The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on December 15, 2015, in the case ‘Angelo Borg, Rose Borg and Christopher Borg v Noel Xuereb’, held, among other things, that a request for the court to apply article 571 of the Civil Code had to be done formally either at the stage of the sworn reply or by way of counterclaim. It could not be simply included in a note of observations en passant or raised the first time at the time of appeal.
Angelo, Rose and Christopher Borg filed an action of res vendicatoria against Noel Xuereb, who they said, incorporated a small area of land measuring 32.14 square metres with his property. They requested Xuereb to return this land to them by their judicial letter dated May 9, 2005.
It resulted that Xuereb excavated a reservoir in this space and passed his drainpipes and other pipes from his house over this space.
Faced with this situation, claimants proceeded to file legal proceedings against Xuereb, asking the court:
to declare this small area of land of 32.14 square metres in Ta’ Giorni Street, corner with Clair E. Engel Street, St Julian’s, San Ġwann, belonged to them and was annexed unlawfully;
to condemn Xuereb to seal all openings, to remove all pipes and drainpipes over this area, and this within a short and peremptory time limit, to be determined by this court.
They requested authorisation to carry out all works, in case Xuereb failed to comply.
Xuereb, in reply, contested this legal action against him. He claimed to have title of ownership over this area and in addition his title was derived, he said, by way of 10-year acquisitive prescription.
Even if he did not know, had the defendant acted as a bonus pater familias, the court said, he should have known that the land did not belong to him
He said that he acquired his property by virtue of the contract dated March 3, 2000, in the acts of notary Charles Mangion from Peter Agius, who had purchased the property in 1996.
The First Hall of the Civil Court considered that in an ‘actio rei vendicatoria’, a person had to prove his title; that he acquired the title legitimately and that the defendant was in possession of his property. Proof had to be conclusive and convincing.
The defendant did not need to prove anything until the claimant proved his title: re: ‘Abela v Gauci (CA)’ dated December 1, 1877 (Vol. VII – 367).
Proof can be shown by exhibiting the contract of acquisition or by way of acquisitive prescription or such other means permissible by law: ‘Paul Chircop et v Rita Micallef et (CA)’ dated April 28, 2000.
If the defendant also claimed title, the court had to consider which title prevailed. Any doubt, benefitted the defendant in possession.
If a claimant did not prove his title, the court should dismiss the case: re: ‘Giuseppe Buhagiar v Giuseppi Borg et (CA)’ dated November 17, 1958.
The court said that a person who pleaded rei vendicatoria had to prove his title. It was not enough to show that the property did not belong to him: ‘Rev. Can. Giuseppe Cassar noe v Emmanuele Barbara et – Appell Civ. October 7, 1980.
On October 2011, the First Hall of the Civil Court dismissed Xuereb’s plea of 10-year acquisition prescription, as well as his other pleas, and accepted the requests of the Borg family.
The court felt that while claimants proved their title, Xuereb failed to show that he acquired the area in dispute. It was not established that his predecessor in title had title over this area. The first court held that Xuereb had no right to incorporate this space with his property as well as to carry out works and to pass his pipes over this area.
Aggrieved by the decision of The First Court, Xuereb entered an appeal, asking the court to apply article 571 of the Civil Code which provides:
“Where in the construction of any building a portion of a contiguous tenement has been occupied in good faith and the construction has been made with the knowledge of the neighbour and without any opposition on his part, the ground so occupied and the building constructed thereon may be declared to be the property of the person who made the construction, subject to his obligation to pay to the owner of the ground the value of the surface occupied, and to make good any damage which may have been caused.”
The claimants opposed Xuereb’s appeal. They maintained that he could not invoke the application of article 571 of the Civil Code at this stage; as the court was bound by the parameters of the applicants’ claims and pleas of defence.
The court noted that the application of article 571 of the Civil Code could not be made by the court ex officio. Xuereb first claimed to have title and or to have acquired the property by 10-year acquisition prescription. A request for the court to apply article 571 of the Civil Code had to be done formally either at the stage of the sworn reply or by way of counterclaim. It could not be simply included in a note of observations en passant.
Every party in legal proceedings had a right to know exactly the parameters of the legal action and the terms of reply.
The note of observations/submissions could not be used to add further pleas of defence.
The court was of the opinion that Xuereb had not invoked the application of article 571 of the Civil Code in his statement of defence and that the note of observations was not the proper place to raise this plea. It said that this plea should have been raised in a sworn application or in his statement of defence.
In addition, the court added that it could not apply article 571 of the Civil Code as the necessary elements under article 571 had not been satisfied in this case. Therequisites to apply article 571 of the Civil Code were:
1. The works had to consist in the construction of a building;
2. The area in dispute had to be occupied when the building was constructed;
3. The occupation had to be in good faith;
4. The owner of the occupied land had to be aware of the construction and remained inactive.
In this case Xuereb was not in good faith. In order to apply article 571 of the Civil Code, it was necessary that the occupation of the land was in good faith. The criteria of good faith was both subjective and objective. A person was in bad faith not just if he knew but also if he should have known, had he acted with the diligence of a bonus pater familias.If a possessor had doubts, he would not be in good faith.
The issue of bad faith had to be considered with reference to the time of occupation and if Xuereb knew that this land did not belong to him, he was not in good faith.
The court considered that:
Xuereb failed to produce a copy of his contract whereby he allegedly acquired the property from his predecessor, which clearly did not include this land.
It did not appear in his application for a development permit that he included this area.
The court declared that Xuereb was not in good faith. Even if he did not know, had he acted as a bonus pater familias, the court said, he should have known that the land did not belong to him. Besides, even if all elements existed, it was still in the discretion of the court to apply the principle of accession and this court did not feel it to be appropriate to apply these principles.
For these reasons, on December 15, 2015, the Court of Appeal dismissed Xuereb’s appeal as unfounded and confirmed the decision of the First Hall of the Civil Court, where it declared the land to be the property of claimants and that it was incorporated with Xuereb’s property illegally and abusively.
It ordered Xuereb to close all holes, pipes and drainpipes which came out of his property on to this land within three months. The claimants were authorised to carry out the works at the expense of Xuereb and for this purpose the court appointed architect Alan Saliba.
As Xuereb’s appeal was unfounded, the Court of Appeal condemned him to pay an additional €500 to the Registrar of Court in accordance with the COCP.
Dr Karl Grech Orr is a partner at Ganado Advocates.