In a case dealing with fundamental rights affecting private property, expropriation, intervening legislative amendments and administrative action, the Constitutional Court delivered its appeal judgment on February 25 on application 76/16/1 RGM as filed by B & B Property Development Co. Ltd (C1329) against the Lands Authority and the State Advocate. The State Advocate was eventually declared as not being an adequate party to the suit and the action continued as against the Lands Authority.
This was a judgment on two appeals filed by the aforesaid company and by the Lands Authority, upon the judgment delivered on June 20, 2020, by the First Hall of the Civil Court in its constitutional jurisdiction. In the end, the constitutional court rejected both appeals and confirmed in full the first instance judgment of June 20, 2020.
This case dealt with an expropriation of property belonging to the plaintiff company and going back to 1977. By a 1977 presidential declaration, the property of circa 5,474 square metres was apparently expropriated. Then, by a declaration dated April 28, 1987, and published in the Government Gazette, part of the previously expropriated land was released back to the plaintiff company. However, the plaintiff company successfully claimed that part of the released land had actually remained occupied by the state and is used as a road, gardens and for other purposes determined by the Lands Authority.
The plaintiff company complained that it was never adequately compensated for all the land expropriated way back in the 1970s, inclusive of the land released in 1987, as this remained occupied by the state. Through the evidence in the proceedings, it was actually concluded that the state did not complete the expropriation process and no compensation had been settled. In fact, the expropriation process was concluded following the filing of the constitutional application by the plaintiff company by virtue of a new declaration issued according to article 44 of Chapter 573 of the Laws of Malta, known as the Government Lands Act.
This latter law was enacted in 2017 and amounted to the major complication in this case as it was introduced in our statute book during the course of the proceedings being commented upon, and significantly affected them.
In fact, following the enactment of this law, the Lands Authority proceeded to issue two declarations by which it acquired by absolute title the land previously requisitioned in 1977 and part of the land so requisitioned and subsequently released in 1987.
In accordance with article 39 of said legislation, the Lands Authority also proposed a total compensation amounting to €24,764. Following such declarations, the plaintiff company actually filed actions according to said Chapter 573 in front of the Arbitration Board therein established so as to contest the declarations of the Lands Authority.
The state did not complete the expropriation process and no compensation had been settled
In the end, the remedies afforded according to Chapter 573 were central to this case from a procedural perspective. This is because it partially allowed the state to successfully plead in front of the first court that it should not exercise its discretion and determine the fundamental rights application filed by the plaintiff company, because the latter at law is deemed to be an extraordinary remedy which should not be used if there exists another alternative ordinary remedy (such as those provided under Chapter 573) at law.
In relation to a fundamental rights action, the first instance court reminded that according to settled jurisprudence, another alternative ordinary remedy that would allow it to decline the exercise of its fundamental rights jurisdiction is one that is accessible, fair, effective and adequate in relation to the alleged fundamental rights violation or threat thereto. Also, it is not required that the plaintiff be guaranteed success in his action, but the remedy available has to be one that is practical, efficient and capable of producing effects in relation to the claims made. In this regard, the state was successful in pleading exactly this in light of the new provisions of Chapter 573.
Unsurprisingly, the plaintiff company complained that such remedies did not exist when it filed its fundamental rights application, and that its case should be determined according to the law as in force when it filed its fundamental rights application. This seems reasonable as a general rule, but in the end both courts disagreed.
The constitutional court sustained this by quoting a good list of judgments by the European Court of Human Rights, according to which an exception to this general rule could be made, meaning that a plaintiff could be called upon to exhaust all ordinary remedies, even those introduced and available after the filing of his fundamental rights action.
The Lands Authority had actually submitted that Chapter 573 inter alia came to be so as to fairly address cases such as those brought forward by the plaintiff company. In the end, the courts seemed to agree that the new intervening remedies afforded by Chapter 573 could be called upon to adequately consider the claims by the plaintiff company. In fact, the plaintiff company actually filed actions according to Chapter 573 in front of the Arbitration Board therein established.
The courts likewise deemed the new remedies provided under Chapter 573 as being capable of satisfying all fundamental rights claims by the plaintiff company, excluding those related to the alleged occupation without title by the state, which affected only a part of the property of the plaintiff company. This was so as that occupation preceded the enactment of Chapter 573.
As such, the First Hall of the Civil Court (Constitutional Jurisdiction) proceeded to consider the fundamental rights claim in relation thereto, found a violation and provided for damages in favour of the plaintiff company. It liquidated the same to a total of €65,000, consisting of €50,000 in pecuniary damages and €15,000 in non-pecuniary damages.
The above was confirmed on appeal by the constitutional court. The plaintiff company is still contesting the expropriation and proposed compensation by the Lands Authority in front of the Arbitration Board established under the Government Lands Act.
Edric Micallef Figallo is an associate at Azzopardi, Borg & Associates Advocates.