The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo, and Mr Justice Noel Cuschieri, in the case ‘Anthony Borg and Josephine Borg v Bernadette Gatt’ on July 18, 2014, held, among other things, that an act could still amount to an act of spoliation, even if it was committed following conditions imposed by Mepa.
The facts in this case were as follows.
On April 12, 2011, Anthony Borg and Josephine Borg filed a spoliatory action against Bernadette Gatt, after she opened a window overlooking a yard, which was in their possession. Gatt was the owner of 31/3 Kristy Court G. Borg Olivier Street, St Julian’s.
Borg claimed this was an act of spoliation which was committed abusively, clandestinely and with violence (article 535 of the Civil Code).
He requested his possession to be reintegrated and for the window to be closed. Gatt remained inactive.
Faced with this situation, Anthony and Josephine Borg proceeded to file legal proceedings asking the court:
(1) to declare that Gatt committed a violent and clandestine act of spoliation in terms of article 535 of the Civil Code when she opened a window in the dividing wall, overlooking the yard;
(2) to order Gatt within a short time limit to remove the act of spoliation and to restore Borg’s possession, to its original condition prior to the act of spoliation;
(3) to declare that Gatt committed a further violent act of spoliation, when she installed an air conditioner unit in the airspace of the yard;
(4) to order her to remove it and to re-integrate their possession and in case she failed to take necessary action, to appoint an architect to carry out the work.
In reply, Gatt contested the legal proceedings. She insisted that she was entitled to open the window according to conditions imposed by Mepa and that Borg’s possession of the yard was illegal and abusive: in the sense that Borg’s development was allegedly not sanctioned by a Mepa permit.
She claimed that Borg could not base his right of action on an illegality. In addition, there were other windows over the yard.
On October 23, 2013, the First Hall of the Civil Court decided in favour of Borg, dismissing Gatt’s defence. It gave a period of one month for the restoration of the property back to its original condition. It considered that three elements had to be proven in an action against spoliation:
(1) the fact of possession;
(2) the act of spoliation which could be committed clandestinely or against the wishes of the person who had been despoiled; and that;
(3) the legal action had to be made within two months from the act of spoliation.
The court said that dilatory pleas and pleas relating to the title of the property were not to be considered in an action against spoliation.
In ‘V. Cassar et v A. Xuereb Montebello’ dated May 28, 1956, the Court of Appeal held that the action against spoliation was di ordine pubblico to prevent someone from taking the law into his hands, instead of seeking judicial intervention.
Our law prohibited dilatory pleas and the court’s consideration was limited to the alleged act of spoliation. It noted that reintegration of possession was ordered even in cases where a claimant had no valid title and even when the person who committed the act of spoliation was the true owner of the premises.
The fact that Borg’s possession was not legitimate was immaterial for purposes of these proceedings.
In ‘Maria Dolores Mifsud v Michele Galea’ dated March 29, 1957, the Court of Appeal held that it did not have to consider the nature of possession. The action against spoliation could be exercised even against the owner, if the owner himself committed the act of spoliation.
The law did not require proof that an applicant’s possession was legitimate and awarded reintegration even if the applicant was in bad faith. The court only had to consider the fact of possession and the fact of spoliation (Vol. XXXIV-I-71).
The legal action against spoliation was based on social utility on the principles of justice, to protect any possession. A person was prohibited from taking the law into his own hands. Its purpose was to restore the possession of the person who had been despoiled: Margherita Fenech v Paula Zammit dated April 12, 1958.
Our law was different from French and Italian law: ‘Cardona v Tabone (CA)’ dated March 9, 1992.
It was possible to file an action against spoliation if a person opened a window or other aperture over another’s property: ‘Carmelo Rosario Dimech v Antonio Fenech’ dated January 26, 1957 (PA).
It resulted that Borg had taken legal action within the two-month time limit imposed by law.
The court had always to consider this requirement: ‘Trevor Arends v Veronique Mizzi (CA)’ dated January 11, 2013.
Even if the yard was not sanctioned by a permit, this did not permit Gatt to open a window over the yard. Borg maintained that the yard was built according to Mepa permits and that Gatt opened the window without authorisation and without their consent
Aggrieved by the decision of the first court, Gatt entered an appeal, calling for its revocation. She reiterated the defence plea that Borg could not claim to have been molested in his possession as his possession was illegal and abusive. It was stated that Borg acted in bad faith.
Borg on the other side argued that the decision of the first court was fair and should be confirmed. All elements necessary in an action against spoliation existed.
He claimed that the window was opened abusively and illegally. What had to be proven in an action against spoliation was possession of the applicant, possession of any type, even arising from unjust cause, whether precarious or temporary.
Even if the yard was not sanctioned by a permit, this did not permit Gatt to open a window over the yard. Borg maintained that the yard was built according to Mepa permits and that Gatt opened the window, without authorisation and without their consent. Reference was made to several decisions where it was stated that possession could be of any type; that the action against spoliation was of public order and that dilatory pleas were not acceptable in an action against spoliation.
The court said that there was no dispute that Borg was in possession of the yard.
According to case law, possession could be illegitimate and abusive. Any person who had possession of whatsoever nature could file the action against spoliation: (A. Fenech v M. Fenech) provided the claimant was despoiled of possession.
The court did not agree with Gatt. All a claimant had to prove was his possession and the act of spoliation, re:’Capitano Robert Mizzi noe v Francesco Sant (CA)’.
The fact that Gatt alleged to have carried out works to open the window over the yard according to conditions imposed by Mepa, was no defence, in this case.
It did not exclude that such act was an act of spoliation. In ‘A. Parnis et v E. Pisani (CA)’ dated March 28, 2014, it was held that a person could still commit an unlawful act of spoliation by following Mepa conditions.
For these reasons, on July 18, 2014, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the first court.
Dr Karl Grech Orr is a partner at Ganado Advocates.