The Court of Appeal, composed of (outgoing) Chief Justice Vincent De Gaetano, Mr Justice Joseph A. Filletti and Mr Justice Geoffrey Valenzia, in the case Antonio and Tereża Micallef et vs Carmini Farrugia et, on July 30, held, among other things, that the plea of prescription had to be clearly established by the person raising it. Any doubts went against the person pleading prescription.

The facts in this case were as follows:

Antonio and Teresa Micallef, and Carmelo Micallef filed legal proceedings against Carmini Farrugia, Charles Farrugia, Paul Farrugia, Dominick Farrugia, Lourdes Farrugia, Mary Anne Farrugia, Rita Farrugia, Sandra Farrugia, Paul Fsadni, Anne Fsadni, Censina Fsadni, Emmanuela Sammut, Charles Fsadni, Nina Micallef and Saviour Aguis requesting the court to declare that they had a right of passage, to access their fields by tractors and other motorised machinery.

They invoked article 447 of the Civil Code to compel defendants to give them passage, to their fields. Article 447 provides that “any owner whose tenement has no outlet to the public road, may compel the owners of the neighbouring tenements to allow him the necessary way, subject to the payment of an indemnity proportionate to the damage which such way may cause.”

The Micallefs were full-time farmers, who earned their living by cultivating their fields. They owned several fields, which formed part of a bigger area in Buskett, Dingli.

It resulted that by a contract, entered into in 1946, and published in the acts of Notary Pellegrini, the parties agreed that would be entitled to a right of passage by foot and by cart.

In 1946 the parties occupied their fields by way of title of temporary emphyteusis (ċens). The Micallefs and their predecessors used this passage, to gain access to their land-locked fields by foot and by cart.

Thereafter, in 1976, they acquired the freehold (directum dominos) and became the absolute owners of the fields.

A dispute later ensued between the parties, after defendants restricted the Micallefs access to their fields, refusing them passage by cart/tractor.

In their legal action, the Micallefs asked the court:

To declare that by virtue of the 1946 and 1976 contracts as well as by law, they had a right of passage. They claimed to be entitled to pass through this passage by tractor/motorised machinery, and not just on foot.

To condemn defendants within a short and peremptory time limit to give them free passage.

To authorise the Micallefs, at the expense of defendants to carry out all necessary works in order to reopen the passage, under the supervision of an architect.

In reply, defendants challenged the validity of Micallefs’ legal action. They said that it was not possible to claim a right of passage by contract as well as by law in the same action.

Defendants in addition, raised the plea of prescription under article 2143 of the Civil Code. This article provides that “all actions, whether real, personal, or mixed, are barred by the lapse of thirty years, and no opposition to the benefit of limitation may be made on the ground of the absence of title or good faith”.

It was alleged that neither the Micallefs nor their predecessors ever used this passage to pass with their carts since 1946.

Their argument was that any contractual rights which they might have had, lapsed by 30 years prescription. Defendants submitted that:

Any servitude which could have been constituted by the temporary emphyteuta, ended on lapse of the ċens, in terms of article 1522 of the Civil Code. The consolidation of the “utile” (ċens) and the landlord’s title (directum dominos) brought about the extinguishment of the servitude.

The right to pass through a passage by cart did not include the right to pass with motor tractors. A servitude which was created by contract was strictly limited by the terms of the agreement.

The legal servitude of passage did not include the right to pass with tractors and other motorised farming equipment.

In this case, the court limited its considerations to the plea of thirty year prescription under article 2143.

On March 12, 2008, the first Court dismissed defendants’ plea of prescription.

It considered that in 1946 the parties had divided the area into a number of fields. They declared that they agreed that there was a right of passage by foot and by cart according to law. This right had to be exercised according to law, and at the least inconvenience to the “servient tenement”. By the 1976 contract, they purchased full title and became the owners of the undivided area. Defendants now claimed that the Micallefs had never used the passage, to pass their carts, and after several years in dispute, a lawsuit was filed. The first court maintained that prescription was to be strictly applied: Re: Stencil Pave Ltd vs Dr M. Deguara noe (PA) dated October 30, 2003.

Any doubt went against the person pleading prescription. The court felt that, in the circumstances, the evidence produced, was conflicting. It said that it was well probable, that the Micallefs, over the years, exercised this right, even in hiding, with the effect of interrupting prescription.

Aggrieved by the decision of the first court, defendants entered an appeal, calling for its revocation. Defendants put forward the following arguments against the decision of the First Court. They submitted that:

The acts which interrupted prescription should be strictly applied.

Interruption of prescription had to be proven by the person making this plea up to the acceptable degree of proof.

Any clandestine/secret use of the passage should not have the effect of interrupting prescription. The acts to interrupt prescription had also to be pacific and public.

The Micallefs in reply contended that the first court decision was fair and that it should be confirmed. They argued that the period of prescription commenced from 1976, and not from 1946. They claimed to have passed through the passage with tractors and other machinery for the past twenty years. They disputed, acting in secret. They said that they openly worked in their fields as full time farmers.

On July 30, 2010, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the first court. The following reasons were given for the court’s decision.

The court noted that the period of prescription commenced from the publication of the 1946 contract. This was when the servitude was created. When consolidation occurred in 1976, this did not interrupt prescription.

The court considered that defendants claimed that the Micallefs never used the passage, to pass through by cart since 1946 and that therefore their contractual right was barred by 30 years prescription.

It said that defendants however, bore the burden of proof. They had to prove that the Micallefs and their predecessors never passed with their carts, through the passage.

The Court of Appeal was not however satisfied with the evidence and that the period of prescription had expired.

It was up to defendants to establish that the period of prescription had lapsed, so concluded the court.

Dr Grech Orr is a partner at Ganado & Associates.