The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, in the case ‘Economicard Worldwide Ltd v Anthony Azzopardi and his wife Marlene Azzopardi’, on June 26, 2015, held, among other things, that the opening of a door and windows overlooking the yard in question did not affect the company’s possession. The court did not find that the company had co-possession of the yard but only had possession of a servitude over the yard.

Economicard Worldwide Ltd was the owner of No. 88/90, Toni Bajada Street, St Paul’s Bay, which consisted of a shop and three studio flats. Anthony and Marlene Azzopardi were the owners of an adjacent property which was demolished and where a new building was constructed.

Before Azzopardi’s property was developed, there was a yard over which the company had a window and enjoyed a servitude. Defendants Azzopardi roofed this yard and reduced the natural light of the company.

For there to be spoliation, an act had to disturb possession or impede its free peaceful exercise

On August 5, 2011, the company filed a case to protect its possession from the alleged act of spoliation against Azzopardi within the two-month time period. They said that Azzopardi abusively and clandestinely carried out works which disturbed their possession.

They said that Azzopardi opened doors and six windows overlooking this yard and as a result, the company had less light and air. Economicard Worldwide Ltd maintained that Azzopardi committed an act of spoliation since it was ‘de-possessed’ from the total enjoyment of their servitude.

Faced with this situation, the company asked the court:

• To declare that Azzopardi committed a violent and clandestine act of spoliation within the last two months; and

• To condemn them within a short time limit to restore the yard to its original condition and to reintegrate their rights. In case Azzopardi failed to do anything, the company requested authorisation to carry out the necessary works at Azzopardi’s expense.

Azzopardi, in reply, denied committing an act of spoliation. In defence it was submitted that the company’s rights were still intact and that it was not despoiled as their rights of possession were not disturbed.

The court considered that three elements had to be proven: possession; that the act was done clandestinely and against the wish of the claimant; and that legal action was taken within two months from the act of spoliation.

In ‘Vincenzina Cassar et v Annetto Xuereb Montebello’ dated May 28, 1956, the Court of Appeal held that the action against spoliation was “di ordine publico” (of public order) to prevent a person from taking the law into his hands without court intervention. Reintegration could be ordered for any type of possession and even if the person who committed the act of spoliation was the owner.

The legal action was to protect any type of possession which was violently or clandestinely taken from the possessor: ‘Delia v Schembri’ dated February, 4, 1958; ‘Margherita Fenech v Paola Zammit’ dated April 12, 1958.

The action against spoliation could be taken against a co-possessor: ‘Alfred PIsani noe v Victor Farrugia (PA)’’ dated January 21, 1974.

The lawsuit of the company was filed within two months from when the apertures of Azzopardi were opened, that is January 19, 2012.

On October 29, 2014, the First Hall of the Civil Court decided the case in favour of the company and dismissed the defence pleas of Azzopardi.

Aggrieved by the decision of the first court, Azzopardi entered an appeal calling for its revocation. He maintained that the court should consider their title in order to determine whether there was spoliation. The fact that they opened doors and windows did not disturb the company’s possession and in this respect there was no spoliation, they said.

It was necessary to prove that the act was done with violence or in a clandestine manner. For there to be spoliation, an act had to disturb possession or impede its free peaceful exercise. Azzopardi pleaded that he did not dispossess the company.

The company rebutted in reply that it only had to prove possession. It did not need to show that it had title, nor did it need to suffer a complete loss of possession. It was sufficient to show a diminution of a person’s possession or a disturbance of rights or prejudice: re: ‘Major Peter Manduca v Raymond Aquilina’.

It was enough to prove that the act was against their will or without their knowledge: ‘Beta Brushware Ltd v MDC (LA)’ dated November 4, 2005.

The court observed that this lawsuit was filed after Azzopardi opened a door and six windows in the yard and by this act the company claimed that it had suffered a loss of possession and prevented from enjoying their servitude.

The First Hall of the Civil Court found that Azzopardi had indeed committed an act of spoliation and ordered him to close the door and windows which he had opened. It also ordered him to restore the yard to its original condition.

The court explained that if claimant did not suffer any act of spoliation, his action could not succeed. If his possession was left intact, there was no spoliation and he could not request that his possession be reintegrated.

If it resulted that the company suffered spoliation from the works carried out by Azzopardi, it had to prove same.

The court was of the opinion that the opening of a door and windows overlooking the yard did not affect the company’s possession. It did not find that the company had co-possession of the yard but only had possession of a servitude over the yard.

For these reasons, on June 26, 2015, the Court of Appeal accepted the appeal and revoked the decision of the First Hall of the Civil Court dated October 29, 2014.

The court concluded that the opening of additional windows by Azzopardi did not disturb the company’s possession.

Karl Grech Orr is a partner at Ganado Advocates.