The right of access granted through a neighbouring to an enclaved property is an easement registered in the land registry, as well as in the title deed of both the dominant and the servient property. In case of violation of the right of use, the civil offence of trespass to immovable property and private nuisance is committed. The right of access is considered a property right which, however, is attached to the dominant property for the benefit of which it is registered and it is not an autonomous or independent right, nor is it personal one since it is independent of the respective owner. Its granting is linked to the ownership of the dominant property which expands and it constitutes a burden limiting the right of ownership of the servient property. Actions on the part of the owner of the servient property which aim to cause an obstacle to the use or are intended to reverse or abolish the right of access, even if he ceased to be the owner due to transfer, constitute an illegal intervention and do not exempt him from responsibility of restoring it. The remedy that the Court may grant, depending on the extent of the trespass, is an injunction to restore the right of passage to the condition it was in before the trespass.

Article 43(1) of the Civil Wrongs Law, Cap.148, defines trespass to immovable property that it consists of any unlawful entry upon, or any unlawful damage to or interference with, any such property by any person. Usually, the illegal intervention and deprivation of the right of way comes from the owner of the servient property. The Supreme Court in its decision issued on 13.7.2022, examined the appeal of a former owner of a servient property who claimed that the Court of First Instance wrongly issued an injunction against him, as it was not examined to what extent, as a non-owner now, he had the right or consent of the present owners of the servient property, to enter upon the property and carry out the necessary works in compliance with the injunction issued against him.

The Supreme Court considered that the case law cited by the appellant does not support his legal approaches. The Court explained with reference to jurisprudence, that the issuance of an injunction which is a mandatory order falls with the discretion of the trying Court. An element that counts is that the opposing party acted without regard to the rights of the claimant neighbour, trying to gain an advantage over him. The costs of the offender to comply are considered into the criteria for issuing a restoring injunction, but this factor has no place where it appears that he acted deliberately. The Court further pointed out, it was decided that in the cases of mandatory orders, by which positive action is required by the person to whom they are addressed, the impossibility of executing them has always been a defence, with the proviso, however, that the burden of proving the impossibility is on the person to whom the order is directed.

In the particular case, the Supreme Court stated that it remains undisputed that the appellant by his own actions interfered with the neighbour’s right of passage. The order issued against him is clear and does not cause any impossibility of fulfilling it or his compliance with it, since no evidence was brought before the Court that issued it that could lead to such a conclusion or demonstrate that compliance will be the result of illegal actions by his part. The appellant was ordered to restore the topography of the land along the width and length of the passage so that there is a smooth uphill slope therein. The issuance of the injunction against the appellant, was the inevitable result of his disregard of the rights of his neighbour, as they emanated from the registered right of access for the benefit of his property.

The Supreme Court approved the trial Court’s judgement that the claimant neighbour proved his claim for trespass and obstruction of the use of the right of passage and that as an exclusive remedy justified under the circumstances, was a judgement for nominal damages and the issuance of mandatory order of restoring the passage, within two months from service of the order to him. The Supreme Court accepted, however, that the judgement of the trying Court for awarding costs on the scale of the action, given the award of nominal damages and the issuance of the relevant orders, was not justified, since the claimant did not prove specific damage, but was vindicated only in terms of the merit of his complaint, and ordered their reduction to the lowest scale.