Judges

Chief Justice Vincent Degaetano

Anton Depasquale

Albert J.Magri

Court of Appeal

27 January, 2006

The actio spolii is grounded on social utility and is intended to secure public order and prevent that legal action is superseded by private actions or violence. The elements necessary for this actio to subsist are:

(a) One is despoiled of possession or detention

(b) By violence or clandestinity

(c) Of a movable or an immovable thing

(d) The action must be brought within two months of spoliation

First Hall, Civil Court, 7 July, 2004

Plaintiff had a lease of a field in Qormi while defendants were the owners of the adjacent field over which plaintiff had a right of passage either by virtue of a cart or animal, as per public deed (6 May 1966). During the two months immediately preceding this case, defendants committed an act of violent spoliation to plaintiff’s detriment by blocking the entrance of their field leading to plaintiff’s field by placing a crane and stones preventing free access of plaintiff to his field. Plaintiff claimed that this took place without his consent and in any case, defendants had no right to create such an obstacle to his right of access to the field. Plaintiff was merely exercising a right of servitude of passage. Defendants were called upon by virtue of a letter (5 June 2002) to remove the said objects and restore everything as it was before but they failed to do so. Plaintiff requested the Court that:

(a) Defendants be declared to have committed violent spoliation preventing enjoyment of possession of a servitude of right of passage;

(b) Defendants be ordered to remove the things hindering plaintiff’s right of passage, restoring his possession of the servitude;

(c) On failure of defendants in carrying out any Court order, that plaintiff be authorised to remove the said objects at defendants’ expense and under any other condition imposed by Court;

(d) Defendants be condemned in contempt of Court for failure to obey any court order in the eventual execution of its judgment and this over any other remedy which the Court deemed necessary;

(e) Defendants pay all expenses.

The Court saw the plaintiff’s sworn declaration and list of witnesses and defendants’ pleas in their statement of defence that:

(a) they did not commit any act of violent spoliation obstructing plaintiff’s enjoyment of his possession of the servitude;

(b) by virtue of the contract, plaintiff only had a right of passage by “animal and cart”;

(c) this right of passage was not obstructed and plaintiff had another access from a door leading from his field to that of one of the defendants which was not blocked;

(d) Plaintiff still regularly used such right of passage to reach his field.

The First Hall condemned defendants to remove obstacles to the plaintiff’s right of passage within 30 days from judgement and on failure, authorised plaintiff to remove them at defendants’ expense. The Court did not take cognizance of plaintiff’s fourth plea of contempt as it was still premature.

Expenses were imputed on defendants.

This conclusion was reached after analysing that:

(a) Plaintiff enjoyed the servitude since childhood. After plaintiff’s father’s death, plaintiff and his children started working the field, exercising this right of passage by truck, van and tractor and when Plaintiff built glass houses, he used this right of passage and the same entrance to allow entry of containers and trucks with the necessary materials.

(b) Defendants wanted this access closed and often asked plaintiff to block it but he refused. Plaintiff was warned that by virtue of the 1966 contract, he was only authorised to exercise this right of passage using an animal or cart and NOT by any other means. However, plaintiff replied by claiming that today, due to technological developments, such means has been replaced by mechanical means such as vans. Defendants did not accept this and on 21 May, 2002, the children of one of the defendants were sent by their mother to block the access. Access was hence impossible and defendants refused to restore possession leading to the filing of this court case.

Defendants felt that (a) although access was allowed, this was limited and did not include any machinery; (b) Plaintiff’s field had another door leading to their field which was not blocked and was still used by plaintiff; (c) Plaintiff had another means of access which led to a public street through which he used to transfer his produce out of the field.

The Court examined related case-law to determine the nature of the actio spolii. Some elements highlighted were:

• The examination by the Court is limited to spoliation and possession and does not concern investigating the nature of possession held by plaintiff.

• No evidence of the legitimacy of possession by plaintiff is required and the Court orders reintegration in plaintiff’s possession through this action even where the possessor is in bad faith and even against the owner.

• Spoliation occurs even where the despoiled person holds the property precariously i.e. without a juridical cause or by detention (e.g. lease).

• The requisites that spoliation be violent or clandestine need not co-exist.

• Violence need not be physical/moral imposed upon the possessor/detentor – violence committed upon the thing is sufficient if against the wishes of the possessor/detentor.

•Defendant may be responsible for spoliation even when acting through or as a mere mandatory.

•The animus spoliandi i.e. the intent to despoil is unnecessary.

• The actio may be filed by the co-possessor because possession need not be exclusive.

The Court felt that plaintiff satisfied the legal requirements for the successful filing of the actio. The allegation that plaintiff had no right to use the passage by virtue of mechanical means was irrelevant since the fact that plaintiff used such means meant that he had possession/detention of this right and could not be deprived of such judicially. If defendants objected to such use, they were legally obliged to file an action rather than taking the law into their own hands by unilaterally stopping plaintiff from using the passage.

It was irrelevant that the right of passage was no longer necessary due to the possibility of access over another piece of land owned by plaintiff’s siblings; the aim of this action was solely that of reintegration of possession/detention of plaintiff.

It resulted that between plaintiff’s field and the fields of his siblings, there lay a rubble wall and for plaintiff to reach the street indicated by defendants, he had to use a very narrow passage between his siblings’ fields which made it impossible for him to use a van. This implied that to remove his products by van, he could only have used the right of passage over the defendants’ field. Use of the passage was taking place and this use could not be hindered except after judicial proceedings were filed which ultimately proved the defendants’ assertions.

It was never stipulated that the use of trucks/vans etc. was allowed by mere tolerance as was necessary for this Court to be able to examine such a submission. The Court was not convinced that this right was exercised on tolerance and even if it were, it could not be examined in a possessory action such as this.

Even if plaintiff had an obligation to block access after use and failed to do so, he still has the right to defend his possession with this actio.

Also, there need not be total deprivation of possession but a mere diminution would suffice. Hence, since plaintiff was not hindered from walking on foot, this would not neutralize the hindrance of access by vans, trucks etc. Instead, this would still be deemed to be abusive.

Plaintiff was deprived of such access without his consent and against his will and he filed the action within the legally required two months from spoliation. The Court found for plaintiff stating that the actio could be filed even if defendants did not personally create the obstacle but had delegated such to another as happened in this case.

Court of Appeal

The defendants’ appeal and the appellant plaintiff’s reply requesting the refusal of defendants’ appeal and the confirmation of the First Hall judgement were examined.

The Court considered that defendants felt aggrieved by:

(a) the alleged failure of the First Hall to appreciate the difference between plaintiff's right of passage as mentioned in his writ and against which the defendants filed the relative pleas in defence and plaintiff's right of passage mentioned during the court proceedings and upon which the Court seemed to have based its judgement;

(b) an incorrect appreciation by the First Hall of the evidence produced where it was proven that defendants committed spoliation through the acts of their children and hence they should be answerable for such act even if they themselves did not physically carry out such act;

(c) a legally incorrect statement by the First Hall that since no plea was raised that the use of the passage, be it with vehicles or machinery, was taking place by mere tolerance then, such issue of tolerance should not be considered in a possessory action like this;

The Court considered that in relation to (a), defendants could be right in saying that the First Hall failed to distinguish. Yet from the evidence it resulted that plaintiff successfully proved his possession.

Plaintiff was requesting that defendants be declared responsible for spoliation. For the purposes of (a), the Court deemed it irrelevant whether at the time of the spoliation, the right of passage was exercised by means of an animal, cart or other means since due to the blockage of access, it was impossible that there be access in either case. Whether the servitude was being exercised in accordance with the contract or not was a matter to be examined in separate judicial proceedings.

No evidence was brought to back up the court's conclusion that defendants were mandatories of third parties that were allegedly the ones to perform such spoliation.

The Court confirmed that defendants were not spouses, yet this was irrelevant to the determination of responsibility of the spoliation. It was important to consider whether the appellants were correct in saying that no evidence was produced by plaintiff to prove that defendants were in fact mandatories of third parties who performed such spoliation. The Court deemed it necessary to examine evidence revealing that there was sufficient proof showing that one defendant encouraged third parties to carry out spoliation and that the other defendant participated personally.

Hence, the second ground of appeal was also unfounded.

In view of the Court's decision with respect to the first ground of appeal, it was unnecessary to examine the third ground. Indeed, the servitude of right of passage by animal/cart was one enjoyed by right and not by tolerance of defendants.

The Court confirmed the judgement of the First Hall, Civil Court ordering that the 30-day period within which there had to be reintegration of possession of the right of passage would commence from the day of this judgement.

All expenses of this case were to be paid by appellant defendants.