The First Hall of the Civil Court, presided over by Mr Justice Joseph Zammit McKeon, in the case ‘Corinthia Construction (Overseas) Ltd v Christopher Rizzo and others’, on April 12, 2016, held among other things that the renunciation of a person’s domicile of origin had to be manifested clearly from the circumstances on the basis of conclusive and clear evidence. It had to be proven that a person had no intention to return and clearly intended to establish himself in such other place.

Corinthia Construction (Overseas) Ltd filed legal proceedings in Malta against its former general manager and director Christopher Rizzo and his wife for damages suffered as a result of his alleged mismanagement.

It was stated that Rizzo did not perform his duties with prudence, diligence and attention of a bonus pater familias as expected from a person holding such office.

Owing to apparent lack of control in the purchase, storage and provision of material, the company allegedly suffered substantial losses. In addition, as a result of lack of maintenance on its machinery and vehicles, the company also incurred additional costs. Unauthorised payments were allegedly made from the company’s funds.

The company asked the court:

• To declare that Rizzo was responsible for damages suffered by the company, owing to his negligence and mismanagement in the performance of his duties as a general manager;

• To liquidate the damages; and

• To condemn him to pay the damages which it liquidated.

Rizzo, in reply, pleaded the lack of jurisdiction of the Maltese Courts to hear this case: it was claimed that he was not domiciled in Malta. He asked for his wife Elaine to be freed from the proceedings, in particular when they had a system of separation of assets and there was no community of acquests applicable between them.

As regards the merits, he contested responsibility and maintained that he carried out his duties with upmost prudence and diligence.

It resulted that Rizzo signed two contracts of employment: one under Maltese law and another under Libyan law. Though his wife and matrimonial house were located in Malta, he worked in Libya for the company but received his salary in Malta in euro. He was employed in July 2002 and his employment was terminated in October 2012.

Rizzo informed the court that he filed lawsuits against the company in Libya. The company’s principal activity was to carry out the business of construction management, project management and ancillary services in respect of construction and refurbishment on sites outside Malta. The company carried out work in Palm City, Libya.

The court had to consider whether Rizzo changed his domicile of choice to Libya.

Reference was made to Cheshire and North’s Private International Law:

“The two requisites for the acquisition of a fresh domicile are residence and intention. It must be proved that the person in question established the residence in a certain country with the intention of remaining there permanently...

“These two elements of residence and intention must concur, but this is not to say that there need be unity of time in their concurrence. The intention may either precede or succeed the establishment of the residence. The emigrant forms his intention before he leaves... the émigré who flees from persecution may not form it until year later.

“Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it. [‘IRC v Duchess of Portland’ (1982) Ch 314 at 318-319.]

Although Rizzo claimed that he was never domiciled in Malta, the court disagreed. In its opinion, he was domiciled in Malta and not in Libya.One important factor was that his wife resided in Malta and that the matrimonial home was located in Malta, noted the court

“Whatever weight is given to the length of residence, it is undeniable that time is not the sole criterion of domicile. Long residence does not constitute nor does brief residence negative domicile. Everything depends on the attendant circumstances for they alone disclose the nature of the person’s presence in a country...”

“In ‘Jop v Wood’, it was held that a residence of 25 years in India did not suffice to give a certain John Smith an Indian domicile because of his alleged intention ultimately to return to Scotland, the land of his birth...

“Conversely, brevity of residence is no obstacle to the acquisition of a domicile if the necessary intention exists. If a man clearly intends to live in another country permanently, as, for example, where an emigrant, having wound up his affairs in the country of his origin, flies off with his wife and family to Australia, his mere arrival there will satisfy the element of residence.”

It had to be clear that the new place of residence was intended as his “permanent home”. It had to be shown that a person intended to reside there permanently. Re: ‘Aquilina noe et v Sultana’ dated October 8, 2010 (Magistrates Court Gozo (Sup)), and ‘Xerri pro et noe v Sladden et noe’, dated October 5, 2011.

The duration of the residence was not crucial. All circumstances had to be considered to prove a change of domicile.

As a rule, when a person emigrated from Malta, even if he spent a long time away from Malta, he did not change his domicile of origin, unless it could be shown that he never intended to return, pointed out the court.

In fact, neither the purchase of a property overseas nor marrying a foreign woman was enough to show loss of domicile of origin. Renunciation of a person’s domicile of origin had to be manifested clearly from the circumstances, on the basis of conclusive and clear evidence.

It had to be proven that a person had no intention to return and clearly intended to establish himself in such other place. Re: ‘Lepre v Dr Joseph Tabone Adami noe (PA)’ dated March 28, 1960 (XLIV.ii.576“Every person of birth becomes a member both of a political and of a civil society. The former determines his political status or nationality, on which depends his allegiance to a sovereign; the latter determines his civil status. This means that the law which governs the civil society into which he is born, the law of his domicile of origin, is attached to this person and remains so attached wherever he goes, unless and until he ceases to be a member of that society, or changing his domicile; upon which the law of the new domicile becomes attached to him in the same manner.” (Laws of England, Vol. VI No. 232 Hailsham Edition)

The court had to establish whether it had jurisdiction at the relevant time, that was at the time of the presentation of the lawsuit. A court could still, however, have jurisdiction if a defendant acted illegally to divest the court from having jurisdiction.

Although Rizzo claimed that he was never domiciled in Malta, the court disagreed. In its opinion, he was domiciled in Malta and not in Libya.

One important factor was that his wife resided in Malta and that the matrimonial home was located in Malta, noted the court.

The fact that a person lived overseas for a period of time did not mean that there was a change of domicile. It was not proven that Rizzo remained effectively living in Libya, or that he had purchased or leased property in Libya.

On the contrary, it resulted from a public deed published by notary Anne Marie Tonna dated March 8, 2013, that Rizzo had declared that he resided in Iklin, Malta.

It was not proven, maintained the court, that Rizzo intended making Libya his permanent home.

The court said that he benefitted from the tax rate of 15 per cent applicable to persons resident in Malta for purposes of taxation, though engaged by a Maltese entity to carry out work outside from Malta.

In addition, Rizzo paid social security contributions in Malta at the rate of self-employed, in order not to interrupt his social security contributions in Malta.

It also emerged that Rizzo had bank accounts in his name in Malta, which indicated that he was domiciled in Malta.

The court considered that he requested more vacation leave to spend more time in Malta and at one stage had asked to be re-located to Malta. Furthermore, the fact that Rizzo was not cross-examined did not mean that he brought sufficient evidence to show that his domicile was in Libya.

In the light of all circumstances, the court was satisfied that Rizzo was domiciled in Malta. It said that the Maltese court had jurisdiction to hear this case on the basis of article 742 (1)(a) of chapter 12.

The fact that Rizzo filed legal proceedings in Libya which were similar or identical to a case pending before the Industrial Tribunal did not mean that the jurisdiction of the Maltese Courts was excluded in accordance with article 742(2) of chapter 12 of the Laws of Malta. Re: ‘Grima et noe v Monet Ltd et noe’ , dated June 11, 2013 (PA).

For these reasons, on April 12, 2016, the First Hall of the Civil Court confirmed that it had jurisdiction to hear and decide this case and ordered the continuation of the case.

Dr Karl Grech Orr is a partner at Ganado Adovates.

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