Replacement of street lighting does not constitute spoliation

The First Hall of the Civil Court presided by Mr Justice Joseph Azzopardi held that the fact that a local council replaced street lighting which was fixed on private property does not constitute a spoliation.

In Arcidiacono Ltd and Boris Archidiacono Ltd -v- Msida local council, Enemalta Corporation and Nexos Street Lighting Limited, the plaintiffs held that they are owners of a showroom in Gzira. On 10 November, 2010, the council, by means of its contractor Nexos, carried out works by fixing street lighting in its façade and placed wires.

This took place immediately after the companies finished renovation works on the façade. The council failed to consult and seek authorisation from the plaintiff companies. The plaintiffs asked the court to declare that the act was illegal by spoliation and to order the defendants to remove the street lighting. 

Enemalta defended the action by stating that it has no relationship with the companies and was not responsible for fixing the lighting where it was fixed. The corporation also argued that the street lighting had been in that place for a long time and was removed provisionally because the companies were carrying out works on the façade.

Msida council agreed with the corporation, in that it was simply a question of replacing what had existed previously and the council has a right to install street lighting according to law. Nexos explained that all it did was to follow the instructions of the local council.

Mr Justice Azzopardi explained that the action of spoliation has three elements – that of possession that the spoliation took place against the will of the plaintiff and that the action was instituted within two months.

The court quoted from a previous court judgement, Vincenzina Cassar -v- Annetto Xuereb Montebello of 28 May, 1956, in which the court had said that the action of spoliation is an action of public order and is intended to block one from taking the law into one’s own hand and without the intervention of the courts. In another case Delia -v- Schembri of 4 February, 1958, it held that this action is intended to protect possession. 

The court held that the facts of the case show that the plaintiff companies decided to carry out works on the façade of their showroom in accordance with their rights. As a consequence they asked for a street light fixed on their façade to be removed.

The street light seemed to have been there for decades. Once the works were completed the plaintiffs failed to again fix the street light. In response the local council engaged a contractor to place a new light in the same place. This is not spoliation, since this was not any breach of public order. In this particular case a public authority carried out its duties and replaced a street light. It was the plaintiffs who caused spoliation when they failed to put back the light they had removed. 

The court then moved to uphold the statement of defence of all three defendants.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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