Validity of power of attorney
The First Hall of the Civil Court, presided over by Mr Justice Mark Chetcuti, on July 13, 2012, in the case “Legal procurator John Privitera on behalf of the following absent persons, Charles Ciantar, Violette, wife of Saviour Scicluna, Emily, wife of Donald Beaver, and Mary, wife of Joseph Bennett, in exercise of a general power of attorney dated December 9, 1968 vs Josephine, widow of Carmelo Camilleri”, held, among other things, that an open-ended power of attorney did not lapse after five years. However, in absence of proof that the principals were still alive and resided overseas, it however declared the power of attorney to be invalid. The legal procurator acted on the basis of this power of attorney to file these legal proceedings.
The facts in this case were as follows:
Legal procurator John Privitera on behalf of owners Charles Ciantar, Violette Scicluna, Emily Beaver and Mary Bonnett, as owners of shop number 154, Merchants Street, Valletta, rented the property to Josephine Camilleri, wife of the late Carmelo Camilleri, for €497 annually, payable six months in advance.
By virtue of the private agreement dated August 12, 1983, the late Carmelo Camilleri was given permission to open a door with a width of 0.8 metres, in the dividing wall between shop number 154 and the adjacent property number 153 for four years.
Carmelo Camilleri was also the tenant of shop number 153, Merchants Street, Valletta, Malta. The concession was for a period of four years, commencing from August 12, 1983. At the end of the four-year period, he was obliged to close the door and restore the wall to its original condition, as at the beginning of the lease.
At the expiry of the lease, however, and despite several requests for the door to be closed according to the private agreement, Josephine Camilleri failed to comply and close this door.
Faced with this situation, legal procurator John Privitera filed legal proceedings requesting the First Hall of the Civil Court to condemn Josephine Camilleri within a short and peremptory time limit, to close and restore the wall, to its original condition, and this under the direction of an architect to be nominated by the court and in default, for the court to authorise the owners to take all necessary works to close the door and for the dividing wall to be restored.
Josephine Camilleri, in reply, pleaded that the power of attorney dated August 9, 1968, granted to legal procurator John Privitera was no longer valid, and expired after the lapse of five years. She said that a valid power of attorney had to be produced to act on behalf of the owners.
Proof had to be brought to show that legal procurator John Privitera represented the true owners of the shop number 154, Merchants Street, Valletta; and that his principals were the sole owners of the property. Privitera also had to prove that his principals who granted him the power of attorney were all alive and residing overseas.
Josephine Camilleri maintained that the door was opened with the owners’ permission, in terms of an agreement dated August 12, 1983. Though this door had to be left open for four years, the owners continued to accept the rent after the lapse of four years, even if the door had not been closed. In addition, she maintained that the right to request the door to be closed was time-barred after five years from the lapse of the four-year period. In fact, the request for the closure of the door was made only after 24 years.
It was stated that Privitera would collect the rent personally and that he was well aware that the door was still open. He accepted the rent and gave receipts.
Josephine Camilleri said there was a tacit acceptance for the door to remain open even after the lapse of this period, in particular in view of the passage of time.
She maintained that the owners had no right to request the closure of the door, once there was tacit acceptance and after so much time had now passed.
The First Hall of the Civil Court considered that this lawsuit was made by Privitera as general attorney on behalf of owners, on the basis of a general power of attorney in the acts dated December 9, 1968.
A copy of the power of attorney was authenticated by notary Clyde La Rosa. It was stated that there was a true copy of this power of attorney in the acts of the notary La Rosa.
Validity of power of attorney: It was not disputed that the power of attorney exhibited by legal procurator Privitera was granted in 1968, 44 years ago.
The court said there was nothing in the law where it was stated that a power of attorney was valid for only five years. Reference was made to article 1886 of the Civil Code on the termination of mandate, which provides:
“(1) Mandate is terminated:
(a) by the revocation of the procuration;
(b) by the death, the interdiction or the incapacitation, whether general or special, from entering into contracts, the declaration of bankruptcy, or the cession bonorum either of the mandator or of the mandatary;
(c) by the termination of the powers of the mandator;
(d) by the expiration of the time during which the mandate was to continue;
(e) by the renunciation on the part of the mandatary.”
There was a juris tantum presumption that a power of attorney remained valid. If there was a doubt, clear evidence was required.
The burden of proof rested on Privitera, the person acting on the basis of the power of attorney, in order to show that the power of attorney was still valid, noted the court.
While the allegation that the power of attorney lapsed after five years was unfounded at law, Josephine Camilleri was justified to request that Privitera produce proof that the owners were still alive and residing overseas, especially after so many years.
In the circumstances, Privitera failed to produce all documents listed in the affidavit.
For these reasons, on July 13, 2012, the First Hall of the Civil Court declared that it had serious doubts whether Privitera still enjoyed the mandate from the principals, in absence of proof that they were still alive and still resided overseas.
It was reasonable to expect that the mandatory would remain in contact with the mandator.
The court concluded that Privitera did not bring proof that the power of attorney which was granted to him was still valid, as it had not been shown that the mandators were still alive and resided overseas.
It accordingly freed Josephine Camilleri from these proceedings.
The court said it was not necessary to consider the title of Privitera’s principals in the property.
Dr Grech Orr is a partner at Ganado & Associates.