The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on July 18, 2014, in the case ‘Anthony Borg and Josephine Borg v Bernadette Gatt’ held, among other things, that if the opening of a window was in accordance with a Mepa permit, this could still amount to an act of spoliation.
Anthony and Josephine Borg filed legal proceedings to reintegrate their possession after claiming to be despoiled by Bernardette Gatt.
Gatt opened a window overlooking their yard. It was argued such act constituted an act of spoliation, which was violent, clandestine and recent in terms of article 535 of the Civil Code.
The Borg couple were the owners of Flat 1, 31 Kristy Court, Borg Olivier Street, St Julian’s, as results from a contract of acquisition dated August 1, 1993, in the acts of notary Marco Farrugia.
Article 535 of the Civil Code provides:
“(1) Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a moveable or an immoveable thing, he may, within two months from the spoliation, bring an action against the author thereof, demanding that he be reinstated in his possession or retention, as provided in article 791 of the Code of Organisation and Civil Procedure.
“(2) Such reinstatement shall be ordered by the court even though the defendant be the owner of the thing of which the plaintiff has been despoiled.”
In their judicial letter dated April 15, 2011, the couple requested Gatt to restore the property to its original condition, but she failed to do anything.
Faced with this situation, they proceeded to file legal proceedings, requesting the court:
• To declare that Gatt committed a violent, recent and clandestine act of spoliation in terms of article 535 of the Civil Code, when she opened a window overlooking their yard in the dividing wall, without their knowledge;
• To order her within a short time limit to remove the spoliation and reintegrate their possession of the yard;
• To declare that the installation of the air condition units in the airspace over the yard of 31/1 Kristy Court, Borg Olivier Street, St Julian’s was also a violent act of spoliation; and
• to order the removal of the spoliation within a short time to be fixed by the court.
In reply, Gatt pleaded that the Borg couple’s claims were unfounded. She said that she had a right to open the window as the couple’s alleged possession was illegal and abusive. The property was constructed without a permit. It was not possible, she argued, to base a legal action on an illegality.
The two were still in possession of the yard, she said, and did not suffer any loss of possession and there were other windows overlooking this yard. During the proceedings, Gatt installed an air conditioner.
Three elements had to be proven in an actio spolii:
1) possession;
2) the act of spoliation;
3) legal action by claimants within two months from when the act of spoliation occurred.
Reference was made to case law.
In ‘Vincenzo Cassar et v Annetto Xuereb Montebello’, dated May 28, 1956, it was held that the action against spoliation was of public order, solely and exclusively intended to present someone from taking the law into his hands.
Only dilatory pleas were admissible. The court’s consideration was restricted to the fact of possession and the act of spoliation. Possession could be of any nature. An act of spoliation could also be committed by the owner.
The Court of Appeal noted that Gatt based her appeal on the fact that Borg’s possession was unlawful. She did not dispute that the Borg couple had possession and only contended that their possession was illegal, abusive, and in bad faith
In case (Vol XXXIII-II-83) , Pacifici Mazzoni writes that a violent act of spoliation is “qualunque atto arbitrario che per forza privata si compia contro la voluntarieta’ dello spogliato”. (Vol III Sez. 52).
The fact that there was an enforcement notice was immaterial. The Court of Appeal held in ‘Maria Dolores Mifsud v Michele Galea’ on March 29, 1957, that it did not have to investigate the nature of possession or whether possession was legitimate. It could grant reintegration even if possession by claimant was in bad faith.
In ‘Delia v Schembri’ (PA) dated February 4, 1958, it was held that the action against spoliation was to protect any type of spoliation.
Anthony Borg, on the other side, said that the decision of the First Hall of the Civil Court was fair and should be confirmed, in particular as all elements in an action spolii had been proven.
The Court of Appeal maintained that what had to be proven in an actio spolii was possession of any type, even if unjust, precarious and temporary.
Anthony Borg told the court that even if they did not have a Mepa permit, Gatt was still not entitled to open a window overlooking their yard without their consent and in a clandestine and violent manner. Besides, as works were carried out before 2013, Borg said that he could request Mepa to sanction the development.
Reference was made to case law. It was sufficient for a person who filed an actio spolii to show he had possession of whatsoever kind.
This action was of public order to prevent a person from taking the law into his hands. Only dilatory pleas were admissible.
The Court of Appeal noted that Gatt based her appeal on the fact that the couple’s possession was unlawful. She did not dispute that the Borg couple had possession and only contended that their possession was illegal, abusive and in bad faith. She also put forward the argument that by opening the window she was following instructions from Mepa.
The Court of Appeal reiterated that possession need not be legitimate and could be abusive; provided the claimant was the victim of the act of spoliation: re: ‘Paul Demarco v Francesco Fiteni’ (PA), dated June 6, 1957; and ‘Alfred Fenech v Michaelangelo Fenech’ (PA), dated October 3, 2003.
Gatt submitted that the element of spoliation fuisse was lacking, as she opened the window in accordance with a permit issued by Mepa.
The court, however, pointed out that even if the opening of the window was in accordance with a Mepa permit, this could still amount to an act of spoliation re: ‘Annunziato Parnis et v Emanuel Pisani’ (CA) March 28, 2014.
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 Hall of the Civil Court.
Dr Karl Grech Orr is a partner at Ganado Advocates.