIDI said: "The board also declared that the company was actively engaged in discussion with government and the board was, at that time, confident that the successful completion of the project would be achieved." The prime minister has stated that he was not aware of any such discussions. Who is correct? Although it is clear that there was no agree- ment for an extension of the deadline provided in the deed, the board was confident that they would complete the project successfully. What gave them this confidence? Without an exten- sion, the site would have no value to the com- pany. Without such certainty why did they keep the site at the same value? Why was no provi- sion for impairment made in the financial state- ments? Likewise, why did the auditors not make reference to the potential loss in value since the site would be subject to rescission of the lease within 15 months of balance sheet date? Why were the financial statements issued with an un- qualified audit report? Despite MIDI claiming that they are address- ing factual misrepresentations, all the facts I used are derived from their documents. None of the facts I mentioned have been denied in the company announcement. The question remains: Were these bonds suit- able and appropriately sold to the retail inves- tors, many of whom, as the prime minister said, are pensioners?