Compensation is one thing, division another, court rules

The Constitutional Court yesterday dismissed an appeal filed by Francis Bezzina Wettinger, John Parnis England, in his personal name and on behalf of WJ Parnis England, and by Emanuel Zammit from a judgment delivered by the First Hall of the Civil Court in its constitutional jurisdiction.

Applicants had filed their constitutional application against the Prime Minister and the Commissioner of Lands.

Alexander Cachia Zammit, Theresa Cachia Zammit, Margaret Cully and Malta Properties Limited were later called into the suit.

The applicants had claimed that their fundamental human right to enjoyment of their property and to a fair hearing had been violated in proceedings over the expropriation of their property.

In 1960, applicants had acquired, by title of perpetual emphyteusis, land known as Tal-Hriereb in the limits of Birkirkara. The land was declared, in 1961, to be required by the government for a public purpose.

The Lands Commissioner had offered applicants £631 for the land but this was refused both by applicants and also by the direct owners of the land, namely those parties who were later called into the suit.

In February 1978, the Land Arbitration Board set the compensation payable to the parties for the land at Lm1,161.

However, the applicants submitted in their constitutional application that at no stage had this compensation been divided between the direct owners of the land and themselves as the emphyteuta.

The commissioner had requested the LAB to effect this apportionment but, in a judgment delivered in 1981, the board had ruled that it could not do so.

As a result of the lack of agreement between the direct owners and the emphyteuta, no transfer had been made to the government of their respective rights. However, the applicants, as the emphyteuta of the land, still had to pay the direct owners the sum of Lm260 as annual ground rent for the land.

The commissioner had refunded to the emphyteuta the ground rent they were paying the direct owners.

The First Hall of the Civil Court had dismissed all of applicants' claims and they then lodged an appeal to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The Constitutional Court pointed out that applicants were not submitting that the compensation awarded to them by the board was unjust. It was therefore irrelevant that applicants, as emphyteuta, were paying the direct owners ground rent that now exceeded the compensation liquidated by the board for the entire value of the expropriated land.

The commissioner, the court noted, was obliged to pay the land owners the real or actual value of such property and not its speculative value.

Consequently, the fact that the ground rent on the land was high did not in itself mean that the compensation awarded by the board was unjust.

The First Hall of the Civil Court, the Constitutional Court added, had ruled that the fact that the board had not indicated which compensation was to be paid to the direct owners and which was to be paid to the emphyteuta was not in violation of applicants' human rights.

While it was true that one of the essential requisites of a contract of sale was the specification of the price, the law did not require specification of apportionment of the price in cases where more than one person was selling. Such an apportionment could be made on the contract of sale but there was no violation of the law if it did not take place.

The law governing expropriation did not prohibit the commissioner from apportioning the compensation between the direct owners and the emphyteuta and this was in fact done by the commissioner in certain cases. However, the law did not oblige the commissioner to apportion compensation between the various persons who had an interest in the expropriated land.

When no apportionment took place, the law entitled those persons who were to receive compensation to have recourse to the First Hall of the Civil Court for a decision on how the compensation was to be allocated.

The Constitutional Court declared it could not envisage how this legal position violated the fundamental human rights of the applicants to enjoyment of their own property.

Such right stipulated that the government had to pay adequate compensation for expropriation but it did not include the obligation on the part of the government to divide the compensation between various interested parties.

Applicants had failed, for 41 years, to seek recourse to the First Hall of the Civil Court for this issue to be decided upon. As a result, no division had been ordered and compensation had not been paid.

All this was undoubtedly attributable to applicants and not to any fault on the part of the commissioner or the law governing expropriation.

The court therefore dismissed the appeal and confirmed the judgment of the First Hall of the Civil Court.