In the case Amabile Tabone et vs Joseph Camilleri et, decided by Judge Toni Abela on the 17th November 2017 presiding in the First Hall Civil Court, the Court was asked to examine the legality of the defendants’ development of a plot of land.
The Facts
The plaintiffs in this case sold the land upon which the plaintiffs built and developed, as evidenced by a contract published in 1992. They also owned the plot of land adjacent to the said development. The plaintiffs subsequently sued the defendants, asking the court to declare that defendant’s development abusive and illegal on the basis that said development was carried out on a portion of land that was not in fact sold to the defendants. The plaintiffs therefore asked the court to measure and establish the portion of land that was illegally developed and to order the defendants to return the disputed portion of land or, if this is no longer possible, to order the defendants to compensate the plaintiffs for the illegal development. The plaintiffs explained that when the land was sold, a portion of that land was expropriated by the government for the creation of a road. However, this road never materialised and the plaintiffs claimed that the government returned the portion of land in question back to the plaintiffs.
The defendants on the other hand claimed that they did not encroach on the plaintiff’s property illegally because the contract of sale specifically stated that they bought the land in question ‘as an entity’ and there was no specific measurement by which the land was defined in said contract. The defendants explained that the contract included contribution to develop a road and extend the drainage system and that their development from the official road inwards was not illegal. Furthermore, the defendants held that even if, for arguments sake, the development extended beyond the land they actually bought, this was done in good faith over ten years ago, which means that the plaintiff’s action is prescribed as per Article 2140 of the Civil Code which states that:
Any person who in good faith and under a title capable of transferring ownership possesses an immovable thing for a period of ten years acquires ownership thereof.
Points of Law
The Court held that although the plaintiffs did not expressly say so in their requests, the intention and scope of this action is the actio rei vindicatio under Article 322(1) of the Civil Code, by which a plaintiff can recover property by asking the court to declare that he is the owner of property that is currently in the possession of the defendant. The Court held that this action imposes a heavy burden of proof on the plaintiff, who, in order to be declared owner by the court, must bring forward the best evidence as proof of title to the property. In other words, in order for a plaintiff’s action to succeed, it is not enough for the plaintiff to show that the defendant has no right to the property but must show the court evidence of his title.
In the past, the courts considered the best evidence of title to mean that the plaintiff must prove original title, and not derivative title. Authors and legal doctrine define original title as being a title that was not passed on to the defendant by someone else, whereas derivative title is one where the plaintiff’s right were passed on to him. Since this criterion for the actio rei vindicatio is nearly impossible to meet, the courts consider it sufficient for the plaintiff to prove a superior title to the title held by the defendant, which means that the plaintiff’s action will succeed using the actio publiciana rather than the burdensome actio rei vindicatio. The subtle difference between the two actions is that, whilst the actio publiciana measures strength of a plaintiff’s title between the parties, the action rei vindicatio requires the plaintiff’s title to be measured erga omnes.
Conclusion
In this particular case, the plaintiffs did not support their claims with sufficient evidence for the Court to grant their requests. Therefore, their claims were rejected and the Court ruled in favour of the defendants.
Dr Elise Dingli is an Advocate at GANADO Advocates