Issue link: https://maltatoday.uberflip.com/i/483475
32 maltatoday, SUNDAY, 22 MARCH 2015 Opinion T he First Hall of the Civil Court on 13 March, 2015 dismissed a plea that challenged the judge presiding the case Martin Cassano v Alessandro sive Sandro Cassano. In this case Martin Cassano is asking the court to condemn the defendant Alessandro sive Sandro Cassano to pay him €31,455. The plaintiff quoted from his father's will of 26 August, 20 03 which ordered the defendant to pay him and his other children Lm17,0 0 0 each following the defendant receiving a particular propert y. The plaintiff held that of this Lm17,0 0 0 he is entitled to receive, Lm2,0 0 0 had to be paid to his other sisters by the defendant as a set-off for a car the plaintiff has taken. The defendant filed a number of pleas, one of which held that Mr Justice Joseph Zammit Mckeon, who is presiding the case, also presided in another case in which the parties' sisters had sued the defendant to pay the sum mentioned in the same will. Therefore, he argued Mr Justice Zammit McKeon should abstain or be challenged since he decided on the same issue. Mr Justice Zammit Mckeon in his preliminar y judgement on this plea considered the law, particularly Article 734(I)(d)(ii) of the Code of Organisation and Civil Procedure: 734. (1) A judge may be challenged or abstain from sitting in a cause – (ii) if he had previously taken cognizance of the cause as a judge or as an arbitrator: Provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff; The Court then quoted from a previous judgement, Carmelo Gauci v Giorgia Gatt et, decided on 6 November, 1967 which stated that a judge should abstain from a case or be challenged only as prescribed by this article of law. A judge may be challenged only when the case has already been decided by the same judge. The first judgements must be on the same merits of the case the judge is presiding. In another judgement Dr Alfred Mifsud v Prime Minister, on 15 March, 1996 it was held that references to "cause" refer to pending cases before the judge. In another judgement Mr Justice Carmelo sive Lino Farrugia Sacco v Prime Minister et, of 17 November, 2014 the Constitutional Court held the challenge of a judge should be done in exceptional cases and in the interest of justice. There is a presumption that the judge is not partial nor corrupt and that the judge will hear a case not as a favour. The Court had held that Article 737(I)(d) of the Code of Organisation & Civil Procedure refers to cases where the merits of the case are identical and put before the Court t wice but this is not the case when part of the case had been decided by the same judge. The fact that the judge had expressed himself on legal principles is not enough to challenge a judge even if they are identical legal principles. This is due to the fact that a court case does not depend on legal principles but on the facts of the case and of the circumstances of the case. In this particular case the presiding judge never decided on any claim raised by the plaintiff. Art. 734 (I)(d)(ii) of the Code of Organisation & Civil Procedure stipulates that the cases must be identical. In this case they are not and in the previous case the plaintiff was not a part y and not even is the claim identical. The court moved on to turn down the plea and ordered that the case continue. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning permission "to effect minor alterations and construction of a lift to existing flats" was issued by MEPA's Environment and Planning Commission, following which an interested third party lodged an appeal before the Environment and Planning Tribunal, objecting to the permit. In his appeal, the objector alleged inter alia that "the architect submitting the application failed to point out that there was third party property under the proposed development", insisting further that the passenger lift shaft was going to be built over his bedroom. The objector made also reference to Policy BEN 1 which states that "development will not normally be permitted if the proposal is likely to have a deleterious impact on existing or planned adjacent uses because of visual intrusion, noise and vibration." On a different note, the objector highlighted that he was notified about the Commission's sitting only four days before, adding that he was summoned to appear in court on that same day. In conclusion, the objector alleged that the lift was certified as "structurally safe" by an engineer who is not acknowledged by the Malta Standards Authority. On its part, the MEPA insisted that there is nothing in the law to suggest that a hearing may not take place if the objectors (or the architects and/ or lawyers representing them) are not able to attend the Commission's hearing. More so, the authority maintained that the permit was subject to the lift being certified as safe prior to its commissioning. In its assessment, the Tribunal held that an applicant may not necessarily be the site owner and in such cases, the applicant is bound to notify the owner of his intention to apply, by registered letter of which a copy must also reach the authority. The Tribunal also held that the technical report released by the engineer appointed by the applicant need not be acknowledged by the Malta Standards Authority since the lift was not as yet installed. The Tribunal also made reference to the engineer's report, who in turn declared that "the lift has to eventually undergo a full test and commissioning by a Notified Body who shall assume full responsibility for the safe and proper operation of the lift and issue the relevant certification and CE marking of the lift". Against this background, the Tribunal maintained that the permit should stay. As a reaction, the objector lodged an appeal against the Tribunal's decision before the Court of Appeal, insisting once again that the engineer appointed by applicant in this case was not qualified to release a safety report. In its assessment the Court nonetheless held in favour of the applicant, confirming inter alia that an engineer who is entrusted with the preparation of a technical report for the purpose of a planning application need not be certified as a "notified body" with the Malta Standards Authority. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law robert@rmperiti.com Engineers in planning applications need not be certified as a "notified body" with the MSA Robert Musumeci MEPAwatch Hearings may take place if lawyers or architects representing objectors are not present Judge dismisses challenge