Session Date: 10 November 2009

Appeal by Cassation No. 154 of 2009 – civil appeal by cassation

(1) Limitation “limitation entitling to a right: possession resulting in gaining ownership” – judgment: its reasoning: defects in argumentation: error in the application of law” “ownership” “among the causes for gaining ownership: possession”.

The creation by the new Civil Law No. 22 of 2004 of possession limitation resulting in gaining ownership – whenever the required legal prerequisites are satisfied – not included in the provisions of the (repealed) Civil Law – its meaning – that such limitation applies from the date of the application of the current Law on 8.9.2004 –deviation by the judgment appealed against from such jurisprudence, which based its jurisprudence on the establishment of ownership by the First Respondent of the disputed land, as deduced from the expert’s report on his uninterrupted, quiet and settled possession of such land since he purchased it on 20.8.1970 – error in the application of the law.

(2) Registration “land registration: registration of ownership transferring transactions: the effect of non-registration”.

That all transactions which would create, transfer, alter, or remove an original real estate right in specie, as well as final judgments establishing such right – Law No. 14 of 1964 on Real Estate Registration Regulations – disregarding this – its effect – such rights would not be created, transferred or removed except, neither among interested parties nor otherwise – nonregistered transactions have no effect other than the personal obligations which result in relation to parties thereto.

1-    The legislature did not include, within the provisions of the repealed Civil Law, any provision providing that possession of a real estate property shall be an autonomous means of ownership. This was rather provided in the current Civil Law which, in line with the established jurisprudence of this Court, creates a new provision that land ownership may be created by virtue of possession, once the legal conditions of such possession are satisfied. The jurisprudence of the judgment appealed against by cassation has been based on the establishment of ownership by the First Respondent of the disputed land, as deduced from the expert’s report that “he has been in possession since 20.8.1970, i.e. under the Law No. 14 of 1964. And that such ownership has been quiet, uninterrupted, settled and with the intention to own such land for almost 37 years. He also constructed buildings and a fence by virtue of a licence issued by the Municipality. No dispute by any person against such possession was established throughout such period, and the buildings and fence are quite visible ... and therefore the establishment of ownership of the disputed property by the Respondent – the First Respondent in the appeal by cassation – was thereby realised. Such bases of the judgment on which it has relied as grounds for its jurisprudence cannot be supported by the repealed Civil Law, nor does the judgment include the conditions for possession resulting in gaining ownership as created by the current Civil Law No. 22 of 2004. This limitation only runs as from the application of the new Law on 8.9.2004. The First Respondent has not satisfied the possession period condition as provided by the law for the establishment of ownership by long possession. The judgment appealed against by cassation has deviated from the said jurisprudence and, instead, confirmed the first instance judgment by validating the First Respondent’s ownership of the disputed property, resulting in delivery and registration thereof on the basis of possession from the date of its purchase on 20.8.1970, thereby committing a breach of the law and an error in its application.

2-    Out of keenness to preserve the land resources and attached rights in specie, being a cornerstone for the society, the legislature regulates such resources by promulgating the Law No. 14 of 1964 on Real Estate Registration Regulation. It provides for the mandatory registration of all transactions which would create, transfer, alter, or remove an original real estate right in specie, as well as final judgments establishing any of such rights. The failure of such registration would result in preventing the creation, transfer or removal of such rights, both as between interested parties and third parties. Nonregistered transactions will have no effect other than the personal obligations which result in relation to parties interested thereto. The documents of the claim reveal, with no contention thereon by the parties, that neither the respondent, the recipient of the right from him, or his successor, registered disputed property in his name. Accordingly, the ownership of such property by any of them cannot thereforebe supported, nor can any transaction in relation thereto have any effect, other than such personal obligations that may have resulted in relation to the parties thereto. Therefore, in connection to the establishment of ownership, none of the aforesaid may be used for argument against the State or third parties.

The Court

Having reviewed the documents, and having heard the report read out by the Judge-Rapporteur, and heard the submissions, and after the deliberations;

Whereas the appeal by cassation has satisfied its formalities;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summed up as follows. The First Respondentbrought the claim No. 269/2007, applying, as included in the form of litigation and related applications, for a judgment declaring the establishment of his ownership of the land as detailed in the documents, delivery of such land, deletion of any registered rights in it in favour of third parties, ordering the Second Appellant to deliver to the First Respondent the title deed of such land, and preventing any interruption on possession thereto by the Second Respondent. The basis of the aforesaid is that the said land was donated by (…) on 23.5.1970 to (…) who sold it to the First Respondent by virtue of an authenticated contract dated 20.8.1970. Since the date of his purchase of the land, the First Respondent established constructions and buildings thereon, whereby he maintained settled, quiet, and uninterrupted possession of such land, in fulfillment of the requirements for gaining ownership by limitation. He accordinglyapplied for its registration in his name. The Real Estate Registration Directorate, however, refused so to register, which prompted him to bring the claim. The court deputed an expert who submitted his report. The court then issued a judgment establishing the ownership by the First Respondent of the disputed land, ordering the Appellant and the Second Respondent to deliver, preventing the latter from interrupting the First Respondent in that connection, ceasing any works on such land, deleting the registration entries relating to it, and ordering the Second Appellant to register it in the name of the First Respondent and obtain a title deed of the land in his name. The two Appellants lodged against such judgment an appeal No. 173/2009. The Second Respondent likewise lodged an appeal No. 240/2009. The court combined the two appeals and issued a judgment on 23.6.2009 dismissing both of them. The two Appellants then lodged against the said judgment an appeal by cassation, which was presented before this Court, at the deliberations chamber, where a session was fixed for its consideration.

The two Appellants contend against the judgment appealed against by cassation that it involved a breach of the law and an error in its application. They state that the said judgment was based on the possession by the First Respondent of the disputed land since its purchase on 20.8.1970 as a cause entitling him with ownership thereof. The legislature, however, has not rendered possession of land as a cause for ownership by limitation before the promulgation of the current Civil Law No. 22 of 2004, which would not avail the First Respondent of such a period that would legally result in gaining ownership. The judgment appealed by cassation is therefore defective and worthy of appeal by cassation.

This contention is appropriate. The legislature did not include, within the provisions of the repealed Civil Law, any provision providing that possession of a real estate property shall be an autonomous means of ownership. This was rather provided in the current Civil Law which, in line with the established jurisprudence of this Court, creates a new provision that land ownership may be created by virtue of possession, once the legal conditions of such possession are satisfied.The jurisprudence of the judgment appealed against by cassation has been based on the establishment of ownership by the First Respondent of the disputed land, as deduced from the expert’s report that “he has been in possession since 20.8.1970, i.e. under the Law No. 14 of 1964. And that such ownership has been quiet, uninterrupted, settled and with the intention to own such land for almost 37 years. He also constructed buildings and a fence by virtue of a licence issued by the Municipality. No dispute by any person against such possession was established throughout such period, and the buildings and fence are quite visible ... and therefore the establishment of ownership of the disputed property by the Respondent – the First Respondent in the appeal by cassation – was thereby realised”. Such bases of the judgment on which it has relied as grounds for its jurisprudence cannot be supported by the repealed Civil Law, nor does the judgment include the conditions for possession resulting in gaining ownership as created by the current Civil Law No. 22 of 2004.This limitation only runs as from the application of the new Law on 8.9.2004. The First Respondent has not satisfied the possession period condition as provided by the law for the establishment of ownership by long possession. The judgment appealed against by cassation has deviated from the said jurisprudence and, instead, confirmed the first instance judgment by validating the First Respondent’s ownership of the disputed property, resulting in delivery and registration thereof on the basis of possession from the date of its purchase on 20.8.1970, thereby committing a breach of the law and an error in its application, which necessitate its appeal by cassation for this reason alone, with no need to consider other reasons of this appeal by cassation.

This subject is ripe for settlement. Out of keenness to preserve the land resources and attached rights in specie, being a cornerstone for the society, the legislature regulates such resources by promulgating the Law No. 14 of 1964 on Real Estate Registration Regulation. It provides for the mandatory registration of all transactions which would create, transfer, alter, or remove an original real estate right in specie, as well as final judgments establishing any of such rights. The failure of such registration would result in preventing the creation, transfer or removal of such rights, both as between interested parties and third parties. Nonregistered transactions will have no effect other than the personal obligations which result in relation to parties interested thereto.The documents of the claim reveal, with no contention thereon by the parties, that neither the respondent, the recipient of the right from him, or his successor, registered disputed property in his name. Ownership of such property by any of them cannot therefore be supported, nor can any transaction in relation thereto have any effect, other than such personal obligations that may have resulted in relation to the parties thereto. Therefore, in connection to the establishment of ownership, none of the aforesaid may be used for argument against the State or third parties.Accordingly, since the claim is devoid of any legal argument in support of the applications of the Respondent, it shall hereby be dismissed.

On the application for a stay of execution of the judgment appealed against by cassation, there is no longer any matter to be considered following the decision by the court on the subject of such appeal, thereby rendering such consideration