It is an undebated assertion that whoever seeks to make a claim, an allegation or an accusation has to substantiate it by facts. Even though, once hidden behind a screen, one can assert whatever comes to mind, this does not hold true in the legal world. No individual in their right sense of mind will even dare to make a claim, which they are certain to be unfounded.

Affirmati non neganti incumbit probatio. This Latin maxim serves as the root to a prime and cardinal rule pertaining to the law of evidence before any court of law which, in its most simplistic form, affirms that the person who alleges is burdened with the task to prove that same allegation. Yet, the law does not stop there as, justifiably so, the legislator has gone up and beyond when regulating such a central area of law. Here we must consider what is known as the ‘best evidence rule’.

The best evidence rule is reflected in the wording of article 559 of the Code of Organisation and Civil Procedure which states that the court, “in all cases, shall require the best evidence that the party may be able to produce”.

In practice, this imposes an added burden on the claimant as they are not only requested to prove and substantiate their claims but are obliged to bring the best evidence available. In a nutshell, the implication of this is that the parties shall not bring ‘second-rate evidence’ if better quality evidence is, of course, available. Indeed, if there exists better evidence available, then the court will strike out the ‘second rate evidence’ produced.

The judgment of the Court of Appeal (Civil, Superior), in confirming a judgment of the First Hall of the Civil Court, in the names of ‘Madelaine Bezzina v Emanuel Bezzina et’ given on July 21, 2021, studiously discussed this principle at law.

Succinctly put, the facts of the case were as follows. The applicant, Bezzina, was the lessee of a property of which her brother, the respondent in this case, was the lessor. The apartment rented to the applicant formed part of a block of apartments consisting of six garages, a shop on the ground floor and two apartments on the second floor.

In a world where spoken words mean little or none at all, the applicant failed to satisfactorily prove her claim

The crux of the case revolved around the fact that the applicant, as lessee, wanted to stop the respondents, the lessors, from developing parts of the property (a washroom and courtyard) which she was claiming had been leased to her. As can be anticipated, the lessors claimed that these parts were never leased out to the applicant and belonged solely to them.

In a case like the present one, where both parties are holding for the complete opposite viewpoints, what should happen? Whose version is the court to believe? Who must convince the court that they are right?

The First Hall of the Civil Court, as the first instance court which was seized of the matter, dealt with and examined the issue as to which parts of the property had been leased to the applicant. In a world where spoken words mean little or none at all, the applicant failed to satisfactorily prove her claim that the washroom and the courtyard were leased to her. The former statement finds its footing due to the fact that the sibling parties failed to enter into a written contract and instead opted for a verbal agreement. Conclusively, this case, from an evidence perspective, was already doomed from the start.

While seas were already not so calm for the applicant, to add insult to injury, the applicant failed to rope in as a witness a number of persons who could shed light on the lease agreement that had been entered into, and who could possibly answer the most pertinent question: “Were the washroom and courtyard part of the lease agreement?” This failure on the part of the applicant was noted by the First Hall of the Civil Court, which, black on white indicated that the applicant failed to bring the best proof in order to satisfy her claims. 

When the case came to be dealt with by the Court of Appeal, the court delved further into several fundamental procedural concepts. With a great deal of emphasis, the court focused on the fact that a defendant may not be convicted by the court when doubts about their responsibility still remain. In legal jargon, this statement can be translated into the Latin term ‘in dubio pro reo’.

As a matter of fact, in a very solid tone, the court remarked that there exists a procedural rule that in the case where the applicant and the respondent produce two completely opposite versions, the court should choose the version of the respondent over that of the applicant, and this on the basis of what was stated earlier and as enunciated in article 562 of the Code of Organisation and Civil Procedure, that the burden of proving a fact shall, in all cases, rest on the party alleging it (onus probandi incumbit ei qui dicit, non ei qui negat). Resultantly, in the case at hand, the applicant’s claim was, for the second time, rejected.

Basing itself upon the principle that when the plaintiff does not prove their case, the defendant is absolved, the Court of Appeal rejected the appeal filed by the applicant and confirmed the judgment given by the First Hall of the Civil Court.

Keith Borg is a partner at Azzopardi, Borg and Associates Advocates.