Works on a pavement may contribute spoliation

Works carried by one of two warring bar owners constituted spoliation of the other bar owner. This was decided by Magistrate Joanne Vella Cuschieri on 4 April 2017 in Kenneth Grech v Pubblius Buttigieg.

In his application, Kenneth Grech told the Court that he runs Royal Lady Bar in Mgarr and the defendant runs the bar next door to him. Grech accused Buttigieg of placing concrete on the pavement in front of his car. Grech held that this constitutes spoliation.

Buttigieg replied by saying that the elements of spoliation did not exist.

Vella Cuschieri examined the evidence which was brought by the parties, amongst which was a previous action between the parties where the defendant sought to issue a warrant of prohibitory injunction with the aim of stopping the plaintiff from making any modification to the pavement. The two barmen had a dispute on how they divided the pavement to place tables and chairs in front of their respective bars.

The application for the warrant was turned down because the two had encroachment and the defendant did not prove that he would suffer any prejudice if the works would have been carried out.

The work Grech wanted to carry out and which Buttigieg objected to was for him to make the pavement level with his bar. In fact, a wooden platform was to be placed outside the bar. When the wooden platform was not placed, two large plants were placed instead. In October 2015, Buttigieg gave instructions for the plants to be removed and a concrete platform was placed. In fact, the evidence showed that it was Buttigieg who had ordered these works to be carried out and for the plants to be removed from in front of Grech’s bar.

The Court analysed the legal issues in play and quoted from Article 535(1) of the Civil Code, which reads: “Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention, as provided in article 791 of the Code of Organization and Civil Procedure. “

From this article of law, the action of spoliation has three elements, that of possession, the act of spoliation and that it has to be instituted within two months. 

The Court explained that this type of action is required to protect one’s possession and is intended to block someone to take the law in one’s hands. If one’s possession was deprived, then the Court may order that the possession be given back. Other judgements were quoted such as Delia -v- Schembri decided by the First Hall of the Civil Court on 4 February 1958, Margherita Fenech -v- Pawla Zammit of 12 April 1958 and Cardona -v- Tabone of 9 March 1992 of the Court of Appeal. 

The Court disagreed with the defendant who said that the elements of spoliation did not exist in this case. There is ample evidence to show that the defendant ordered that the concrete platform be placed outside Grech’s bar and that the plants were removed. The action was filed in court within the two months limitation. 

The Court then moved to uphold the plaintiff’s requests and ordered Buttigieg to remove the concrete platform within one month.

Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates