Issue link: https://maltatoday.uberflip.com/i/652704
48 maltatoday, SUNDAY, 13 MARCH 2016 Opinion T he Magistrates' Court in Gozo, presided by Magistrate Dr Joanne Vella Cuschieri in Kenneth Cutajar -v- brothers Lawrence Attard, Joseph Attard, Mariano Attard and George Attard, and siblings Joseph Sultana, Rose Sultana and Gilbert Sultana, held that the court was unable to accept the claim that spoliation took place, because the person who carried out this spoliation could not be identified The plaintiff in his application explained that a block of apartments owned by the defendants, Attard, partly overlie a shop owned by the plaintiff in Zebbug, Gozo. At the back of this shop and the overlying apartments one finds a common shaft, from which shaft the plaintiff has a right for air in his shop. In an aperture found on the top part of the shop's roof, a window had also been replaced by an "extractor fan", easily accessible from the window in one of the adjoining apartments. The plaintiff claims that this extractor fan was attached earlier on in June 2013 so as to have better ventilation in the shop. The extractor had been attached with the consent of the defendant, Joseph Sultana. The latter however argues that no such consent was ever given. Later on that year, disputes arose between the parties in relation to tables placed in front of the shop and on the 20th August, 2013, the plaintiff claimed that one of the defendants, with the unanimous approval of them all, went down secretly to the shaft and inserted an object inside the aperture found in the plaintiff 's property, dropping the extractor fan to the shop's ground, thus causing irreparable damage to it. The Court explains that for an action of violent spoliation to take place, three constitutive elements must concur in terms of Article 535(1) of the Civil Code, these being: 1. possession (possedisse) 2. the action of spoliation (spoliatum fiusse) 3. and the limitation period of two months within which one can bring an action of spoliation (infra bimestre deduxisse) As stated in Margherita Fenech v Pawla Zammit (12th April, 1958) the actio spolii is based on the exigencies of social utility, rather than on an absolute principle of justice. Its main aim is that of extending the protection of any possessor so as to restore to him the possession of the object, in light of the principle spoliatur ante omnia restituendum. Furthermore, given that this action is one of public order, it seeks to impede a citizen from taking the law into his own hands. A private person may not exercise a right without the authority of the Court, even though such right belongs to him, should such exercise be to the detriment of a third party. Pacifici Mazzoni in fact explains that a person may not commit any arbitrary act in his private capacity against the voluntariness of the person in possession. The Court in Delia vs. Schembri (First Hall Civil Court, 4th February, 1958) and Cardona v Tabone (Court of Appeal, 9th March, 1992) highlight the fact that the inquiry of the Court is a limited and rigorous one in such cases. Such an action is found in no other legislation and thus the opinions of jurists, Italian and French authors are completely irrelevant and inapplicable in our juridical context. It is held that the element of possession is satisfied by any kind of possession or detention, whether materiele or di fatto, whereby a violent or abusive spoliation consists of any arbitrary act which goes against the person in possession. This means that even purely material or factual possession, whether for a short or momentary period is sufficient, as long as this is unequivocal and is not based on mere tolerance. As to the final element, the Court of Appeal in the case Trevor Arends et vs Veronica Mizzi (11th January, 2013) declares that it is the responsibility of the plaintiff to prove that his action was brought within two months from the unlawful act. This is an essential element which needs to be satisfied in front of the Courts irrespective as to whether it was formally pleaded by the defendants or otherwise. In fact, in Alfred Paul Farrugia nomine vs Peter Paul Cutajar (13th February, 2004) the Court stated that unless this limitation period of the action of spoliation is conclusively proved, then this action cannot be instituted. In this case, both the plaintiff and the defendants agree that the first and third element concur, given that the extractor which had in actual fact been attached by the plaintiff, was removed from its place, seemingly against the plaintiff 's will, with an action being instituted within two months from the day when such extractor was found on the plaintiff 's kitchen ground, that is on the 23rd August, 2013. Disputes however arose as to the second element, that is, spoliatum finesse. It is a well-established principle of our Courts that in terms of Article 535 it is not enough for one to prove that the extractor fan was removed from its place but rather it is imperative to show that the action in question was carried out by the defendant/s, in an arbitrary and/ or illegal manner at the expense of the plaintiff. The plaintiff in this case failed to satisfactorily prove that the extractor fan was dropped by any one of the defendants, basing his arguments merely on a number of assumptions and possibilities, leading the Court to instead question his credibility. Although the defendants objected to the use of such extractor fan, whereby Sultana claims that in a contract of transaction concluded in 2010 between him and the plaintiff it was specifically stated that no extractor fan was to be attached, it seems that they had resorted to legal means and issued a judicial letter on 1st August, 2013. The defendants deny having removed the extractor fan themselves, claiming that they believed it was the plaintiff himself who removed it. They also raised the argument that from the photos exhibited in court it was possible that the extractor fan fell of its own accord, due to its considerable size and weight, coupled with the fact that it was attached by three rather than four rawlbolts, as was appropriate. In fact, they claimed that the extractor fan did not suffer any considerable damage and thus it could very well be that it fell on its own. The circumstantial facts were thus not enough for the Court to be morally convinced as to who of the defendants, if any, committed such an act of spoliation. Thus, in light of the defendant's failure to identify such person, the Court rejected his pleas. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates In spoliation, the perpetrator must be identified A planning application contemplating the "restoration and conversion" of a scheduled military building along with the construction of an underground cesspit and reservoir was turned down by the Environment and Planning Commission. The said structure corresponds to a Grade 1 scheduled military building whereas the immediate precincts are designated as a scheduled level 3 Area of Ecological Value. In its refusal report, the Commission came to the conclusion that "the proposed excavations would have an adverse impact on the adjacent existing military structures which form part of the scheduled Grade 1 Rif les Range" located in Pembroke. The Commission reasoned that the proposal would therefore conf lict with the objectives of the Structure plan, namely policies UCO 5 and UCO 13. These policies were expressly designed to safeguard areas and sites of architectural and historical importance. In addition, the Commission held that the proposed reservoir and cesspit would result in the unnecessary take up of land and, in turn, would "adversely affect the area, hinder its protection, and run counter to the rural conservation and ecological objectives of Structure plan policy RCO 2 and local plan policy NHCV 01." In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that the proposed cesspit would divert the foul water which is currently being discharged directly into the sea. The applicant also argued that "the purpose of the proposed reservoir is that of collecting water from the existing structure's roofs and the adjacent street, in order to be utilised as second class water for an existing sanitary facility." Nevertheless, MEPA's case officer reiterated that the proposed excavation works are still considered objectionable from a cultural heritage perspective in view that such interventions "might damage this scheduled building". Once again, the officer made direct reference to Structure Plan policies UCO 5 and UCO 13, which promote the conservation of buildings of architectural and historical importance. In its assessment, the Tribunal asserted that the buildings in question merit the highest level of protection, thus contending that any development "which could possibly impair the setting or change the external or internal appearance, including anything contained within the curtilage of the building" is deemed objectionable. In conclusion, the Tribunal agreed with the MEPA in that the proposed excavation works were not necessary and went on to confirm the refusal. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Robert Musumeci MEPAwatch Excavation works next to scheduled building refused Malcolm Mifsud mmifsud@mifsudadvocates.com.mt must be identified mmifsud@mifsudadvocates.com.mt must be identified must be identified