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Civil LawProperty Law

Representation must be proven

By April 23, 2023November 8th, 2023No Comments

Those who claim to represent a party in a lawsuit have to prove their representation. This was held in Dr Michelle Tabone on behalf of the Archbishop as the Administrator of the Ecclesiastical Diocese of Malta and the Dar tal-Providenza and on behalf of the Carmelite Order of Malta -v- Joseph Sultana. The judgement was delivered on 18 April 2023 by the First Hall of the Civil Court presided by Mr Justice Toni Abela.

The case dealt with a claim of spoliation of a property in Sliema. The Plaintiffs accused the Defendant, Sultana that he violently took possession of this property in February 2011, by changing the locks. The Plaintiffs asked the Court to declare that spoliation did take place and order that Sultana give possession back to the Plaintiff.

Sultana filed a statement of defence. He held that the Plaintiff has to prove representation. He claimed that the Plaintiff have no connection to the property in question.

From the evidence produced the Church seemed to have inherited the property. The will was not exhibited. The Defendant also claimed to have inherited the same property and changed the locks.

The Court had a look at the elements of spoliation which are possession, the act of spoliation must be done by means of violence and that the action has to be instituted within two months. These elements were listed in Delia -v- Schembri decided on 4 February 1958.

The Court held that he had to deal with the pleas, in that the first plea challenged DR Michelle Tabone’s representation . The pointed out hat the case was instituted in January 2012 and it took too long to be decided. It took 6 years for the parties to indicate that there was no possibility of an out of court settlement. Dr Tabone claimed that she represented the Archbishop, as Administrator of the Ecclesiastical Diocese, the Dar tal-Providenza and the Carmelite Order. This plea had to be investigated, since everyone is equal in the eyes of the law, even though one of the Parties to the case was the Church. If the plea was not raised the Court will not investigate the representation of the Plaintiff. Article 180(1) of the Code of Organization and Civil Procedure reads:

“180.(1) Subject to the provisions of article 181, written pleadings may be filed – (a) personally by the party pleading in his own name, or by the person pleading in a representative capacity as the parent of the children placed under his paternal authority, or as the tutor, curator, administrator of the community of acquests, executor, head of a department or other public administrator, or as attorney on behalf of any church, community, hospital, or other pious institution or as administrator of property under litigation, or as partner or representative of a commercial firm, or as any of the persons mentioned in article 181A(2) in the case of a body having a distinct legal personality, or as agent or representative of any other lawful association, or as attorney on behalf of persons absent from the Island, either of Malta or Gozo, in which the written pleading is filed;”

The Article 786 of the Code of Organisation and Civil Procedure states:

“786.(1) It shall not be lawful to raise the plea as to the capacity of a party suing or sued in the name and on behalf of any other party against the Economy or other official performing an equivalent function at the Archbishop’s Curia in Malta and at the Bishop’s Curia in Gozo, against any of the persons mentioned in article 180(1)(a)”

This means that once representation is established, then the plea under Article 180 cannot be raised. The Court held that this last article does not allow that anyone who claims to be representing an entity can just take an oath that he or she is representing the entity. Article 789A explains that once representation of the Curia is established, a plea stating the legitimacy of the person cannot be raised.

The Court held that it cannot take into consideration that once she represents the Curia in other cases, then she represents the Curia in this case. From the acts of the case, there is nothing showing that Dr Tabone represents the Curia, the Dar ta’ Providenza and the Carmelite Order. Therefore the Court felt that it has no option but to uphold the plea.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

This article may also be accessed on Malta Today. 

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