The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on November 11, 2001, in the case “John Bonello as chairman in representation of Malta Export Trade Corporation Ltd vs John Ripard in representation of Norasia Agencies (Malta) Ltd as well as agents of Norasia Lines and others”, held, among other things, that a merger of one of the parties in the proceedings did not bring about any radical change in the names of the parties in the case (Okkju). The fact that the Okkju was not corrected before the court of first instance gave judgement did not render its decision to be null and void.

The facts in this case were as follows:

The failure to state the person acting as agent of Norasia Lines did not bring about nullity

The Company Norasia Agencies (Malta) Ltd contested the validity of a decision by the First Hall of the Civil Court dated November 28, 2008 on grounds of a number of errors in the acts of the case.

It was stated that:

John Bonello ceased to be the chairman of Metco as from 1996 but remained appearing in the Okkju (the names of the parties in the case).

Malta Enterprise took over the functions of Metco by Act of 2003 Cap 463 but there was no assumption of acts.

Paul Ripard was the judicial representative of Norasia Agencies Malta but no note was filed.

The company Norasia Agencies Malta Ltd merged with the company John Ripard & Son (Shipping) Ltd but no correction was made to the names of the parties in the case.

Norasia Agencies (Malta) Ltd was not an agent of Norasia Lines yet it was not clear who represented it.

On November 11, 2011, the Court of Appeal gave judgement by dismissing their request to annul the decision of the First Hall of the Civil Court, as it was not of the opinion that these errors rendered the decision to be null and void.

The following reasons were given for the court’s decision:

Recommendation: The Court of Appeal remarked that the First Hall of the Civil Court should have been informed and the acts of the case should have been corrected before judgement was delivered.

It was the duty of the parties to ensure that the names of the parties (Okkju) reflected the actual and real situation of the parties.

This was necessary as the court hearing and its decision was only binding upon the parties.

The incorrect name of the legal representative: The court said that the judicial representative of a corporate entity in the proceedings was now no longer crucial.

As a result of a legislative amendment, a company was permitted to sue and be sued in its own name without the need to mention specifically its legal representative. A change of representative had no effect on the status of a company. There was no doubt that a company could now appear alone in a suit before the Maltese Courts of Justice, provided it was a “resident” in Malta.

Reference was made to Camilleri vs Debattista dated May 19, 2004 (PA ) where it was held that:

“Article 181A Chapter 12 of the Laws of Malta clearly made provision that it was sufficient to mention just the name of the company in an application for or against the company.

“If a company’s name was indicated correctly, nothing further was necessary. It was not required to mention the name of its judicial representative.

“The law did not insist on such details, contrary to the position obtaining before the legislative amendments.”

Once the law now intended giving corporate entities enjoying legal personality the right to appear in lawsuits in their own name, the failure to mention the judicial representative of an entity did not now render the legal proceedings, to be invalid (See Refalo vs Bonello, dated June 16, 1997 (CA).

Merger: The court was informed that Metco was still in existence and was still registered at the Registry of Companies, as a company in dissolution. In this respect, Metco could still be a party in these proceedings.

In addition Article 40(2) of Chapter 463 provides that:

“Where immediately before the effective date any legal proceeding is pending to which the Malta Development Corporation or the Malta External Trade Company Ltd or the Institute for the Promotion of Small Enterprise Ltd is or is entitled to be a party, and such proceeding refers to any of the transferred undertakings, the Corporation shall, with effect from the effective date, be substituted in such proceeding for the relative entity, as the case may require, or shall be made a party thereto in like manner as any of the said entities, as the case may be, would have become, and such proceeding shall not abate by reason of the substitution.’’

It was not the case that Metco ceased to exist. There was simply a merger of several entities into one structure called Malta Enterprise.

The court said that, while it would have been preferable if this change would have been noted in the Okkju, the failure to do so did not bring about the nullity of the court’s decision or of the appeal, as legally the company continued to exist, in a different entity.

The “regularisation of the acts” was effected by operation of law and the failure to register the change in the Okkju did not disturb the validity of the acts.

It was not the case that Norasia Agencies (Malta) Ltd ceased to exist. The company first changed its name to N.A. (Malta) Ltd and, in 2002, it merged with the company John Ripard & Son Shipping Ltd.

The merger with another company did not extinguish completely such company, but the end result was that this company was continued by another entity.

Reference was made to L.S Sealy in Cases & Materials in Company Law where it was stated that, as a result of a merger, “the shareholders who were members of the several amalgamating companies now together own and control the same enterprises as one venture”.

Merger, therefore, did not cause any radical change in the Okkju, and the fact that the Okkju was not corrected did not bring about nullity of the court decision.

The rights and obligations of the absorbed company would be assumed by the new entity which continued the personality of the merged company.

Though it was preferable for a correction to be made in the Okkju, from a legal perspective, Norasia Agencies (Malta) Ltd continued to exist in another entity.

Norasia Lines: The First Hall of the Civil Court freed Norasia Lines from the proceedings but appellant Valletta Freight Services Ltd and United Arab Shipping Company requested the court to revoke that part of the decision, and held it responsible towards Metco.

The failure to state the person acting as agent of Norasia Lines did not bring about nullity, the court said.

Reference was made to Fenech noe vs Cassar Pullicino noe, dated December 18, 2009.

It was stated that a party that was aware of the change in the course of proceedings before the First Hall of the Civil Court was precluded from taking advantage of such lack of registration before the appellate court.

For these reasons, the court concluded that the decision of the First Hall, the appeal and replies and submissions thereto were not to be declared null and void. An interested party could, however, request the necessary correction in the acts before the court, to ensure that the Okkju faithfully reflected the actual situation.

Dr Grech Orr is a partner at Ganado & Associates.