rei vindicatio and the Declaration
of Title
· As Voet says in whom the ownership is
vested, vests the ownership regarding a corporeal thing in rem. He is the one
who claims the dominium over the property.(Voet 6:1:2) It can be distinguished
from the ones called in personam. In that sense they are called vindicatory
actions.
“rei
vindicatio action is an action which arises from the right of dominium. By this
we claim specific recovery of property belonging to us which is possessed by
someone else.” ( Voet 6:1:2)
This action is “rei vindicatio”. This one is filed for the
vindication of the ownership of the owner.
“All actions in rem are called
vindications, as opposed to personal actions or conditions.” (Voet 6:1:1)
· Owner of a property can claim three
kinds of sections in ownership.
jus utendi - Right of
possession and to the recovery of possession.
jus fruendi - Right to
use and enjoyment.
jus abutendi - Right of
dispossession/alienation.
· If the petitioner wants a remedy by
filing this action, he must have had the ownership to the property and is
vested with dominium (ut dominus) at the time of filing the action.
· In this way, an owner of a property
can claim his ownership to the property at any time when his ownership is
questioned in any manner. Even though he is in the possession of it, his title
can be questioned so that he can rely on the sole action of rei vindicatio.
· Voet says in length an owner is in
serious trouble when he loses the possession of his property. It is defined as
follows,
“The physical
control by a person of a corporeal thing with the intension of keeping the
control of it for his own benefit”1
In a rei vindicatio
action, there are two kinds of actions which are brought in concurrence with,
The action
for declaration of title
The action
for ejection
Pathirana v. Jayasundara (1955) 58 NLR 169 in this case the court cited that
in rei vindicatio action proper the owner of immovable
property is entitled, on proof of his title, to a decree in his favour for the
recovery of the property and for the ejectment of the person in wrongful
occupation. ” The plaintiff’s ownership of the thing is of the very essence of
the action ” . Muasdo rp’s
Institutes (7th Ed.) Yol. 2, 9G. A decree for a declaration of title may, of
course, be obtained by way of additional relief either in a rei vindicatio action proper (which is
in truth an action in rem). In this case the Supreme Court finds the declaration of title
is as a sub-action in rei vindicatio and in the same case the petitioner is
entitled to claim an ejection as the duo is a part of rei vindicatio. But that stance has not been approved by the upper
courts later.
· Luwis Singho and Others v. Ponnamperuma 1996 (2) Sri LR 320 In this case the
Court of Appeal, Wigneswaran J with Weerasekera J on the bench said Actions for
Declaration of Title and ejection and Vindicatory actions are brought for the
same purpose of recovery of property. In a rei vindicatio action the cause of
action is based on the sole ground of violation of the Right of Ownership in
such an action proof is required that, (i) the plaintiff is the owner of the
land in question i.e. he has the dominium and, (ii) that the land is in the
possession of the defendant. Even if an owner never had possession it would not
be a bar to a vindicatory action. Further Wigneswaran J observed that “In an action
for Declaration of Title and ejectment the Plaintiff need not sue by right of
ownership but could do so by right of Possession and ouster. In fact in such a
case the Plaintiff is claiming a possessory remedy rather than the relief of
vindication of Ownership.”
Here what is
to be kept in mind is there is no need of proving the title to the questioned
property in a possessory action. But in a Declaration of Title the petitioner
must prove his title to the property. Therefore in the Ponnamperuma case it was
decided that if the petitioner can prove that he was the sole possessor of the
property before the defendant took over it ousting him, then it arises a
rebuttable presumption that the title should be vested in the favour of the
petitioner. In that sense a light proof of title in a declaration of title is
sufficient. Apart from that in a rei vindicatio action such proof of ownership
is not sufficient in any manner. There are other Supreme Court judgements which
held the latter contention, despite this contention is raised in a case of the
Court of Appeal, which is not enforceable against a Supreme Court judgment.
The cause of action is based on the
vindication of title/ownership in a rei vindicatio action. In such time he must
prove his title/ownership in length to the said property with ut dominus in hand.
And he has to prove the possession of
the property is held by the defendant erroneously. The right of the petitioner
is not changed in any way, even though if the petitioner has never come to the
property.
· Abeykoon Hamine v. Appuhamy 52 NLR 49 Dias SPJ (with whom
Jayatilake CJ agreed) observed thus;- “This being action for rei vindicatio and
the defendant being in possession the initial burden of proof was on the
plaintiff to prove that he had dominium to the land in dispute.”
· In Wanigaratne v. Juvanis Appuhamy
65 NLR 167 Supreme Court held thus:- “
In an action rei vindicatio the plaintiff must prove and establish his title.
He cannot ask for a Declaration of Title in his favour merely on the strength
that the defendant’s title is poor or not established.”
· This argument is held further in the
recent case of Thajudeen Apukar v. Viharadhipathy Jankurawela Siriniwasa
Thero SC Appeal 129/2010 Upaly Abeyratne J and Anil Goonaratne J agreeing
with Sisira J. de Abbrew J stated accepting the legal theory which held in
Abeyratne and Wanigaratne cases.
· It seems like an action for
Declaration of Title should be brought in concurrence with a rei vindicatio
action.
jus
vindicandi/jus utendi is an important attribute of ownership in Roman Dutch
Law. In the case of Loku Menika and Others v. Gunasekera 1997 (2) Sri LR
282 Dr.Ranaraja J said that that state is applicable in Sri Lanka.
This is
essential when the defendant or defendants intervenes with the petitioner’s
right to possession. Today many cases are in such kind. If the petitioner wants the defendant to be
ejected, he may file an action for ejection. But in practical the petitioners
tend to file both actions in a single litigation as he does not want to put his
title in danger where the other party leads the case in his favour citing his
rights over the title. That may be the reason many current cases are filed
tagging Declaration for Title and for ejection from land. However he may file a
possessory action claiming an ouster.( spolitus ante omnia restituendus est.)
In that case he is not required to prove his title to the land and ut dominus.2
· Abdul Azeez v.Abdul Rahim 1909 (12) NLR 330 here the court
held that the petitioner is required to prove that he was ousted be the
defendant in an unlawful manner and it is apparently easier than proof of ut dominus and title.
1. G.Wille, Principles of South African
Law (6th edition, 1970)p.192
2. Prescription Ordinance No.22 of 1872,
Section 4.
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