26 Jan The name of the liquidator is specified in the title of a lawsuit
The name of the liquidator is specified in the title of a lawsuit
by George Coucounis
“The title of a lawsuit concerning a company under liquidation specifies the name of the liquidator and his capacity’’
In every legal proceeding, whether it concerns a lawsuit or an application, brough by or against a company under liquidation, its name is mentioned and that it is in liquidation through its liquidator with reference to his name. Mere reference of the name of the company and the fact that it is in liquidation is not sufficient, the title is incomplete and the Court is entitled to know who the liquidator is and not to be unknown. In the event that the official receiver is appointed as the liquidator of a company, he is mentioned and his name does not need to be mentioned since his capacity is determined. The Civil Procedure Rules and specifically O.2 r.3 provides that when the writ of summons is presented for sealing it shall contain, in addition to the other information, the full name of the plaintiff and the defendant, otherwise it shall not be accepted for sealing. In any proceeding pending before the Court where the issue is raised that the title of the lawsuit does not include the name of the liquidator, it is necessary to file an application to amend the title and add his name for purposes of procedural completeness and substantive law.
The Supreme Court in a judgment issued in C.A. E66/2020, dated 12.1.2023, allowed the appeal of a company under liquidation for the purpose of setting aside an order of the trial Court and replacing it with a similar order, in which the name of the liquidator is mentioned. Specifically, the trial Judge while making an order amending the title of the lawsuit in the writ of summons and in any other filed pleading or application by striking out the name of the company and substituting again its name, but stating that it is in liquidation through its liquidator, did not order the addition of the name of the liquidator.
Article 228 of the Companies Law, Cap. 113, as the Supreme Court pointed out, it provides who shall be the liquidator of a company in respect of which a liquidation order is issued. Where no liquidator is appointed by the creditors the official receiver is the liquidator. The relevant provision was applied in the particular case at the initial stage and subsequently he resigned and a specific person was appointed as liquidator in his place. The amendment in question, as the Court stated, was made in order to include in the title of the action the new name of the company, which was now under the authority of its liquidator. However, that name is incomplete, since the name of the liquidator was not included. Therefore, there is no person to whom the Court can address itself when it needs to communicate with the company.
The Supreme Court added, that Article 228 (f) leaves no doubt that the name of the liquidator of a company must form part of its name, in the title of the lawsuit, if it is placed under liquidation. This makes sense, so that everyone involved in the company’s affairs, including the Court, knows who the person representing it is from the position of the liquidator. And on the basis of the provision of Article 223(1)(a) of Cap.113, it held that certainly it is in the name of the company that the liquidator must bring any legal proceedings and act on behalf of the company. It is not proper for that person to remain unknown and the Court must know the name of the liquidator of the company in dispute. This position is supported by O.2 r.3 which provides that when a writ of summons for sealing is presented it must include, inter alia, the name of the plaintiff and the defendant. Where a particular party named in the summons is represented by a representative, the name of his representative must be mentioned after his name, since he is not a party to the proceedings.
The Court concluded that the identity of a person appearing as a representative of a party in legal proceedings must necessarily be stated in the title of the lawsuit in the writ of summons. This is in order to safeguard, generally and at all times, the interests of the person represented, both from a procedural point of view and from a substantive law point of view. In the context of the above, the need to ensure transparency and judicial procedure is served. This also applies in the case of a company in liquidation which loses its autonomy.