The First Hall of the Civil Court, presided over by Madame Justice Lorraine Schembri Orland, on February 28, 2013, in the case ‘David and Josephine Mifsud vs Peter Axisa and Sandra Axisa’ held, among other things, that a prestanome was obliged to transfer the property to his principal.
The facts in this case were as follows:
It was contended that the mandator had a personal action against the mandatory to recover the property insofar as the property remained in the control of the mandatory
In the course of an extra-marital relationship, David Mifsud purchased two motorbikes in the name of his partner, Sandra Axisa. Eventually, after their relationship came to an end, he wished that the motorbikes be transferred to him.
Ms Axisa, however, to avoid having to deal directly with her estranged partner, registered the bikes in her father’s name, Peter Axisa.
They refused to comply with Mr Mifsud’s request and when asked to transfer the bikes back to him, they insisted on the settlement of certain outstanding debts incurred on his behalf, certain telephone bills and for the return of a number of items.
Faced with this situation Mr Mifsud and his wife Josephine proceeded to file legal proceedings against the father and daughter. It was stated that Ms Axisa acted exclusively as the prestanome of Mr Mifsud.
The Mifsud couple requested the court:
• To declare that Ms Axisa acted solely as the prestanome of Mr Mifsud and that the two motorcycles which were registered in her name, belonged to him and;
• To condemn Mr Axisa to transfer the two bikes back to him within a short time limit.
Peter and Sandra Axisa, in reply, contested the legal action against them. They contested the jurisdiction of the court’s rationae valoris, as the value of the motorbikes were below €5,000.
Mr Axisa claimed that he should be freed from the proceedings. As regards the merits, they said that Mr Mifsud’s claims were unfounded, as they arose out of an illicit cause, an extramarital relationship. Allegedly the bikes were registered in Ms Axisa’s name to elude Mr Mifsud’s wife out of her share of the community of acquests in respect of the motorbikes. It was also stated that the bikes were purchased jointly, during their long relationship.
The court considered that after Mr Mifsud separated de facto from his wife, he started a relationship with Ms Axisa, with whom he had two children. Their relationship came to an end in 2002. In this period, they bought two motorbikes, a Piaggio Typhoon and a Suzuki. Both motorbikes were registered in Ms Axisa’s name and after their relationship ended, Ms Axisa transferred the bikes to her father. Mr Mifsud admitted that the bikes were registered in Ms Axisa’s name to avoid any possible claims by his wife.
Mr Mifsud drove the bikes. He had a licence to drive them. He paid for their upgrade and the spare parts. The bikes remained in his possession even after their relationship ended.
Mr Mifsud used two accounts in Ms Axisa’s name, to deposit his salary and to pay for the bikes. He produced several receipts, Lm1,470 (€3,424) for one bike and another receipt of Lm4,685 (€10,913) for the other bike.
It was stated that Ms Axisa paid Lm700 (€1,630.56) for one bike. Mr Mifsud paid the balance after their relationship ended. The court noted, however, that Ms Axisa did not request payment of her share in the bikes, which would have been expected, had she had paid for one half of the bikes. Nor did it result that she had contributed to the upgrading of the bikes and or for the spare parts.
On February 28, 2013, the First Hall of the Civil Court gave judgment by accepting Mr Mifsud’s request. It declared that Ms Axisa acted exclusively as prestanome of Mr Mifsud, when she registered the bikes belonging to Mr Mifsud in her name. It condemned Mr Axisa to transfer the bikes by March 20, 2013, back to Mr Mifsud. If Mr Axisa failed to appear, a curator was appointed.
The following reasons were given for the court’s decision:
• Competence of the court: the court affirmed its competence, as the claims formulated, came within the competence of the court re: Joseph Vella v J. Lautier (CA) dated December 3, 2004.
• Defendant Mr Axisa was a legitimate defendant in the proceedings and he should not be freed from the proceedings. Since the bikes were registered in his name, any action to transfer the bikes had to involve him.
• In the light of developments, the court noted a shift in values and morality. Our law now recognised rights arising between unmarried couples. Extramarital relations were also included for the purpose of social aid.
The court drew a distinction between gifts given in exchange of intimate pleasures from those acts which were not so motivated. Reference was made to Antonio Schembri v Ineż Wicker (PA) dated June 22, 1960. In Anthony J. Bajada v Pauline Lamb (PA) dated March 29, 1955, the court held that it was not important whether the loan was granted at a time when an unmarried couple were living together, but whether the money was given for reasons of their concubinage.
If the loan was business-related, even if it was granted, when they were living together, the loan would be valid. It was not proven in this case that the bikes were given as gifts to Ms Axisa, and it appeared that she only acted as prestanome to acquire the bikes.
In this respect the court dismissed the plea of illicit causa.
It was not acceptable for Mr and Ms Axisa to take advantage of the fact that Mr Mifsud had asked her to act as prestanome to prevent his wife from making any claims, in particular when Mr Mifsud’s wife was a party in these proceedings.
The court maintained that although the agreement of prestanome did not require any particular form, in this case, it was clear there existed an agreement between Mr Mifsud as mandator and Ms Axisa as mandatory.
The prestanome had to vest directly and immediately the property in the name of the mandator: Norman Bezzina v Anthony Caruana (PA) (RCP) dated March 28, 2003.
The agreement of prestanome was binding between the mandator and the mandatory. The court had to consider the intentions of the mandatory when acquiring in his name.
Some authors expressed diverging opinions. It was contended that the mandator had a personal action against the mandatory to recover the property insofar as the property remained in the control of the mandatory.
Dr Karl Grech Orr is a partner at Ganado Adovates.