Laws are known to be replete with gaps, more commonly known in the legal world as ‘lacunae’. The reason is generally thought to lie in the divergence between the text and the purpose of a law, for the wording of the law can hardly always cater for every possible situation under the sun.

Enter lawyers.

Had law been complete and unfailing, there would be little room for argument, for the law would simply reduce itself to a process where some type of event on one end would automatically trigger an action and consequence in another, in what would be none more than a mundane automated “if this then that” script, the conclusion of which is foregone.

But the law is nothing like that; and that is why lawyers argue the law and the purposes behind it.

The case of ‘Inġinier Joseph Bajada v Il-Kummissjoni għas-Servizz Pubbliku et’, decided by Judge T. Abela on January 9, 2020, was a prime example of an atypical bizarre procedural labyrinth which had to be debated and decided with learned innovation, for the law provided little precise guidance.

Our court system operates under a system of island jurisdictions; we have courts in Malta, and courts in Gozo.

Article 768 (1) of the Code of Organisation and Civil Procedure states that where the number of the defendants in a lawsuit residing in Malta exceeds that of the defendants residing in the islands of Gozo and Comino, each of the defendants residing in Malta may deny the jurisdiction of the court of Gozo. Likewise, where the number of defendants residing in the islands of Gozo and Comino exceeds that of the defendants residing in Malta, each of the defendants residing in Gozo or Comino may deny the jurisdiction of the court of Malta.

This privilege is known as privilegium fori.

This procedure has been part of our law of procedure for a very long time, remaining unchanged since the initial codification of the Code of Organisation and Civil Procedure back in year 1855.

It is a rule so old that one would be led to believe that everything that had to be said about it was true. But the truth cannot be farther than that.

This is a rule that favours the majority of respondents in a lawsuit; if such a defence is pleaded, then the lawsuit is to be heard by the court where most respondents hold their residence.

One just has to count the defendants.

In this case, plaintiff was seeking an action against the Public Service Commission and the Permanent Secretary within the Ministry for Gozo to impugn a decision appointing another individual as assistant director within the Public Cleansing Directorate at the Ministry for Gozo.

The Public Service Commission is seated in Malta and the Ministry of Gozo is situated in Gozo.

There was no majority of residents in either island and hence, plaintiff filed the lawsuit in Malta.Simple, if not for a riveting plot twist that took place months after.

By virtue of a decree of the court delivered six months into the lawsuit, the other applicants for the post were called to participate as joinders in the pending suit, for they were seen to hold an interest in the outcome of the case.

Our court system operates under a system of island jurisdictions; we have courts in Malta, and courts in Gozo

Now, article 962 of the Code of Organisation and Civil Procedure states that the third party joined in the suit shall for all purposes be considered as a defendant in the case. The new defendants resided in Gozo, and just like that, six months through, there suddenly emerged a shift in the numbers because, thereafter, the majority of defenders lived in Gozo.

Predictably, the new respondents pleaded against the continuation of the suit in Malta.

In its preliminary judgment, the court rightly observed that originally, it certainly had the necessary jurisdiction to hear the case since there was no majority of defendants seated in the island of Gozo. The situation only changed when the applicants joined into suit.

Generally speaking, these new defendants did have the right to deny jurisdiction of the Maltese court in terms of article 768 (1) of the Code of Organisation and Civil Procedure, not only because they did reside in Gozo but also because they raised the plea at the first instance (in limine litis).

The question was whether the Civil Court, First Hall seated in Malta was no longer competent to hear the case.

The law does not say anything about such rare circumstances, and neither does our rich history of judicial pronouncements, making this judgment a landmark one.

The court concluded that the privilegium fori only applied to the original parties to the case, notwithstanding any changes to the number of defendants if others join the case at a later stage. This particularly so, since the court’s competence would have been accepted through the progress of the case, including for instance when the original parties would have acquiesced to the court determining certain questions, such as whether or not to call into suit third parties. This reasoning moves in line with the established principle that if the court’s competences is originally ‘accepted’ by the parties to the case, then they can no longer later plead against its jurisdiction.

This is a tricky concept, for once they join the suit, the joinders also become fully-fledged defenders and they are still to be treated as ‘original defenders’ for the purpose of the law. So legally speaking, one cannot really talk about original versus added defendants.

However, the court’s reasoning also has sound practical justifications: had it concluded differently, it would mean that the case could bounce from one court to another, according to the number of respondents added from time to time.

If court jurisdiction could shift so effortlessly, it could easily lead to procedural exploitation by those parties who are uninterested in a speedy resolution of the case.

It could also lead to a myriad of questions, such as: What if more joinders are needed in the future, that once again tip the balance? Why should legal interpretation lean towards the opening of opportunistic forum shopping?

For these reasons, the court rejected the plea of privilegium fori and declared that it had the jurisdiction to continue hearing the case.

The parties requested and obtained permission to appeal.

Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.

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