Evidence cannot be produced in submissions

From the evidence the court concluded that the bones of contention were that although the defendant admitted that he had to pay the plaintiff, the amount was in dispute and that he wanted that the sum be paid after the litigation on the will was concluded

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Malcolm Mifsud
29 July 2016, 9:01am
A court held that no new evidence can be produced at the submissions stage of a lawsuit. This was pointed out in a judgement delivered by Mr Justice Joseph Zammit McKeon in Martin Cassano -v- Alessandro sive Sandro Cassano on 14 July, 2016.

The plaintiff held that his father’s inheritance is regulated by a will made on 26 August, 2003. In the will his brother, the defendant, had to pay Lm17,000 to each of his brother and sisters as compensation for being assigned a property. The plaintiff had purchased from his co-heirs his father’s BMW for Lm6,000, which had to be reduced from what was owed to him by his brother. He asked the court to order his brother to pay Lm13,500.

The defendant filed a statement of defence where he pointed out that this action cannot succeed because the same plaintiff and his sisters are challenging the validity of the will which gives them Lm17,000 each and therefore, if the will is not accepted the plaintiff cannot benefit from part of it. 

Mr Justice Zammit McKeon, analysed the evidence produced. The plaintiff had testified that his father had assigned his brother two properties in Birkirkara, but imposing upon him the payment of Lm17,000 each to his brother and two sisters within five years. He further explained that he was interested in purchasing a BMW which was part of the inheritance and paid Lm6,000 which was to be reduced from the Lm17,000 he was owed. He agreed that there was another lawsuit with his brother, but this referred to the extent of the legacy. The plaintiff’s two sisters also testified and confirmed the plaintiff’s version of the events.

The defendant testified by informing the court that there was another action instituted by the plaintiff, in which he was challenging the validity of their father’s will. He admitted that he has to pay Lm17,000 to his siblings, but said he had given Lm7,000 to his brother, the plaintiff, and therefore, there is a balance of Lm10,000 to paid. He produced a private writing on this point. He explained that this sum was not paid because of the other actions instituted against him. 

The court examined the parties’ father’s will which held that the defendant was to hand over Lm17,000 to each of his other three children. From the evidence the court concluded that the bones of contention were that although the defendant admitted that he had to pay the plaintiff, the amount was in dispute and that he wanted that the sum be paid after the litigation on the will was concluded.

The court disagreed with the defendant that the other action was challenging the validity of the will. From the acts of the case, the parties have accepted the inheritance. What was in dispute is whether a property forms party of the legacy that the defendant was assigned by his father. The court pointed out that the defendant could not argue that he should not have paid the Lm17,000 because he did not formally take possession of the property bequeathed to him. In fact, during these proceedings a judgement was delivered that this other property did not form part of the legacy.

With regard to the amount owed, the court held that there are two versions on what is due. The court quoted a Court of Appeal judgment Xuereb -v- Gauci et of 24 March, 2004, which held that when there are conflicts of versions of events, the court should see which version is more credible. 

In the present case the value of the BMW had to be set off against what the defendant owed the plaintiff. In the initial application one sum was mentioned, however, in the plaintiff’s affidavit another sum was mentioned, then in the submissions, it was mentioned that the plaintiff paid Lm1,000 in repairs on the vehicle. This was not corroborated. Then the court concluded that the defendant should pay Lm10,000 as mentioned in his testimony.

The court ordered the defendant to pay the plaintiff €23,293.73 representing the Lm10,000.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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Malcolm Mifsud is a partner at Mifsud & Associates.