Mur Lura
Court Notices published in Govt. Gazette No. 19,197 of 21st January 2014
01/01/2014
Notice 100
100By a decree of the Small Claims Tribunal, ofthe 22nd November, 2013 the publication of the following extract was ordered for the purpose of service in terms of Article 187 (3) of the Code of Organisation and Civil Procedure (Cap. 12).
Mobisle Communications Limited(C 24655) of Fra Diego Street, Marsa, MRS 1501, filed a Claim on the 18th September, 2013 whereby they asked the Tribunal to condemn Corinee Casha (ID 559079M), of47,Triq ir-Rebħa, Rabat,to pay the plaintiff company the sum of€418.75, which amount is due to the plaintiff company.
With costs and interests.
The case (Claim Number 546/13DMA) is put off on the 24th January, 2014 at 12.30 p.m.
Alexandra Debattista
For the Registrar Civil Courts and Tribunals
Notice 101
101By a decree of the Small Claims Tribunal, ofthe 22nd November, 2013 the publication of the following extract was ordered for the purpose of service in terms of Article 187 (3) of the Code of Organisation and Civil Procedure (Cap. 12).
Mobisle Communications Limited(C 24655) of Fra Diego Street, Marsa, MRS 1501, filed a Claim on the 18th September, 2013 whereby they asked the Tribunal to condemn Fletcher Christopher Edward (ID 35294A), ofView Point, Flat 2, Triq Claire E. Engel, San Ġiljan,to pay the plaintiff company the sum of€314.32, which amount is due to the plaintiff company.
With costs and interests.
The case (Claim Number 540/13DMA) is put off on the 24th January, 2014 at 12.30 p.m.
Alexandra Debattista
For the Registrar Civil Courts and Tribunals
Notice 102
102By a decree of the Small Claims Tribunal, ofthe 22nd November, 2013 the publication of the following extract was ordered for the purpose of service in terms of Article 187 (3) of the Code of Organisation and Civil Procedure (Cap. 12).
Mobisle Communications Limited(C 24655) of Fra Diego Street, Marsa, MRS 1501, filed a Claim on the 17th September, 2013 whereby they asked the Tribunal to condemn Grech Julie Agnes (ID 379596M), of222, White Pompos, Triq l-Imħallef William Harding, Pembroke,to pay the plaintiff company the sum of€275.71, which amount is due to the plaintiff company.
With costs and interests.
The case (Claim Number 527/13DMA) is put off on the 24th January, 2014 at 12.30 p.m.
Alexandra Debattista
For the Registrar Civil Courts and Tribunals
Notice 103
103By means of a Sworn Application, filed in the First Hall Civil Court, in the records of the Warrant of Prohibitory Injunction in the names: Cassar Paola vsZammit Joseph, application number 1924/13 LSO, the following publication was ordered for the purpose of service of the defandant, in terms of Article 187 (3) et seq. of Cap. 12.
By means of application filed in the First Hall Civil Court, in the names (Applicant) Paola Cassar (ID 781436M) vs (Respondent) Joseph Zammit (ID 355944M), on the 19th December, 2013 the applicant Paola Cassar (ID 781436M) respectfully pleaded and confirmed under oath:
That the applicant has an interest to safeguard her rights.
That the applicant in order to safeguard her rights wishes to hold the respondent from:
Personally or through third parties including building contractors he continues to excavate, build or otherwise carry out worksof any nature in the field called ’Tar-Rampa’, in Triq il-Palazz l-Aħmar, Santa Venera, which field is in the possession and cultivated by the applicant by title of agricultural lease.
That the field ‘Tar-Rampa’ above mentioned was originally granted on lease and cultivated by Carmelo Cassar, the applicant’s husband today deceased. Consequently to the death of Carmelo Cassar, the title of agricultural lease passed on to the widow the present applicant.
It appears that theowner of the fieldis selling divided portions of it to third parties amongst which the respondentJoseph Zammit.
That the said Joseph Zammit through his legal consultant declared that he is not acknowleging the title of agricultural lease of the applicant.
Despite that the applicanton various occasions warned the respondent that she enjoys the title of agricultural lease on theland de quo, and that thus he had no right to disturb the title and possession he enjoys recentlythe same respondent commenced excavation and dregging works in the divided part of the land he acquired.
That as a consequence of the said works by the respondent, the title of agricultural lease and possession that the applicant enjoys on the field ‘Tar-Rampa’ are being violated.
That thus this warrant is necessary in order to safeguard the rights of the applicant.
That furthermore the applicant is asking this Honourable Courtso that pending the granting of the final decree it provisionally upholds her demand in terms of Article 875 (2) of Cap. 12.
Thus the applicant humbly prays that this Honourable Courtorders the issuing of a warrant of prohibitory injunctionin order that he be witheldfrom continuing to carry out the things above mentioned.
Sgd. Adv. Aldo Vella.
Sgd. PL. Luisa Tufigno.
Confirmed before me under oath after I read its contents and in the presence of as witness of identity, and filed by PL L. Tufigno.
Warrant of Prohibitory Injunction.
Republic of Malta.
Court Warrant.
To the Court Marshall.
Whereasthe above mentionedapplication was presented and there recur all the elements required by law for the under mentioned order.
Given by the Civil Court First Hall with the witness of the Hon. Lorraine Schembri Orland, Doctor of Laws.
Civil Court First Hall.
Hon. Madam Justice Lorraine Schembri Orland LL.D. M. Jur. (Eur Law) Dip. Trib. Eccles. Melit.
Paola Cassar vs Joseph Zammit.
Inib. 1924/2013 LSO.
The Court
Having seen the application dated 19th December, 2013.
Upholds the demand provisionally and orders that the respondent be notified and shall file a reply within ten days.
Reserves to providedefinitely at a later stage and appoints the Warrant of Prohibitory Injunction on Tuesday 14th January, 2014 at 11.00 a.m.
Sgd. Hon Madam Justice Lorraine Schembri Orland LL.D. M.JUR (Eur Law) Dip Trib. Eccles Melit.
Applicant: ‘Roman’, 326, Cannon Road, Santa Venera.
Respondent: 7, Triq il-Bard, Ħal Qormi.
Execution: ‘Għalqa Tar-Rampa’, in Triq il-Palazz l-Aħmar, Santa Venera.
The Application Warrant of Prohibitory Injunction in the names Cassar Paola vs Zammit Joseph, application number 1924/13 LSO, has been put off for hearing to the 6th February, 2014 at 11.15 a.m.
Adv. Frank Portelli, LL.D.
For the Registrar Civil Courts and Tribunals
Notice 104
104By means of a decree given on the 9th January, 2014 by the Civil Court First Hall, in the records of the Sworn Application, in the names Adv. Doctor Luigi A. Sansonenoe vs El Mokhtar Taher, application number 1139/13 MCH, the following publication was ordered for the purpose of service of the respondent in terms of Article 187 (3) et seq. of Cap. 12.
By means of a Sworn application filed in the First Hall Civil Court, in the names Advocate Doctor Luigi A. Sansone LL.B. (Hons) LL.D. holder of identity card number 258269 letter ‘M’ as special mandatary of Hugo Boss Trade Mark Management GMBH & Co KG, a foreign company registered under the laws of Germany, and with an address of Dieselstrasse 12, 72555, Metzingen, Germany vs El Mokhtar Taher, holderof Libyan Passport number 294314, withan indication of an address as ‘ Park Hotel’, Sliema, on the 28th November, 2013 the applicant Advocate Dr Luigi A. Sansone LL.B. (Hons) LL.D. identity card number 258269 letter ‘M’ as special mandatary of Hugo Boss Trade Mark Management GMBH & Co KG , a foreign company registered under the laws of Germany, and with an address of Dieselstrasse, 12,72555, Metzingen, Germany, the applicant nomine humbly asked this Honourable Court:
(1) to declare that the objects consisting in bottles of eau de toilette which have on themthetrademark ‘Boss’ inside the relative packaging material which has on it the trademarks ‘Boss’,(case reference Customs of Malta number 55/13/106), which objects arrived at the Malta International Airportby means of air flightRif. LN 146 from Tripoli(in Libya) in a personal luggage of the defendant, contravene the rights of intellectual property of the plaintiffcompany since the objects are falsified, and uphold the other demands in the application.
With costs against the defendant summoned so that a reference to his evidence be made.
Applicant nomine: Advocate Dr Luigi A. Sansone LL.B. (Hons) LL.D. holder of Identity card number 258269 letter ‘M’ as special mandatary of Hugo Boss Trade Mark Management GMBH & Co KG, a foreign company registered under the laws of Germany, and an address of Dieselstrasse 12, 72555, Metzingen, Germany, 84, Triq Melita, Valletta VLT 1120.
Defendant: El Mokhtar Taher, holder of Libyan Passport number 294314, ‘Park Hotel’, Graham Street, Sliema SLM 1712.
The Sworn Application in the names Adv. Doctor Luigi A. Sansone noevs El Mokhtar Taher, application number 1139/13 MCH,has been put of to the 24th February, 2014 at 8.45 a.m.
ADV. FRANK PORTELLI, LL.D.
For the Registrar Civil Courts and Tribunals
Notice 105
105By means of an application filed in the Civil Court of Voluntary Jurisdiction Section, on the 8th January, 2014 Application number 18/2014, by Anthony, sive Antonio Borg, whereby he prayed that it be declared open in his favour in its entirety the Succession ofhis mother Carmela Borg, widow of Giulio Borg, daughter of the late Carmelo Galea and Rossana née Bonavia, born in Naxxar and died in tal-Qroqq, limits of Imsida, on the 9th August, 2011 aged 94, intestate, holding identity card number 163117(M).
Wherefore any person who considers to have an interest in the matter is hereby called upon to appear before the said Court, and to bring forward his objections hereto by a minute to be filed within fifteen days from the posting of the banns and notices according to law.
ALEXANDRA DEBATTISTA
For the Registrar Civil Court and Tribunals
Notice 106
106By means of an application filed in the Civil Court of Voluntary Jurisdiction Section, on the 3rd January, 2014 Application number 4/2014, by Audrey Mercieca, whereby she prayed that it be declared open in her favour and in favour of her daughter Estelle Mercieca, in equal shares between them, the Succession ofCarmel Mercieca, husband of the same Audrey Mercieca, son of Paul and the late Stella née Abela, born in Pietà, resided in Gżira and died in Qala, Gozo, on the 13th October, 2013 aged 46, intestate, holding identity card number 249067(M).
Wherefore any person who considers to have an interest in the matter is hereby called upon to appear before the said Court, and to bring forward his objections hereto by a minute to be filed within fifteen days from the posting of the banns and notices according to law.
ALEXANDRA DEBATTISTA
For the Registrar Civil Court and Tribunals
Notice 107
107By means of an application filed in the Civil Court of Voluntary Jurisdiction Section, on the 7th January, 2014 Application number 8/2014, by Sylvana Bonavia, whereby she prayed that it be declared open infavour of the same Sylvana Bonavia, wife of the decujus, and this in the quota of one half (1/2) undivided share, and the remainder half (1/2) undivided share between Gilbert, Aaron and Charlotte, brothers and sister Bonavia, children of the decujus in equal shares between them the Succession ofFilomeno Bonavia,son of Angelo Bonavia andthe late Marianée Azzopardi, born in Rabat, Malta, resided in Mosta, and died in Ħal Luqa, on the 21st September, 2013 aged 55, intestate, holding identity card number 240258(M).
Wherefore any person who considers to have an interest in the matter is hereby called upon to appear before the said Court, and to bring forward his objections hereto by a minute to be filed within fifteen days from the posting of the banns and notices according to law.
ALEXANDRA DEBATTISTA
For the Registrar Civil Court and Tribunals
Notice 108
108By means of a decree given on the 22nd November, 2013 by the Court of Appeal (Inferior Jurisdiction),in the records of the Appeal Application, in the names Euro Concrete Blocks Ltd vs A. Montebello Tyres Ltd et, Application number 419/11 CSH, the following publication was ordered for the purpose of service of the respondent Charles Mangion in terms of Article 187 (3) et. seq. of Cap. 12.
By means of an Application filed in the Court of Appeal (Inferior Jurisdiction), Application Number 419/11 CSH, in the names Euro Concrete Blocks Limited (C 16202) vs A. Montebello Tyres Limited (C 8086) and Charles Mangion, on the 19th April, 2013 the applicant Euro Concrete Blocks Limited (C 16202) respectfully pleaded:
That by means of an application in the names premised filed on the 22nd December, 2011 the plaintiff company Euro Concrete Blocks Limited (C 16202) now appellant, asked the Court of Magistrates (Malta) so that amongst others it condemns the defendants now respondents to pay it in solidum between them, or either of whom, the sum of seven thousand six hundred and sixty Euro and seventy five cents (€7,666.75), as balance of a larger sum representing the price of construction material, sold and delivered to them by the same appellants, following their request and to their benefit.
That in virtue of its reply, the defendant company A. Montebello Tyres Limited (C 8086) now respondent textually pleaded the following:
1. That the plaintiff’s demands are prescribed in terms of Article 2148 (a) of Cap. 16.
2. That the plaintiff’s demands are prescribed in terms of Article 2149 (a) of Cap. 16.
3. That without prejudice to the above, the company A. Montebello Tyres Limited did not buy any bricks from Euro Concrete Blocks Limited ,and much less were bricks delivered to it by the company Euro Concrete Blocks Limited.
4. That in any case and without prejudice to the above, the company A. Montebello Tyres Limited is a creditor of the companies which form part of the group Rainbowmix, including the company Euro Concrete Blocks Limited, and this for a sum which exceeds by far the claim vaunted in the original application...omissis... and thus were it to result that the company A. Montebello Tyres Limitedbought and took in consignment bricks from Euro Concrete Blocks Limited, a fact contested by the interpellant company, a set off should take place between the amount pretended by the company Euro Concrete Blocks Limited, and part of the credit due to A. Montebello Tyres Limited.
5. That it is not the case that the company A. Montebello Tyres Limited, was called uponto come forwardto pay the amount claimed, saving the judicial letter of the 10th June, 2011.
6. Saving other pleas valid at law.
That the defendant Charles Mangion, now respondent, failed to file a reply, and to appear for the sittings fixed by the Court of First Instance, although duly notified according to law.
That following the presentation of the pleas regarding the first two preliminary pleas of the respondent...omissis... the Court of First Instancepassed on to give judgement regardingthe same two preliminary pleas.
That infactby means of the judgement appealed ofthe 4th April, 2013 the Court of First Instance decided regarding these first two preliminary pleas in the following manner.
That thus this Court whilst rebutting the plea of prescription for the purposes of Article 2149 (a) of Cap. 16 raised by the defendant company is upholding its first plea whereby it upheld that the peresent action is prescribed in terms of Article 2148 (a) of Cap. 16 of the Laws of Malta.
The expenses of this cause are to be borne by the plaintiff company.
...........omissis...........
The appellantfelt aggrieved by that part of the judgement appealed in virtue of which the first plea of the respondent based on Article 2148 (a) of Cap. 16 of the Laws of Malta was upheld, and is thus filing this humble appeal.
That the grievances of the appellants are clear and manifest and briefly consist in the following:
1. Set off (Renunciation).
That the appellant submitted before the Court of First Instance,that the respondent could not plead prescription and at the same time also plead set off as she in fact did by means of the first two pleas and by means of her fourth plea.
...........omissis...........
That the Court of First Instance, however whilst it acknowledged that the interpellant was raising this argument and whilst it also appears that it took notice of the note of the same interpellant of the 18th March, 2013 and of the judgements therein attached, chose for some reason not to consider this same argument in the judgement appealed.
That the fact that the respondentpleaded both prescription,as well as set off is very clear both from the reply of the respondent reproduced in whole above.
That in the judgement in the names Marianna Spiteri, Lorenza Spiteri, and Giuseppi Spiteri vs Joseph Vella, given by the First Hall Civil Court, on the 3rd May, 1993 a copy attached it was textually stated in circumstancesvery similar to the present.
Article 1196 of Cap. 16 sets down that when two persons are debtors of each other, there shall be a set off ipso jure. This set offshall take placewithout the knowledge of the debtors if there shall exist two debts at the same time, and the debts are set off against each other in so far as they are equal.
Article 1197 of Cap. 16 sets downthat set off shall take place only between two debtsthat shall have as object a sum of money, and that shall be both liquid and can be demanded.
From these we see that the plea of set off in itself amounts to an admission of the debt and that this debt is due, but should not be paid because it is set off by a larger amount due by the creditor. Thus the plea of set off raised by the defendant brings to nothing the plea of prescription,as there can be no set off once the creditis not due because it is prescribed.
...........omissis...........
That thus it is clear and manifest that the plea of precription is incomptabile with the plea of set off in the same manner for exampleas it is incompatible with a plea that the amount demanded is excessive,and infact our jurisprudence always upheldthat one cannot acknowledge a debt and at the same time plead prescription.
That on the basis of the above and the jurisprudence regarding the matter, the interpellant is of the humble opinion that the Court of First Instancecould never uphold one of the two preliminary pleas of the respondentas it did in the judgement appealed.
11. Article 2148(a) Not Applicable.
That without prejudice to the first grievance raised above, it is humbly submitted that from the evidence of Marc Aquilina, it results that the respondenthad given instructions to the appellant to supply bricks merit of the present procedures to the respondentand as the supplies shown on the statement of account exhibited as Dok Z were made, the respondenthad presented a credit note exhibited as Doc Y to the appellants in order that the debtdue be set off from there.
...........omissis...........
That consequently the witness upholds that the appellantrefused to accept this credit note from the respondentas payment for the debt due by the same respondent.
That Article 2148 (a) textually stipulates the following:
2148. The actions hereunder mentionedlapse after the prescriptiveperiod of eighteen months.
(a)theactions of tailors, shoemakers, carpenters, masons ...omissis... or the materials supplied by them.
That in the humble opinion of the appellant, there exist various reasons why this plea should have never been upheld by the Court of First Instance.
The appellant is a commercial partnership which manufactures and supplies bricks and thus does not qualify.
...........omissis...........
In the same manner in the present case, the appellant cannot be said to qualify as a mason, and is not demanding the price for any work carried out by her,or for any material she supplied in the execution of the same work, and thus Article 2148 (a) is not applicable to the present case.
(ii) Without prejudice to the above, it is pointed out that it was upheld on various occasions by our Courts that Article 2148 (a) does not apply to cases whereby the creditor is an entrepreneur, and namely where his service is an act of trade.
...........omissis...........
Article 2148(a) does not apply to the present case because it only applies to persons exercising a trade or mechanical art, and not to those who like the plaintiff are contractors organised in a firm.
It resulted clearly and manifestly from the proof produced that in the presentcase the appellant is a commercial partnershipwhich manufactures bricks or rather a contractor organised in a firm, and thus Article 2148 (a) is not applicable in the present case.
(iii) Without prejudice to the above, it is pointed out that the deliveries made by the appellants to the respondents were wholesale consignments and not retail consignments.
It was retained various times by our Courts that Article 2148 (a) refers to the works carried out by retail and not wholesale.
However it results very clearly and manifestly from the evidence of Marc Aquilina, as well as the evidence of Charles Montebello, that the credit note by means of which the bricks were taken from the appellants by the respondents formed part of a businesswhich had taken place between the parties.
In fact Charles Montebello himself upheld in his evidence that he had given the credit note in question to Charles Mangion, in order to set offthe debt he had with him.
Thus in the humble opinion of the interpellant, it is clear that the relationship between the parties was not one between consumers but between traders.
That on the basis of the above and constant jurisprudence on the matter the appellant is of the humble opinion that the Court First Instance, could never upholdthe first preliminary plea of the respondent and thus this first plea should have been refused.
Thus the appellants whilst referring to the evidence and all the documents exhibited, and whilst it reserves the rightto bring further proof and evidence according to law, respectfully prays this Honourable Courtto uphold this appeal and reform the judgement appealed of the Court of Magistrates (Malta) of the 4th April, 2013 as demanded in this application...omissis... with costs of the first and the present instance at the charge of the respondent.
Appellant: Euro Concrete Blocks Limited, Wied Inċita, Rabat Road, Attard.
Respondent: Charles Mangion, ‘Villa Alfano’, Triq Hanibal Preca, Lija.
ADV. FRANK PORTELLI, LL.D.
For the Registrar Civil Courts and Tribunals