When arguing for a retrial, the elements of a retrial must all exist. This was held by the Court of Appeal in Paul and Carmen Caruana et vs Planning Authority and Simon Chris Enriquez, on 28 February 2024.
The Court of Appeal was presided over by Mr Justice Lawrence Mintoff.
This judgement follows a retrial appeal lodged by Enriquez after a Court of Appeal judgement delivered on 11 January 2023. The Court of Appeal had confirmed a decision given by the Environment and Planning Review Tribunal of 28 April 2022.
The Court analysed the facts of the case, where the Planning Authority had approved a development application of Enriquez for an abandoned building in Gozo. The Appellants had appealed this decision and the Tribunal upheld their appeal. Enriquez filed an appeal before the Court of Appeal and requested that it revoke the Tribunal’s decision.
The Court of Appeal in its judgement explained that the main issue was whether the application was an internal development or not. The definition of an internal development is clear in that it is a development behind a building or amongst other buildings that are not facing a schemed road. The Tribunal held that if the development is not facing a schemed road, then it is an internal development. Enriquez argued that the proposed development has access from a public road. The Court of Appeal had agreed with the Tribunal when it pointed out that the definition of a road laid down in the Development Planning Act, depends on the local plans and the guidelines. The Court held that access to the proposed development is not direct. Therefore, the policies on internal developments should be applicable. The Court of Appeal upheld the decision of the Tribunal.
A retrial application followed where Enriquez asked the Court of Appeal presided by a different judge to revoke the Court of Appeal’s judgement, claiming it was conflicting and based on erroneous facts.
The new Court of Appeal held that Enriquez based the retrial application on Article 811(h) of the Code of Organisation and Civil Procedure, which states that a retrial may be entertained if the judgement is conflicting with a previous judgement given in a suit on the same subject-matter and between the same parties, and constituting a res judicata. Enriquez explained that there was another Court of Appeal judgement which dealt with the same property, where it applied Policy P6 of DC15 with regard to the widening of a side garden.
The Planning Authority held that this article of law had a number of elements to it –
the judgement must be contradictory to other judgements, the parties must be identical, the decision must be on the same merit and there must not be the plea of res judicata. The PA argued that the second and third elements do not exist. PA held that the two judgements were dealing with different development applications. It is for this reason that the policies applied to were different.
The Objectors also filed a reply to the retrial application, wherein they agreed with the PA in that the two judgements Enriquez cited in his application dealt with different issues and he confused the different applications together.
The Court of Appeal agreed with the PA and the Objectors, because not all the elements resulted as being present.
Enriquez also referred to Article 811(i) of the Code of Organisation and Civil Procedure (COCP), because the Court of Appeal dealt with the all the ground of appeal cumulatively and therefore, this led to contradictory statements in the judgement.
The Court of Appeal held that after reviewing the judgement it could not find anything which was contradictory.
The last ground of the retrial was based on Article 811(l) of the COCP, which states that judgement was based on false evidence. The Objectors held that for this article to be successful, the erroneous fact should not have been either contested or discussed and decided by the Court. The error should result from the acts of the case.
Here again the Court of Appeal agreed with the PA’s reasoning and turned down this ground and the whole retrial application.
Author: Av. Malcolm Mifsud, Partner | Mifsud & Mifsud Advocates
