Regarding the claims of the two defendant workmen, the Court stated that, with reference to the judgement Dimitri Orlov et vs Edward Pavia proprio et nomine, in a spoliation suit, an action may be brought against any person who directly partakes and participates in the act of spoliation. In accordance with Article 535(1) of the Civil Code (Chapter 16 – Laws of Malta) “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.” The spoliation suit must be initiated within the period of two months from the day on which the spoliation took place The Court took into consideration the elements of spolition which are:ģ. Since the plaintiffs initiated proceedings in the form of an action for spoliation, this Court was not competent to decide on the issue of ownership of the passage and hence had to reach a decision limited to possession. Till today, the Defendant still claims ownership over the part of the passage where the works were carried out and furthermore, claims that such area does not even form part of the passage but is part of his property. The Court of Appeal had concluded by confirming the previous decision of the First Hall Civil Court and stating that there was not enough evidence available to establish exactly to whom the passage appertains. The passage in question was already the subject of a court case Francis Cauchi et vs John Mary Sciberras (2005) decided by the Court of Appeal wherein, on the basis of Article 435 of the Civil Code (Chapter 16 – Laws of Malta), the plaintiff claimed possession of the same passage and therefore, the Defendant, while building his property, was not respecting such possession when calculating the distance between the plaintiff’s tenement and his own. The works did not deprive the plaintiff of her enjoyment of the passage The plaintiff never enjoyed possession of the part of the field where the works were carried outĦ. The location of the disputed works was not actually in the passage and formed part of the Defendant’s propertyĥ. The claims that the width of the passage was reduced were unfounded since they had simply constructed the pavement and ramp so as to deviate rain water away from the Defendant John Mary Sciberras door.Ĥ. The legally required elements for the possibility of exercising the action for spoliation were absentģ. In relation to Anglu Mizzi and Joseph Mizzi, on the basis that these were merely workmen, they should not have been sued for the alleged spoliationĢ. The plaintiff claimed that all this hindered her free possession of the passage and hence, she requested the Court to order that her possession of the same passage be restored.ġ. They also passed a plastic water pipe through the passage and placed stones in the same passage. The plaintiff complained that on the 31st January 2008, the defendants built a wall at the entrance of the passage and on the 8th February 2008 they constructed a pavement in front of the wall, built a ramp and laid concrete in part of the passage. They also requested the Court to order the removal of concrete and of a water pipe from the passage and to restore the passage to its original state prior to the carrying out of works. The plaintiff therefore initiated a spoliation suit (Actio Spolii) and requested the Court to order that possession of her property be restored in its entirety by ordering the demolition of a wall, pavement and ramp which were constructed in the passage which formed part of her house. The other defendants in this case were workmen engaged by Mr Sciberras. The plaintiff was the owner of a plot of land beside that of the Defendant John Mary Sciberras between which properties lay a passage which was the disputed subject of this case. This case involved an allegation of spoliation.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |