![]() ![]() The Court of Appeal held in ‘Maria Dolores Mifsud v Michele Galea’ on March 29, 1957, that it did not have to investigate the nature of possession or whether possession was legitimate. The fact that there was an enforcement notice was immaterial. In case (Vol XXXIII-II-83), Pacifici Mazzoni writes that a violent act of spoliation is “qualunque atto arbitrario che per forza privata si compia contro la voluntarieta’ dello spogliato”. She did not dispute that the Borg couple had possession and only contended that their possession was illegal, abusive, and in bad faith The Court of Appeal noted that Gatt based her appeal on the fact that Borg’s possession was unlawful. An act of spoliation could also be committed by the owner. The court’s consideration was restricted to the fact of possession and the act of spoliation. In ‘Vincenzo Cassar et v Annetto Xuereb Montebello’, dated May 28, 1956, it was held that the action against spoliation was of public order, solely and exclusively intended to present someone from taking the law into his hands. ![]() Three elements had to be proven in an actio spolii:ģ) legal action by claimants within two months from when the act of spoliation occurred. During the proceedings, Gatt installed an air conditioner. The two were still in possession of the yard, she said, and did not suffer any loss of possession and there were other windows overlooking this yard. It was not possible, she argued, to base a legal action on an illegality. The property was constructed without a permit. She said that she had a right to open the window as the couple’s alleged possession was illegal and abusive. ![]() In reply, Gatt pleaded that the Borg couple’s claims were unfounded. to order the removal of the spoliation within a short time to be fixed by the court.To declare that the installation of the air condition units in the airspace over the yard of 31/1 Kristy Court, Borg Olivier Street, St Julian’s was also a violent act of spoliation and.To order her within a short time limit to remove the spoliation and reintegrate their possession of the yard.To declare that Gatt committed a violent, recent and clandestine act of spoliation in terms of article 535 of the Civil Code, when she opened a window overlooking their yard in the dividing wall, without their knowledge.In their judicial letter dated April 15, 2011, the couple requested Gatt to restore the property to its original condition, but she failed to do anything.įaced with this situation, they proceeded to file legal proceedings, requesting the court: “(2) Such reinstatement shall be ordered by the court even though the defendant be the owner of the thing of which the plaintiff has been despoiled.” “(1) Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a moveable or an immoveable 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 Organisation and Civil Procedure. The Borg couple were the owners of Flat 1, 31 Kristy Court, Borg Olivier Street, St Julian’s, as results from a contract of acquisition dated August 1, 1993, in the acts of notary Marco Farrugia. It was argued such act constituted an act of spoliation, which was violent, clandestine and recent in terms of article 535 of the Civil Code. Gatt opened a window overlooking their yard. The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on July 18, 2014, in the case ‘Anthony Borg and Josephine Borg v Bernadette Gatt’ held, among other things, that if the opening of a window was in accordance with a Mepa permit, this could still amount to an act of spoliation.Īnthony and Josephine Borg filed legal proceedings to reintegrate their possession after claiming to be despoiled by Bernardette Gatt. ![]()
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