Court cannot fill in with evidence a party failed to produce

If a party fails to produce evidence on what it alleges, the court cannot uphold that request. This was held in a Court of Appeal judgment delivered on 23 June 2025 in the case Godwin Schembri vs Lawrence Theuma. The Court was presided by Chief Justice Mark Chectuti and judges Giannino Caruana Demajo and Anthony Ellul.

The appeal was from a judgment delivered by the First Hall of the Civil Court where the Defendant’s pleas were turned down and so was his counter-claim.

The Plaintiff sued the Defendant over a violent incident that took place in June 2008, where the Defendant attacked the Plaintiff and caused grievous injuries to his face, causing permanent disability. The Plaintiff asked to be compensated for damages.

The Defendant pleaded that the claim was time barred. He also argued that he did not attack the Plaintiff and it was the other way round. In fact, the Defendant filed a counter-claim against the Plaintiff by asking damages from him.

In its judgment, the First Hall of the Civil Court of 24 October 2017 held that the injuries sustained by the Plaintiff were compatible with injuries made by broken glass and a bite. The Defendant sustained slight injuries. The Plaintiff suffered 3% permanent disability, but failed to present evidence of his age and income. Therefore, the court could not calculate the damages.

The Plaintiff appealed the judgment on the grounds that damages must be liquidated. The Defendant agreed with the first court in that it was impossible to calculate damages.

However, the Defendant filed a cross-appeal on the grounds that the first court was not correct to blame him for the incident and that the plea of prescription should be upheld.

The Appeals Court first dealt with the cross-appeal. The Defendant maintained that he did not attack the Plaintiff and the injuries sustained were a direct result of the Plantiff’s illegal and abusive actions. The Defendant claimed that the first court ignored eyewitnesses and based its conclusions on the entity of the Plaintiff’s injuries. The Defendant said he bit the Plaintiff only to repel his attack.

The Court of Appeal may revise the evidence without undermining the first court’s analysis of the facts. If the first court’s analysis is based on the evidence produced, then the Court of Appeal should ignore the discretion of the first court in arriving at its own conclusion. The Court of Appeal looked at the two eyewitnesses who were present for the incident and the Defendant’s affidavit. The three explained that the Plaintiff attacked the Defendant and all tried to remove the Plaintiff off the Defendant. The medical certificate issued for the Plaintiff showed that he had a bite on the left side of his chin and missing flesh. The injuries were classified as grave. The Court of Appeal held that it was swayed by the medical certificates.

The Magistrates Court’s judgment, which was not exhibited, stated that the Defendant caused permanent disfigurement. This brought with it a punishment of a maximum of nine years imprisonment. Article 688 of the Criminal Code establishes the prescription period based on the maximum punishments. Therefore, the prescription period is 10 years. Therefore, the first court was correct to state that the action was within the prescription period. On the other hand, the first court held that the Defendant’s counterclaim was time barred.

The First Court held that the punishment for slight bodily harm is three months imprisonment, therefore the two-year prescription period applies. The Court of Appeal analysed the evidence to see whether the injuries suffered by the Defendant were grievous. However, it was established that the Defendant was responsible for the fight and therefore, the ground of appeal was turned down.

As to the Plaintiff’s appeal on damages, the first court had pointed out that the Plaintiff failed to produce evidence of his age and income. Article 562 of the Code of Organisation and Civil Procedure states who alleges a fact must prove it. Therefore, since no evidence of the damages which were a consequence of the injuries was produced, the court could not liquidate the damages by awarding a sum of money.

The court turned down the Plaintiff’s appeal.