Service of process, default, and the Actio Manutentionis

In its judgment delivered on the 27 November 2025, in the names of Raymond Agius (the “Plaintiff”) v. Szymon Konrad Kuchta (the “Defendant”), the First Hall Civil Court (the “Court”), presided over by Madame Justice Dr Joanne Vella Cuschieri, considered the elements of the ‘Actio Manutentionis’. In this case, the Court declared the Defendant to be in default (in Maltese this is referred to as “kontumaci”). Accordingly, before examining the substantive elements of the ‘Actio Manutentionis’ and the findings of the Court, it is necessary to consider the state of default and its legal consequences.

The state of default – “L- istat ta’ kontumacja”

For a person to be in default, a court must first be satisfied that the person was duly served with a copy of the written pleadings. It is therefore relevant to consider Article 187 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta (hereinafter the “COCP”) which deals with the modes of service of pleadings. Sub-article (1) provides that service is to be made by delivering a copy of the pleading to the person on whom the pleading is to be served. To effect service, a copy of the pleading is to be left:

1. at the place of residence or business or place of work or postal address of such person;
2. with a member of his family or household; or with a person in his service; or
3. with his attorney or person authorized to receive his mail.

If the court marshal responsible for service fails to effect service on the first attempt, he shall make two other attempts to serve the copy of the pleading without the need of further authorisations by the court. Such additional attempts are to be made at different times of the day with the third (and final attempt) being made after judicial hours. Following each attempt of service, the court marshal is to file a certificate evidencing attempt of service in the acts of the proceedings.¹

Where all the above-mentioned attempts at service prove unsuccessful and the defendant is consequently unreachable, the court may order that service be effected by affixing a copy of the pleading or actto the door leading to the defendant’s residence. This method of substituted service is known as “il-proċedura tal- publikazzjoni u tal-affissjoni”² as provided for under Article 187(3) of the COCP.

In the case of ‘Three Barrels Limited v.Joan Schembri noe’ decided by the Court of Appeal (Superior Jurisdiction) on the 13 July 2001, the Court held that Article 187(3) sets out the following three cumulative requirements to ensure that the service of documents by means of publication and affixation of documents is successful:

1. a copy of the written pleading or act is affixed at the place, in the town or district in which official acts are usually posted up;
2. a summary of the written pleading or act is published on the Government Gazette; and
3. a summary of the written pleading or act is published in one or more daily newspapers as the court may direct.

Article 187(3) further provides that in the event that the residential address of the person is known, then a copy of the pleading or act should also be affixed to the door of the residence.

Provided the above requirements are met, service is deemed to have been effected on the third working day after the last publication or posting, whichever happens later. In the event the court would have ordered urgent service, the document is considered served at the specific time set by the court after publication or posting, and that time must be clearly stated in the notice.

The Court of Appeal further held that the aforementioned requirements are objective criteria such that once the court establishes that the requirements for service were met, the defendant is regarded as having been notified, iuris et de iure. A defendant cannot argue that he did not read the notice on the newspaper or see the notice affixed to the door of his residence as otherwise the purpose of the law would be undermined.

Once a person is deemed to be notified, he has twenty (20) days to present his sworn reply unless he intends to admit the claim.³ Where the defendant fails to file a sworn reply within the prescribed time, the court shall proceed to give judgment as though the defendant had failed to appear to the summons, unless the defendant satisfies the court that there was a reasonable excuse for such failure. Before delivering judgment, however, the court must grant the defendant a brief and non-extendable period within which to submit written arguments in defence of the plaintiff’s claims. These submissions are to be served on the plaintiff, who shall likewise be afforded a short period to file a reply.⁴ Accordingly, notwithstanding the failure to file a sworn reply within the prescribed time, the defendant is afforded an opportunity to make written submissions before the court formally declares him to be in default.

Various judgments have delineated how the court should interpret the phrase ‘reasonable excuse.’ These principles may be summed up as follows:

1. Default is not excusable if it is voluntary or where ‘culpa’ subsists;
2. The defendant must prove just cause to the satisfaction of the court which must amount to a legitimate impediment independent of the defendant’s will;
3. Easily preventable errors would not constitute an impediment;
4. This legitimate impediment may be a compelling necessity arising from being called to other unavoidable duties; and
5. The impediment preventing the filing of a reply must amount to physical
6. impossibility, save for exceptional and rare circumstances of a moral nature.

In the case of ‘Blye Engineering Co Ltd v. Philip Borg Bellanti et’, decided by the Court of Appeal (Inferior Jurisdiction) on the 22 June 2005, the Court of Appeal held that being in a state of default does not mean that the court should automatically uphold the plaintiff’s claims. It is still the responsibility of the court to determine whether the claims raised by the plaintiff were indeed justified, independently from the state of the default of the defendant. Therefore, it is still the responsibility of the plaintiff to present the necessary proof in support of his claims. Nevertheless, in such a situation, the court’s assessment of the matter would be limited to the evidence and arguments brought forward by the Plaintiff in the absence of any rebuttal evidence or argument.

Facts of the case

The Plaintiff is the owner of the property situated at 37, Triq Paċifiku Scicluna, Birgu, whilst the Defendant is the owner of the property found at 35/36, Triq Paċifiku Scicluna, Birgu. The Plaintiff’s property was situated at the first floor, overlying the Defendant’s property.

On the 22 November 2022, the Plaintiff, who was residing abroad, was informed that the Defendant installed a water-tank at the level of the Plaintiff’s property. Via judicial letter, the Plaintiff requested the Defendant to remove the water-tank. The Defendant replied to the judicial letter via email arguing that he was the owner of the air overlying his property and the wall on which the water tank was installed was a common wall. The Plaintiff proceeded with the ‘Actio Manutentionis’ which is contemplated under Article 534 of the Civil Code, Chapter 16 of the Laws of Malta (the “Civil Code”).

Article 534 provides:

“Where any person, being in possession, of whatever kind, of an immovable thing, or of a universitas of movables, is molested in such possession, he may, within one year from the molestation, demand that his possession be retained, provided he shall not have usurped such possession from the defendant by violence or clandestinely nor obtained it from him precariously.” ⁵

The Court noted that for the “Actio Manutentionis” to be successful, the following elements must be satisfied together:

1. Possession of an immovable thing;
2. Disturbance or interference with that possession;
3. The action must be instituted within one year from the disturbance; and
4. The plaintiff must not have acquired the object by violence or clandestinely from the defendant.

The first element:

With regard to the first element, the Plaintiff argued that the dispute revolved around the installation of a water tank and related equipment by the Defendant, which were affixed above ground level and to the wall of the first floor. The Plaintiff maintained that the airspace in question forms part of his property and that the installation was carried out clandestinely, abusively, and without his consent. The Court reiterated that within the context of a possessory action (as is the ‘Actio Manutentionis’), it is not the responsibility of the Court to delve into matters relating to ownership. The Court considered that, irrespective of whether the airspace in question was in fact owned by the Plaintiff, it was clear from the evidence produced by the Plaintiff that he enjoyed possession of that airspace, also considering the fact that all his windows overlooked the same space. From this perspective, the Court concluded that the element of possession was satisfied.

The second and fourth element:

The Court noted that the water-tank was situated at eye level of the Plaintiff’s first-floor windows and hence clearly visible from all but one of the first-floor windows. The molestation therefore consisted of the installation of a water tank and its accessories in an area of airspace (which, up to that moment, the Plaintiff possessed as his own) and against a wall where previously there had been nothing. From the above, the Court was satisfied that there was a disturbance of the Plaintiff’s possession (the second element), and that the fourth element has also been duly established (as the Plaintiff had not acquired possession by means of violence or in a clandestine manner).

The third element:

Article 534 of the Civil Code provides that the ‘Actio Manutentionis’ is to be brought within one year from the date of molestation. The time limit starts running from the date of the molestation and not from when the plaintiff became aware of such. This time limit if of a peremptory nature, therefore, failure to bring the action within such period would lead to the forfeiture of the plaintiff’s right.

From the evidence presented by the Plaintiff, the Court noted that the water-tank and its accessories were installed in a clandestine and illegal manner however, it had to consider when such actions had taken place. From the Plaintiff’s statements as well as other eye-witness statements, it was clear that the water-tank was installed some time in November 2022 and the action was presented on the 26 October 2023, therefore within the one-year time frame. The Court noted that since the Defendant was in a state of default, it could not consider any rebuttal evidence in relation to this element. Therefore, this third element was also satisfied.

Accordingly, the Court accepted the Plaintiff’s claims and ordered the Defendant to remove the tank within one month from the date of the judgment. The Court further authorised the Plaintiff to remove the water-tank himself at the expense of the Defendant if the latter failed to abide by the Court’s order.

Conclusion

Although the Defendant was in a state of default due to his failure to file a sworn reply, the Court did not uphold the Plaintiff’s claims on that basis alone. Rather, the Plaintiff was still required to discharge the burden of proving all the elements of the ‘Actio Manutentionis’, which the Court found to have been duly satisfied on the basis of the evidence produced. The Defendant’s default merely limited the Court’s assessment to the unrebutted evidence and submissions of the Plaintiff

¹ Article 187 (1), Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta
² Informal English Translation: “…the process of publication and affixation of documents…”
³ Article 158(1), COCP
⁴ Article 158(10), COCP
⁵ Article 534, Civil Code, Chapter 16 of the Laws of Malta.

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 judgment being covered in this law report. This article was  first published in ‘the Malta Independent’ on 04/02/2026.