The court marshal must carry out notification of court documents to the correct address of the person or company, he would like to notify. This was held in Gordon Farrugia and Mansueta Farrugia vs Unique Plants Limited, Abdel Karim known as Michael Costa, personally, and in representation of the companies Unique Construction Limited and Unique Plant Limited. The judgement was delivered on 14 November 2023 by the First Hall of the Civil Court presided by Judge Doreen Clarke.
This judgement is limited to Unique Plant Limited, Unique Construction Limited and Abdel Karim Ahmad’s request to be able to present a statement of defence.
The Court listed the facts of the case, in that the two defendant companies have the same registered office in Mqabba, while Ahmad lives in Xgħajra. The Plaintiffs tried to notify the companies at the registered office, but the notification documents read that nobody opened. The same goes for Ahmed. On the second attempt the court marshal wrote that he did not find Unique in Triq Muddurbu, Mqabba and as for Ahmed, nobody opened for him. The third attempt was after working hours and there was a repeat of the second. The court marshal did write that the plaque of Unique was removed.
The Court then authorised the notification takes place by means of publication and affixation. The publication notice on two newspapers took place in May 2023. The affixation of the notice took place at an address Il-Boma, Sqaq il-Muddurbu, Mqabba, the police station and the Mqabba Local Council. The notice for Ahmed was stuck on his residence and the police station and the local council. This took place in March 2023.
On 4 July 2023, the court held its first sitting of the case and the defendants did not present their statement of defence. However, on 11 July 2023 the defendants filed an application for them to be authorised to file a statement of defence. The application challenged the affixation, since this was not done according to law, and therefore null and void. Ahmed, held that he lives in a different address and showed his ID card and the electoral register.
The plaintiffs disagreed and were of the opinion that they were all notified according to law. They pointed out that the companies had removed the name plate outside the registered office.
Judge Clarke pointed out that the validity of a notification and default of the defendant are two separate legal issues. This was stressed in Jesmond Sacco et vs Concetta Charles et decided by the Court of Appeal on 17 May 2004 and in HSBC Bank Malta plc vs Standard Chartered Bank Limited, decided by the Court of Appeal on 12 July 2019. Therefore, the court must first examine whether the notification was carried out correctly. If the Court concludes on the validity of the notification of the sworn application of the plaintiffs, then it can deal with whether it would be justified for the Defendants to file a statement of defence.
As to whether the two companies were notified according to the correct procedure the Court quoted Article 187(4) of the Code of Organisation and Civil Procedure, which reads:
“ (4) In the case of a body having a distinct legal personality, service on such body shall be effected by leaving a copy of the pleading:
(a) at its registered office, principal office, or place of business or postal address with any of the persons mentioned in article 181A(2) or with an employee of such body; or
(b) with any of the persons mentioned in article 181A(2)in the manner provided for in sub-article (1)”
If this fails, then the Plaintiffs may turn to Article 185(5), the documents may be fixed to the door of the registered office. In Three Barrels Limited vs Joan Schembri et, decided by the Court of Appeal on 13 July 2001, the Court of Appeal held that it must be shown that the documents were fixed to the door of the residence of the Defendant. If this takes place then notification would be valid according to law.
From the evidence produced the Defendant are contesting that the documents were fixed to the correct door. The Court pointed out that the court marshal had gone twice to the companies’ registered office in Mqabba, but decided not to fix the court documents to the door. A company must have a registered office, which may be easily identified and if it is not, then this should not penalise that party trying to notify that company. In John Mary Casha and Carmen Casha vs Tal-Markiza Co Limited, the court held that the court marshal was not to blame for not notifying the company with documents, because the registered office was unclear.
In this particular case, the court pointed out that the court marshal had gone to the address of the registered office three times. And although someone removed the name plate Unique from the front door, the court marshal should have still fixed the documents to that door. The Court held that the two companies were not notified according to law and therefore, held that they were not in default.
As to the notification of Ahmed, he argued that his residential address is different from where the Plaintiffs indicated. The Plaintiffs held that his home address is that registered with the Malta Business Registry. The Court agreed with the Plaintiff who argued that Ahmed should have informed the Malta Business Registry (MBR) of the change of address. The Court confirmed that Ahmed was in default.
As to the Ahmed’s request to file a statement of defence, Article 158(10) of the Code of Organisation and Civil Procedure (COCP) states that this must be allowed only for good reasons. The Court listed a number of principles that it should follow, such as default should not have occurred voluntarily and it is that party who should prove that there is a reasonable excuse.
The Court pointed out that Ahmed’s justification, is based on the fact that his notification was not done according to law. However, it being ruled that the notification as done correctly, therefore, his claim cannot be successful.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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