The Court has the power to order a third party to a lawsuit to join the action, if the third party has a direct interest in the case. This was held in Omega Foundation Limited vs Windmill Services Limited decided on 19 December 2023 by the First Hall of the Civil Court, presided over by Mr Justice Aaron Bugeja.
The Plaintiff company asked the court to order the Defendant company to return 528 photovoltaic panels and to hold the company responsible for damages.
Interfinance Limited and Windmill Services Limited (WSL) signed an agreement on 1 December 2017 where a photovoltaic plant was leased for 25 years. Omega Foundation Limited is a holding company and holds shares in Interfinance Limited. Omega was to purchase the panels and Interfinance was to administer the plant. Both Interfinance and Omega have the same directors. WSL was occupying a factory in Marsa, but did not have a title of emphyteusis over the factory.
There were meetings between the company and INDIS to iron this issue out. There was no agreement and as a consequence there was no agreement between the parties to this case and Interfinance.
Meanwhile, Omega purchased the photovoltaic panels from a German company. Some of these panels were sent to WSL at the Marsa factory. Then they were withdrawn and sold to third parties. Omega then issued an invoice for these 528 panels. In May 2019, WSL attempted to remove these panels, but was not allowed.
In October 2023, the Plaintiff company asked the court to decide on the first claim of the case, being that 528 photovoltaic panels were to be returned to it. The agreement of 1 December 2017 was between Interfinance and WSL. Interfinance was described as the lessor. Therefore, WSL had a title of lease on the factory. The agreement and the correspondence of Omega’s director was in fact signed as the director of Interfinance Limited and not Omega. The two companies argued that the photovoltaic panels were owned by both companies. This may be confirmed by the agreement between the two companies, wherein the Plaintiff company was to own the panels, while the Defendant company was the lessor. It is clear that Interfinance has an interest in these photovoltaic panels, but the court action was instituted only by Omega.
The Court held that in order for the action to be complete Interfinance should be a party to the action. The Court also argued that this is an issue of public order and referred to case law, like Partit Nazzjonalista vs Kummissjoni Elettorali decided by the Constitutional Court on 25 May 2015.
In Vincent Agius vs Mario Borg decided by the Court of Appeal on 18 March 2003, the Court explicitly states that the court may call a party in the lawsuit ex officio in terms of Article 961 of the Code of Organisation and Civil Procedure. This was echoed in other judgments such as Angolina wife of Michael Spiteri et vs Anthony Mercieca et decided by the Court of Appeal on 6 July 2008.
The Court listed the reasons why it was calling into suit Interfinance Limited. It held that it is in the best interest of justice that all interested parties should participate in the action and also the court would be assuring itself of the judicial efficiency and avoid further litigation, when it can be dealt with in one case.
In Albert Borg Falzon pro et noe vs Joseph Cost Chretien decided by the Commercial Court on 17 October 1950 held that a party called into suit, may not be condemned as may the Plaintiff or the Defendant, however, they may take a position in favour of one or another or none of them.
This new party to the case may introduce new facts to the case, which will assist the court to reach its conclusions. In this particular case Interfinance was described in the agreement as Lessor and therefore, it should be included in these proceedings.
Mr Justice Bugeja, moved to call into suit Interfinance Limited in terms of Article 961 of the Code of Organisation and Civil Procedure.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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