Although the charge of pretended rights is a crime, it is not far off from rights that emerge from civil law. This was held in Il-Pulizija -v- Paul Agius, Joseph Agius and Emanuel Agius, decided on 19 May 2021 by Magistrate Dr Donatella Frendo Dimech presiding of the Magistrates’ Court in its criminal jurisdiction.
The three brothers were accused of pretended rights that took place on 6 June 2020 and the following days. The Court immediately delved into the elements of pretended rights as stated in Article 85 of the Criminal Code. In Court of Criminal Appeal judgement delivered on 30 November 2016, the Court had held that the Court should in these cases investigate whether a state of affairs has been unilaterally changed and the victim of this offence has been deprived from the use of the possession. This offence is not intended for the Court to investigate the title of the parties over a property be it moveable or immoveable property. It is intended for one does not take the law in one’s hands and in order to have a status quo. This is like the civil action of spoliation.
The Court made reference to another judgement Il-Pulizija -v- Eileen Said decided on 19 June 2002 by the Court of Criminal Appeal. Here the court held the offence of pretended right is in fact a grey area between civil and criminal law. Sir Andrew Jameson in his report when drafting the Maltese Criminal Code held “…it is doubtful whether acts of this kind would not be better left to the operation of the ordinary civil remedies by way of interdict of or claim for damages…”.
The elements of this offence are when a person is deprived from the use of something and when the accused acted because he has a right to act in this way. The accused must be aware that he should have taken a legal route. There must be an act which deprives the possession of the object of the crime.
In this case, the injured party is claiming that the Agius brothers laid soil in such a way as to watercourse would not lead to their well and that they closed an opening between two fields. The Court appointed architect, did not find that the soil place disturbed the levels of the fields, as alleged by the injured party. When the levels were increased the watercourse was still accessible for water to lead to the well. The injured party did not manage to prove that there was any material change in levels that would not allow the flow of the water.
On this complaint the Court found the accused not guilty.
As to the opening in the wall, the Court referred to one of the accused’s testimony the injured party did use a particular opening, which was opened around 2010, until 2020, because the wall supporting the opening needed maintenance and because it was no longer needed to transfer agricultural products from one field to another.
Notwithstanding this the Court held that the charge sheet mentioned that the alleged crime was committed on 6 June 2020 and days after. The complainant held that the opening was closed in September 2020, which is not days after, but 3 months after.
The Court here also found the accused not guilty.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
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