The heirs of BICAL group founder Cecil Pace have failed in their bid to challenge a court testimony regarding a majority share transfer in a Maltese company that formerly owned the Excelsior Hotel.
Pace had instituted proceedings in his capacity as shareholder and director at Malta Industrial Development Corporation against Italian lawyers Michele and Massimiliano Martone, claiming that Michele Martone had not testified truthfully in separate proceedings.
That testimony concerned the acquisition by Martone of the majority shareholding in Malta and Europe Hotels Ltd from Italian spouses Antonio Ghidoli and Nada delle Piane.
Pace challenged the veracity of that testimony, claiming that it had caused prejudice and loss of property in his regard.
The First Hall, Civil Court threw out the applicant’s claim in October 2014, prompting an appeal, with the final judgment being delivered last week.
The appellants, as successors of Pace, argued that the first court had made a wrong assessment of facts, basing their claim upon an affidavit presented by delle Piane in January 2002, wherein she explained how she and her husband had sold their shares in MEH to Pace, some time before his bank collapsed in 1972.
In that affidavit, the witness stated that Martone had often sought to acquire the shares but had been turned away.
Yet, the first court concluded that that testimony was not reliable since it appeared to have been contradicted by a written agreement, signed in September 1972, whereby the Italian couple had transferred their MEH shares to Martone, rather than Pace.
Pace’s lawyer attempted to cast doubt on that September agreement, insisting that the shares had actually been transferred to Pace’s company, Adelphi Investment Ltd, in February 1972.
Yet, in spite of claiming “no less than 17” instances, clearly indicating that Martone had lied under oath, the appellants failed to prove their claim.
The court of appeal, presided over by Chief Justice Mark Chetcuti, Mr Justice Joseph R. Micallef and Mr Justice Robert G. Mangion, observed that the appellants had not proved that the first share transfer agreement had been tampered with.
That document contained an additional note stating that the agreement between Pace and the Ghidoli spouses had been cancelled, a note which Martone claimed to have written in the presence and with the consent of Pace.
Nor did the appellants put forward evidence to support their claim about the authenticity of delle Piane’s signature on the September agreement as well as the applicability of a pre-emption rights clause in the memo and articles of MEH.
Moreover, the financial comptroller at the time had not been summoned to confirm or rebut Martone’s testimony.
In light of all considerations, the court concluded that although the burden of proof lay upon the applicants, they had failed to put forward the necessary evidence to show that Martone’s testimony had “truly influenced” the final judgment in those proceedings.
The appeal was rejected.
The heirs were assisted by Malcolm Pace, Cecil Pace's son. Martone was assisted by lawyer Mario de Marco.