The action of spoliation, referred legally as the Actio Spolii, is a possessory action intended to protect possession. As confirmed in the judgement of June Jackson vs Leonard Jackson, decided on the 22nd of January 1990, the action of spoliation is concerned more with the exigencies of social utility and public order. One prominent writer on spoliation is Pacifici Mazzoni, who had argued that spoliation is ultimately an arbitrary act of a person, against of the wishes of the person who is so dispossessed.
The Actio Spolii has at the forefront of its agenda the restoration of possession, and it aims to avert the taking of the law into one’s own hands. This action is regulated in our Civil Code, specifically Article 535 of Chapter 16 of the Laws of Malta:
From this article of the law, three cumulative requisites emanate; firstly, there is the material element of the action where there must be the possession of a thing, which can even be momentarily. Such possession can be of both immovables and movables, provided that it is corporeal, and hence, has a physical existence. Although possession of the property may be acquired in good or bad faith, the mere use of the property will not subsist for an action of spoliation. This action also extends itself to detention, that is, one holding in the name of another, such as a lessee, and a usufructuary, amongst others. Nonetheless, as confirmed in the judgement of Farrugia vs Cassar, decided in 1933, this action cannot be instituted if detention of the property is based only on mere tolerance.
Secondly, for this action to persist there must be the act of spoliation itself. In Maltese diction, this spoliation is referred to as ‘jitnezza mill-pusses’. For a successful action of spoliation, it must happen either through violence or clandestinely. These two terms were defined by the Court in the case of Cesareo vs Trapani, decided in 1950; the taking of possession is regarded to be violent when, either through moral or material means, the will of the possessor was vitiated. Conversely, spoliation is done clandestinely, when it is done without the awareness of the possessor or holder of the property. Notably, here, the molestation or threatening of spoliation does not suffice, but the deprivation of enjoyment of the property must actually take place. Moreover, as repeatedly held by the courts, the Animus Spolianti is not a requirement, i.e., the intentional element is irrelevant.
Interestingly, when it comes to spoliation, the Latin maxim Vim Vi Repellere Licet is applicable, whereby it is justified to repel force by force. Therefore, ultimately, if the aggressor is trying to materially take possession of the property by force, rather than by violence or by clandestinity, then, it is lawful to repel that same force with corresponding force.
Lastly, the Actio Spolii must be instituted within two months from when possession was lost. Here, we find conflicting judgements as to whether this two-month period starts to run from when the spoliation took place, or else from when the plaintiff became aware of such spoliation. For instance, in Azzopardi vs Azzopardi, decided in 1982, the Court declared that this period starts to run from when the spoliation begins, whilst in Alfred Paul Farrugia noe vs Peter Paul Cutajar, decided on the 13th of February 2004, the Court held that this starts to run from when the possessor becomes aware that his property is being molested. However, the prevailing view is the former; the two-month period of forfeiture starts to run from when the action of spoliation begins, rather than a die sciece.
Occasionally, the action of spoliation is very apparent and evident. Indeed, often the action of spoliation transpires in separation proceedings, in conjunction to the matrimonial home. This occurs when although, legally, both parties have a right to reside in the property, failing a court decree pendente lite, one of the spouses takes full possession of the property, prohibiting the other spouse from entering. On the other hand, more complex matters would include those involving servitudes, leading to the deprivation of privacy. One case in point, decided this year, is Joseph Farrugia et vs Carmelo sive Charlie Spiteri, decided on the 30th of May 2023, by the First Hall Civil Court. The plaintiffs had a right of way over the property of the defendants, which was eventually closed by the latter with the use of a chain and padlocks. Possession over the land was proved successfully by the plaintiffs through a temporary emphyteusis payable by their son to the defendants. Accordingly, the Court requested that all padlocks be removed, since by the closure of the right of way, spoliation was indeed taking place.
When it comes to the action of spoliation, reference should also be made to Article 791 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, dealing with pleas in spoliation suits. In terms of this article, prior to examining any other petitory pleas, the Court will limit its enquiry to the question of possession and spoliation, and will not consider any other factor, until there is the restoration of the property. Therefore, the defendant can only bring forward dilatory pleas, and hence, evidence of title on the part of the defendant is not applicable in this action. This is all encompassed in the Latin maxim Spoliatus Ante Omnia Restituendus, which translates to when there is spoliation, before anything else is considered, there should be the restitution of possession.
Concludingly, put simply, spoliation is the wrongful use of property belonging to another third party. The outcome of this action would be the restoration of possession to its former condition. This would be even the case if the person who had committed the spoliation holds ownership over the property. This is since this possessory action is one of social order and juridical stability; every transfer of possession should be done through legal means, rather than through an arbitrary act of a person.
This article is for information purposes only and should not be construed as legal advice.
Article and research done by Ms Caitlin Turner, currently reading a Bachelor of Laws (Honours) at University of Malta.
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