Issue link: https://maltatoday.uberflip.com/i/576901
52 maltatoday, SUNDAY, 27 SEPTEMBER 2015 Opinion T he Courts are very often faced with two or more conflicting versions and the Court may choose the true version of events, if the version is corroborated by other evidence. If this fails, then the maxim "Actore non probante reus absolvitur" (When the Plaintiff does not prove his case, the defendant is absolved) applies. This was stated in Rita Attard -v- Emmanuel Caruana decided on 15 September 2015 delivered by Mr Justice Joseph Zammit McKeon. In this case the plaintiff, Rita Attard, explained in her application that she had purchased a house and garage in Kirkop by judicial sale. This house was the matrimonial home of the defendant and his estranged wife. The defendant, Emmanuel Caruana, was given the key by Ms Attard, in order for him to remove his belongings from her new property. However, Caruana refused to vacate the property. Attard asked the court to order Caruana to pay a compensation for his illegal occupation of the premises. Caruana filed a statement of defence, stating that he was given the keys of his former residence, but there was no agreement when he should return the keys. He further explained that he was unable to remove his possessions, because these were not found in the property in question. He rejected the charge that he occupied the property, since he was living in a different address. Mr Justice Zammit McKeon, in his judgement, examined the evidence that was brought before the court. Rita Caruana, the defendant's separated wife, explained that when the separation proceedings were underway, the defendant was ordered to live elsewhere. Since he did not have anywhere to go, he was allowed to live in the garage and the access to the main house was blocked. Following the judicial sale of her home, it was her who gave Attard the keys of the house. The defendant asked her for the keys to remove his belongings, but she refused. She also testified that she is aware that her husband is accusing her of theft of his belongings. The plaintiff, then testified under oath that she had purchased the property by means of a judicial sale and the defendant asked for four days to remove his belongings. The keys were given under the understanding that he would return them in a few days. Instead the keys were returned six months later. The Court appointed a technical expert, who valued the rent for six months to be €3,412. Then the defendant testified under oath stating, that during the separation proceedings, he was ordered to leave his matrimonial home and he had left many of his possessions there. He returned after the plaintiff gave him the keys. He found a number of items missing. He filed a report with the police for theft, but she was found not guilty. He held that he had no agreement with the plaintiff when he had to return the keys. The Court held that it was not uncommon for it to be faced with two conflicting versions. The Courts derived two principles as outlined in a previous judgement Maria Xuereb et -v- Clement Gauci, decided by the Court of Appeal on 24 March 2004. The first was that some of the evidence of one version of events is corroborated and therefore more credible than the other. The second was based on the legal maxim "Actore non probante reus absolvitur" (When the Plaintiff does not prove his case, the defendant is absolved). In another judgement George Bugeja -v- Joseph Meilak of 30 October 2003, the Court may examine one version in the light of the criteria of credibility and whether the version is consistent. In civil actions the court decides on the balance of probability. In another judgement Enrico Camilleri -v- Martin Borg decided on 17 March 2003, the court held that the court should decided on the evidence produced before it, and the evidence should induce in the Court moral certainty and not possibilities. In this particular case, according to the evidence, the plaintiff purchased the property in January 2014. In June 2014, the plaintiff asked for the keys from the defendant's wife. Since Attard wanted the house to be vacant from the Caruana's moveable property, she asked the defendant to remove his belonging from the house. She passed on the keys in June 2014. The Court questioned the defendant's version of events, as why would the plaintiff, as the new owner of the house, give the Caruana an unlimited time with the keys, when he wanted to take possession of her new property. Mr Justice Zammit McKeon, held that the plaintiffs's version is more credible. It is not normal for a person to act, as the defendant is describing. Therefore, the Court ruled that Caruana was in possession of the house illegally and therefore, should pay compensation. As regard to the quantum of the compensation, the Court nominated an architect as its expert who reported that the rental value for the period Caruana held the property was €3,412. The Court held that this is a very important piece of evidence. In a previous judgement Calleja -v- Mifsud decided on 19 November 2001, held that although the court is not bound to follow the Court's expert's report, at the same it should not discard its own expert's finding lightly. The Court then moved to order Caruana to pay Attard the sum of €3412. Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A development application for "alterations to a facade" entailing the substitution of a garage door with a small doorway and a side window opening was turned down by the Environment and Planning Commission after it held that "the proposed openings to replace the garage door would prohibit the approved use of the garage for the parking of vehicles, and would therefore run counter to Structure Plan policy TRA 4 which seeks to ensure the appropriate provision is made for off-street parking." The garage in question is located in Salina (Naxxar) and is currently used as a summer residence without a permit. As one would expect, applicant lodged an appeal before the Environment and Planning Tribunal, stating that "the property at which this development is being proposed is already not being used as a garage for the parking of vehicles." Applicant (now appellant) went on to state that the "illegal residential use" is covered by a CTB (Category B) certificate. Applicant in fact maintained that he obtained a concession for "the creation of an additional residential unit through a change of use from garages to a residential unit" by way of the said CTB certificate, therefore contending that "the function of the garage as space for parking of vehicles has now been lost when the use was changed into a residential unit". On his part, the MEPA's case officer rebutted, stating that the ground f loor level was originally approved as a garage and eventually converted to a dwelling unit without a permit. Moreover, the case officer highlighted that albeit a CTB certificate was issued as a "concession for the creation of a residential unit instead of an existing garage", such concession only serves to allow the unhindered processing of a planning application and is not tantamount to the sanctioning an illegal development. In other words, the current residential use is still considered illegal despite a CTB certificate was issued. In its assessment, the Tribunal made reference to Article 91 of the Environment and Planning Act, which expressly states that "any person who is served with an enforcement notice shall have the right to claim that such notice shall not be executed" once he is in a possession of a CTB certificate. Notwithstanding the fact that no direct action can be executed by the MEPA, the illegal residential use was not regularized. Against this background, the Tribunal reasoned out that the Authority was correct to turn down applicant's request. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Robert Musumeci MEPAwatch CTB concession does not amount to 'sanctioning' Notwithstanding no direct action can be executed, the illegal residential use was not regularized Court explains how it may choose one version from two conflicting versions