Malta Constitutional Court Overturns Galea Testaferata Judgment

Dr. Silvana Zammit | Published on 29 Mar 2011

Ccmalta Default

The Constitutional Court has overruled a judgment which had previously concluded that those provisions of the law which allowed the conversion from a temporary emphyteutical grant to one of perpetual emphytheusis were in violation of the fundamental human rights of the owner of the property.

In 1999 Mr. And Mrs. Grima filed a constitutional application, before the First Hall, Civil Court, against the Attorney General and Michael Camilleri. In 1994 they had purchased from Michael Camilleri the direct ownership of a plot of land in Gozo which was subject to a temporary emphyteusis of 99 years beginning in 1899. Michael Camilleri had built his house on this land before Mr. and Mrs. Grima made this purchase.

Therefore, the operative law in this case would be the Housing Decontrol Ordinance as amended in 1979. Article 12 of the Ordinance (which had been introduced by 1979 amendments) states that notwithstanding anything contained in the Civil Code, the provisions of this article shall have effect in respect to all contracts of temporary emphyteusis made at any time. Article 12 (4) states that the emphyteuta shall be entitled to convert the emphyteusis into a perpetual one under the same conditions of the temporary emphyteusis. Therefore, in 1998 Mr. Camilleri had claimed that he was legally entitled to convert his title of temporary empytheusis to one of perpetual emphyteusis, according to the Ordinance. He had also requested the ordinary courts to make a declaration to that effect. However, this case remained pending.

Mr. and Mrs. Grima objected to this conversion on the basis that they would be deprived of their property without sufficient compensation.

Last year the couple’s constitutional application was upheld and the court concluded that the relative provisions of the Ordinance were not acceptable as they were in violation of human rights, thereby making them null and void.
Both the AG and Mr. Camilleri appealed from this decision.

In last Friday’s ruling, the 25th March 2011, the Constitutional Court composed of Chief Justice Geoffrey Valenzia, Mr. Justice Giannino Caruana Demajo and Mr. Justice Tonio Mallia, made reference to the case of Mario Galea Testaferrata vs. the Prime Minister which had also ruled that the relevant provisions of the Ordinance were null and void.

This ruling had been appealed and the appeal was declared to have been deserted. No judgment on it had been delivered by the Constitutional Court. It only ever remained as a decision before the First Hall, Civil Court.
The court also made reference to a judgment delivered in 2009, that of Josephine Bugeja vs. AG. In this case the Constitutional Court had observed that the relative provisions of the Ordinance were not in violation of human rights. The court had decided that there could be certain situations where the application of the law in specific circumstances could constitute such a violation.

In last Friday’s judgment, the Constitutional Court said that the relative provisions of the Ordinance could not be interpreted alone but in relation to all the facts of the case as a whole.

The couple’s constitutional application had been premature since the issue of whether Mr. Camilleri was legally allowed to convert the temporary emphyteusis into a perpetual emphyteusis was still pending before the ordinary courts.

When the Grimas’ had acquired the direct ownership of the land in 1994 they had taken over the role of the person who had originally granted the land by title of temporary emphyteusis. Therefore, they could now enjoy the same rights as the original owner to contest any claims in respect of the land.

In conclusion, last Friday, the Constitutional Court upheld the appeal made by the AG and Michael Camilleri and annulled the First Hall, Civil Court judgment.

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