The Malta Independent 22 July 2019, Monday

Law report: Examining the requisites for the institution of the actio spolii

Ganado Advocates Wednesday, 19 June 2019, 10:07 Last update: about 2 months ago

In Agius v. Micallef, decided 6 June 2019, the Court of Appeal considered the requirements relating to actions for the restoration of possession in the case of spoliation (“kawza ta’ spoll; actio spolii”).

Proceedings for an action for spoliation were instituted against the defendant as the owner of the plaintiff’s neighbouring tenement, with the latter arguing that the defendant had made improvements to his roof over which he had rights of access. The plaintiff in fact argued that the contested works had been carried out without his knowledge and that the overall effect was that his access to the defendant’s was curtailed.


The First Hall of the Civil Court delivered its judgment on this matter on the 4 October 2017. In coming to its decision, the First Hall set out the three elements required for the successful institution of the actio spolii, namely: (i) possession by the plaintiff of a movable or immovable thing; (ii) a situation by virtue of which the plaintiff is deprived of his possession or detention through violent or clandestine spoliation; and (iii) institution of proceedings within two months from the act of spoliation, and not from the date on which the act becomes known to the plaintiff. These requirements, which emerge from Article 535(1) of the Civil Code, must exist concurrently, to the extent that if the plaintiff fails to prove any one of these requisites, the action is quashed without the need for examination of the remaining two requisites.

In coming to its decision, the First Hall examined the nature of the action by making extensive reference to local jurisprudence such as Vincenzina Cassar et vs Annetto Xuereb Montebello, whereby it was noted that the Maltese Courts had been consistent in their interpretation of the relevant Civil Code provisions over the years. It was further noted that the actio spolii was motivated by principles of public order (“di ordine pubblico”) and was intended to eliminate the private usurpation of powers belonging to the public authorities. In other words, the actio spolii is intended to preclude individuals from taking matters into their own hands without first going through the appropriate channels and making their case before a court of Civil jurisdiction. Any person wishing to change a status of fact, must do so legally. As such, the defendant in a spoliation suit brought within the period of two months from the day on which the spoliation took place, may not raise any plea other than a dilatory plea before s/he shall have restored the thing to its former condition and fully revested the party despoiled, without prejudice to any other right appertaining to the defendant.

Interestingly, our courts have, over time, expressed the view that actions for the restoration of possession in the case of spoliation are rooted on the exigency of public order and not necessarily on principles of justice, so much so that in proving possession, the law does not contemplate proving ownership of the movable or immovable in question, but proving mere possession. Crucially, therefore, in terms of the Civil Code, restoration of the thing may be ordered by the court even though the defendant may be the owner of the thing of which the plaintiff has been despoiled. It was further noted that the law does not require legitimacy of the possession either and that therefore the actio spolii may be successful even with respect to persons holding property in bad faith.

Following the above mentioned discussion, the First Hall proceeded to apply the legal requisites of the action to the facts of the case at hand, noting that that both properties had been passed to the respective owners by their fathers, and that the defendant’s father had allowed the plaintiff’s father to access the roof and keep bird cages. As such, the First Hall established that although the plaintiff was not the owner of the tenement in question, the latter did, in fact, enjoy access to the disputed roof and that these rights had been established over time. The First Hall noted that acts of spoliation could take place even by the owner of a tenement against third party possession thereof and that the defendants did not have the right to disturb the plaintiffs in the exercise of any right pertaining to them by means of unilateral action on their part. The First Hall was additionally satisfied that action had been instituted within two months from the date of the spoliation, and proceeded to deliver judgment in the plaintiff’s favour.

The defendants appealed the decision taken by the First Hall, arguing mainly that the plaintiff did not, in fact, have rights of possession over the roof in question and that as the owners of the tenement, they had the right to carry out any developments or improvements thereon, as desired. The defendants further argued that the defendants had merely tolerated access to the roof by the plaintiff, but that this was not tantamount to possession. In any event, the defendants finally argued that the developments carried out by them over the property in question, were not prejudicial to the plaintiff. Plaintiff rebutted these claims both in fact and by arguing that the First Hall been correct in its appreciation of the facts. As such, and in accordance with established local jurisprudence, the Court of Appeal should refrain itself from the findings of the First Hall unless it became convinced that there existed serious grounds for it to do so.

In coming to its decision, the Court of Appeal argued that allegations of dispossession by the plaintiffs needed only to be proven on a prima facie basis, and that the action would be inadmissible if the plaintiffs had failed to prove their claims to the Court on a preliminary basis. The Court noted that its decision rested mainly on whether the plaintiff did, indeed, exercise possession of the contested rooftop or whether his access thereto had been a mere act of tolerance which was allowed by the defendants but did not give rise to any legal rights. The latter, it was argued, would not be tantamount to possession for the purposes of the actio spolii. In distinguishing between the two, the Court noted that acts of tolerance were acts which were accepted for reasons of courtesy or acts which could be stopped by the person tolerating such acts at any given time – as such, acts of tolerance were often transitory in nature.

Following due consideration of the facts, the Court of Appeal argued that the defendants had failed to bring enough evidence to convince it of the fact that the plaintiff did not enjoy any rights of possession over their tenement. The Court was not convinced of the argument that the defendant’s father had merely allowed access to the roof as an act of tolerance and since the works had been carried out without the knowledge of the plaintiff, and had had the effect of reducing the plaintiff’s access to the roof, the Court of Appeal joined the First Hall in delivering judgment in the plaintiff’s favour.


Dr Vanessa Gatt is an Advocate at GANADO Advocates

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