Evidence produced by one party, which does not convince the Court, does not mean that that evidence is false. This was held in a retrial decided on 4 March 2019 in Champalin Company Limited -v- Adrian Pillow before the Court of Appeal, presided by Mr Justice Mark Chetcuti.
The case started before the Rent Regulation Board, then moved before the Court of Appeal, when the latter confirmed a decision of the Board terminating a lease Adrian Pillow had agreed and ordering him to vacate the premises.
The case concerned a promise of sale agreement that took place in December 1999, where Pillow was to be granted a perpetual emphyteusis of a house in San Gwann. The promise of sale was to be extended every time when the ground-rent was to be paid. The promise was sale was never registered with the Inland Revenue Department. The extensions continued to 2007. In 2015 the claimant company filed a case asking the Rent Regulation Board to evict the defendant, Pillow.
The grounds of the appeal that Pillow had filed were based on the fact that the promise of sale was not registered and therefore, was not according to law. Furthermore, the defendant complained that the Board did not take onboard the calculations he had presented.
As to the first ground of appeal, the defendant explained that clause 15 of the promise of sale agreement allowed for an automatic extension. According to Article 1233 of the Civil Code, the promise of sale has to be in writing, and the only written agreement took place in 2005. Apart from this the Tax on Document and Transfers Regulations, stipulates that the promise of sale agreements must be registered.
Promise of Sale agreements done before December 2003, must have been registered all the same. The Board pointed out that the defendant testified that in 2007 the written receipt mentioned that he paid rent and therefore, there was a fresh arrangement where the defendant was now renting the premises.
The Court of Appeal held that this was a logical conclusion since the receipt mentioned “rent” and this was backed by an explanation. The director of the claimant company held that he did not want to continue to extend the promise of sales agreement and if Pillow wanted to continue to occupy the premises, then he was going to rent it to him. Pillow argued that there was no written lease agreement as obliged by law.
Although the defendant held that the Board did away with his calculations, the Board did not find any evidence that he had actually paid more than what was being claimed.
The defendant based his retrial on the fact that the judgements of the Rent Regulation Board and the Court of Appeal were based on false evidence presented by the claimant company in terms of Article 811(a) and (j) of the Code of Organisation and Civil Procedure.
Furthermore, he stated that the Rent Regulated Board was not competent to decide on the validity of he promise of sale agreement. There also was a mistake of fact.
Mr Justice Chetcuti held that an insufficient defence is never a good reason for one to present a retrial. If there was such a fraud, the defendant should have pointed this out to the Board or to the Court at the appropriate time. If the defendant did not manage to convince the Court, this is not fraud.
As to the competence of the Board, the Court of Appeal held that the Rent Regulation Board did not decide on any issue concerning the promise of sale agreement. The defendant claimed as a defence that the promise of sale was valid and therefore, could not at the same time state that the Board could not deal with the promise of sale issue.
As regards whether there was any false evidence, the defendant failed to bring any evidence of this. In fact Article 811 of the code of Organisation and Civil Procedure allows three months to challenge a judgment, after another judgement establishes that the evidence is false. Therefore, there is need of a judicial declaration that the evidence is false.
The Court then moved to dismiss the retrial and confirmed the Court of Appeal judgement.
Avv. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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