Court confirms that case was already decided

The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice G. Caruana Demajo and Mr Justice Noel Cuschieri on 27 February, 2015 confirmed a judgement which held that the merits of the case Pawla Zerafa et vs Raymond Formosa et were already decided by another judgement in another case.

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Malcolm Mifsud
13 March 2015, 8:00am
The family Zerafa had filed an action claiming that Formosa had instituted a separate action against Zerafa because they had held Zawri Lane in Pieta’ illegally and exclusively. In that case Architect Godwin Abela was appointed to examine the contracts of both parties and established which of the parties had which part of the lane. In his conclusion Architect Abela held that Formosa had 35.13m2. They also had a right of passage through Zawri Lane. He also held that abandoned vehicles in the lane should be removed. This was confirmed in a judgement of 9 December, 2008, where in total Formosa owned 87m2 in Zawri Lane according to a contract of 15 May, 1987.

An appeal was lodged by Zerafa which confirmed the 2008 judgement, however Zerafa claimed that the situation was still unclear. They complained that Formosa built a dividing wall and wanted that this new case clarifies the situation. They therefore asked the Court to declare which part of Zawri Lane is Zerafa’s, and order the demolition and removal of anything that Formosa may have put up on their property.

Formosa defended that action by stating that the merits of the case have already been decided, res judicata and that the wall was erected for public order reasons.

In its judgement the First Hall of the Civil Courts held that the principle of res judicata is obvious in that there cannot be uncertainty after a legal process has been concluded. There are three elements to the principle of res judicata: the identity of the persons, the claim and the object. There is no doubt that the parties to this and the previous case are identical. Although the claims are different, the scope of the two sets of claims are the same and therefore that plea is still valid.

The court of first instance pointed out that Zerafa are asking for the wall to be removed. The latter issue was still to be examined and decided upon.

Zerafa appealed from this judgement since they argued that the claims and the object of the case are different from the previous action.

Formosa filed an incidental appeal stating that the res judicata principle should also be upheld by the Court of Appeal, but should turn down the request to examine if there is any of Formosa’s property in Zerafa’s property since there is another case claiming spoliation.

Zerafa held that the incidental appeal was null and void since Formosa asked to turn down the original appeal, which should not have been done and also because they did not ask for the plea of res judicata to be upheld.

The Court of Appeal examined the original appeal and examined the claims in this case and the claims of the previous court case. In the first case the Court had decided Formosa are owners of 87m2 and ordered Zerafa to hand over this land to Formosa. The Court of Appeal agreed with the court of first instance that the merits of the case had already been decided. The elements of a res judicata plea existed in that the parties were identical, both court cases dealt with Zawri Lane. It was not correct to say that the first case did not deal with the whole of Zawri Lane as alleged by the Zerafa family, because in the first case, the Zerafas had presented a plea where they stated that they were the owners of all of the lane. The Court had ruled differently on this point.

Regarding the claims of both actions, although they are different the result is the same, in that in the first case the court was asked for Formosa to be declared owner of 87m2, while in the second case the court is being asked where is the property of Zerafa in Zawri Lane. The Court of Appeal commented that the intention is to reopen the case once more. If it was established where Formosa had the 87m2 in the lane and that the Zerafas were not the owners of all the lane, there is a definitive judgement on the issue in question. 

Regarding the incidental appeal the court disagreed that this was null, because in the incidental appeal the Formosas asked the court to dismiss the principal appeal and this should not have taken place. The Court did not think that this was a ground to annul the incidental appeal and neither was it to annul the appeal because it did not ask to uphold the res judicata plea. However, the Court of Appeal dismissed the incidental appeal on the ground that it had no basis on which to agree with Formosa that the spoliation case was a ground to review the judgment of the first instance. 

The Court of Appeal then ordered that the case continue and allow the court of first instance to investigate if Formosa has any structures on Zerafa’s property.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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Malcolm Mifsud is a partner at Mifsud & Associates.