Insights

In its judgement delivered on the 20 May 2021, in the names of Wurth Limited (hereinafter “Plaintiff”) vs Kevin Agius (hereinafter “Defendant”), the First Hall Civil Court (the “Court”) presided over by Madame Justice Dr Joanne Vella Cuschieri, had to consider whether, inter alia, the actio spolii could be successful when the alleged spoliation took place over a road which, in terms of local development plans, was a schemed road for public use.

The facts of the case were as follows. The Plaintiff owns a parcel of land in Haz-Zebbug, directly parallel to Mdina Road, on which they built their offices, a warehouse, and a store. The area directly abutting onto Mdina Road is used as a parking area for Plaintiff’s clients. The Defendant occupies the property adjacent to Plaintiff from which he operates a pizzeria. In the dividing wall between the Plaintiff’s and Defendant’s properties, the Defendant had a small aperture for a ventilator overlooking the Plaintiff’s parking area.

On the 21 April 2018, the Defendant, unilaterally and without seeking prior consent from the Plaintiff, allegedly widened the existing aperture and also installed an aluminium aperture overlooking the same part of Plaintiff’s property used as a parking area. According to the Plaintiff, the Defendant’s behaviour constituted spoliation in terms of law and consequently filed an actio spolii requesting the Court to declare that such behaviour amounted to spoliation and to order the Defendant to make the necessary works and restore the dividing wall to the state it was in before the alleged spoliation took place. The Defendant argued, inter alia, that the Plaintiff’s action could not succeed on the ground that the alleged spoliation took place over a public road and not a private parking area and therefore under no circumstances, can the opening of an aperture overlooking a public road constitute spoliation. Ultimately, the Defendant argued that he already had a ventilator opened in the same area of the dividing wall therefore he did not commit any spoliation with these additional works.

Having confirmed that the position of the dividing wall and the aperture opened by the Defendant conform to the plans and exhibits provided, the Court had to first establish whether the portion of land over which the alleged spoliation took place was a public road or indeed a private parking area. The Court noted that if indeed, the new aperture opened by the Defendant overlooks a public road, then the actio spolii could not succeed.

Primarily, the Court took into account the testimony of a senior officer within the legal department at the Planning Authority, who confirmed that a stretch of the Plaintiff’s land being used as a parking area was a schemed road in terms of the Planning Authority’s development plans. The existence of a schemed road was confirmed by Architect Anthony Robinson who testified that the area in question constitutes a service road as approved by the Planning Authority, which, however, de facto, does not exist because of its current use by the Plaintiff, the Defendant and other surrounding businesses for their own commercial purposes. It was further noted that for this service road to be put into place, several structural works in the area were to be undertaken.

The Court referred to the judgement of the First Hall Civil Court in the names of Francesco and Bernardette konjugi Galea vs Awtorita’ ghat-Transport f’ Malta (Transport Malta) which held that a schemed road shall become the property of the Central Government, when (a) it is properly asphalted or re-surfaced and (b) upon the publication in the Government Gazzette of an order of the President ordering that the land in question becomes property of the Government, in accordance with the New Roads and Road Works Regulations(S.L. 499.57).

The Court noted that the schemed road in question was neither asphalted nor was any order of the President published in the Government Gazzette. To the contrary, records from the Land Registry indicated that the land in question was registered in the name of the Plaintiff.

Having considered the above facts, the Court held that the land in question was still privately owned by the Plaintiff and rejected the Defendant’s exception. The Court went ahead with assessing whether the requisite elements for the success of the actio spolii subsisted in this case.

Article 535 of the Civil Code, Chapter 16 of the Laws of Malta provides that “Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention…”. Referring to writings of Mattirolo and other Maltese case law, the Court explained that the purpose of the actio spolii is to preserve public order by prohibiting private individuals from taking the law in their own hands and to ensure that the possession of a thing returns to the person despoiled of possession.

The Court reiterated the three principle elements of the actio spolii being the following:

1. ‘Actor docere debet possedisse’ – the possession of a thing.
2. ‘Spoliatum fuisse’ – the act of spoliation which takes place clandestinely or against the will of the person in possession.
3. ‘Infra bimestre deduxisse’ – the actio spolii is to be filed within two months from the act of spoliation.

The three requirements are cumulative therefore failing to prove one of them would lead to the failure of the action.

1. Actor docere debet possedisse

The Defendant argued that the Plaintiff’s possession of the land in question was based on mere tolerance from the Planning Authority since the zone was marked as a schemed road for public use. The Court however noted that this land was still owned by the Plaintiffs since the requisite elements for its expropriation had not yet taken place. Moreover, possession based on mere tolerance would be given by the actual owner of the land which could not be the case here since the Planning Authority because it is not the owner of the land to begin with. Therefore, the Court rejected this argument.

The Court had no doubt that the Plaintiff was in possession of the land when the alleged spoliation took place. Furthermore, it reiterated that possession over the thing need not be over a period of time; this could be a very short period, even momentary. Therefore, the Court was satisfied that the first element of the actio spolii was proven.

2. Spoliatum Fuisse

The Court referred to the writings of Pacifici Mazzoni who held that this element is satisfied whenever a private individual performs any arbitrary act against the will of the person being divested of possession. It was agreed by the parties that the defendant was the person who carried out the works on the dividing wall and who installed the new aluminum aperture. This matter was confirmed by the Defendant himself in his testimony. Faced with this admission, the Court considered that this element was also satisfied.

3. Infra bimestre deduxisse

This third element requires that the actio spolii is filed within two months from the act of spoliation. The Court noted that this is an essential element of the actio spolii which is to be proven by the Plaintiff. This becomes a sine qua non when the defendant argues that the action is prescribed due to the lapse of two months from the act in question to the filing of the action. In the case at hand, the Court observed that the Defendant did not contest that the works took place on the 21 April 2018, nor did he argue that the action was time-barred. Since the action was file on the 14 June 2018, it was filed within the two-month prescriptive period.

Accordingly, the Court rejected the Defendant’s pleas and declared that his actions constituted spoliation in terms of Article 535. The Defendant was ordered to rectify the situation and restore the dividing wall to its state before the spoliation took place within twenty days from the date of judgement. The Court further held that should the Defendant fail to perform the necessary works within the period ordered, the Plaintiff is ordered to undertake the works at the expense of the Defendant.

This article was first published in The Malta Independent.