The Magistrates Court in its Superior Jurisdiction in Gozo ruled that a damages case relating to the construction of a cemetery is Nadur, should have been filed against the parish and not against the parish priest. This was decided by Magistrate Joanne Cuschieri on 15 November, 2016 in Martin Camilleri et -v- Rev Archpriest Jimmy Xerri and Victor Guzman.
The plaintiffs, a group of farmers who filed the lawsuit against the Nadur parish priest, held in their application that they work the land in Nadur, Gozo, where there are two wells that receive natural and pure water from the aquifer. This aquifer lies under the property where the cemetery is being constructed, and now the quality of water is inferior and to some extent the flow has also decreased. The farmers asked the court to order the archpriest to pay damages.
The defendants filed a statement of defence saying that they have no judicial relationship with the plaintiffs, since they do not personally own the property in question, which is owned by the Gozo Curia. On the merits of the case, the defendants said the farmers do not enjoy a legal right of servitude, and that the parish is developing its own property.
Magistrate Cuschieri commented that two of the plaintiffs did not produce any evidence at all, while others presented affidavits. The farmers’ land is found beneath the new cemetery and the water they use for the land is derived from the property which was developed into a cemetery. There is a constant supply in winter and in summer. The farmers make use of this water daily. The new cemetery is situated above the plaintiffs’ fields and across the road. Some of the plaintiffs were objectors to the MEPA application. The application was filed by Archpriest Saviour Muscat on behalf of the Nadur parish church.
The application included a report by Dr Saviour Scerri, a geologist, who explained:
“Groundwater in the Ramla Valley area occurs at two levels, one in the Globigerina limestone at sea level in the form of an extensive aquifer, and the other at the base of the Coralline plateaux of Xaghra and Nadur in the form of a perched aquifer of much limited extent. Both aquifers are exploited by farmers from private wells and gravity springs while the mean sea-level aquifer is also exploited from public boreholes… Where this groundwater emerges at the edge of the plateaux, it vies rise to gravity springs such as at Għajn Hozna and Tal-Għejjun to the south, Għajn Qasab gravity spring located at the foot of the cliff west of the site.’ (fol. 354);4. ‘It is immediately noted that the catchment of the site is very small when compared to that of Wied Għajn il-Qasab. In addition it is also important to note that the catchment of the site lies entirely on Upper Coralline Limestone while that of Wied Għajn il-Qasab is predominantly on Blue Clay and Upper Globigerina. The proposed development is unlikely to have any adverse impact on these resources if sanitary effluents generated on site are discharged into the public sewage network and not into cesspits.”
These conclusions were accepted by MEPA on approving the application.
The Court then moved to consider the first plea, in that the defendants had no judicial relationship with the plaintiffs. The Court pointed out that the plaintiffs failed to produce evidence on whose property the new cemetery lay. Neither did the defendants produce much evidence on this point, and the defendant, Archpriest Jimmy Xerri, testified that he entered the parish church in February 2010 and the cemetery was also completed. The defendants explained that the land belonged to the Curia in Gozo, while the development was made by the Nadur parish. The defendants were sued in their personal capacity only because at the time when the lawsuit was instituted, Fr Xerri was the Archpriest, while Victor Guzman was the administrator of the Cathedral in Gozo.
The Court then quoted a judgement delivered by the First Hall of the Civil Court on 8 November, 2016 in Louis Bonavia et -v- John Bonello et, which held that according to Articles 1031 to 1033 of the Civil Code, every person is responsible for damages caused. The plaintiff must prove that the defendant caused the damage sustained.
In this case, the plaintiffs are alleging that the defendants caused damages to them through their actions. The plaintiffs failed to prove that there was some connection between the damage caused and the defendants personally. From the evidence produced Fr Xerri was appointed to Nadur in 2010 and his predecessor had always acted on behalf of the parish and never in his personal name. This could be seen in the permit applications and experts who testified that they were engaged by the parish and not by the Archpriests personally.
The Court then moved to uphold the plea of lack of judicial relationship between the parties.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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