Sauzier v Bibi & Anor (CS 103/2020) [2021] SCSC 1031 (26 October 2021)

IN THE SUPREME COURT OF SEYCHELLES DENISE SAUZIER (rep. by S. Rajasundaram) and RANEEL BIBI (absent/ unrepresented) AUDRY MARIMBA (absent/unrepresented) /' Reportable [2021] SCSC .00;::;- CR 103/2020 Plaintiff 1st Defendant 2nd Defendant Neutral Citation Denise Sauzier v Raneel Bibi & Anor (CS 103/2020) [2021] SCSC . Before: Summary Heard: Delivered: 26 October 2021 Vidot J Dilictual action; 1st Defendant failure to comply with instructions of Police Officer and 2nd Defendant filming the incident, whether such action will constitute a faute and render the Defendants liable to the Plaintiff for moral damage 24 June 2021 26 October 2021 Plaint dismissed. No order as to cost. ORDER JUDGMENT [1] The Plaintiff sues the Defendants in delict for damages she allegedly suffered at the hands of the Defendants. She is claiming the sum of SR400,000.00 as compensation against the Defendants jointly and severally. [2] The Plaintiff avers that on 13th January 2020 at around 12:40 hours, she together with other police officers were on official duty at the Providence Highway. She was, inter alia, conducting routine road patrol when the 15t Defendant who was driving his vehicle, S7005, in the company of the 2nd Defendant, was stopped. She alleges that while she was conducted necessary and routine spot checks on the vehicle of the 15t Defendant, he became aggressive. She avers that he started swearing at her and prevented her from carrying out her duties. She alleges that the first Defendant's rough attitude, aggressive behaviour, refusal to cooperate with her in the discharge of her duties, rendered her unable to continue her official duties. She stated that the first Defendant kept interfering in a high tone, swore at her while the second Defendant joined him in preventing her from carrying out her duties by filming the episode. She warned the second Defendant to stop filming but the second Defendant did not pay heed to her request. [3] The Plaintiff further claims that the first Defendant attempted to switch the engine of his vehicle on and was about to leave the scene, she therefore had to resort to inserting her hand through the window of the car in attempt to remove the key from the ignition, at which point, the Plaintiff alleges the first Defendant physically pushed her and sped away at high speed whilst she and other officers just watched and were helpless from preventing the first Defendant from driving away. [4] The Plaint further avers that the second Defendant caused the incident to be filmed at it was happening and subsequently posted that video on social media, namely Facebook thereby causing damage to the Plaintiff. [5] The Plaintiff avers that the actions of the Defendants constitute a "faute" in law for which she is entitled to damages. [6] There was no defence filed in this case. The Defendants were served with copies of the Plaint. However, when the case was first mentioned before Court, they were represented by Mr. Brian Julie, Attorney-at-Law, who asked for time to file a defence. The demand was acceded to. At the next mention date of 15th January 2021, the defence had not been filed. On the 18th March 2021, the case was called before Court, the Plaintiff was represented by Counsel, but Counsel for the Defendants failed to put up appearance. So the Court decided to have the case fixed for ex-parte hearing. The Evidence [7] The Plaintiff and WPC Arina Andoise were the only witnesses to testify. The Plaintiff basically repeated the averments made in the Plaint. She added that she has been in the police force for 35 to 36 years and that on that day she was discharging duty together with Sergeant Amesbury, WPC Andoise and WPC Julius. She testified that after she had stopped vehicle registration S7005, she had asked the first Defendant for his driving licence and at the same time the second Defendant was filming using her cell phone. She mentioned that the first Defendant was swearing at her and asking that she leaves him alone. She further added that even the second Defendant became aggressive when asked to stop filming. She reached into the car to remove the key from the ignition to prevent the first Defendant from driving away which in any event he did. [8] The Plaintiff further testified that the second Defendant posted the video that she filmed on social media, particularly Facebook. Many people commented and there were negative comments that she felt affected by it all. As a result of that incident she had letters of demand sent to the Defendants, which letters were written by her lawyer on her behalf. At that point she was claiming SR300,000.00. She received a reply from Counsel for the second Defendant. The first Defendant never responded to the letter. [9] Police Officer Arina Andoise testified on behalf of the Plaintiff. She merely testified that she was part of the team conducting spot checks at the Providence Highway. She recounted that the first Defendant was aggressive and inhibited the Plaintiff from discharging her official duties. The Law [10] Fault is an error of conduct which results from a breach of a duty of care; see Pierre v The Attorney General [2008] SLR 251 and in order to establish liability under Article 1382, there must exist fault, damage and a casual link as was established in Joubert v Suleman SCA 49/1996 LC 117. [11] As per the written submission of Counsel, the Plaintiff is instituting this case in terms with Article 1382 of the Civil Code of Seychelles ("the Code"). In the Plaint there is no mention of the Article under which the suit is being prosecuted. Nonetheless, the Court notes that it is not necessary to plead any particular Article of the Civil Code in a delict case, because pleadings are on facts; see Johanson v Renaud SCA5/1994 (07 December 1994) LC 54. Counsel goes on to quote Article 1382(2) and (3). These sub-Articles merely describe fault and what fault consists of and what would constitute "faute". [12] Article 1382 reads as follows; "1. Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it. 2. Fault is an error of conduct which would not have been committed by a prudent person in the special circumstances in which the damage was caused. It may be the result of a positive act or an omission. 3. Fault may also consist of an act or an omission the dominant purpose of which is to cause harm to another, even if it appears to have been done in the exercise of a legitimate interest; 4. A person shall only be responsible for fault to the extent that he is capable of discernment; provided [13] So, the act that the Defendant, or as Article 1384 of the Code provides, by a person for whom the Defendant is responsible, or by things in his custody, be it a positive or an omission can give rise to a claim for damages, be it physical or moral. In this case, the Plaintiff is claiming moral damage as it is clear that the Plaintiff did not suffer any physical damage. [14] Counsel for the Plaintiff quoted Denis v Ryland (CS 135/2012) [2016] sesc and stated that moral damages is a term used to cover damage that is either material or corporeal. Counsel correctly added that a claim of moral damage may be claimed even in the absence of material damage; see: Michel & Ors v Talma & Anor [2012] SLR 95. Counsel further added that it is difficult to assess moral damages but the exercise must still be carried out. The Video [15] The video is the piece of evidence that establishes what actually took place on the 20th January 2020. It shows the Plaintiff next to the first Defendant's vehicle which had been stopped. There was a disagreement in that the first Defendant was refusing that he should get out of his car and that a Police Officer would drive his car back to the station. This, because the first Defendant had placed tinted film on his front windows which is contrary to law, unless he had special dispensation to do so. At that point, I find that contrary to what the Plaintiff alleged there was no aggression on the part of the Defendants. The Plaintiff also misled the Court that at that point the first Defendant was swearing. He was not. The Plaintiff was continually trying to put her hand inside the car which the first Defendant objected to by gently moving her hand away. Then, at one point, at the insistence of the first Defendant that he would not allow his vehicle to' be driven by anyone and that he would rather remove the tinted film from his vehicle at the scene, the Plaintiff reached into the vehicle to remove the key from the ignition. The first Defendant tried to prevent her, when she moved her hand in a way that appears to have hit the first Defendant in his face at which point the latter got angry and told the Plaintiff not to hit her. The first Defendant proceeded to start his car and sped away. Discussions [16] As stated above, the video shows clearly that there was no aggression being perpetrated by both Defendants. What happened was. an objection by the first Defendant to have another a police officer drive his car. In fact he insisted that he would not allow his vehicle to be driven away. The only scuffle happened when the Plaintiff tried to remove the car keys from the ignition. The Plaintiff at the point hit the first Defendant. It was only after that happened that he decided to drive away he swore. Therefore, allegations that the Defendants were aggressive is unfounded. [17] It is evident that the Plaintiff did not suffer any physical damage or injury. Therefore, her claim is based on moral damage. Nonetheless, I find that she failed miserably to establish that she suffered moral damages. Her testimony is totally devoid of any evidence that she endured moral damage. One has to bear in mind that Police Officers are trained to expect resistance. Any Police Officer will in the discharge of his or her duty encounter suspects or individuals who would argue and prevent the Police Officer in the discharge of his or her duty. That is when the criminal law kicks in. The first Defendant could have been charged with many possible charges, which inter alia could include section 14(2) (a) and (b) of the Road Transport Regulations for having tinted front windows without authorization, section 28 of the Police Force Act if there was failure to comply with a Police Officer's request to produce a licence or section 24(1) (f) of the Road Transport Act for failure to produce a driving licence, if indeed the first Defendant refused to do so. [18] If each time a citizen resist arrest from or argues over issue with a Police Officer and that latter concludes that such act consists of a "faute" perpetrated against him or her, the Court will be inundated with suits from the Police. In this case there was no such fault committed by the first Defendant against the Plaintiff. There being no faute committed the Plaintiff cannot be entitled to damages. [19] As regards the second Defendant she filmed an incident that happened in public. There is no indication from the video that she was aggressive. Though she could not be seen in the video, there was nothing auditory that was said from her that was aggressive. In fact, nothing could be heard coming from her in the video. Therefore, the allegation of aggression from her is totally unfounded. However, did posting the video on Facebook constitute a faute? [20] There is no evidence that the second Defendant manipulated the video. In fact the Plaintiff did not adduce sufficient evidence that it was the second Defendant who posted the video on Facebook. Exhibit P3, which is a copy of comments allegedly downloaded from Facebook does not indicate the source of that post. What was posted was exactly what took place. The letter from the second Defendant's Attorney (exhibit P5) was not an admittance of liability. It refuted such allegation as made by the Plaintiff. The second Defendant is not responsible if comments adverse to the Plaintiff were made. In any case, in her evidence she only complained that the Defendant filmed her whilst on duty. That hindered her from discharging her function. I state again, this does not constitute a faute. The Plaintiff did not explain how the filming of that video affected her morally. She cannot claim moral damages from the second Defendant either. [21] This is a frivolous and vexatious case devoid of any merits. In fact the case could have been dismissed in terms of section 92 of the SCCP. Conclusion [22] I find that the Plaintiff has failed to satisfy Court on the balance of probabilities that the Defendant committed a faute against her and that as a result she suffered moral damage. [23] Therefore, I dismiss this plaint and no award as to cost. Signed, dated and delivered at IIe du Port on 26 October 2021 ~\- M~ 7