Appeals Court rejects band club's retrial claim

The Court of Appeal has dismissed a request for the retrial of a case heard and decided in 1993 and ruled that there were no valid grounds at law to rehear the case.

The judgment was delivered following a petition filed by the St Leonard Band Club of Kirkop.

In 1987 the Vella family had filed a case against the Housing Secretary and against the band club's committee.

The Vellas had asked the court to declare that a requisition order on the premises in Kirkop that were occupied by the club was null and void and to grant them possession of their property.

In 1991 the First Hall of the Civil Court had found against the Vellas and had put off the case sine die (postponed indefinitely).

The Vella family had appealed and in December 1993 the Court of Appeal had upheld their appeal and had imposed a six-month time limit for the club to vacate the premises.

The band club then filed for a retrial on the grounds that the Court of Appeal had made a wrong application of the law and the case was appointed for hearing before the Court of Appeal composed of three judges, two of whom being the same judges who had decided the case in appeal in December 1993.

The two judges had dismissed a request for them to abstain from hearing the case and the request for a retrial was dismissed by the Court of Appeal in January 1996.

In the meantime the band club commenced constitutional proceedings in the First Hall of the Civil Court which, in April 1997, ruled that the refusal of the judges to abstain was in violation of the club's fundamental human rights.

The First Hall of the Civil Court had ordered that the case for retrial be remitted to the Court of Appeal to be heard and decided by three judges who were not the same ones that had decided the case in 1993.

The Vella family appealed from this judgment and in July 2000 the Constitutional Court had upheld this appeal and revoked the judgment of the First Hall of the Civil Court.

The band club then took the case to the European Court of Human Rights which, last July, upheld the club's case and found that the failure of the judges to abstain was a violation of the club's rights.

The club then asked the Constitutional Court to declare that this judgment could be enforced in Malta and the Constitutional Court declared that this was a case which could be rendered enforceable in Malta in terms of law.

The question that remained to be decided was how the enforcement was to take place.

The Constitutional Court concluded that the most appropriate form of a remedy would be to ensure that the retrial was carried out by an independent and impartial tribunal.

The court therefore revoked and annulled the judgment of the Court of Appeal of January 1996 and ordered that the request for a retrial was to be heard once more on April 19 by the Court of Appeal in such manner that none of the judges composing that court would be the same judges who had decided the appeal in December 1993 or who had decided the case in first instance.

In yesterday's judgment the Court of Appeal, composed of Chief Justice Vincent Degaetano, Mr Justice Anton Depasquale and Mr Justice Albert Magri, dismissed the band club's petition for a retrial.

The band club had based its request on the premise that the Court of Appeal had made a wrong application of the law and in effect that the 1993 judgment had contained an incorrect interpretation of the law.

However, no retrial was possible on the basis of a wrong interpretation of the law but only when the law was incorrectly applied, the Court of Appeal ruled.

The law specifically stipulated that the party requesting a retrial on this ground had to cite the law that ought to have been applied by the Court of Appeal in the first place but the band club had failed to do so.

The Court of Appeal had, in its 1993 judgment, interpreted the concept of what constituted a public interest at law in order to deliver its judgment.

In yesterday's judgment the court ruled that in order for a retrial on the basis of a wrong application of the law to succeed, the party requesting the retrial had to show that the court had applied one law when another ought to have been applied.

The court therefore dismissed the band club's request for a retrial.