The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri on February 22, 2013, in the case ‘Mary Pace vs Abdulhakim Youssef Azzuz and Josephine Caruana Azzuz’ dismissed plaintiff’s action against spoliation, once the act of spoliation had not been clearly established to its satisfaction.

The facts in this case were as follows:

Acts which are merely facultative or of mere sufferance cannot found the acquisition of possession

Mary Pace, who was the tenant of 15/3 Sappers Street, Valletta, claimed that for over 50 years she had been in possession of a room under the staircase of her block of apartments with the consent of their landlord, Scicluna Estates. The room was on the ground floor in the same block of flats.

It was stated that in the first week of July 2010, Abdulhakim Azzuz and Josephine Caruana Azzuz had despoiled her possession of this room by removing the wooden boards enclosing it, clandestinely and with violence.

She said that they had also taken movable items from this enclosure and cleared it out. Despite her insistence, Azzuz had not restored the room to its original condition.

Faced with this situation, Pace proceeded by filing an action against spoliation, requesting the court to declare Adbulhakim and Josephine Azzuz or any of them to have committed an act of spoliation by taking control of the room.

The court was also asked to condemn them to reintegrate her possession of the room within a short time limit. If they failed to carry out the court’s order, she sought court authoris-ation to complete the reintegration herself.

The defendants contested that Pace had possession of this room. They said that they had only tried to clear the mess from under the staircase. They denied that there was any locked-up room under the stairs, and maintained that allegedly all flat co-owners shared common use of this area.

On January 9, 2012, the Court of First Instance accepted Pace’s requests and ordered the defendants to restore her possession within one month under the supervision of a court-nominated architect.

It considered that three elements had to concur for an actio spolii to succeed: possession, an act of spoliation which was done in a clandestine manner or against the wish of the applicant, and legal action within two months from the act of spoliation.

According to case law, the action against spoliation was a provision of public order, to prevent people from taking the law into their hands.

The law restricted the nature of the pleas to be brought against this action and limited the court’s consideration to possession and the alleged spoliation.

Any reintegration had to be ordered by the court, even if the possession was illegitimate and if the person who committed the act of spoliation was the owner; re: CA Vincenzina Cassar et vs Annetto Xuereb Montebello dated May 28, 1956.

In Delia vs Schembri (PA February 4, 1958), it was held that “the actio spolii served to protect any type of possession whatsoever which was taken violently or in a clandestine manner”. Any type of possession was protected. A person could not despoil another’s possession without the intervention of the court.

Pacifico Mazzoni writes that an act of violent spoliation is any arbitrary act against the wish of the dispossessed: “qualunque atto arbitrario che per forze private si compia contro la volontarietà dello spogliato.”

In Margherita Fenech vs Pawla Zammit dated April 12, 1958, the court said that the actio spolii was based more on social reasons than on principles of absolute justice. The Court of First Instance felt Pace’s version to be more credible, and concluded by accepting her requests.

Aggrieved by the decision of the first court, the defendants entered an appeal, calling for its revocation.

Azzuz submitted that Pace was not in possession as required by law. There was no record that the landlord had given Pace the keys to this room. They maintained that Pace and her husband used the area on tolerance and were never in possession to be in a position to file the legal action of actio spolii. Article 526 Civil Code provides: “Acts which are merely facultative or of mere sufferance cannot found the acquisition of possession.”

They said that the area under the stairs of the block of apartments was not enclosed.

On February 22, 2013, the Court of Appeal gave judgment by revoking the decision of the first court and accepting the appeal.

Giving the reasons for its decision, the court noted that the person who had control over something was presumed to be the person having possession, and a person who contested such possession bore the burden of proof that possession was based only on tolerance.

Tolerance could not be presumed. It had to be proven, at least on a prima facie basis: Vol. XXXVI – PI – p292 – the person who had the burden of proof was the person claiming tolerance.

As Azzuz had only raised tolerance at the appeal stage, this issue had not been considered by the Court of First Instance. In this respect the Court of Appeal said that it could not now consider this issue.

It noted that the first court had concluded that the room had been enclosed and ordered the defendants to restore the room to its original condition. As a rule the Court of Appeal refrained from disturbing the discretion exercised by the first court, save in order to correct a manifest injustice. In this case, the Court of Appeal, in the light of the evidence, was of the opinion that there existed serious reasons for this court to arrive at a different conclusion from the Court of First Instance.

The court was not satisfied from the evidence that at the time when the defendants went to live in the block of apartments, the room was still enclosed. Nor was it proven that the defendants had removed the wooden boards. The court said that the defendants did not admit removing the wooden boards. They in fact denied there were any wooden boards.

Dr Karl Grech Orr is a partner at Ganado Adovates.