Architect Joseph Jaccarani, Maria Rita Jaccarani, Emily Scicluna & Louise Sammut

Vs

Star Investments Limited

Chief Justice

Silvio Camilleri

Judges Albert J. Magri & Mr Justice Tonio Mallia

Court of Appeal

31 January 2011

This case concerned a dispute between co-owners of a block of flats regarding a wall that was constructed in the entrance of such block which led to the narrowing thereof. Such construction was effected allegedly without the consent of all the owners of the apartments of the relevant block. The Court considered the right of objection of such owners with respect to any changes effected without their consent in the common parts.

The Facts: The plaintiffs were owners of apartments in a block in Sliema enjoying use of the common parts. The defendant company owned the airspace of the block and executed works to refurbish the block and its façade. The defendant company carried out such works including structural alterations in the entrance of the block without the unanimous consent of all the apartment owners. In particular the defendant company removed the marble slabs on which the letterboxes were affixed and erected a wall in the entrance rendering it narrower. Although called upon to stop such works and restore everything to its original state, the defendant remained in default.

The plaintiffs instituted an action against spoliation against the defendant company requesting the Court to order restoration of their possession. The plaintiffs requested the Court to:

• declare that the defendant company had abusively molested their possession of the common entrance of the block by erecting such wall, violently and clandestinely thereby committing an act of spoliation;

• condemn the defendant company to demolish the disputed wall and to restore the entrance hall to its original state within a short and peremptory time established by the Court and

• authorise the plaintiffs to demolish the wall themselves under the supervision of an architect appointed by the Court in the event that the defendant company remained in default.

The defendant company claimed that:

• it did not act abusively;

• it had carried out works that it was legally entitled to effect and which works were approved by the apartment owners;

• it was appointed to carry out such works and had therefore acted as a contractor;

• the works did not prejudice the plaintiffs but rather benefited them by improving the block;

• it did not commit an act of spoliation.

• the Court lacked jurisdiction to consider this case as in terms of Articles 23 and 26 of the Condominium Act, disputes of this nature had to be referred to arbitration.

First Hall Civil Court: The First Hall Civil Court held that the claim that the Court was not competent to consider the case was unfounded. Reference was made to Article 23 of the Condominium Act which, amongst other things, states:

“(1) Any condominus who disagrees with a decision of the meeting on the grounds that the decision is contrary to law or to the regulations of the condominium or is unreasonable or oppressive may refer the matter to arbitration.

The Court noted that this was not an action instituted in terms of the above Article in that the plaintiffs were not contesting a decision of any meeting. They were claiming that they were despoiled of their possession as a result of the defendant company’s actions and therefore instituted an action against spoliation in terms of the Civil Code. On 23 October 2008, the Court ruled that the plaintiffs were therefore not bound to refer the matter to arbitration as claimed by the defendant company. The Court also noted that the plaintiffs’ claims were only limited to the erection of the disputed wall.

The Court considered various principles that have been established by our Courts in a number of judgements with respect to spoliation. The Court held that in line with previous judgements, all the plaintiffs were expected to do was indeed to prove that at the moment of the alleged spoliation, they were in possession of that which they claimed to have been despoiled. A title of possession was not necessary but physical possession thereof was sufficient. The Court, by referring to the case Vassallo Gatt nomine vs proprio et nomine (1996), further clarified that the action against spoliation can indeed be instituted when the person allegedly despoiling is a co-owner of the property subject of such action. Other cases also confirmed that spoliation need not be total in that it is sufficient to prove that there was a diminution in possession or reduction of rights or damage as a result of such spoliation.

After examining all evidence produced, the Court held that there was no doubt whatsoever that the plaintiffs indeed qualified as persons legally entitled to institute this action against spoliation. The Court also confirmed that the plaintiffs had instituted proceedings within the proper time limit stipulated by law.

The First Hall Civil Court in a judgement delivered on 29 October 2009 concluded by stating that the defendant company had indeed committed an act of spoliation and ordered it to remove the disputed wall and restore the entrance hall under the supervision of an architect within a peremptory period of 60 days. The Court authorised the owners to demolish the wall at the defendant company’s expense under the supervision of an architect so appointed by the Court, in the event that the defendant company failed to carry out the works.

Court of Appeal: The defendant company appealed requesting that the judgements of the First Hall Civil Court be revoked. It claimed that such revocation be effected on the grounds that the association of the disputed block of apartments had granted its approval for the works to be executed and therefore, the matter had to be referred to arbitration in terms of the Condominium Act. The defendant company requested that should the plea of jurisdiction be quashed, the judgement ordering that there was spoliation and ordering that the wall be demolished be revoked.

The Court of Appeal reconfirmed the First Hall Civil Court’s reasoning with respect to the plea to the jurisdiction of the Court stating that there was no evidence that any decision was taken and published by the relevant association of the block as required by law in the Condominium Act. The Court noted that in terms of Article 8 (3) of the Condominium Act, unanimity is required in the case of structural changes. In this case unanimous consent was certainly not obtained. Therefore, the unanimous consent of all apartment owners or the approval of the association at a meeting held in terms of law was required and the decision to be published on the notice board informing the owners of the decision of the meeting.

The Court of Appeal considered the claim by the defendant company that the works benefited the entire block and that there were not grounds for opposition and concluded that any benefit was irrelevant. The fact remained that the entrance hall of the block was narrowed as a result of the construction effected by the defendant company without the unanimous consent of the apartment owners being obtained. The defendant company was not entitled to act unilaterally. The Court of Appeal reiterated that the action against spoliation was indeed a mechanism to cater for cases like this when persons, rather than following the law, take decisions and actions without considering and respecting the wishes and interests of others.

On the basis of the above, the Court of Appeal confirmed the judgement of the First Hall Civil Court and rejected the defendant company’s appeal.