Couple responsible for damages irrespective of subsequent separation

In a Court of Appeal judgement delivered on 11 December 2017, in Romina Sah Frendo and Chaudreamani Sah v Paul Cremona and Olena Volodymyrivna Caurana Verbytska, an application was filed after claiming damages of €3,366.67

A married couple are jointly responsible for damages caused to another property, if at the time, it formed part of their community of acquests, even though they subsequently separated. This was explained in a Court of Appeal judgement delivered on 11 December 2017, in Romina Sah Frendo and Chaudreamani Sah -v- Paul Cremona and Olena Volodymyrivna Caurana Verbytska. The plaintiffs filed an application before the Small Claims Tribunal after claiming damages amounting to €3,366.67, which was caused by blocked drains, allowing rain water to enter their property.

Paul Caruana denied the claims, since he explained that he did not live in the property for over four years. His former wife Olena Volodymyrivna Caruana also denied responsibility of damages and that the amount sought was excessive.

C&F Enterprises Limited were called into the suit, which company had sold the apartment and explained that they have no control over the drain pipes after the property was sold.

The Small Claims Tribunal, decided the case on 23 June 2015 by upholding the claim, but not in respect of C&F Enterprises Limited. The Tribunal awarded €2,000 in damages.

Paul Caruana appealed the judgement stating that he could not be responsible forthe drains because he did not live in the apartment. He explained he spent long spells of time in hospital and that the two defendants separated.

His former wife held that the appeal should be declared abandoned since she was not notified within the stipulated time mentioned in Article 963 of the Code of Organisation and Civil Procedure. She also presented an incidental appeal, in that the plaintiffs failed to cover the drains with a wire mesh allowing leaves to fall in the drains.

Mr Justice Anthony Ellul, who delivered the judgement, examined whether the appeal had been abandoned as claimed by the appellant. He looked at two articles of law. Article 146(1) of the Code of Organisation and Civil Procedure:

“146. (1) The written pleadings in appeal shall be deemed to be closed by the answer to the application, or, in default, on the expiration of the time allowed for such answer.”

Article 963 of the same Code reads:

“963. (1) Saving the provisions of subarticle (3) and of articles 416 and 420, the written pleadings in any cause shall be closed, in first instance, within the peremptory time of six months, and, in second instance, within the peremptory time of one year.

(2) The time shall commence to run, in first instance, from the day on which the sworn application is filed, and, in second instance, from the date of the application of appeal for the reversal or variation of the judgment appealed from.

(5) Saving the provisions of article 732(2), the causes the written pleadings whereof are not closed, in spite of the orders given by the Court in accordance with subarticle (3), within the said time shall:

(b) where the cause is before a court of second instance,

(6) The desertion of any cause in first instance shall operate as an abandonment of the proceedings, but shall not bar the right of action. In second instance, the desertion shall operate as an abandonment of the appeal and the judgment appealed from becomes res judicata.”

From the records of the case, the appellant filed the appeal on 13 July 2015, while the plaintiffs were notified on the next day and replied on 23 July 2015. The plaintiff received the notice to appear before the Court of Appeal on 14 November 2016. The notification of the appeal to Olena Volodymyrhuma Caruana was paid in February and March 2017. She then replied to the appeal in May 2017.

The Court commented that the procedure to close took longer than one year and notification took place after the Court drew the appellant’s attention. In another court judgement Lawyer Leslie Grech pro et noe -v- Albert Pace et, decided by the Court of Appeal on 11 November 2015, that court had held that Article 963(3) allows the court to allow time for the procedures to close as quickly as possible, since the legislator tried to dissuade the courts from declaring cases as deserted. Therefore, although in this particular case, the procedure did not close within one year, the Court did not apply Article 963(3).

With regard to the merits of the appeal, namely whether Paul Cremona, could be held responsible for damages, when he did not reside in the property, the Court of Appeal analysed the witnesses. The plaintiff Romina Sah Frendo, explained that they are the owners of a gift shop, forming part of a block. In September 2010, the shop was immersed in water. An architect inspected the drains and leaves were removed and the problem seemed to be solved. At the time Olena Volodymyrinvna Caruana lived there and she was given a report with the list of damages caused, but they did not hear anything from her. On her part Volodymyrinvna Caruana had explained that she lived with her husband in the apartment in B’Kara for 11 years and on the ground floor level there are a number of shops. The gift shops do not lie directly under their property. There is a pipe that is directed in the drainage system. She denied that her plants had blocked the drains. Paul Cremona, testified that he had left the apartment in 2007 and when he left there was no problem with the drainage system.

Architect Alan Saliba, the court appointed expert, held that the pipe has no wire mesh. The Caruana balcony had some structural problems and the pipes were affected by the dirt that accumulated and even blocked the pipes.

Paul Caruana argued that since he did not live in the property any more, he should not be held responsible for damages. Mr Justice Ellul quoted from Remigio Zammit Pace noe -v- Reginald Fava et noe decided on 25 March 2004, which held that according to Articles 1031, 1032 and 1033 of the Civil Code state that a party is responsible for damages if the duties are not carried out, such as the lack of maintenance of a property. The Court pointed out that the damage took place when the Caruana were not legally separated yet. Article 1327 of the Civil Code the community of acquests is responsible for “(f) any debt or indemnity due as a civil remedy by either spouse where such indemnity is not due as a civil remedy in respect of any offence wilfully committed.” Therefore irrespective of the fact that Paul Cremona was not living in the property, he remained responsible at law.

The Court then moved to reject the appeal and confirm the judgement.


Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates

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