The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on January 11, 2013, in the case ‘Trevor Arends and Susan Touch-Arends vs Veronica Mizzi’, held among other things that, in an action to restore possession (actio spolii) under article 535 of the Civil Code, it was up to the plaintiff to establish that legal proceedings were filed within the two months’ time limit from the spoliation.
The facts in this case were as follows.
The court felt that it was not possible to say that by September 22, 2008, (the time when these proceedings were filed) the two-month time had not yet lapsed
Trevor and Susan Arends filed legal proceedings against Veronica Mizzi to recover possession of a property in Main Street, Għargħur, in terms of article 535 of the Civil Code. Article 535 provides:
“(1) 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 article 791 of the Code of Organisation and Civil Procedure.
(2) Such reinstatement shall be ordered by the court even though the defendant be the owner of the thing of which the plaintiff has been despoiled.”
Arends and his wife said they had signed a contract of lease, valid up to June 2009. Towards the end of July 2008, while they were on an overseas trip, it was stated that Ms Mizzi abusively, with violence and without any legal right, changed the lock of the premises, to prevent them from entering the property.
The Arends claimed that this amounted to a violent act of spoliation. Faced with this situation they asked the court:
(1) to declare that Ms Mizzi committed an act of spoliation;
(2) to condemn her within a short and peremptory time limit to restore the property into their possession and to give them free access in the same manner which they enjoyed before she changed the lock.
In addition, the couple asked the court to authorise them to take all such measures and to carry out all necessary works to recover effective possession in case Mizzi failed to comply with the court order, and if necessary, under the supervision of an architect, to be nominated by the court and under the directions of the court.
Mizzi, in reply, contested their claims. She said that she had no legal relations with the Arends.
The lease agreement was signed with a company, Steraloids Inc. Ltd and not with them. It was stated that Steraloids Inc. Ltd had passed on the keys of the property to third parties in violation of article 3 of the lease agreement. Further, under article 15 of the agreement, it was agreed that, in case there was a breach of the rent agreement, the owner had the right to rescind the contract and take back the premises, without having to file legal proceedings.
Mizzi said that the neighbours informed her that certain unknown persons had occupied the house and swam in the pool. Allegedly, by handing the keys to certain third persons, her tenant Steraloids Inc. Ltd had passed possession of the premises to third parties, when it should have remained in its possession.
On October 10, 2011, the First Hall of the Civil Court decided in favour of the Arends, and ordered Mizzi to place them back in possession of the premises. The first court considered that this case was an actio spolii against an act of spoliation, allegedly committed by Mizzi, when she changed the lock.
Although the lease was made with the company, the Arends resided in the premises. The court said that three elements had to be proven for an actio spolii:
• Possession;
• Act of spoliation, perpetuated clandestinely or with violence against the works of plaintiffs, and
• Legal action within two months from the act of spoliation.
In this case, the first court noted that Mizzi admitted taking back the property without their consent, on the pretext that she was entitled to do so, under the lease agreement. Mizzi did not dispute committing an act of spoliation.
It was no defence that she contracted with the company. There was no doubt that the couple were in possession of the property. The actio spolii was an institute of public order to impede persons from taking the law into their hands: re “V. Cassar et vs A. Xuereb Montebello” (CA) dated May 28, 1956.
The court noted that the pleas which could be raised in actio spolii proceedings were limited. Reintegration could also be ordered even if the person who committed the spoliation was the owner: “Delia vs Schembri” (PA) dated February 4, 1958. The purpose of the actio spolii was to protect any type of possession.
Pacifici Mazzoni writes that violent spoliation was “qualunque atto arbitrario che per forza privata si compia contro la volontarietà dello spogliato” (any arbitrary act against the wish of the person despoiled).
In “M. Fenech vs Paola Zammit” dated April 12, 1958, it was held that an actio spolii was based on social utility to protect any type of possession. A person was prohibited from taking the law into his own hands. The actio spolii served to restore the status quo. The considerations of the court were limited in scope to whether the plaintiff was in possession and whether he suffered an act of spoliation.
The first court said that Mizzi was not justified to commit an act of spoliation on grounds that the lease agreement entitled her to recover the property, in case of a breach of the terms of lease. A contract could not empower a person to take the law into his own hands. In addition, the fact that Mizzi transferred the property during the proceedings did not prevent the first court from taking a decision.
Aggrieved by the decision of the first court Mizzi entered an appeal, calling for its revocation. It was submitted that two important elements for an actio spolii were lacking:
• There was no act of spoliation;
• The Arends had not filed these legal proceedings within two months from the act of spoliation. In addition she claimed that she was no longer in possession of the property and could not be ordered to restore their possession, re: “Lorenzo and Maria Dolores Gauci et vs J. Camilleri” (PA) dated January 10, 2005.
The Arends, on the other hand, disputed any breach of the lease agreement. They said that even if Mizzi had sufficient grounds under the lease agreement, she still had no reason to commit an act of spoliation: re: “N. Micallef vs H. Pace” (PA) dated August 31, 2003. In “Beta Brushware Ltd vs Malta Development Corporation” (CA) dated November 2, 2005, it was held that if, under a lease contract, an owner was authorised to recover possession, an owner could still not take possession, without the cooperation of his tenant.
As regards the two-month time limit, the Arends maintained that once Mizzi had not raised this plea earlier, it could not be made during the appeal.
On January 11, 2013, the Court of Appeal gave judgment by accepting the appeal and by revoking the decision of the first court. The following reasons were given for the court’s decision.
The two months’ time limit: The Arends had to prove that their lawsuit was filed within two months. This was an important requisite and had to be proven: re: ‘Alfred Paul Farrugia vs Peter Paul Cutajar’, dated February 13, 2004 and ‘G. Borg vs S. Cassar et’ dated October 21, 2002 (PA).
The court felt that the date when the act of spoliation was committed was uncertain. It could have occurred on or before July 28, 2008.
From the evidence, it appeared that up to July 9, 2008, the lock had not yet been changed but by July 28, 2008, the lock had been changed.
Due to the uncertainty, however, the court felt that it was not possible to say that by September 22, 2008 (the time when these proceedings were filed) the two-month time had not yet lapsed.
For these reasons, the Court of Appeal concluded that it had not been established that these legal proceedings were filed within the time limit imposed by law.
Dr Karl Grech Orr is a partner at Ganado & Associates.