Issue link: https://maltatoday.uberflip.com/i/451763
32 maltatoday, SUNDAY, 25 JANUARY 2015 Opinion T he magistrates court rejected a request to award damages because it was not morally convinced that the defendant had misappropriated money at his job. This was decided by Magistrate Gabriella Vella on 19 January, 2015 in Chris Gerada and Mario Difesa in their capacity of president and secretary of the White Taxi Association -v- Joseph Bonnici. The White Taxi Association filed an application against Josef Bonnici asking the Magistrates' Court to condemn Bonnici for damages and to pay Lm2,259 (€5,262.05). The association explained that Bonnici was its employee and that he had collected money from coupons he sold to tourists but failed to hand over the money he had collected. Bonnici rebutted that this was not the case, since he returned everything he had in his possession. Magistrate Vella examined the evidence produced by the parties. Bonnici was employed by the association and between April and June 1999 he was assigned a ticket booth at the Cruise Liner Terminal, where tourists would pay for a taxi service. The procedure would be that a client would pay for a taxi service and would be given a coupon which part was held by the client as a receipt while another part was given to the taxi driver. The defendant was to keep a record of the sales, deposit the money in hand and carry out a reconciliation. Louis Sammut and Alfred Pace testified that from the reconciliation they noticed discrepancies since not all the coupons handed over by the drivers tallied with the money deposited. They noticed that drivers presented coupons which were not registered on Bonnici's book. They found stubs missing from the book. Bonnici had admitted that he kept some money and was to deposit it into the bank account. However, what was deposited did not cover all the missing money. Bonnici had claimed he left money with Pace's wife, but Pace held that this was not true. Alfred Pace and Louis Sammut testified in court that it was the defendant's responsibility together with a certain Louis to take care of both booths. They confirmed that during the construction of VISET at times there were two persons at these booths. According to Pace, the defendant admitted to keeping some money, but promised to deposit it. In fact the bulk was deposited, but there was still a pending balance. He denied that his wife received any sum from Bonnici. Bonnici explained to the Court that in April or May he was instructed to work at the Post. He explained further that there were two booths and at times there were six employees present. Bonnici collected the coupons and money from the other employees and took them to the office either in the evening or else first thing in the morning. At the office the reconciliation took place and the money was then deposited at the bank. In May, a friend invited Bonnici to travel with him. He did and when he returned he was informed that he was dismissed. At the time he had kept some coupons and some money, which he passed on to Pace's wife. He denied that there were problems with reconciliations. The Court was also informed that Bonnici was found not guilty of the criminal misappropriation charge. Magistrate Vella held that she had a doubt whether Bonnici was responsible at law, since there were other persons responsible for the running of the booths and there was a doubt whether the missing coupons were in fact sold by Bonnici. Although Bonnici admitted to holding the association's money, this was returned in part. Regarding whether money was handed to Pace's wife, the court could not understand why she was not called as a witness. The court had to rest of the evidence brought before it and from that evidence the court would decide whether it was morally certain of what the plaintiffs were claiming and not merely a possibility. Then the court held that it was not morally convinced that while Bonnici was employed with the association he had misappropriated €5,262.05. According to Article 562 of the Code of Organisation and Civil Procedure, anyone who claims, must prove. This was also mirrored in the criminal proceedings, where the court was not convinced that there was sufficient evidence to find Bonnici guilty and the civil court is not precluded from taking into consideration the results of the criminal proceedings. The court then went on to turn down the association's request for payment. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the construction of dwelling units and an underlying basement (in Triq Salvu Pulis, Haz Zabbar) was outrightly refused by the Environment and Planning Commission, further to which the applicant lodged an appeal before the Environment and Planning Tribunal. Essentially, the proposal consisted of the demolition of an existing two storey terraced house followed by the construction of eight individual duplex units over ground and first floor levels with basement garages and washrooms in an ODZ category settlement. During the application process, the Natural Heritage Advisory Committee had, in fact, signalled that the site in question qualifies as a Strategic Open Gap, and that the development would have resulted in "intensification of an urban type of development" in an otherwise protected area. In his appeal before the Environment and Planning Tribunal, the applicant insisted that the original proposal was considerably scaled down. But even so, the applicant made reference to two permits, which according to him constituted a "commitment" in support of his proposal. Despite the applicant's arguments, the tribunal confirmed nonetheless the Commission's decision, reiterating that the proposal was unacceptable in principle. In its decision, the tribunal highlighted that the development may never be justified in terms of Structure Plan policy SET 12 which, in turn, allows for development outside the designated boundaries in exceptional circumstances – namely when a development must necessarily be situated in a non-built up area. Even more so, the tribunal took note of the fact that the proposed development encroaches over an area which is designated as an Area of Agricultural Value and a Valley Protection Zone as rightly pointed out by the Natural Heritage Advisory Committee. In conclusion, the tribunal maintained that the proposed floor area, height, number of rooms and site coverage remained of an excessive scale, leading to "overdevelopment of the site", which in turn would also be in violation of the interests of the amenity of the area and therefore counter to Structure Plan policy BEN 1. In reaction, the applicant filed an appeal before the civil courts, insisting that the tribunal failed to take cognizance of the plans as amended, which purportedly show a less intensive development. In its assessment, the court concluded that the appellant was correct to assert that the tribunal did not assess the latest drawings, adding further that the tribunal failed to comment in regard to the two permits quoted by the applicant, and which in turn could possibly constitute a valid "commitment" in the eyes of law. Indeed, one of the permits quoted by the applicant allegedly relates to a permit, whereby development was granted outside the designated boundary on condition that "compensatory open spaces" are provided within the area zoned for development within the same site precincts. Against this background, the court refrained from probing into the merits of the case and ordered the tribunal to reassess the case. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law. Court concluded that the tribunal did not comment about the two permits quoted by applicant Robert Musumeci MEPAwatch Court orders Tribunal to evaluate quoted precedents Court turns down damages case due to lack of evidence