Court Notices published in Govt. Gazette No. 20,595 of 24th March 2021

By means of a decree given by the Court of Appeal, on the 27th January, 2020, in the records of the Application of Appeal 301/18, in the names Marthese Glynn vs Elizabeth Pace, the following publication was ordered for the purpose of service of the respondent Elizabeth Pace, in terms of Article 187(3) et sequitur of Cap. 12.

By means of an Application, presented, in the Court of Appeal, Claim Number 301/2018 SFJ in the names Marthese Glynn (ID 657761M) vs Elizabeh Pace (ID 86044M) on the 20th December, 2019, the applicant Marthese Glynn (ID 657761M) respectfully pleaded,

A. Preliminary

1. That by means of a Notice filed on the 5th July, 2018, the plaintiff here appellant premised the following:

'The defendant is to state why this Tribunal should not condemn her to pay the sum of €3500, representing damages caused to the plaintiff consisting in damages caused from the percolation of water from the immovable property of the defendant to the immovable property of the plaintiff which damages are to be answered for by the defendant since she remained in default in the necessary repairs so that the percolation mentioned stops',

With costs, including the legal interest against the defendant from now summoned so that a reference to her evidence be made,

… omissis …

3. That in the judgement given on the 9th December, 2019, the Tribunal pronounced itself in the following manner,

'Thus the Tribunal decides this cause by rejecting all the plaintiff's demands. The Tribunal orders that the costs of the cause be paid by the plaintiff.

4. That the plaintiff qua appellant felt aggrieved by this judgement and is thus filing this humble appeal to the superior attention of this Honourable Court,

B. The facts merit of the present Appeal

… omissis…

C. The Grievances

a. The First Grievance - Wrong appreciation of the facts

11. That with the due respect the Tribunal in its considerations made reference only to the recommendations of Architect Polidano and did not give enough weight to his conclusions as drawn up in his report. That the respondent feels aggrieved when the Tribunal stated in page 5 of the judgement that Architect Polidano stated two conflicting things and this because in the words of the Tribunal itself ' First it stated that the water was coming from the overlying apartment (of the defendant) then stated that its investigation was not complete.

12. That with the due respect if one analyses well that drawn up in the report in its entirety and not only in the recommendations it clearly appears that Architect Polidano on the contrary to the visual inspection which in the words of Architect Roseanne Schembri itself 'you are always assuming' Architect Polidano established that the damage was coming from the overlying apartment and that of the appellant,

… omissis …

15. That wth the due respect the Tribunal relied only on the visual inspection which was made without considering the report and based its decision on the fact that it was stated that the drains were open (you are only to look and see whether they are blocked or not) whilst it avoided and did not believe Architect Polidano who concluded this by a report which is supported by photos which confirm the veracity of the report.

… omissis …

17. That furthermore the appellant feels aggrieved by the fact whilst the Tribunal felt that Architrect Polidano gave conflicting evidence failed to observe that the only conflicting evidence resulted from the evidence given by Architect Keith Schembri, precisely on the matter whether the drains were truly open or blocked.

… omissis …

20. That it is good to note that the conclusion of Architect Duncan Polidano and namely that 'I conclude that it is coming from the apartment above and namely the open surroundings there are in this apartment' was not contested and never doubted neither by the Tribunal itself and much less this conclusion was never attacked in the cross-examination, It is thus why the appellant feels that this grievance is justified since the conclusion of the Architect was never conflicting and consequently should have never been avoided much less when this is supported with a detailed condition report.

B. The Second Grievance - Wrong application of Jurisprudence due to a wrong interpretation o the facts

21. That the appellant feels that due to the fact that the Tribunal made a wrong evaluation of the facts (the first grievance) this brought about that the Tribunal also made a wrong application of the jurisprudence quoted by it. Infact the appellant strongly contends that for the purposes of this cause the appellant had only to prove that the damage which she is suffering is coming from the overlying premises and the fact that it was not established whether the seeping of the water is due to a pipe which is buried, broken or because there in a leak in the property of the respondent.

… omissis …

24. Finally the appellant conends that she proved her case up to the grade required and namely till the grade of probability as required in civil matters that the whole of the proof brought forward brings about the moral certainty which is based on the preponderance of probability and thus the appellant feels that its demands had to be upheld.

… omissis …

D. Conclusion

Thus, for the reasons above mentioned the applicant whilst referring to all the records of the proceedings prays this Honourable Court of Appeal, to cancel and revoke, the judgement appealed given on the 9th December, 2019, in the names premised and instead uphold this appeal in the light of the grievances ad considerations brought above and consequently declare that the respondent is solely responsible for the damages caused in the applicant's property and consequently order the respondent to pay the sum of €3500 representing damages in the appellants' property with costs of both instances against the defendant respondent.

The Application of Appeal number 301/18, in the names Marthese Gynn vs Elizabeth Pace has been deferred for hearing to the 7th May, 2021, at 9.00 a.m.

Notify Respondent; Flat 6, Ent C, Binja 78, Triq il-Fuklar, Ħ'Attard

Adv. Frank Potelli, LLD

For the Registrar, Civil Courts and Tribunals