Dr Carmelo Vella et vs Director of Social Accommodation (previously known as the Housing Secretary) and Leonard Muscat and Leonardo Calleja (President and Secretary of the St Leonard Band Club of Kirkop)

Judge Gino Camilleri, First Hall, Civil Court, 15 July 2005

In December 1993, a Court of Appeal judgement reversed a 1991 First Hall judgement and upset conceptions established by previous case law on the delimitation of the power of the state to requisition private property in the public interest. This was a landmark judgement due to its thorough discussion of the “public interest”. Last July (2005), nearly 12 years after the judgement, the plaintiffs sued due to the non-execution of the 1993 ruling by the defendants, leaving them in a stagnant status quo.

The facts

• The plaintiffs owned two adjacent properties in Kirkop (X & Y). X was requisitioned in 1955 and passed on to the St Leonard Band Club and the plaintiffs were paid a rent by the Director of Social Accommodation. Y was also requisitioned and given to the same band club.

• The band club effected structural alterations to the properties and also took possession of an adjacent garden.

• The plaintiffs filed a case claiming the nullity of the requisition order of property Y on the grounds that:

a) it was not in the public interest;

b) it was made against a person who had died;

c) the garden could not be appropriated since it was not an integral part of X or Y;

• the structural changes were ultra vires the powers of the director.

Judgement of the First Hall, Civil Court – 9 October 1991

The Court

• Referring to Galea vs Holland et noe (1980) – Court of Appeal, the court declared that the term “public interest” should include all aspects of social life in a country, including all those being cultural;

• The requisition order was valid and not ultra vires the powers of the director under the Housing Act;

• Possession of the garden was in breach of the Act and;

• The issue of a requisition order to a dead person (Pasquale Vella) could cause problems in the execution of the actual requisition but would not render the said order null and void;

• Although jurisdiction may be restricted, the Court retained its power to review the legality and validity of administrative acts.

The Court of Appeal – 30 December 1993

The Plaintiffs

• An appeal was filed on the grounds that a requisition order in favour of the band club was not in the interests of the public since it accommodated a private club.

The Defendants

• The Director of Social Accommodation claimed that the judgement should stand on the justification that he had acted in the public interest.

• This requisition was made in relation to the public interest justification because the law at the time basically stated that should the Director deem it necessary (i) in the public interest or (ii) to provide housing or (iii) to ensure the proper distribution of housing, then he may requisition any building.

The Court

• The Court of Appeal gave an authoritative interpretation of the public interest and its delimitation.

• All judgements on the matter were reviewed among which was A. Galea vs Dr P. Holland ne et (1980 – Court of Appeal), which dealt with the requisitioning of a property to serve as a political party club. This case confused the notions of public and private interest and diminished the juridical meaning of “public interest”, which was necessary to ensure the functioning of a democratic society.

• In 1980, the “public interest” was referred to as being a term of wide and open-ended interpretation. It laid down that, in the same way that it was justified to requisition for religious, cultural and sport purposes, so should requisitioning for political activities be deemed to be in the public interest, due to them ensuring the healthy running of a democratic system in a country. It was in the public interest that there be political parties and that there be a place catering for members to meet, discuss and indulge in their political choices.

• The Court, when referring to this 1980 case, blatantly commented that it could not comprehend how this 1980 judgement referred to “public interest” as being subject to wide interpretation.

• The Court disposed of this wide interpretation and gave its own more restricted definition of the public interest by referring to the common good of all citizens. The interest was always private when its application was not directed to the generality of the citizens, to the universality of the citizens in the state.

• The reference to cultural activities in Galea vs Holland should not be a justification for a delimitation of a right to property by it being requisitioned. Although political activities may sometimes include cultural aspects, this does not mean that these are carried out in the interests of the public at large. The Court put emphasis on the organiser of such activities – was the activity organised by a public authority or by an individual/private association?

• The fact that a cultural activity is organised by a private individual/association, and is open to the public, does not render that activity of public interest, and hence does not change the fact that it is intrinsically private, because there always remains discretion in the hands of this individual/association to restrict accessibility.

• The same reasoning was used when the Court referred to the requisitioning of property for religious activities. The interest of one particular religion is not necessarily tantamount to the public interest and this due to the plurality of religions in Malta – Roman Catholic, Protestant, Muslim faiths etc. The fact still remains that interest in one particular religion is not tantamount to the public interest at large.

The same reasoning was applied to

political party clubs, band clubs and sport clubs. The particular interest of each of these entities could not be equated with the common and general public interest.

• A distinction was laid down between the interests of the public in relation to activities carried out by private individuals/associations and the public interest in relation to the requisitioning of private property.

• The Court also threw out the previous interpretation in Galea vs Holland, that the director could requisition private property to provide education through a private school. The point to be examined here is not whether education is in the public interest but whether it is, in fact, in the public interest that an immovable is requisitioned in favour of there being erected a private school. Any activity is of interest to the modern state, and interpreting the “public interest” in this open-ended manner may have endangered the democratic functioning of a state together with the rights and freedoms of individuals.

• The Housing Secretary did have the discretion to requisition property (i) in the public interest or (ii) to provide housing or (iii) to ensure the proper distribution of housing. However, by applying the above interpretation, of public interest, the Court ruled that the secretary had acted ultra vires, since requisition for the use of a band club only satisfied a private and not the public interest.

In 1996, the filing for proceedings for the retrial of this 1993 judgement was deemed to be an abuse of the judicial process.

First Hall, Civil

Court – 15 July 2005

The plaintiffs once again had to file court proceedings against the defendants for the execution of the 1993 Court of Appeal Judgement.

The Plaintiffs

• The defendants resorted to many legal manoeuvres in order to create obstacles in the execution of the judgement.

The Defendants

• The First Hall Civil Court was not competent to order execution since it could not force the execution of a judgement delivered by the Court of Appeal.

• It was only the Housing Secretary who was condemned and not the Director for Social Accommodation.

• The staying of proceedings of the First Hall was demanded because the defendants had filed proceedings before the European Court of Human Rights. Their reasoning was that, should the European Court of Human Rights rule in their favour, this ruling would have no effect on their status as they would already have been made to forfeit the property.

The Court’s conclusion

• The Court had the competence to order specific execution of the 1993 Court of Appeal judgement and the defendants’ pleas of lack of competence of this Court did not hold, due to competence attributed by Article 265 of the Code of Organisation and Civil Procedure (Chapter 12 – Laws of Malta) which states that “in cases of appeals, the judgement shall be enforceable by the court of first instance independently of whether the Court of Appeal confirms, varies or reverses the judgement of the court of first instance.”

• The Director of Social Accommodation was merely the successor of the then Housing Secretary.

• It resulted that the defendant band club had exhausted all available remedies and there were no further legal obstacles to the execution of the 1993 judgement. For this reason, the Court therefore ruled in favour of the plaintiffs.