Business brought to a standstill by unlawful act of spoliation

The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Joseph A. Filletti and Mr Justice Geoffrey Valenzia, on December 3, 2010, in the case Central Holidays (Travel Agents and Organisers) Limited vs Alexandra Balzan Ruggier and Joseph Oliver Ruggier, held among other things that insofar as the three elements to justify an actio spolii were established, it was not necessary to prove that the defendant had the animus spoliandi.

The facts in this case were as follows:

Central Holdings (Travel Agents and Organisers) Ltd operated from their premises No. 113, St George’s Street, Paceville.

It was set up specifically in 2008, to take over the management of another company, Central Holdings (Travel & Tourism) Ltd, which previously used to carry out its business from these premises and in respect of which Amadeo Balzan was also a director.

A management agreement was signed on April 15, 2008.

In the premises, there were desks, computers and office equipment, including files which were necessary to run the business.

It so happened that between the night of November 25/26, 2008, Alexandra Balzan Ruggier and her father Joseph Oliver Ruggier entered the premises, welded the shutters, locked the entrance door with a new padlock and removed equipment from the premises. The following day Mr Balzan was prevented from having access and was impeded from carrying out his work.

His business was brought to a standstill, as he was unable to gain access to his data.

Ms Balzan Ruggier and her father took forceful possession of the premises, besides removing the office computers, filing cabinets. They even parked a car in the tenement. Mr Balzan reported the incident to the St Julians’ police station.

Faced with this situation, Mr Balzan, acting on behalf of Central Holidays, claimed to have been despoiled, by a violent act of spoliation, in contravention to article 535 of the Civil Code.

Article 535 of Civil Code provides that “where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention, as provided in section 791 of the Code of Organisation and Civil Procedure”.

Central Holidays requested the court to reintegrate its rights to possession and to set a time limit for Ms Balzan Ruggier and her father to remove the locks and welding, which denied him access.

The company also asked for authorisation to carry out all necessary works at their expense.

Ms Balzan Ruggier and Mr Ruggier in reply denied committing any unlawful act of spoliation.

They disputed that the company ever enjoyed possession of the premises. It was stated in their defence that the necessary three elements for an actio spolii were lacking in the circumstances. The two defendants were not aware of the management agreement of April 15, 2008, which was signed at a time when Mr Balzan was still a director of Central Holidays (Travel & Tourism) Ltd.

After Mr Balzan was removed as director of the company, the defendants thought that they had every right to deny him access to their property.

In addition, by way of separate proceedings, Amber Enterprises instituted legal proceedings to evict Central Holidays (Travel & Tourism) from the same premises.

On April 12, 2010, the first court decided in favour of Central Holidays (Travel Agents and Organisers) Ltd and ordered the defendants to restore Central Holidays’ possession of the premises. It said all three elements of an action spolii were present:

(1) Plaintiff Central Holidays was in possession of the property in question;

(2) There was an unlawful act of spoliation by defendants, committed with violence and against the consent of the victim;

(3) Legal action was taken within the two months time limit from the act of spoliation.

The court considered that the “action against spoliation” was intended to protect any type of possession against arbitrary acts. Reference was made “Delia vs Schembri” (PA) dated February 4, 1958. The Italian jurist Pacific Mazzoni writes that “an unlawful act of spoliation was any arbitrary act which was committed against the consent of the victim”.

This action was designed to protect social order. A person was prevented from taking the law in his own hands. In an actio spolii, the court’s focus was limited to the fact of spoliation and it would not consider any other plea. The court expressed no doubt that Central Holidays had possession of the premises.

It said that the defendants arbitrarily took the law in their hands, by denying Central Holidays’ access to the shop.

The fact that their company, Amber Enterprises Ltd, had obtained a favourable judgment to recover its property was not relevant in these proceedings.

The eviction judgment was delivered against different parties and was to be deemed a res inter alios acta vis-à-vis Central Holidays (Travel Agents and Organisers) Ltd, pointed out the court.

Aggrieved by the decision of the first court, Ms Balzan Ruggier and Mr Ruggier entered an appeal, calling for its revocation. They submitted the following grievances:

(1) The first court did not make a proper assessment.

(2) They reiterated their plea that they had not personally committed any act of spoliation.

(3) Central Holidays as plaintiff had to prove that it had possession of the property.

(4) They denied having the animus spoliandi. They did not even know that plaintiff Central Holidays had acquired the Management of the business.

(5) The eviction judgment obtained by Amber Enterprises was not to be considered a res inter alios acta. Central Holidays as plaintiff should not be considered a third party in terms of article 237 of the COCP.

Central Holidays defended the decision of the first court. It claimed to have established its possession and that it was deprived of its lawful possession.

On December 3, 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.

There was no doubt that Central Holidays (Travel Agents and Organisers) Limited operated from the premises. There was as evidence: the management agreement dated April 15, 2008; the trade licence; and the VAT certificate which indicated that the company operated from this address.

The actio spolii protected any type of possession. Reference was made to “M. Zammit vs P. Zammit” dated April 12, 1954. It was not necessary for the victim to have title. All that was needed was for Central Holidays to have material possession.

The court was satisfied that the two defendants had personally committed the act of spoliation. The fact that Amber Properties had obtained a favourable judgment to recover the property was irrelevant. Even an owner could commit an act of spoliation.

The court said that, insofar as the three elements were proven for an actio spolii it was not necessary to prove that defendant had the animus spoliandi, the intention to commit an act of spoliation.

Reference was made to “D. Orlov vs E. Pavia in his own name and on behalf of EMA Ltd”, dated January 14, 2002.

The court ordered a period of one month from the date of this judgment for Central Holidays to be re-integrated and to recover possession of the premises. The fixtures and furniture had to be returned and all new locks which blocked its access removed.

Dr Karl Grech Orr – partner at Ganado & Associates.