The Court of Magistrates (Gozo) – Superior Jurisdiction, presided over by Magistrate Joanne Vella Cuschieri on June 2, 2015, in the case ‘A’ (wife) v ‘B’ (husband) held, among other things, that the wife had a right to reintegrate her rights of possession, even though she was not legally the owner.

A couple got married in Toronto, Canada, on September 16, 1967. On October 8, 1980, the husband had acquired his share of inheritance, by virtue of a contract of division published in the acts of Notary Joseph Cauchi consisting of a property in Xandriku Street, Nadur.

The spouses demolished this building and built two maisonettes on the site. They used the property as their home each time they visited Malta during the summer months.

In 2013 they initiated divorce proceedings in Canada, which are still in process.

The wife discovered a year later that her husband had changed the locks of their Gozo property and barred her from entry. She claimed that this amounted to a molestation of her possession of this property in Gozo and filed legal proceedings against him in Malta.

She requested the court to reintegrate her possession of the maisonettes, and to authorise her to carry out such works at her estranged husband’s cost.

In reply, the man disputed his wife’s claims. It was not true, he said, that the property in Gozo was their matrimonial home since their home was in Canada which is where they resided and had raised their children. They only travelled to Malta for their holidays.

It was argued on the husband’s behalf that it was not possible for a matrimonial home to consist of two maisonettes. It was inconceivable that the property made up a sole property as alleged by the wife, pointed out her husband.

The wife never had possession of the two maisonettes. Nor did she have any property rights over the property, the husband claimed. He said his wife could only claim against his paraphernal assets, to recover one-half of the amount spent on the property during their marriage, and/or one half of the increase in value of his paraphernal property during their marriage.

In addition, the liquidation of their matrimonial assets was being dealt with by the courts in Canada.

The wife’s claim of molestation of possession was in accordance with article 534 of the Civil Code which provides that: “Where any person, being in possession, of whatever kind, of an immovable thing, or of a universitas of movables, is molested in such possession, he may, within one year from the molestation, demand that his possession be retained, provided he shall not have usurped such possession from the defendant by violence or clandestinely nor obtained it from him precariously.”

The issue was whether the wife had possession of the property as required by law in terms of article 534 of the Civil Code

Possession as a requisite element of article 534 of the Civil Code: Prior to the decision of the Court of Appeal in ‘Vella v Bolderini’ dated February 24, 1967, which gave a wide interpretation to this requisite, according to case law, for this legal action to succeed, a person had to prove possession animo domini in terms of article 524(1) of the Civil Code which states that “possession is the detention of a corporeal thing or the enjoyment of a right, the ownership of which may be acquired, and which a person holds or exercises as his own”.

In ‘Bonello Micallef v Parnis England’ (PA), dated May 9, 1957, the court declared that “possession, according to the consistent interpretation of our courts, only comprises possession as defined by the legislator in article 561 of the Civil Code, that is the detention of something that is animo domini”.

In ‘Mamo v Camilleri’ (CA), dated March 23, 1962, the court held the legal action under article 534 was not available to tenants. A person had to possess per article 561(1) of the Civil Code.

In ‘Aquilina v Aquilina’, dated February 8, 1996, the court dissented with the decision given in ‘Vella v Boldarini’, holding that the actio manutentionis could not be made by tenants, or persons who only had causa detentionis.

In ‘Mamo v Galea’ (CA), dated February 16, 2004, it was held that possession which was protected by this legal action was that as defined in article 524(1) of the Civil Code. Possession had to be pacific, continuous, public and uninterrupted. A person had to possess animo domini. This legal action was not available to tenants.

In ‘Borg v Cachia Zammit’ (PA), dated October 8, 2004, it was held that detention of property was not enough.

This was confirmed in ‘George Camilleri v George Bonello’ (PA) dated October 20, 2005, where the court declared that the actio manutentionis could be exercised only by a person who had possession for effects of law of the property in question.

Time: The case had to be filed within one year from the date of molestation. She noticed that the locks were changed in May 2014 and took legal action on May 29, 2014, within the one-year legal time limit.

The issue was whether the wife had possession of the property as required by law in terms of article 534 of the Civil Code.

While the wife claimed to have possession of the property which was built during their marriage and was used as their alleged matrimonial home when they were in Malta on holiday, she also said that she intended using that property after she retired.

The husband, on the other hand, said that the wife lacked possession and knew that the property belonged to him. She only had the right to use the property.

The court was morally convinced that the wife considered the property as her own, and this state of mind was sufficient for the purposes of the actio manutentionis, in order to satisfy the elements of possession, necessary in terms of article 534 of the Civil Code.

In addition, the husband’s acts had led his wife to believe that she possessed in her name. It was not correct to say that she had possession as agent of her husband.

The court maintained that the wife’s rights of possession were violated by the act of her husband changing the locks of the property. It held that she had the right to be reintegrated in her possession, which was not exclusive as it was shared with her husband. The court left as unprejudiced the rights of the parties.

For these reasons, on June 2, 2015, the Court of Magistrates (Gozo) gave judgment by ordering the husband to reintegrate his wife’s rights over the Nadur property.

The court also authorised the woman to carry out the recovery works under the supervision of architect Clint Camilleri to change the locks of the property at the husband’s expense. A set of keys had to be given to her husband.

Karl Grech Orr is a partner at Ganado Advocates.