Charities ordered to refund donations worth €285,000

A Gozo missionary movement and the heirs of a late missionary have been ordered by the court to pay back €285,000 in donations made by an elderly woman. 

The donations were made before the woman was declared incapable of managing her own affairs. 

The Civil Court, presided over by Judge Henri Mizzi, ordered Ġesù fil-Proxxmu to pay out €171,000 and the heirs of missionary Emanuel Barbara to repay a further €114,000. 

Bishop Emanuel Barbara died in 2018. He was bishop of Malindi in Kenya and his unknown heirs have been ordered to repay €114,000 in donations made to his mission after these were not done by notarial deed

The court found the donations had not been drawn up by public deed before a notary, as the law requires. 

The case was brought by a woman appointed curator of her aunt in December 2017. 

Digging through her aunt’s chequebooks, she discovered that between 2013 and 2016, her aunt had given away roughly €550,000 to various charitable and religious causes, missions and priests — a hefty sum next to her means.  

She argued that the payments were donations, and that under Maltese law a donation is not valid unless made by public deed before a notary.  

Since none of the disputed payments, totalling €355,000, had been made in the required form, she maintained that they were void, and that the money had to be handed back to the estate. 

The defendants—HopeXchange Malta Foundation (formerly Ghana Mission Foundation), Dar tal-Providenza, Mission Fund, and Ġesù fil-Proxxmu—had resisted the claim on several fronts over the years. 

Foundations spared 

Two of the organisations involved, HopeXchange Malta Foundation and Dar tal-Providenza, successfully defended the donations the woman made to them. 

Both were registered as foundations, meaning that the money handed to them qualified as endowments rather than ordinary donations. 

Endowments to foundations, the court explained, are not subject to the same notarial deed requirement. 

The €23,000 that went to HopeXchange and the €47,000 spread across four payments to Dar tal-Providenza were therefore found to have changed hands validly, notwithstanding the absence of a notarial deed. 

Mission Fund was released from the proceedings altogether, since none of the payments still in dispute were attributed to it. 

Why the rest had to be paid back 

Ġesù fil-Proxxmu had argued that it, too, was a foundation, saying in its final written submissions that it had been registered as one since 2008. 

However, no documentary evidence was produced to support that it was a foundation. The movement’s director, Fr Alexander Cauchi, had described it as a “voluntary organisation” founded in 1987. 

Ġesù fil-Proxxmu also argued that the payments qualified as “manual gifts”, or sums of money that can be given without a notarial deed provided they are modest in relation to the donor’s means. Maltese law does not lay down a fixed threshold for what counts as modest.  

The court drew on the concept of the présent d’usage in French law to define modest. The French law identifies small customary gifts tied to occasions such as birthdays, Christmases or weddings, and generally not thought not to exceed 1–2% of the donor’s wealth or 2.5% of net annual income, as modest gifts. 

The court adopted its own benchmark. It said a payment exceeding 2% of the woman’s reconstructed estate, and 3% of her annual income, would not qualify as a manual gift. 

The woman’s estate at the time was worth roughly a quarter of a million euro, with an annual income of around €12,000. This put the bar at roughly €4,500 to €5,700 on wealth, and under €400 on income. 

The three payments to Ġesù fil-Proxxmu—€150,000, €5,000 and €16,000—sailed straight over both thresholds. 

The movement had also argued that the largest of the three payments, €150,000, had never truly been intended for it, but was earmarked for a home for people with disabilities in Ethiopia.  Ġesù fil-Proxxmu, it said, had been acting merely as the middleman. 

However, the court found this unproven. The cheque had been made out to the movement itself, the receipt had been issued in its own name, and no evidence was produced to show the money had ever been passed on to the home in Ethiopia, or that anyone had even been told it was being received on someone else’s behalf. 

The same fate met two payments totalling €114,000 made to a mission in Malindi, Kenya run by the late Emanuel Barbara, whose unknown heirs were represented in court by appointed curators. 

No defence was raised on their behalf, and the payments were ordered repaid in full. 

The court accordingly ordered Ġesù fil-Proxxmu to repay €171,000, and the heirs of Emanuel Barbara, through their curators, to repay €114,000.