Gozo is known for a number of things – among others – the lush green fields, the crystal clear beaches and mouthwatering ravioli with ġbejniet. For litigation lawyers, however, Gozo is synonymous with the giving of the master of all pleas, that of the privilegium fori.
Simply put, when a defendant pleads privilegium fori, he or she is essentially arguing that another court, not being the one where the lawsuit was instituted by the plaintiff, has the privilege of hearing and deciding that case. Under our law, this privilege is granted to a Gozitan or Maltese defendant who requests that a case being heard against him or her is heard in the court of the island of his or her habitual residence.
Naturally, various exceptions to this plea exist.
Historically, this plea was not just reserved for those who fell within the remits of articles 741(c), 767 and 770 of the Code of Organisation and Civil Procedure but, rather, was resorted to many times by ecclesiastics and clergymen alike who preferred to have their case tried in front of the Ecclesiastical Tribunal or equivalent.
Today, at least in civil matters, this is no longer possible.
Indeed, Maltese procedural law provides two instances when the above can be pleaded: (i) when the majority of defendants reside in a particular island but the lawsuit is instituted in the courts of another (article 741[c] and 767); and (ii) where the obligation forming the subject matter of the lawsuit was to be carried out in a particular island, but the lawsuit itself was instituted in the courts of another (article 770).
The defendant company’s Maltese registered address was undisputed
Despite the scarcity of information surrounding the origins of this plea in our law, it is interesting to note that it is closely related to article 50 of the Code of Organisation and Civil Procedure. This article stipulates that in matters involving habitual residents of Gozo and Comino, it is the Court of Magistrates (Gozo), whether in its inferior of superior jurisdiction, that has competence.
One may argue therefore, that the priviligium fori plea, as understood and applied today, owes its existence to the fact that Malta and Gozo are two islands separated by water. Against this background, it is interesting to wonder, especially given the ongoing tunnel saga, whether this plea will survive should these two islands be one day connected by land.
On April 30, the First Hall, Civil Court delved into the intricates of the privilegium fori plea in the case of Advocate Patrick Valentino pro et noe vs Salvu Mintoff & Sons Limited (C5093).
In brief, the merits of the case were as follows: The plaintiff, as represented, is the owner of a number of plots in an area referred to by multiple names, mainly ‘tal-Qasam’, ‘Tal-Wardati’, ‘Tal-Ħawli’ and ‘Ta’ Għar id-Dar’ in the limits of Qala. Adjacent plots of land were granted to the defendant company to be used as a quarry. The latter, the plaintiff alleges, not only made use of the land granted to it but extended its operation to the plots of land mentioned earlier – therefore, making use of land belonging to the plaintiffs and which was never granted to it.
Despite this being brought to the defendant company’s attention, the latter not only continued to occupy said land without the required authorisation but allegedly took over an even bigger area. To this, and among various other pleas, the defendant company claimed privilegium fori.
Given its nature and the fact that it has to be pleaded from the very start of the case (otherwise it will be considered as having been forfeited), the privilegium fori plea was the first to be decided by the court – hence why this judgment is described as only being a judgment in parte.
The court first established that this plea is tied to residency as per the Roman legal maxim, actor sequitur forum rei – the plaintiff must follow the forum of the property in dispute or the forum of the defendant’s residence. Then it went on to consider the parties’ submissions.
The defendants argued that various judgments had concluded that if a person’s dealings and base are found to be in Gozo, then the Gozo court is competent. This regardless of the registered address of that person.
The plaintiff argued that the matter was not as simplistic. Basing itself on the Court of Appeal judgment John Mary Grima vs Francis Cutajar et (decided on January 28, 2013), the plaintiff contended that the basis from where the defendant company habitually operated did not in itself trump the fact that its registered address, at least when the case was instituted, was based in Malta. Moreover, the case in question was not based on obligations contracted between the parties and thus article 770 of the Code of Organisation and Civil Procedure did not apply.
Finally it also argued that given the defendant’s registered address, no consideration was to be given to the location of the property in dispute or to the place where this judgment is to be eventually executed. Hence the competent court was that of Malta.
The First Hall, Civil Court sided with this argument. It concluded that the defendant company’s Maltese registered address was undisputed – once this is established and the Court’s competence consequently determined, the defendant company’s place of operation bears no further significance to the privilegium fori plea.
Therefore, the privilegium fori plea was not upheld.
The court thus resolved that it had the required competence to hear and decide this case and consequently ordered the continuation of the lawsuit.
Laura Calleja is junior associate at Azzopardi, Borg & Abela Advocates.
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