Imagine waking up one morning to find that someone has taken over an item you so dearly possess without you having ever given him permission to do so. What legal civil action lies at your disposal and what can you do to regain possession of said item? Among the various possessory actions available, you may wish to resort to that known among lawyers as the actio spolii. 

This is exactly what the plaintiffs in the case of Paul Portelli et v Emanuel Said (decided by the Court of Magistrates [Gozo] [Superior Jurisdiction] on  February 5) did.

Prior to delving into the merits of the case, it is worth noting that the actio spolii can be resorted to by anyone who has been dispossessed of an item or by anyone who has had an item, previously in his possession, detained by another. Through this action possession is reinstated to the possessor, that is the plaintiff. As it became clear to the plaintiffs in this case however, for the actio spolii to subsist three important elements have to be present.    

In their court application, the plaintiffs alleged that sometime after October 16, 2017, while in possession of a plot of land in Nadur, the defendant accessed the land without their permission and proceeded to plough it. The plaintiffs were not pleased with the defendant’s action and thus decided to institute judicial proceedings against him. Relying on article 535 of Chapter 16 of the Laws of Malta, the plaintiffs requested the court to declare that the defendant had carried out an act of spoliation against them and to subsequently order him to reinstate to them the plot of land. 

The plaintiffs also argued that they had been in possession of the land in question since 2015, first under a title of sub-lease from the defendant, and after 2017, under a title of lease from its original owner. 

The defendant rejected these claims. He pleaded that the elements required for the actio spolii to subsist did not exist. Moreover, he argued that the land in question had been in his family’s possession for a number of years, except for one particular year (2015), where he had allowed the plaintiffs to make use of the land. That said, he contended that in October 2017 the land was already in his possession. 

In its legal considerations the court, while making ample reference to consistent jurisprudence on the matter, highlighted the three crucial elements that need to be present for the actio spolii to be successful.

Through the actio spolii a person who has been molested in his possession of an item may be reinstated in that possession

Through the actio spolii a person who has been molested in his possession of an item may be reinstated in that possession. It follows, therefore, that for this action to be successful one must prove that he was truly in possession of the item before the act of spoliation or detention took place. This regardless of whether the act of spoliation or detention is carried out by the actual owner of the item or not. Therefore, one may argue that the availability of the actio spolii discourages the man or woman in the street from taking the law into their own hands. 

The law also limits the pleas one can bring forward to such an action. One cannot resort to arguing that he had some form of right to carry out the act of spoliation or detention by virtue of the title he has over the disputed item. 

In this case both parties had possessed the land in question during different periods of time. After being made privy to a legal letter sent by the plaintiffs to the defendant informing him of their intention to vacate the plot of land by August 2017, the Court concluded that the allegation made by the plaintiffs that in October 2017 they were in possession of the plot of land was dubious at best.   

No actio spolii can be successful unless and until the plaintiffs manage to prove that the act of spoliation or detention carried out by the defendant was so carried with violence, that is, against the will of the possessor, or clandestinely, that is in a manner which is hidden from the possessor. The presence of violence or clandestineness is imperative as it shows the defendant’s intention to deprive the possessor from actually possessing the item. 

In this case, and after examining all the evidence produced in front of it, particularly the legal letter sent by the plaintiffs to the defendant, the Court concluded that in no way could it be said that the defendant’s actions amounted to an actof spoliation or detention by violence or clandestinity.  

The law provides that the actio spolii must be instituted within two months from the date of spoliation or detention of the item in question. This time period cannot be renewed or extended in any manner and thus is peremptory in nature. 

It is also interesting that in such an action, it is the plaintiff’s responsibility to prove that the case was initiated within the two-month time period and this regardless of whether the defendant pleads it as a defence or not. Given that this time period is provided by the law itself, the adjudicator faced with deciding such a spoliation claim must ascertain that this element has been satisfied by the plaintiff. Should it result that this important element is missing, the court cannot but reject the plaintiff’s claim. 

In the case being examined, the court, after once again referring to the legal letter sent by the plaintiffs to the defendant and to the remainder of the evidence submitted, concluded that the defendant had acceded to the land well before October 2017 thus any alleged act of spoliation must have occurred before this date. Given that the case was instituted in November 2017, the court decided that the plaintiffs’ action was thus time-barred.

The court, bearing in mind that none of the three required elements subsisted, accepted the defendant’s pleas and rejected the plaintiffs’ claim in its totality.

Laura Calleja is Junior Associate at Azzopardi, Borg and Abela Advocates.

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