This was an appeal to a First Hall, Civil Court judgement delivered on 28 January 2004.

The plaintiff and the defendant agreed that a piece of land in St Julian’s be developed. It was agreed that the existing buildings be demolished, the land partitioned and new buildings erected. According to an agreement signed in October 1995, and a contract signed in November 1995, it was established that none of them would make any objections or cause obstacles for each other.

In order to ensure fulfilment of this obligation, a penalty clause was inserted imposing a Lm50 fine payable for each day that a delay was caused. The defendant allegedly made an objection or failed to sign the application required by the police to allow certain permits to be issued. Hence he breached the contract.

The plaintiff requested the Court to declare the defendant responsible and condemn the defendant to pay the penalty imposed contractually for the delay in his giving consent so that the objection could be removed and the plaintiff could acquire from the competent authorities a licence necessary for one of the buildings to open up for business as a shop.

The defendant claimed that the plaintiff’s pleas were unfounded in fact and in law.

According to the contract, the penalty was to be imposed in the event that any of the parties caused problems unjustly. The defendant claimed not to have signed for just reasons and also that his objection had had no effect, as the permit was still issued.

First Hall, Civil Court

The Court felt that the plaintiff’s action lacked a juridical interest.

It was clear from both the contract and the writing that the plaintiff was appearing in the name of and representing the company Puci Co. Ltd. This company and the defendant had agreed on a number of aspects, including the penalty.

The agreement was between the company (and not the plaintiff personally) and the defendant. The plaintiff had no personal interest. This juridical interest is necessary to make an action and it must be direct, legal, actual and personal.

The Court felt that despite the fact that judicial interest was not mentioned, it still had to be dealt with since it was a matter of public order and the Judge had a right to raise the plea of lack of interest (and hence lack of legal standing to make an action) ex officio. The question of the juridical interest of the plaintiff had to be scrutinised, although it was not raised by the defendant.

Court of Appeal (CoA)

The plaintiff appealed, requesting that the judgement be revoked.

The First Hall allegedly ignored the parties, giving them no opportunity to express themselves, and immediately tackled the aspect of juridical interest when this had not even been raised or debated by any of the parties. In this way, the court case ended unpredictably.

The appellant claimed that the First Hall could have rectified the situation as per Article 175(2) of the Code of Organisation and Civil Procedure by correcting his details.

The defendant agreed with the First Hall. claiming that it had every right to solve the question of legal standing and juridical interest. The appellant did not put forward any legal provision as proof that the Court could not act the way it did. A correction as per Article 175(2) was not applicable since this deals with cases where a judgement of the First Hall has already been delivered. In the November 1995 contract (the contract being the basis of the action,) the plaintiff appeared only in the name and interest of the company Puci Co. Ltd and not personally.

There was no doubt that the First Hall could raise the question of juridical interest ex ufficio, an interest that must not only exist upon the institution of the action but must continue to exist throughout the proceedings until a judgement is delivered. This was stated in Improved Design Ltd v. Antoine Grima (2004).

However, when such an aspect is raised ex ufficio, (ie, not raised explicitly nor implicitly by the parties), can this be raised before judgement is due to be delivered without the parties (particularly the party that would be negatively affected by such an issue) having the opportunity to state their interpretation of the same question?

The CoA felt that in situations where the First Hall raises the question ex ufficio, it should give the parties the opportunity to express themselves before delivering judgement.

Hence, the Court is allowed to raise the question of juridical interest and establish its presence or otherwise. It must, however, not be forgotten that the case is between the parties and hence the Court should avoid unnecessary prejudice. If the Court raises the question of lack of juridical interest, it must then ensure that the parties are given an opportunity to be heard and not merely be subjected to a judgement immediately.

In this case, the question of juridical interest was not raised by the defendant, not even implicitly. Admittedly, the latter claimed very generally that the plaintiff’s pleas were unfounded in fact and in law. However, he then qualified this general statement with specific examples and nowhere was the question of a lack of juridical interest mentioned. The First Hall, according to the CoA, criticised the defendant for not making such a plea and allowing the plaintiff, who lacked an interest, to make an action against him.

For the above reasons, the CoA upheld the appeal and revoked the First Hall’s judgement. It ordered the First Hall to hear the parties regarding the question of juridical interest before delivering a final judgement.

Kevin Chircop

vs

Joseph Chircop

Court of Appeal

Chief Justice Vincent Degaetano

Judges

Joseph D. Camilleri

Joseph A. Filletti

1 December, 2006