Smells like an election
Anyone who may have an interest may be called into suit
The First Hall of the Civil Court accepted a plea by a defendant company to allow into suit the previous owners of a property
21 October 2016, 8:00am
The Zammits in their application explained that they purchased land in Birzebbugia in September 1994 measuring 211 square metres. In a separate judgement Joseph Pirotta et -v- Joseph Zammit et decided on 25 October, 2011, the court decided that according to the experts engaged for that case, 130.5 square metres belonged to Pirotta and Zammit was ordered to remove the works that were being carried out. Therefore, what the plaintiffs had purchased was in fact not all theirs and the defendant company could not have sold that part of the land. However, when the company had sold to Zammit, it guaranteed peaceful possession of the land sold. The above mentioned judgement disturbed their peaceful possession and in fact they suffered damages. The Zammits asked that the contract of purchase of the land be rescinded.
Central Mediterranean Development Corporation Limited filed their statement of defence, stating that the action was time barred according to Articles 1407 and 2153 of the Civil Code. The company also argued that the previous owners of the land, Salvatore Schembri and the heirs of Nazzareno Dalli, be called into the suit.
Ms Justice Anna Felice dealt with the pleas and quoted article 1407 and 2153 of the Civil Code:
“1407. (1) The action of the seller for an increase of the price, and the action of the buyer for a diminution of the price or for repudiation of the contract shall be barred by the lapse of two years from the day of the contract.”
“2153. Actions for damages not arising from a criminal offence are barred by the lapse of two years.”
They considered that the defendant company had given a guarantee for peaceful possession, when it sold the property to Zammit, however, the judgement of 25 October, 2011, had disturbed this peaceful possession. Article 1409 of the Civil Code states:
“1409. Although no stipulation of warranty has been made in the contract of sale, the seller is in law bound to warrant the buyer against any eviction which deprives him, in whole or in part, of the thing sold, and against any easement or burden on the same, claimed by others, and not stated in the contract.”
Then Article 1423 reads:
“1423. (1) In all cases where a shorter period is not fixed, the action for breach of warranty against eviction shall be barred by the lapse of two years to be reckoned from the day on which the judgment against the buyer has become final and absolute.”
The Court agreed with the plaintiffs, in that, without the court judgement establishing that part of the land was no longer theirs, they would not be in a position to file this action. The Court then decided that the action was not time barred.
Ms Justice Felice then considered whether she should accede to the request that the previous owner of the land should be called into suit. The Court quoted a previous judgement, Joseph Riolo pro et noe -v- Carmel Muscat, decided on 15 March, 1991 by the Court of Appeal, which stated that one can be called into suit, since actions are instituted against a number of defendants, but others who may have an interest may be left out of the action and are not in a position to defend their interest. If there is an interest, the Court may allow a joinder if required. In another Court of Appeal judgement Bank of Valletta plc -v- Anna Calleja, of 8 January, 2010, the Court may allow an interested party to join the action if that party can contribute by giving facts on this issue.
In this case the defendant company did guarantee peaceful possession to the plaintiffs and according to Lec Limited -v- Tabbingtons Limited decided by 19 April, 2012, the call into suit of the previous owners, is done in order to protect the interest of the party that may lose the action.
The Court then ordered that the heirs of Salvatore Schembri and Nazzareno Dalli be called into the action, before it heard the merits of the case.
Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates
Malcolm Mifsud is a partner at Mifsud & Associates.
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