A jactitation suit cannot be instituted when the claim by the defendant is brought about by the provocative actions of the plaintiff

Carmel Azzopardi, Carol Azzopardi, Joseph Azzopardi, Marianne Abela, Edgar Azzopardi and Rose Doherty, brothers and sisters Azzopardi, instituted a case against Zoqdi Developers Limited in 2011. They asked the Court to set a timeframe of not more than three months for the defendant company to file a case following a judicial letter filed on 20th December, 2010 against the same plaintiffs. Furthermore the plaintiffs asked the court to order the defendant company to remain in perpetual silence should the action not be instituted within the said time frame. 

In their application, the plaintiffs explained that the judicial letter sent by the defendant claimed that the said company had a legal title over the divided portion of land at the limits of Had Dingli better known as “L-Irdum tal-Maddalena”; it requested that the plaintiffs vacate the property and to remove the wall that was built on the property of the defendant company which narrowed the passage leading to the property. 

The defendant company in its reply stated that it was provoked to send the judicial letter in 2010 – it claimed that it was submitted in reaction to the plaintiffs’ abusive and illegal actions pertaining to development works on the property of the defendant company in Dingli. 

The court, after hearing all the evidence produced, considered that this is a case of jactitation – a legal principle which is regulated by Article 403 of Chapter 12 of the Laws of Malta which holds the following:

“Where any claim is vaunted in any judicial act, or otherwise in writing, the party wishing to be liberated from such jactitation may, within a year of such jactitation, demand, by sworn application, that a time be fixed within which the jactitator shall bring the claim for trial, and that in default thereof, the jactitator be precluded from ever proceeding on that claim.”

Ms Justice Padovani Grima pointed out that this case does not delve into the issue as to whether the property in question belongs to the plaintiffs or the defendant company but it only relates to whether the court should order a time frame for the defendant company to institute a case for the claims it is alleging. 

The court made reference to a judgment in the names ‘Imelda and Joseph Tabone et vs Agnes Galea et’ decided on 11 December, 2003 by Mr Justice Tonio Mallia, which held that in order for this kind of action to be upheld the court must be satisfied that the following six elements are met: the plaintiff must be in the possession of the property; the defendant has made the alleged claim in writing over the same property; the claim must be spontaneous and not provoked by the plaintiff’s actions; it must be possible for the defendant to institute a judicial action over the same claim; the claim has a determinable and specific scope or which scope may be specified; and the claim must not depend on a condition or depend on the fact that it can happen or not happen.  

The court noted that in this case the action does not satisfy the third element, that is, that the claim must be spontaneous and not provoked by the plaintiff’s actions. From the evidence produced it transpired that Carmel Azzopardi built a wall of loose stones in such a way that he endangered a passageway which was being used by the defendant company.  

The court after examining the photos produced by the defendant company noted that, contrary to what was stated by Carmelo Azzopardi, the wall of loose stones was not constructed over a wall or over an old foundation. The photos showed that the original wall of loose stones was built further back in such a way that one could see the edge of the rock which lay beneath. The court noted that the rock was not visible as it was covered with the new wall of loose stones which was around a storey high. 

This action gave rise to procedures in the magistrates’ court as well as various reports to MEPA. It was Azzopardi’s aforementioned action that provoked the defendant company to send the judicial letter.

The court noted it had no doubt that the provocation was clear and unequivocal and that the judicial letter was necessary for the defendant company to conserve and protect its rights. 

Therefore the court concluded that the plaintiffs cannot institute an action of jactication and for such reason Ms Justice Padovani Grima turned down the pleas of the plaintiffs.

Dr Joseph Mizzi

Mifsud & Mifsud Advocates