Issue link: https://maltatoday.uberflip.com/i/936285
54 maltatoday SUNDAY 4 FEBRUARY 2018 T he defendant need not be the person who carried out the spoliation, but the knowledge that the works were being carried is sufficient for that person to be held responsible. This was held in a judgement delivered by the Court of Appeal on 29 January 2018 in Paul Bonnici and Marlene Bonnici -v- Notary Dr Philip Lanfranco and Dr Malcolm Cassar. The Bonnicis in their original application had explained that their family lived in the same house for the last 150 years. Their kitchen and washroom have two windows overlooking the yard next door. In May 2015, the defendants instructed the workmen to close these windows. They asked the court to declare that this was spoliation and order the defendants to remove the brickwork that closed the windows. The defendants filed a statement of defence. Notary Philip Lanfranco, argued that personally he was not responsible for what could have taken place and that he did not preform any spoliation and that the plaintiffs have no title over the property where they reside. Dr Malcolm Cassar, filed the same pleas. The first court in its judgement, had gone through the evidence produced. Paul Bonnici testified that he was 78 years of age when he testified and lived in the same house. In May 2015, first nets were fixed, but on another day he heard his sister shouting when she noticed that the windows were blocked. He further explained that he knew the two defendants, since they visited next door frequently, giving instructions to the workmen there. This version was corroborated by his sister Marlene Bonnici. She explained that the property next door was owned by a company, Searchlight Investments Limited, and the two defendants were involved. Architects Paul Camilleri and Carmel Cacapardo also testified. Perit Camilleri, explained that he was the architect that applied for the works. He confirmed that the owners were Dr Cassar and Dr Lanfranco. He also testified that Dr Cassar had given the instructions for the windows to be blocked. Perit Cacopardo confirmed that he saw the windows blocked and the yard was a common yard. During the proceedings there were further incidents in July 2016 when the plaintiffs instructed workmen to remove metal sheets covering the windows. The defendants argued that by these acts, the plaintiffs renounced the action of spoliation. The plaintiff replied, saying that they could this by the laws of the Health Department, due to lack of ventilation. However, the metal sheets were fixed again and therefore, the plaintiffs had an interest again in this case. The Court of First Instance, dealt with the first plea, as to whether the two defendants could be held responsible of spoliation in their personal capacity. The evidence showed that the property was owned by Searchlight Investments Limited and rented to KER Limited. The two defendants were directors of the first company. The Court pointed out that Article 535 of the Civil Code states that the action of spoliation can be brought against the author of the act and therefore, the lawsuit can be brought against the person who did the act or the person who ordered the act. The fact that the property is owned by a company, does not bar the plaintiffs from taking an action against the directors of that company. The Court of First Instance also analysed the legal implications of the case and explained that spoliation had three elements (i) possession (ii) the act of spoliation (iii) the action has to be filed within two months. These were listed in a number of judgements amongst which Carlo sive Charles Cardona v Francesco Tabone decided by the Court of Appeal on 9 March, 1992. With regard to the first element, the possession must be factual in that the plaintiff must have a right on the property or a servitude and there is no need to prove the legality of the possession or possession in bad faith. In Delia v Schembri decided on 4 February 1958 held that the action of spoliation is intended to protect the possession of whatever type. In another judgement Mag Peter Cordina v Raymond Aquilina decided on 12 December 1988 the Court of Appeal held that the act of spoliation does not require that the total possession be deprived, but even partial possession is sufficient. In this case what the plaintiffs complained, was the removal of light from two windows. The defendants argued that possessions of the plaintiff were based on tolerance only. The Court pointed out that Article 535, this was sufficient as shown in a judgement Annetto Xuereb Montebello et v Paolina Magri et decided on 19 June 1953. With regards to the second element of the act of spoliation, it was proved that the windows were blocked. The Court held that there is no need to have any act of violence involved but it is necessary that there be no consent express or tacit by the plaintiff. The Court then moved on to the last element that the action has to be filed within two months. In this case, the windows were closed on 9 May 2015 and therefore the act of spoliation took place immediately. The action was filed on 27 May 2015 and therefore the plaintiffs acted instantly. The First Court ruled in favour of the plaintiff and ordered the defendants to allow the plaintiffs to repossess their windows within 21 days. The defendants appealed on the ground that the court was wrong to decide the case by accepting the claims, because the plaintiffs were not the owners of their residence and that the action should have been addressed to who actually blocked the windows and not them. The plaintiffs disagreed and held that the court's judgement was just and should be confirmed. The Court of Appeal, presided by the Chief Justice Silvio Camilleri and Justices Tonio Mallia and Joseph Azzopardi, first dealt with whether the action could have been filed against the defendants. The Court held that the action of spoliation is intended to keep the public order. In the case, the spoliation had taken place and the plaintiffs had a right to institute the action. The Court of Appeal agreed with the first judgement in believing the plaintiffs that the defendant had given the instruction to block the windows. With regard to whether the fact that the plaintiffs were not the owners of the property impeded them from filing the action, the Court of Appeal held that there was no dispute that they had possession of the property and they had the enjoyment of the servitude. Therefore, the Court held that they could have filed the action. The Court of Appeal then moved to confirm the judgement. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Opinion A development planning application was submitted 'to sanction the construction of an existing dwelling' forming part of a cluster of buildings located outside the development zone of Burmarrad. To justify its decision, the Planning Commission gave the following reasons: 1 The proposal ran counter criterion 5(a) of policy 6.2C of the Rural Policy and Design Guidance (2014) since applicant had failed to provide sufficient evidence to show that the residential use of the original building was legally established; 2 The proposal was tantamount to excessive formalisation of land outside the development zone, thus in breach of the provisions of Rural Objective 3 of the Strategic Policy for Environment and Development (SPED), which seeks to control rural areas from the cumulative effect of urban development. Aggrieved by the said decision, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In his submissions, applicant (now, appellant) argued that his property was 'entirely visible in the 1967 survey sheet and thus considered to be legally established'. Moreover, appellant maintained that the proposal would not lead to excessive formalisation as purported by the Authority because the alleged "formality" existed prior to 1967. As to the issue concerning the residential status of the building, applicant insisted that the premises had been occupied by his ascendants, including his father. To substantiate his arguments, appellant submitted an excerpt from an old electoral register, associating his father with the building location. In reply, the Planning Authority rebutted that the building in question was subject to substantial additions that are not visible on the 1967 aerial photos. On this basis, the Authority reiterated that the dwelling was tantamount to 'excessive formalisation of land outside the development zone' and the proposal was therefore in breach of Rural Objective 3 of the Strategic Policy for Environment and Development. The case officer maintained that 'it was very unlikely that the existing rooms were ever used as a residence due to presence of food mangers and lack of windows.' The Tribunal was also reminded that the electoral register which applicant had submitted had no official signature. In its assessment, the Tribunal noted that it was satisfied that appellant had submitted sufficient documentary evidence demonstrating that the building in question had been used for habitation prior to 1978. The Tribunal further observed that applicant had made similar assertions in previous planning applications. In view of the said reasons, the Tribunal went on to entertain applicant's request on condition that the dwelling floorspace is reduced to 200 square metres. Applicant was also fined 5058 euro. Dr Robert Musumeci is an advocate and a perit robert@robertmusumeci.com Robert Musumeci Knowledge of spoliation is sufficient Tribunal convinced of old electoral register Tribunal was satisfied that there was sufficient documentary evidence to show that the building was used for habitation Malcolm Mifsud Knowledge of spoliation is sufficient Knowledge of spoliation is sufficient