Conflicting evidence leads to judgment confirmation

The party asking for a retrial must prove the reason why the case should be heard again

malcolm_mifsud
Malcolm Mifsud
3 March 2017, 7:34am
The magistrate held that from the evidence produced she was not convinced that the correct procedure for notification of the acts were not followed and therefore turned down the request for retrial
The magistrate held that from the evidence produced she was not convinced that the correct procedure for notification of the acts were not followed and therefore turned down the request for retrial
An application for a retrial was turned down because the applicant failed to prove that he was not notified of proceedings. This was decided by Magistrate Gabriella Vella in Angelo Aquilina -v- Eurofreight Services Limited on 20 February, 2017.

Angelo Aquilina in his application for a retrial asked the Court to revoke a judgement handed down on 4 February, 2008. The plaintiff is arguing that he was not notified of this lawsuit and only learned about it when the bank informed him that he had a garnishee order following a judgement, which had ordered Aquilina to pay Eurofreight €7,644.65 with interest.

Eurofreight replied by saying that the application asking for a retrial was null due to the fact that no deposit was paid in terms of Article 815 of the Code of Organisation and Civil Procedure. The company also argued that the Court acts of Eurofreight Services Ltd v Angelo Aquilina was notified according to law and therefore there is no ground for a retrial. On 4 June, 2010 the Court had turned down the first plea on whether a deposit was paid.

Magistrate Vella examined the evidence produced before the Court. The proceedings were notified by means of the procedure of publication. The application and the notice of the Court appointment was fixed in the Gzira Local Council and Police Station and on the entrance of the block of apartments of Aquilina’s residence in Triq Turu Rizzo Gzira.

The notices of the same documents were also published in the Government Gazette and on two newspapers. However, Aquilina argued that at the time he moved residence from Triq Turu Rizzo to Triq Nazju Ellul, both in Gzira. Aquilina produced family and friends to testify that he had actually moved residence in February 2007, before the procedure of notification took place. However, his son testified that the move took place in January 2008 and this was corroborated by his uncle who testified that the Aquilinas moved in January or February 2008. The Court commented that it was clear that the witnesses did not agree on this vital fact. The difference was not of a few days but there is a substantial difference. Furthermore, friends who helped in the transport of the furniture said that they helped out in February 2007, however, they were not very clear in their testimony.

Aquilina and his wife said that they remained registered at the first address because the identity cards department was not accepting changes of addresses at that time. This was contradicted by an official of the Electoral Commission, who explained that what had stopped was not the change of address but the renewal of identity cards.

The Court noted also that Aquilina did not apply for redirection of post. His wife testified that she did not receive post directed for the old address. An official from Maltapost plc testified that delivery of the envelope of the case Eurofreight Services Ltd v Angelo Aquilina had been attempted five times at the Triq Turu Rizzo, Gzira address. Aquilina’s wife, Maria, testified she rarely went to the old address. However, she had also testified that she was annoyed going and coming from the other property to collect the post and therefore she applied for a redirection. 

The Court quoted from a previous judgement, Anna Cassar v Lawrence Attard, decided on 25 September, 2003 by the First Hall of the Civil Court which stated that retrial is an extraordinary procedure aimed at a judgement. The party asking for a retrial must prove the reason why the case should be heard again. The Court must be convinced of this reason and the party requesting a retrial must not prove anything apart from the reason for a retrial. Magistrate Vella held that from the evidence produced she was not convinced that the correct procedure for notification of the acts were not followed and therefore turned down the request for retrial.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.