In a very interesting case involving a number of legal issues, our highest civil court, the Court of Appeal (Superior Jurisdiction), delivered its judgment on application 2440/00/2 MCH on January 12 in the names of ‘L-Aġent Direttur tal-Uffiċċju Konġunt v Vellul Limited (C 9828) et’.

The plaintiff, being the Joint Office, sought the rescission of a deed of sale pertaining to land in Mrieħel, which was sold by defendants Cassar to the other defendants, Vellul Limi­ted, by public deed on November 12, 1990.

The Joint Office based its action on the principle that said land did not belong to the vendors, Cassar, but to itself. The Joint Office invoked the application of article 1372 of the Civil Code which, among other things, provides that “the sale of a thing belonging to another person is void”.

This principle made law is the central issue in the action brought forward by the plaintiff, and besides requiring an enforceable law to give force to the obvious, many would think that this provision is just stating the obvious. Yet, through established, sound and just legal institutes, the passage of centuries and after numerous transactions at various levels, the situation gets tricky and legal minds get hard pressed to come through with a viable solution and/or litigate in the best interest of their respective clients. In such cases, it all boils down to the legal title claimed and proven to be held by the parties.

The matter of the title held by the parties is fundamental, as is the degree of proof required for it. This being an action based on article 1372 of the Civil Code, as stated by the First Hall of the Civil Court in the first instance judgment given on April 27, 2015, the proof required “ma tridx tkun waħda konklussiva u inattakkabbli iżda biss waħda komparattiva bejn it-titolu vantat minn u bejn il-partijiet”. Thus, this action required a comparative evaluation by the court as to the respective titles claimed by the parties to the case, so as to determine who in the end has the better title.

The Court of Appeal confirmed this after it was unsuccessfully attacked by the defendants. The latter insisted that the action brought forward by the plaintiff was the actio rei vindicatoria, meaning the proof required was the so-called probatio diabolica. This would have required evidence on the validity of all transfers of title down to proving the original title on the immovable goods and its own validity. The name is there for a reason, as such proof is extremely arduous and it often ends favouring the defendant.

The matter of the title held by the parties is fundamental, as is the degree of proof required for it

Cassar sought to prove their title and, as such, the validity of the sale made to the other defendants (Vellul Limited, in occupation of the land involved), by pleading the acquisitive prescription of the title of perpetual emphyteusis on the land, the latter being the declared title on the deed of sale dated 1990. This plea failed due to the facts of the case, which showed that Cassar held a title of agricultural lease on the land in question and not one of perpetual emphyteusis, which was actually held by the Capuchin Friars of Floriana.

This land came to the friars through the pious foundation Calderone dei Poveri set up according to the will of Vincenzo Attard in the 19th century. Evidence was brought forward that said the friars actually paid ground rent (ċens) to the owners of the land for a period of 50 years or more. Hence, through this evidence, the courts held that, if anything, it was the said friars who held a title of perpetual emphyteusis by acquisitive prescription, not Cassar.

Moreover, evidence was brought forward that Cassar actually paid qbiela (rent for an agricultural lease) to the friars themselves and he even declared as much with the Department of Agriculture.

Considering the applicable degree of proof, and as held by the Court of Appeal, the Joint Office as plaintiff still had to prove that it owned the title on the land involved. It did so both through evidence negating the defendants’ (Cassar) claim to title and by providing evidence which proved itself as the owner of a better title.

Said negation resulted through evidence showing that Cassar held, as even declared by themselves, a title of agricultural lease. As such, the plea of acquisitive prescription could never succeed as, per Article 2118 of Civil Code, persons “who hold a thing in the name of others or the heirs of such persons, cannot prescribe in their own favour: such are tenants, depositaries, usufructuaries and, generally, persons who hold the thing not as their own”. In truth, had there been no such evidence, the situation would have been far more complicated, and this, most probably, to Cassar’s benefit.

As implied by the courts, Cassar did not have the possibility of acquisitive prescription according to law. Delving deeper, the courts reasserted that acquisitive prescription is also not a mode of acquisition of title that applies merely through the passage of time but has other fundamental elements required.

The passage of time needs to be coupled with the possession of the title itself, and said possession has to be exercised as owner of the title in a manner which is continuous, uninterrupted, peaceful (meaning no acts or claims against it are made), public and unequivocal. Cassar’s own actions and evidence thereon negated this, while it was the friars who, if needed, could claim it successfully.

The Joint Office was successful for the above reasons and due to the agreement signed on November 28, 1991, between the Holy See and Malta relative to the transfer to the State of such immovable property in Malta as is not required by the Catholic Church for pastoral purposes and on the determination of certain issues pertaining to the relations between the Church and the State as regards matters of patrimony − according to which the title held by the friars was transferred to the Republic of Malta.

Edric Micallef Figallo is an associate at Azzopardi, Borg & Abela Advocates.