Constitutional Court has jurisdiction to hear eviction case

The First Hall of the Civil Courts in its constitutional jurisdiction held that it was empowered to hear and decide on a constitutional application asking for the eviction of tenants of a property in Gharghur.

This was decided by Ms Justice Lorraine Schembri Orland on 21 April, 2015 in Dr Cedric Mifsud and Dr Michael Camilleri noe v Andrew Azzopardi and Teresa sive Tessie Azzopardi.

In their application Cedric Mifsud and Michael Camilleri on behalf of their clients, who do not reside in Malta, held that they are owners of a property in Gharghur which was granted on temporary emphyteusis on 6 August, 1974 for 17 years. The ground rent was Lm50 per year.

After the 17 years period expired the Azzopardis continued to occupy the property in terms of Housing (Decontrol) Ordinance (Chapter 158 of the Laws of Malta). On 25 October, 2013 the Constitutional Court in Dr Cedric Mifsud and Dr Michael Camilleri noe v Attorney General held that the Ordinance ran counter to the owner’s fundamental human rights and therefore the effects of this law were declared null. As a consequence the applicants claimed that the defendants Azzopardi did not have a legal title to continue living in this particular property. Therefore Mifsud and Camilleri asked the court to order the eviction of the Azzopardi family.

The Azzopardis filed a statement of defence where they claimed that the court did not have jurisdiction to hear the case and that they were occupying the property in terms of a law which is still law. The Azzopardis also pleaded that they invested thousands of euros in the property and should be compensated. The court’s judgement was limited to the first two pleas, that of jurisdiction and the validity of the possession.

On the competence of the court Ms Justice Schembri Orland quoted from a previous court of appeal judgement, Frankie Refalo noe v Jason Azzopardi of 7 October, 1997, which held that the issue of competence of the court very much depends on the facts of the case and does not solely depend on the requests of the plaintiff; competence may depend on the pleas raised with the amendments of 2009 to the Civil Code concerning leases, the law gave exclusive competence to the Rent Regulation Board on residential and commercial leases.

In another judgement Antonia Frendo et v Christopher Agius of 10 July, 2014 held that the Rent Regulation Board has jurisdiction over the possession of all urban tenants.

The court held that the Rent Regulation Board is a special tribunal, which competence is to be limited to that dictated at law. Issues not found in these laws are to be dealt with by the ordinary courts. In this particular case the plaintiffs are asking for the eviction following the Constitutional Court’s judgement, which held that the defendants cannot claim a title on the Gharghur property on the Housing (Decontrol) Ordinance. Therefore, what the plaintiffs are asking for is beyond the usual request for eviction, because of a breach of a lease agreement. The court is being asked that the Constitutional Court’s judgement be made effective and therefore, it has competence to examine if it should.

Regarding the second plea of the defendants the Court divided it into two. Firstly, the defendants are claiming that they were not parties to the Constitutional Court case, but were merely included as parties “for any interest that they may have”, since they were not the direct parties – the case was against the state. The second element of the plea was that the lease is still valid at law, since the Housing (Decontrol) Ordinance has not been repealed as yet.

The Court did not agree that the Azzopardis were not parties to the first constitutional case. In fact the Constitutional Court did not exempt them from being parties to the suit. In a similar case Raymond Cassar Torregiani et -v- AG of 22 February, 2013, the Constitutional Court held that the tenants had a direct interest in the case, since the lease is the subject of the court action. In this case the Azzopardis were considered as defendants in the previous constitutional action, and as such the judgement applies to them also. They did not appeal the case and therefore the judgement of first instance is final in their respect.

With regard to the validity of the law, the court made reference to the Constitution and the European Convention, which mentions that the Constitutional Court judgements are notified to the Speaker of the House of Representatives, who is to inform Parliament by presenting a copy. Anyhow the Constitutional Court declared that Article 12(2) of the Housing (Decontrol) Ordinance as inconsistent with the Constitution and as a consequence the defendants cannot use this law as the basis of their title of the enjoyment of the property in question. 

The Court then moved to turn down the pleas and ordered the case to continue to be heard.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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