The Court of Appeal, composed of Mr Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, in the case “Doris Farrugia, Antonia Caruana, Alfred Azzopardi, Jane Agius, Carmen Farrugia, Rita Caruana, Josephine Manicolo, Marianne Frendo, Edwin Azzopardi and George Azzopardi vs Alfred and Maria Galea”, on May 6 held, among other things, that in proceedings known as actio rei vendicatoria the claimant had to prove his title beyond doubt. Any doubt went in favour of the defendant, who was not obliged to prove anything. The defendant did not have to prove to be the owner.
The facts in this case were as follows:
Doris Farrugia, Antonia Caruana, Alfred Azzopardi, Jane Agius, Carmen Farrugia, Rita Caruana, Josephine Manicolo, Marianne Frendo, Edwin Azzopardi and George Azzopardi, together the owners of nos. 35-37 Belview Alley, Sliema, filed legal proceedings against spouses Alfred and Maria Galea.
They requested the court to declare that they were exclusively and absolutely the owners of a field located at the back of their property; to declare that Alfred and Maria Galea occupied a substantial part of this field in an abusive and illegal manner, thereby violating their rights; and to order them to immediately return the field, to vacate it and to remove therefrom every form of illegal construction.
Alfred and Maria Galea in reply contested the legal action against them, which they said was unfounded. They denied occupying claimants’ property and constructing anything on their property.
On February 2, 2009, the Court of First Instance dismissed claimants’ requests. It was not satisfied that claimants had established their title of ownership of the field.
The court noted that for claimants’ action – which was typically known as actio rei vendicatoria – to succeed they had to prove beyond any doubt their title of ownership of the field which was now occupied by the Galeas.
Claimants bore the burden of proof. They had to establish their case conclusively and concretely.
The fact that they had acquired tenements 35-37 in Belview Alley, Sliema, was not sufficient to show that they were also the absolute owners of the field, which was situated at the back of their own and Alfred Galea’s property. As a defendant in these proceedings Mr Galea was not obliged to prove anything.
It resulted that Mr Galea had gained access to this field from his property by opening a door in the boundary wall and constructing a staircase.
He made no claims to be the owner of the field, and admitted occupying this field, which he alleged did not belong to claimants.
The court said that claimants’ title of ownership had to be proven. Reference was made to case-law. A. Fenech et vs F. Debono et 14/05/1935 (Vol. XXXIX 11-488 the defendant had the right to request plaintiff to prove his title.
Laurent writes: ‘‘E’ dunque il suo diritto di proprieta’ che il rivendicante deve provare. Finche’ non fornisce questa prova, il convenuto non ha nulla a provare: egli puo’ serbare il silenzio, e vincera’ la lite per cio’ solo che il rivendicante non avra’ provato di essere proprietario.’’ (The claimant had to prove his title of ownership. If he failed to establish this, the defendant was not obliged to prove anything. He could remain silent and could win the case simply by the failure of the claimant to show that he was the owner).
It was possible to prove title by acquisitive prescription or by other means permissible by law. If defendant claimed to have title of ownership, the question arose which title should prevail. If both titles derived from the same person, the issue would not be difficult to resolve. The earlier title would prevail.
In the event that defendant’s possession pre-dated claimants’ title, claimants had to show that they had good title; re: M. Cassar vs S.A. Trevisan dated 04/12/1879 (Vol. VIII – 899).
The actio rei vendicatoria was not lost after 30 years, unless in this time defendant acquired rights of ownership. Any doubt went in favour of defendant in possession. Defendant need not prove that he had title over the property in dispute.
Defendant’s possession was protected until claimant established his title conclusively. If claimant’s title was not established, he could not expect defendant to deliver the property to him.
Even if the court was not satisfied with defendant’s title, it would still have to free defendant if claimant failed to prove his title beyond doubt. It was not enough to show that the property did not belong to defendant, maintained the court.
In A. Pace vs Rev. H. Abela dated 7/7/2004 it was held that where a person claimed to be owner by 30 years’ acquisitive prescription, possession for 30 years had to he unequivocal. He also had to possess animo domini as owner.
Aggrieved by the decision of the Court of First Instance, claimants entered an appeal, calling for its revocation. It was submitted that the decision of the Court of First Instance was null and in breach of article 218 of Chapter 12.
Article 218 provides that “The court shall in the judgment premise the reasons on which the decision of the court is based, and shall include a reference to the proceedings, the claims of the plaintiff and the pleas of defendant: provided that the Rule-Making Board appointed under article 29 may, by rules of court, derogate from the provisions of this article.”
Claimants further submitted that the first court had ignored the technical report and had made an incorrect appreciation of the facts and evidence.
On May 6, 2011, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the first court.
The Court of Appeal did not accept claimants’ first plea that the decision of the first court did not contain reasons for it. The first court had considered plaintiffs’ claims as well as the pleas of defence of Galea. It had cited case-law and later concluded that claimants had not proved their case. It had also noted that any doubt favoured defendant.
The Court of Appeal noted that the technical referee had also not been satisfied with the evidence proving claimants’ title to the field.
In this report the first court was correct to say that claimants had not produced satisfactory evidence of their title.
It did not result that claimants had acquired the field by virtue of the contract dated November 9, 1976. There was no indication that the field was annexed to their property.
For these reasons, the Court of Appeal concluded that the Court of First Instance had made a good appreciation of the facts and given a correct decision.
Dr Grech Orr is a partner at Ganado & Associates.