Court refuses to invert the order of production of evidence in legal title claim on property

The First Hall of the Civil Court turned down a request made by a plaintiff to allow the defendant to produce the evidence first. This was decided in a partial judgement of a law suit, Mark Napier -v- Andre Bianchi, of 5 June, 2015, delivered by Mr Justice Lawrence Mintoff.

The plaintiff, Mark Napier, informed the court that the parties are owners of two adjoining properties in Lija. The defendant, Andre Bianchi is claiming that he has a right of the roof and airspace of the plaintiff and therefore, wants a declaration that such right does exist. Mr Bianchi defended the action by saying that his claim on the roof and airspace is based on a 1969 contract of inheritance and another 1991 contract. He claimed that the plaintiff was never the owner of the roof and airspace.

On 9 April, 2015, the plaintiff presented an application asking the court to order the defendant to start the case by producing its evidence, since the defendant is claiming he has a legal title, and not the plaintiff. In his reply the defendant objected to this request, since the action is one of action of proving the original title (action rei vendicatoria) and according to jurisprudence the defendant may remain silent. Independently of who has possession of the property in dispute, the defendant has a right to demand from the plaintiff the evidence of the title. Therefore, he should not start with producing evidence.

Mr Justice Mintoff held that in essence the case concerns whether the plaintiff has a title on the property and therefore, has an interest that the court declares that he is the owner of the roof and the airspace and also proving that the defendant has no claim. The court case instituted by the plaintiff is classified as an action vindicatoria, since he is asking the court to declare that he is the sole owner of the roof and airspace and therefore order the defendant to remove any of his property on the roof.

It is the plaintiff’s responsibility to prove his title in an action of rei vendicatori

The Court quoted from Torrente, an Italian jurist who held that the action rei vindicatoria is intended to establish who is the owner of a property held by others, and it is also intended to establish the property rights. It is the plaintiff who has to show that he is in possession of this title and acquired the original title. 

The Court pointed out that the defendant is claiming that he is also the owner of the same property and therefore, cannot limit itself to possession. As a result the court must compare the titles both parties hold on the roof and airspace and decide upon who has the best evidence. The court quoted from a previous judgement Cassar noe -v- Barbara et decided on 7 October, 1980, where the court held that it is the plaintiff’s responsibility to prove his title in an action of rei vendicatori.

The Court held it is not the case to ask the defendant to commence with the production of evidence and ordered that the case continue with the plaintiff first producing all his evidence.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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