The Court of Appeal composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri on December 5, 2014, in the case ‘Miriam Cremona and Joseph Manduca v Eucharist Bajada and his wife Diana and others’, held, among other things, that evidence of possession in good faith of a movable was sufficient proof of title.
Miriam Cremona filed legal proceedings requesting the court to: declare that an antique table in possession of Eucharist Bajada and his wife belonged to her; condemn them to return the table within a short time limit and to authorise her to take possession of the table.
Mr and Mrs Bajada in reply contested her claims and requested that Desmond Mizzi and the company Mizzi Antiques Ltd be called into the proceedings. They said that the claimant had to prove her title of ownership of the table. In their defence they argued that the table had been displayed in a public exhibition, advertised in Treasures of Malta and sold by auction. They also pleaded that the claimant’s legal action was time-barred in terms of article 2155(1) of the Civil Code and that they had acquired the table in good faith, by possession (article 558(1) Civil Code
The defendants in addition reserved the right to request indemnity from the claimant.
By decree of October 28, 2010, Desmond Mizzi and Mizzi Antiques Ltd were called into the suit. Mizzi and his company asked to be freed from the proceedings as the table was not in their possession.
It resulted that the antique table was in the defendant’s possession. Originally the table had been kept at Bay View Cottage in Marsascala, where the claimant’s cousin Louis Manduca had resided for a time unlawfully. Her aunt Frances Manduca had resided in this house until her death on March 13, 1993. After Louis Manduca was evicted from the premises, several items had been found missing, including the table in question.
In the legal letter dated January 17, 2003, Cremona listed the movable items that had been removed. The antique table was described as:
“(9) Antique mensola/rectangular salon centre table with a gilded walnut base and scrolled legs, joined by a cross-stretcher ending with an acorn-shaped finial, with top made of Maltese żonqor and inlaid with various precious marbles with a reserve central area showing a Maltese cross inlaid in an oval medallion.”
Louis Manduca had sold the table to Mizzi Antiques for Lm2,500, while Mizzi Antiques had sold the table to the defendant for Lm6,000.
The First Court found that the claimant had given satisfactory evidence that the table in question had been at her aunt’s home at Bay View Cottage, Marsascala.
There was no proof that Louis Manduca was the owner. The heirs of Frances Manduca were her sister and Miriam Cremona, who succeeded her mother. The First Court was of the opinion that Miriam Cremona had proved her title. It was not necessary for all heirs to be a party in the proceedings. Each heir had a right to take legal action to recover possession of movables which were missing or which had been stolen.
On prescription, reference was made to Prof. V. Caruana Galizia.
“Regard being had to its result, however, the said prescription is acquisitive, since the extinction of the owner’s right to recover his thing implies its acquisition by a third person.”
There was no proof that before December 3, 2006, the claimant was aware that the table was in Bajada’s possession. Prescription could only commence when Cremona could have exercised her legal action. Legal action against the defendants could not have been taken before she knew that the table was in their possession.
The First Court decided that Cremona was the owner of the table and that the table was in the possession of Bajada, who had acquired the table in good faith. It freed Desmond Mizzi from the proceedings.
Spouses Bajada as well as Mizzi Antiques Ltd entered an appeal.
The court made reference to Article 231(1) chapter 12 which provides:
“231. (1) Where several issues in an action have been determined by separate judgments, appeal from any such judgments may only be entered after the final judgment and within the prescribed time, to be reckoned from the date of such final judgment; and in such an appeal express mention of the judgment or judgments appealed from shall be made:
Prescription could only commence when plaintiff could have exercised her legal action
“Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within six days from such judgment, and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from the day on which the said leave is read out in open court.”
This was a provision of public order and the nullity of an appeal could be declared by the court ex officio, even if no pleas were made in this regard. As an appeal from a separate decision could only be lodged with the permission of the First Court, and as Mizzi Antiques had requested no such permission its appeal was not lawful, pointed out the court.
Bajada, on the other hand, maintained that it was not proven that Cremona was the owner of the table. Nor that it had belonged to the late Frances Manduca. Allegedly it had not been declared that it formed part of the estate of the late Frances Manduca. The fact that Cremona had made a declaration that the table had been in the possession of the late Frances Manduca, argued Bajada, was not sufficient proof of possession and title. He put forward the argument that the claimant had not produced the best proof to show her title over the table.
The Court of Appeal considered that plaintiff Miriam Cremona bore the burden of proof. The best proof had to be produced, but what constituted the best proof differed according to the circumstances. The court said that as the table in question was a 17th-century table, it was not reasonable for Cremona to have some form of documentary evidence to show the provenience of the table. As the First Court had rightly said, possession in good faith was good-enough proof of title.
Besides, the warrant of description executed on June 18, 1981, included the table, and in this respect there was proof that the table had been in possession of the late Frances Manduca.
There was no reason why the court should not believe the claimant, who said that she used to see the table in the house of Frances Manduca.
The Court of Appeal felt that there was good proof that the table had been in the possession of Frances Manduca, from whom Cremona derived her title, and there was nothing to rebut the presumption of good faith under Article 532 Civil Code:
“532. Good faith is presumed, and the party alleging bad faith is bound to prove it.”
The Court of Appeal agreed with the First Court that Miriam Cremona had produced good proof of her title under article 558 of the Civil Code. It was not required for Cremona to base her claims under article 558 of the Civil Code.
In any way she could not do so, as at the time of filing of the lawsuit she did not have possession; but this did not mean that she could not rely on this provision to prove her title. The Court of Appeal dismissed the claimant’s plea that no proof of title had been produced.
The court noted that at the time of death of Frances Manduca, there had been no obligation to declare the table under the Death and Donations Act, chapter 239 of the Laws of Malta.
For these reasons, on December 5, 2014, the Court of Appeal dismissed the claimant’s appeal. It declared the appeal of Mizzi Antiques to be invalid, without prejudicing its right to appeal, after the final decision under article 231(1) chapter 12.
The court ordered that the case be remitted to the First Court for continuation.
Dr Karl Grech Orr is apartner at Ganado Advocates.