An action of spoliation is one of public order

The Court held that the plaintiff did not have a right to an action of spoliation in this particular case

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Malcolm Mifsud
22 July 2016, 8:36am
On 27 May, 2016, the Court of Appeal confirmed the decision of the First Hall Civil Court in Granata -vs- Commissioner of Lands. The Court held that the plaintiff did not have a right to an action of spoliation in this particular case, although the locks of the boathouse, which she used to enjoy on lease, were removed and changed against the plaintiff’s will, depriving her of its possession and enjoyment. 

Granata claimed that the Court was not correct in its interpretation of Article 3(1) of the Land (Compulsory Eviction) Act since such interpretation was depriving evicted persons from exercising the action of spoliation in terms of Article 535 of the Civil Code. However, the Court of Appeal disagreed and explained that since eviction had taken place in line with Article 1568 of the Civil Code there was no right to institute an action of spoliation. This is because eviction took place after the official letter had been received on 4 January, 2013, and consequently, on 3 October, 2013, the plaintiff was allowed 20 days to evict the boathouse in question

The Court referred to Tonna -vs- Commissioner of Lands, delivered on 18 July, 2012, and explained that upon sending the official letter to the plaintiff, the latter no longer enjoyed a title of lease as this would have been effectively terminated by it. Insofar as such termination is allowed by law and executed in the manner specified by it, the Civil Code does not require the Court to inquire as to why the lease had been terminated. In this case, the government should not be treated any differently from any other owner of a tenement seeking recovery of the said tenement, upon termination of the lease. 

The Court thus agreed with the First Hall Civil Court, in that the action of spoliation is not permissible with respect to an action already executed in terms of the Land (Compulsory Eviction) Act. The action of spoliation may neither be exercised before nor after the execution of action for eviction although a person may naturally still avail himself of any other action available under any other law. 

As explained in Vincenzina Cassar et -vs- Annetto Xuereb Montebello, delivered on 28 May, 1956, our jurisprudence has always been consistent in its interpretation of these laws. Our Courts have always held that an action of spoliation is one of public order, solely and exclusively aimed at impeding a person from taking the law into his own hands so that the Courts are rightly resorted to instead. In short, whenever a person in possession suffers spoliation, the Court must always order reintegration, insofar as possession is vitiated, even if the person committing the spoliation against the possessor is the true owner of the tenement. 

However, in this case, the defendant did not simply take the law into his own hands but rather he evicted the appellant by invoking Article 3 of Chapter 228. This Article in fact gives the Commissioner absolute discretion so as to order eviction of any person occupying a piece of land when the latter is being occupied:

by a person without any title;

by encroachment; or after the expiration of a period of time as specified in Article 2 and in the contract of lease.

In fact, the defendant sent a letter to the plaintiff on 4 January, 2013, in line with Article 1568 of the Civil Code, in which he informed the plaintiff that since the lease was going to terminate on 30 June, 2013, he had to return the keys to the Department of Lands upon its termination. When the plaintiff failed to do so, an order of eviction was issued on 3 October, 2013 upon which the appellant no longer enjoyed a title of lease. 

The Court also disagreed with the plaintiff and argued that the defendant had every right to issue a mandate for eviction as he was still the administrator of the property, albeit only factually, until this is passed on to its owners. This is further proven by the fact that the same plaintiff was paying rent to the defendant.

Finally, the Court came to the conclusion that the provisions of the Act in question exist so that the defendant may make use of the law without any delay and without uselessly incurring or exposing himself to damages. Insofar as the dispositions of law are observed, the defendant cannot face an action of spoliation on the ground of protecting public order, when the existence of the provision invoked is there to serve that very same purpose. 

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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Malcolm Mifsud is a partner at Mifsud & Associates.