The Court of Appeal composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri on March 2, 2018 in the case "Rev Fr Emanuel Borg and Rev Fr Joseph Farrugia on behalf of the Augustine Order of Malta vs BCD Projects Ltd and Jesmond Bonello" held among other things that, this legal action of applicants against spoliation was not possible not because it was not filed within the time limit of two months, but because there was no actual spoliation committed in breach of their servitude at the time of the lawsuit.
The facts in this case were as follows:
The Augustine Order acquired property in Pieta in terms of a public contract dated 29th November 1965. Their property enjoyed a servitude -altius non tollendi over an adjacent field, which could not be constructed higher than two floors.
Rev Fr. Emanuel Borg Bonello and Rev Fr. Joseph Farrugia representing the Augustine Order stated that BCD Projects Ltd and Jesmond Bonello intended developing the property, No. 28 and 29 Marina Street, Pieta which was subject to their servitude in breach of their rights; as evidenced by their MEPA permit.
Faced with this situation, they proceeded to file this lawsuit against them on 09th April 2013. It was claimed that without their consent and knowledge, the defendants were about to dispossess them of their immovable rights of servitude over their property. It was stated that defendants intended to violate their rights, and to commit an act of violent spoliation to the prejudice of the Order.
They asked the Court:
(1) to declare that the defendants or any of them committed a violent act of spoliation to the prejudice of the Order;
(2) to condemn the defendants or any of them to remove the unlawful act and to restore the property back to its original condition within a short time to be fixed by the Court, so that the Order could continue to enjoy that rights of servitude -altius non tollendi;
(3) in case defendants failed to take those steps to be ordered by this Court within the period stipulated, to authorise the Order to carry out the necessary works to restore the property under the direction of an architect, to be appointed by the Court at the expense of defendants.
Defendants in reply, contested committing any act of spoliation. They said in addition, that this legal action was not presented within the two month time limit. Jesmond Bonello claimed that he was not the legitimate defendant in this lawsuit and should be freed from the proceedings.
The First Court considered that three elements had to exist for this legal action to succeed:
a. Possession
b. Act of spoliation which had to be done secretly or against the consent of the applicants.
c. The legal action had to be filed within two months from the act of spoliation
Reference was made to the case Vincenzina Cassar et vs Annetto Xuereb Montebello dated 28th May 1956 (A) when it was stated:
"il-gurisprudenza tat-Tribunali taghna dejjem kienet konstanti fl-interpretazzjoni ta dawn il-ligijiet fis-sens li l-azzjoni ta' spoll hija 'di ordine pubblico', unikament u esklussivament intiza biex timpedixxi li wiehed jaghmel gustizzja b'idejh minghajr l-intervent tat-tribunal civili u tipprevjeni l-konsegwenzi deplorevoli ta' agir simili. Ghalhekk il-ligi tivvjeta l-allegazzjoni ta' kwalsiasi eccezzjoni li ma tkunx dilatorja kontra r-reintegrazzjoni u ticcirkoskrivi l-ezami tal-Qorti ghall-fatt biss tal-pussess u tal-ispoll denuzjat. Ir-reintegrazzjoni ghandha dejjem tigi ordnata mill-Qorti, kwantunkwe l-pussess jista' jkun vizzjat, u min kikkommetti l-ispoll ikun il-veru proprjetarju tal-haga li minnha l-possessur taghha jkun gie spoljat."
"Illi f'din is-sentenza l-Qorti ccitat sentenza riportata fil-Volum XXXIII-ii-83 fejn irritenit 'che la reintegrazione dovra' essere dalla Corte ordinate, communiqué viziato possa essere il possesso dell'atore, comunque il citato possa essere il vero propetario della cosa di cui l'attore avesse sofferto lo spoglio; sicche' l'indagine intormo alla legittimitta' del possesso, da farsi in altra sede, tornerebbe oziosa in questo giudizio."
"L-azzjoni ta' spoll isservi biex tipprotegi l-pussess, ikun x'ikun ...li jigi vjolentement jew okkultament mehud minghand il-possessur jew detentur, u gie deciz kemm-il darba li tapplika wkoll ghat-tutela tal-kwazi pussess tad-drittijiet legali, u hija inerenti ghall-fatt ta' min b'awtorita privata ... jaghmel ghad-dannu ta' terza persuna att li ghakemm jista' jkollu dritt ghalih ma jistax jezercitah minghajr interventi tal-Qorti."
Pacifici Mazzoni writes that spoliation consisted in an arbitrary act of a person against the wishes of the person dispossessed.
In Margherita Fenech vs Paula Zammit dated 12th April 1958, it was held:
"L-actio spolii hija pjuttost fuq l-esigenzi ta' utilita socjali milli fuq il-principju assolut ta' gustizzja hija eminentement intiza l-protezzjoni ta' kwalunkwe pussess, u jigi impedut lic-cittadin privat li jiehu l-ligi f'idejh; b'mod li l-fini taghha huwa dak li jigi restawrat l-istat tal-pussess li jkun gie skonvolt jew turbat."
The Court's considerations in these legal proceedings were strictly limited in scope to the facts of spoliation (re Cardona vs Tabone dated 09th March 1992 CA)).
The First Court noted that applicants had filed a judicial protest against the defendants on 28th January 2013. It said that the act of spoliation at this stage had already been committed. Over two months had lapsed by the time they filed their lawsuit, pointed out the First Court.
This two month time limit was a period of forfeiture and it was essential that the legal action was filed within this period, stated the Court. In fact, it was an important element which had to be established by an applicant.
(Trevor Arendts vs Veronique Mizzi dated 11th January 2013).
This time limit commenced to run from when an act of spoliation took place and not from when the applicant noticed the act, the Court said, [Re: Mamo vs Grima fated 07th February 1958).
On 11th January 2017, the First Civil Court gave judgement by deciding that this legal action was not filed within the two month time limit and freed defendants from the proceedings.
Aggrieved by the decision of the First Court, the Order entered an appeal, calling for its revocation. It was submitted that it was incorrect to consider the date of the judicial protest (the 28th January 2013) as the date when the act of spoliation had taken place.
Defendants had only laid out the foundations at this stage. They said that the punctum temporis of the act of spoliation was 09th April 2013 - this was when the applicants filed for the issuance of the injunction.
The Court of Appeal considered that at the time of lawsuit, defendants just completed the foundations and were about to build the first floor. The Order obtained an injunction to prevent defendants from continuing the works.
It noted that in the judicial protest, the Order did not say that defendants constructed a building in violation of their servitude but that the defendants were going to suffer a violation of their immovable rights. Even by 9th April 2013 when the application for the injunction was lodged, defendants had not built higher than two floors. It was clear that by 17th May 2013 defendant's building had not yet surpassed the restriction imposed by the servitude, said the Court.
It was only on 06th February 2014 that the applicants had complained that defendants had breached the Court order.
For these reasons on 02nd March 2018, the Court of Appeal gave judgment by dismissing the appeal of the Order and by confirming the decision of the First Court, for however, different reasons. It declared that this legal action was not possible not because it was not filed within the time limit of two months, but because there was no spoliation in breach of their servitude at the time of the lawsuit.
Dr Karl Grech Orr is a partner at Ganado Advocates