The burden of proof in the ‘actio rei vindicatoria’: Recent clarifications by the Court of Appeal

In judgment 1/2023/2, Mifsud v Camilleri, the Court of Appeal (“COA”) revisited the essential elements of the actio rei vindicatoria.

The dispute concerned a parcel of land situated between an alley and a road, which originally formed part of a smaller field. Following a reconfiguration of the adjoining alley, the land became incorporated into a larger adjacent field. The property was described as being bounded to the east by a road leading towards the defendant’s field, and to the south and south-west by another access road.

The plaintiffs maintained that the defendant held no legal title to this land yet had nonetheless restricted their use thereof. The First Hall of the Civil Court (“FHCC”) found that the defendant lacked title to the property and consequently ordered his eviction from the disputed parcel of land.

The FHCC engaged directly with the defendant’s argument, observing that it was grounded in the views of the jurist F. Laurent on the burden of proof in actions of this nature. According to Laurent, a claimant relying on a derivative title is required to provide absolute, as opposed to merely relative, proof of ownership. In other words, it is not sufficient to demonstrate a better title than that of the defendant. Laurent strengthened this position by reference to Article 1315 of the Napoleonic Code, which did not contemplate any exception to the general rule on the burden of proof in the context of the actio rei vindicatoria.

The FHCC, however, rejected the applicability of this approach within the Maltese legal framework. It observed that Maltese law does not contain a provision equivalent to Article 1315 of the Napoleonic Code within Chapter 16. Instead, the Court characterised the issue as procedural rather than substantive, thereby bringing it within the scope of Article 562 of Chapter 12 of the Laws of Malta. This provision establishes the general principle that the burden of proving a fact, rests on the party alleging it.

Importantly, the FHCC emphasised that, unless the law expressly requires a higher degree of proof, the applicable standard remains that of the balance of probabilities, as is customary in civil proceedings. The FHCC held that there is no legal basis for imposing a heightened or absolute standard of proof in actio rei vindicatoria actions, let alone one approaching the notion of probatio diabolica, which finds no equivalent in any area of Maltese law, including criminal law.

Applying this reasoning, the FHCC further held that, where the defendant bases his defence on an alleged title to the property, the case becomes based on article 562 of the Chapter 12 of the laws of Malta, and he is likewise required to substantiate that claim.

During the first proceedings, the FHCC noted that the defendant asserted title over the property, and did not rely on possession as the basis of his defence. Consequently, he was required to prove the existence of such title. The Court therefore limited its analysis to determine which party had established the better title on the basis of the evidence, rather than whether the claimants had proven title to the onerous probatio diabolica standard.

The FHCC held that, in the absence of any evidence substantiating the defendant’s alleged title, the claimants’ title necessarily prevailed. The defendant appealed this decision, raising three grounds of appeal. Of particular relevance was the second ground, wherein it was argued that the FHCC had misapplied the legal principles governing the actio rei vindicatoria, especially with regards to the standard of proof required to establish title.

In its analysis, the COA noted that, in actions of rei vindicatio, the burden resting on the claimant is a significant one. The plaintiff is required to adduce the best possible evidence of the proprietary right asserted over the property in dispute. The Court further observed that such proof must be complete and conclusive.

The COA reiterated the consistent judicial approach whereby any doubt, however slight, ought to operate in favour of the defendant in possession. In this context, the Court acknowledged that this stringent burden has often been described in jurisprudence as amounting to probatio diabolica.

The COA further clarified that this stringent approach is not intended to unduly burden claimants or to favour those in possession of property without title. Rather, it is rooted in the presumption enshrined in Article 525 of the Civil Code, which provides that a person is presumed to possess in his own name and by virtue of a right of ownership, unless it is shown that possession commenced in the name of another.

This presumption is, however, rebuttable. It may be displaced by a claimant who brings forward sufficient evidence establishing a better title of ownership. In this regard, the COA referred to Article 559 of the Code of Organisation and Civil Procedure, which requires that, in all cases, the court shall demand the best evidence which a party is capable of producing.

Within the context of the actio rei vindicatoria, the COA emphasised that the “best evidence” of title cannot ordinarily consist solely in proof of a derivative title. The rationale for this is clear, a transferee cannot acquire ownership from a transferor who himself lacked title, such that a defective root of title cannot be cured by subsequent conveyances.

Drawing on established jurisprudence, the Court reiterated that, in actio rei vindicatoria actions, the claimant is generally required to establish title at its origin. It is therefore insufficient to rely merely on a derivative mode of acquisition without addressing the validity of the underlying title. This reinforces the traditionally onerous evidentiary burden associated with the action.

A central question addressed by the COA concerns the precise meaning of the requirement to prove “original title” in the context of the actio rei vindicatoria. The Court made it clear that this does not entail tracing title back indefinitely to its ultimate root. Rather, it requires the claimant to demonstrate that the property was validly transferred through a chain of title originating from a person who was legally entitled to dispose of it.

In practical terms, this requirement may be satisfied where the claimant establishes that the property has accrued in his favour, or in the title of his predecessors, by means of acquisitive prescription, whether under the ten- or thirty-year periods contemplated in Articles 2140 and 2143 of the Civil Code. In such cases, prescription operates as an original mode of acquisition, thereby curing any defects in prior title.

The COA further emphasised that this evidentiary burden subsists irrespective of the position taken by the defendant. Even where the defendant does not rely on title or raises a defence which does not directly challenge ownership, the claimant remains bound to establish that he has acquired the property by an original title. It is therefore not enough for the claimant to show that his title is preferable to that of the defendant.

Finally, the COA drew an important distinction between the actio rei vindicatoria and the actio publiciana. It rejected the view that the latter constitutes a simplified or “attenuated” version of the former, which a claimant may freely elect to invoke. Rather, the Court clarified that certain strands of Maltese jurisprudence have misconstrued the nature of the actio Publiciana, particularly in light of its origins in Roman law. The two actions are distinct in both nature and function and should not be treated as interchangeable.

It is against this background that the COA has consistently held that the requirement to prove original title may be relaxed only in limited and well-defined circumstances. This arises notably where either:

1. both parties claim to have acquired title from a common owner; or
2. the defendant recognises the plaintiff’s title but asserts that his own title is superior.

In such cases, it is sufficient for the claimant to rely on a derivative title, as the dispute no longer concerns the existence of ownership per se, but rather calls for a comparative examination of the parties’ respective titles. The court would then be required to determine which party has the superior title based on the evidence produced.

The COA, however, made it clear that neither of these instances was applicable in the present case. The parties did not claim title from a common predecessor, nor did the defendant acknowledge the plaintiffs’ title while asserting a superior right. On the contrary, the defendant fundamentally contested the plaintiffs’ claim to ownership. In these circumstances, the claimant could not avail himself of a comparative exercise based on derivative titles and remained bound to establish ownership by proof of original title.

The COA held that the reasoning of the FHCC did not reflect an examination of the case from the correct legal perspective. In particular, the Court of First Instance failed to determine, as a preliminary matter, whether the plaintiffs had succeeded in proving that they held an original title to the property in dispute. This omission was found to be fundamental to the outcome of the case.

The COA held that, in actio rei vindicatoria cases, where a claimant does not meet the requisite standard of proof in establishing ownership, the claim cannot succeed. In such circumstances, it would generally be unnecessary for the court to consider whether the defendant has substantiated a competing title.

In light of these findings, the Court of Appeal confirmed the first judgment insofar as it rejected the defendant’s first plea, but reversed it in part, ordering that the plaintiffs’ claims be reconsidered. This revaluation is to be undertaken both from the perspective of whether the plaintiffs enjoy an original title to the property claimed, and in light of the defendant’s remaining pleas which had not been disposed of by the judgment.

Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report. This article was first published in the ‘Independent’ on 27/05/2026.