The Court of Appeal, composed of Chief Justice Silvio Camilleri, Justice Geoffrey Valenzia and Mr Justice Giannino Caruana Demajo, on September 30, 2011 in the case “Tarcisio and Josephine Grima vs Henry Frendo and his wife Margaret Frendo et” held, among other things, that a guaranteed (absolute) title was irrevocable and could only be challenged under Chapter 296 of the Laws of Malta.

In this case, Henry Frendo’s certificate of title was deemed to be valid and irrevocable and extinguished all possible claims as to the ownership of the property, in dispute, in terms of Article 22 of Chapter 296.

A valid certificate of title issued by the Land Registry had the effect of creating an irrevocable title over the property.- Karl Grech Orr

The court had to consider the legal effects of a certificate of absolute title No. 225503064 issued by the Registrar of Lands on November 11, 1993, in favour of Prof. Frendo relating to a yard, which was indicated as forming part of his property, Nos. 20 and 21, Main Street, Sannat, Gozo.

Tarcisio Grima had already filed proceedings for a correction of such certificate before the Registrar and the Court of Appeal No. 115/1998.

Article 22 of Chapter 296 provides that: “The registration of any person as proprietor of land with a guaranteed title shall confer on the person so registered an indefeasible title thereto, that is to say, a title not liable to be defeated except as provided in this Act, together with all rights, privileges and appurtenances belonging or appurtenant to the land, subject to the following rights and interests, that is to say:

(a) subject to the encumbrances and other interests, if any, appearing on the register; and

(b) unless the contrary is expressed on the register, subject to such overriding interests, if any, as affect the registered land; and

(c) with regard to land held on emphyteusis, subject to all implied and express covenants, obligations and liabilities incident to the registered land, but free from all other rights and interests whatsoever: Provided that if the Minister, in virtue of the provisions of article 16, directs that any or all of such rights or overriding interests shall be registered, the provisions of this article shall not apply with regard to those rights or interests which have to be registered but are not so registered.

On April 24, 1998, the Registrar of Lands gave his decision under Article 51 (3) (c ) of Chapter 296, declaring Prof. Frendo to be the owner of the yard, but owing to a possibility that that there was a servitude of passage over the yard, the certificate of title was corrected in order to reflect this issue. This servitude was added in accordance with Article 43 (3) and Article 51 (3) of Chapter 296. On August 8, 2003, the Court of Appeal confirmed the Registrar of Land’s decision.

The Court of Appeal rejected Mr Grima’s plea to stay proceedings until his “ownership” claim before the Courts of Magistrates Gozo was decided. The reason being that the merits of the other case were stated to be completely different. While this present case Grima attacked the “registration”; the lawsuit before the Gozo Courts of Magistrates was to vindicate his alleged title of ownership.

At issue was whether this certificate of absolute title issued by the Registrar of Lands and confirmed by the Court of Appeal on August 8, 2003 had the effect of extinguishing other causes of action which could challenge this title, in particular whether an action rei vindicatoria (legal proceedings to vindicate a person’s rights of ownership) was still be possible despite this certificate and the “irrevocability” of the title which it granted.

In 1998, Mr Grima filed separate legal proceedings against Prof. Frendo and his wife claiming per contract of partition of September 14, 1928, the disputed yard formed part of his house, No. 18 Main Street, Sannat and not part of Prof. Frendo’s, Nos. 20 and 21 of the same street. Mr Grima said that Prof. Frendo was in possession of this yard. Mr Grima asked the court:

• to declare that yard belonged to them exclusively subject to a right of passage to give Prof. Frendo access to the well

• to establish that it never formed part of Prof. Frendo’s property.

The argument put forward by Mr Grima was that the absolute certificate of title became conclusive and guaranteed only after the lapse of 10 years from the date of its issuance in accordance with Article 23 (2) of Chapter 296. Before the expiry of this 10-year period, this certificate could be challenged, contended Mr Grima, citing as a basis Article 23 of Chapter 296. He said that he was entitled to establish his title of ownership and if the court were to recognise his proprietary rights over the yard, this would have to be registered, affecting as a consequence the contents of Prof. Frendo’s certificate of title.

In reply Prof. Frendo contested Mr Grima’s legal action.

Plea of res judicata: it was stated that the merits of this dispute were already decided by the Registrar of Lands on April 24, 1998 under Article 51 of Chapter 296 of the Laws of Malta, as confirmed on appeal on May 8, 2003, No. 115/1998.

As regards the merits, Prof. Frendo submitted that he was the owner of the yard. Such claim was substantiated by his contract of acquisition dated April 4, 1996 and the certificate of title of which had been issued prior to his acquisition on November 11, 1993.

Prof. Frendo’s 1996 contract of acquisition stated that he acquired the property “with annexed yards, free and unencumbered, with all rights and appurtenances”.

The Court of Magistrates on April 1, 2003, dismissed Prof. Frendo’s res judicata plea, as the merits of these two cases were completely different and distinct.

Further on July 6, 2004 the court rejected Prof. Frendo’s claim that he was the owner of the yard and ordered that the case be continued.

Thereafter on August 13, 2008 the Court of Magistrates, Gozo concluded that the yard formed part of Mr Grima’s property, subject to a right of passage in favour of Prof. Frendo’s premises.

Aggrieved by this decision, Prof. Frendo entered an appeal from the two in parte decisions of April 1, 2003 and of July 6, 2004 and from the decision of August 13, 2008.

He also asked the court to revoke the court decree of October 14, 2005 whereby the court ordered a correction in the description of the property as expressed in Mr Grima’s writ.

1}On September 30, 2011 the Court of Appeal gave judgement, by accepting Prof. Frendo’s appeal and by revoking the Court of Magistrates Courts’ (Gozo) preliminary decisions of April 1, 2003, and July 6, 2004 as well as its decision of August 13, 2008.

The following reasons were given for the court’s decision.

Plea of res judicata: in the court’s opinion the main issue in this case, before the Registrar of Land, the Court of Appeal in case No. 115/1998 was effectively the same: whether in the light of the relative contracts and partition deed of September 14, 1928 the yard formed part of Mr Grima’s or Prof. Frendo’s property.

Certificate of title: The court noted that Prof. Frendo’s certificate of title was confirmed. A valid certificate of title issued by the Land Registry had the effect of creating an irrevocable title over the property.

In the circumstances, it was not possible to contest Prof. Frendo’s title of ownership to the yard as Mr Grima was claiming, in the light of Article 22, Chapter 296.

As Prof. Frendo’s certificate was issued before June 30, 1995, it had to be considered guaranteed per Article 38 (7) of Act 7 of 1995, which provides:

“Any absolute title or possessory title registered before the coming into force of this Act, shall be deemed to be a guaranteed title and a title which is not a guaranteed title respectively and any reference in any other law to registration with a possessory title and registration with an absolute title shall be construed as a reference to a registration with a title which is not a guaranteed title and registration with a guaranteed title, respectively.”

In addition, the court noted that even if the certificate had not been guaranteed, in view of the fact that Mr Grima had already taken action to challenge the certificate before the Registrar and the Court of Appeal, in terms of Article 23 of Chapter 296, and was unsuccessful, this certificate could not now be contested for the very same reasons, maintained the court.

Article 23(1) of Chapter 296 provides:

“(1) The registration of any person as proprietor of land with a title which is not a guaranteed title shall not affect or prejudice the enforcement of any right or interest adverse to or in derogation of the title of the first registered proprietor and subsisting or capable of arising at the time of the first registration of the land; but, save as aforesaid, shall have the same effect as registration with an absolute title.”

For these reasons, the court concluded that Prof. Frendo’s certificate of title was conclusive evidence and could not now be open to any further attack by Mr Grima for the very same reasons.

Dr Grech Orr is a partner at Ganado & Associates.