Judge dismisses challenge

In this case Martin Cassano is asking the court to condemn the defendant Alessandro sive Sandro Cassano to pay him €31,455. The plaintiff quoted from his father’s will of 26 August, 2003 which ordered the defendant to pay him and his other children Lm17,000 each following the defendant receiving a particular property. The plaintiff held that of this Lm17,000 he is entitled to receive, Lm2,000 had to be paid to his other sisters by the defendant as a set-off for a car the plaintiff has taken.

The defendant filed a number of pleas, one of which held that Mr Justice Joseph Zammit Mckeon, who is presiding the case, also presided in another case in which the parties’ sisters had sued the defendant to pay the sum mentioned in the same will. Therefore, he argued Mr Justice Zammit McKeon should abstain or be challenged since he decided on the same issue.

Mr Justice Zammit Mckeon in his preliminary judgement on this plea considered the law, particularly Article 734(I)(d)(ii) of the Code of Organisation and Civil Procedure:

734. (i) A judge may be challenged or abstain from sitting in a cause –

(ii) if he had previously taken cognizance of the cause as a judge or as an arbitrator:

Provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff;

The Court then quoted from a previous judgement, Carmelo Gauci v Giorgia Gatt et, decided on 6 November, 1967 which stated that a judge should abstain from a case or be challenged only as prescribed by this article of law. A judge may be challenged only when the case has already been decided by the same judge. The first judgements must be on the same merits of the case the judge is presiding.

In another judgement Dr Alfred Mifsud v Prime Minister, on 15 March, 1996 it was held that references to “cause” refer to pending cases before the judge.

In another judgement Mr Justice Carmelo sive Lino Farrugia Sacco v Prime Minister et, of 17 November, 2014 the Constitutional Court held the challenge of a judge should be done in exceptional cases and in the interest of justice.

There is a presumption that the judge is not partial nor corrupt and that the judge will hear a case not as a favour. The Court had held that Article 737(I)(d) of the Code of Organisation & Civil Procedure refers to cases where the merits of the case are identical and put before the Court twice but this is not the case when part of the case had been decided by the same judge.  The fact that the judge had expressed himself on legal principles is not enough to challenge a judge even if they are identical legal principles. This is due to the fact that a court case does not depend on legal principles but on the facts of the case and of the circumstances of the case.

In this particular case the presiding judge never decided on any claim raised by the plaintiff.  Art. 734 (I)(d)(ii) of the Code of Organisation & Civil Procedure stipulates that the cases must be identical. In this case they are not and in the previous case the plaintiff was not a party and not even is the claim identical.

The court moved on to turn down the plea and ordered that the case continue.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates