This case concerned a dispute over a small passage situated between two adjacent houses. The plaintiff was the owner of a property in Xaghra, Gozo which property was built adjacent to another property belonging to the defendants. Between the built part of the plaintiff’s property and the defendants’ property there was an area which was unbuilt. The plaintiff claimed to be the rightful owner of this area of land which she allegedly inherited from Agata Attard who died in 1984 by virtue of a will drawn up in 1976. The defendants however claimed otherwise holding that this portion of land was in actual fact theirs justifying their decision to prevent the plaintiff’s access to it.

The plaintiff requested the Court:

• to declare that the disputed area belonged exclusively to her and that the defendants enjoyed absolutely no rights over the same;

• to declare that the objects placed in such space by the defendants were so placed without any right to do so;

• to condemn the defendants to remove the same objects within a certain time stipulated by the court to permit the plaintiff to make use of her property freely;

• to authorise her to remove the same objects herself at the expense of the defendants on the occasion of them failing to follow the orders of the court;

• To forbid the defendants from ever making use of the disputed area.

• The defendants claimed that:

• the plaintiff’s claims were unfounded in fact and in law;

The disputed space which was essentially a passage between the two properties belonged to them and was an integral part of their house and was left unbuilt specifically by them when they built their house so as to allow access to the road from the back part of the house;

The plaintiff’s predecessors never claimed exclusive ownership rights over this land except for a servitude for the draining of water.

The court examined all the relevant documentation including contracts and reports of technical experts in an attempt to establish the rightful owner of the same strip of land. Reference was made to Article 322(1) of the Civil Code which holds that: “Save as otherwise provided by law, the owner of a thing has the right to recover it from any possessor.”

The court considered that the plaintiff had to prove that she was the owner of the land and her proof had to be clear, unequivocal and convincing. While the plaintiff claimed that the disputed land formed part of Agata Attard’s succession, the defendants completely rebutted this claim holding that it never belonged to Agata Attard and hence could never have been inherited by the plaintiff. Defendants had to also provide evidence which would be vital in the event that the plaintiff succeeded in providing unequivocal proof of her ownership of the same land.

The court upon examination of all evidence held that there seemed to be a lack of coherence in the plaintiff’s testimony. Although she was claiming ownership, in a Court sitting in June 2007, she had stated that she felt the strip of land was actually hers, or if not hers, that she had the right of passage over the same. A servitude was also contracted for in 1990. The court held that it was logical to conclude that there need not be a servitude over a certain plot of land agreed upon in favour of a person who is the owner of the same plot of land. The court also stated that Agata Attard herself (now deceased) was inconsistent and showed a lack of certainty in providing evidence before the same court in an attempt to be recognised as the rightful owner of the disputed land.

The court held that the plaintiff did not provide sufficient clear and unequivocal evidence to convince the court of her ownership. A case like this required having a considerable amount of evidence to rebut the pleas of the opposing parties. The plaintiff’s claim that she used to see her aunt making use of the disputed passage was deemed completely insufficient as evidence in a case of this nature.

The court on the other hand considered that the defendants managed to prove with certainty all their claims leaving the same court convinced that the strip of land in question actually belonged to them without prejudice to any other rights that the plaintiff may have over the said passageway.

The court therefore rejected the plaintiff’s pleas and decided in favour of the defendants. This case may be the subject of an appeal.