Nandrandraina Falisoa Rakotoasimbola & Filip; Rahajarivokinelina (a minor)(represented by her mother and guardian) v Ivan Jules Francois Sinon ((SCA 09/2025) Arising in [2021] SCA CS 94 of 2021) [2025] SCCA 19 (18 August 2025)

IN THE COURT OF APPEAL OF SEYCHELLES _________________________________________________________________________ Reportable [2025] SCA 09/2025 (18 August 2025) Arising out of CS 94 of 2021 In the matter Between Nandrandraina Falisoa Rakotoasimbola 1st Appellant Filip Rahajarivokinelina (a minor) 2nd Appellant (represented by her mother and guardian) (rep. by Mr. S. Rajasundaram) And Ivan Jules Francois Sinon Respondent (rep. by Mr. Frank Elizabeth) ________________________________________________________________________ Neutral Citation: Nandrandraina Falisoa Rakotoasimbola & Filip; Rahajarivokinelina (a minor)(represented by her mother and guardian) v Ivan Jules Francois Sinon (SCA 09/2025) Arising in [2021] SCA CS 94 of 2021 Before: Twomey-Woods, Robinson, Andre JJA Summary: Pleadings – general denial - Article 1388 – burden of proof – strict liability - contributory negligence – admissibility of criminal convictions Heard: 6 August 2025 Delivered: 18 August 2025 _________________________________________________________________________ DR. M. TWOMEY-WOODS JA Background [1] I have had the benefit of considering the judgment of my learned sister Justice André, and I find myself, with the utmost respect, compelled to differ in my conclusions. I therefore proceed to set out my own analysis of the questions of law and fact central to this appeal. The facts of this appeal are set out in my sister Andre’s judgment. [2] This matter arises from a tragic collision between a motor vehicle driven by the Respondent, Mr. Ivan Sinon, and the late Mr. Appolinaire Rahajarivorinelina, a pedestrian. The Appellant, Mrs. Nandrandraina Rakotoasimbola, brought a claim both in her capacity as the deceased’s ayant droit and legal representative of their minor son, Fitia Rahajarivorinelina, seeking damages of SCR 1 million for loss and suffering occasioned by her husband’s untimely death. [3] The learned trial judge dismissed the claim with costs, holding that the Respondent had discharged the legal burden under section 1383(2) of the Civil Code, a provision which, I must observe, appears to have been erroneously cited.1 With respect, the judgment does not elucidate the reasoning underpinning this conclusion beyond a perfunctory assertion that "due consideration" was given to the evidence, particularly the Respondent’s account of the accident. This omission leaves the basis for the finding regrettably opaque, particularly given the misstated statutory framework. The appeal [4] The appeal raises four substantive grounds: First, the misapplication of the burden of proof; Second, the analysis of contributory negligence; Third, the legal effect of the Respondent’s admissions; and Fourth, the exclusion of evidence regarding the Respondent’s criminal conviction; [5] As these issues are comprehensively outlined in the judgment of André JA, I shall confine my analysis to their merits. 1 No such provision is existent. The Civil Code Act of 1976 was repealed and replaced by the Civil Code Act of 2020 which came into force on 1 July 2021. The Pleadings in this case [6] At the outset, I note a critical concession made during oral argument: Mr. Elizabeth, learned Counsel for the Respondent, acknowledged that the Statement of Defence constituted a general denial, traversing only two paragraphs of the Plaint as follows: “3. Paragraph 6 of the Plaint is denied and the Plaintiff is put to strict proof and further the Defendant avers the deceased was crossing the road without due care and attention as to the traffic on the road. … 4. Paragraph 12.1 is denied. The Defendant avers that the deceased crossed the road without negligently or care and attention as to the traffic on the road.” (sic) [7] Paragraphs 6 and 12.1 of the Plaint had averred that: “6, The Defendant while driving his motor vehicle (Registration Number S8060) in a rash, negligent and dangerous manner, on or about 7 May 2017 at Mont Fleuri Road near Botanical Garden had hit the deceased seriously and caused instant death at the accident spot. … 12.1 The defendant drove his vehicle S8060 not only dangerously but also negligently and caused the accident consequently the death of the deceased.” [8] Crucially, the Respondent failed to engage with the following material averments in the Plaint: “12.2 The Defendant failed to adhere to road traffic rules and violated, breached, which resulted in the accident, consequently the death of the deceased. 12.3 The Defendant grossly neglected to notice himself of the pedestrians, including the deceased, on the road, specifically, in a busy place such as Mont Fleuri Road, while he was driving his vehicle S8060 dangerously and caused the death of the deceased. 12.4 The Defendant failed in all circumstances of the case to follow the road traffic rules and breached the basic essential duties as a driver of a motor vehicle.” (sic) [9] The pleadings of both parties are rather infelicitously drafted and would have benefited from closer attention to matters of form, including punctuation, grammar, and syntax but most critically, the Statement of Defence contravenes Section 75 of the Seychelles Code of Civil Procedure, which mandates: “The statement of defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claim. A mere denial of the plaintiff’s claim is not sufficient. Material facts alleged in the plaint must be distinctly denied or they will be taken to be admitted.” (emphasis added). [10] It follows that the Respondent’s failure to deny the Appellant’s key allegations, including his responsibility for the accident (Paragraph 10), liability in damages (Paragraph 11), and the particulars of negligence (Paragraphs 12.2–12.4), constitutes a binding admission of those facts. The Appellant needs only to discharge the civil standard of proof on the elements of the delict she has to prove to succeed. [11] This principle is well-settled. Pleadings serve a vital role in defining the issues in dispute and ensuring procedural fairness. As emphasised in Farrel v Secretary of State2, while excessive technicalities should not obstruct justice, pleadings remain essential to inform parties of the case they must meet. [12] Courts consistently uphold the principle that parties must plead all material facts they intend to rely on. In Tirant v Banane3 followed in Marie-Claire Lesperance v Jeffrey Larue,4 it was held that a party cannot introduce evidence on unpleaded facts. Similarly, Vandagne Plant Hire Ltd v Camille5 reaffirmed that courts cannot adjudicate on unpleaded issues, such as contributory negligence, unless properly raised, a principle established in the Mauritian case of Boullé v Mohun 6 and reiterated in Seychelles jurisprudence (Therese Sophola v Antoine Desaubin,7 Equator Hotel v Minister of Employment8 ). [13] Further, Gallante v Hoareau,9 Pirame v Peri10 and Equator Hotel11 clarified that this is the case even when evidence is adduced by the defendant outside his pleadings and not objected to: 2 [1980] 1 All ER 166 (HL). 3 (1977 SLR 219. 4 (SCA 15/2015 [2017] SCCA 46). 5 (SCA 03/2013 [2015] SCCA 17). 6 (1933) MR 242. 7 (SCA 13 of 1987) [1988] SCCA 8 (22 July 1988). 8 (SCA 8 of 1997) [1997] SCCA 17 (28 November 1997). 9 (1988) SLR 122. 10 (SCA 16/2005) 11 Op. cit fn 8. “Failure or omission to object to the introduction of such issues during proceedings or in evidence cannot, and do not, have the effect of translating the said issues into pleadings or evidence.”12 [14] This aligns with Leon v Volare13 which stressed that all material facts must be pleaded. [15] Finally, as reiterated in Dorothy Hall v Maria Amina Morel,14 a defence must present a legally valid challenge to the plaintiff’s claim. [16] With these principles elucidated, I now turn to the issues arising from the grounds of appeal. 1. The misapplication of the burden of proof, 2. the analysis of contributory negligence; 3. the legal effect of the Respondent’s admissions [17] I consider these three issues together as they are interrelated. [18] As I have already mentioned, the learned trial judge referred to the incorrect provisions of the applicable law. In paragraph 26 of his decision, he cites Article 1382 of the Civil Code, which requires proof of fault, damage, and causation by the plaintiff in a delict action. In paragraph 29, he cites Article 1383(2) from the old Civil Code on motor vehicle operation. [19] However, the Plaint was filed on 13 January 2022, after the Civil Code 2021 had been promulgated. The applicable provision is Article 1388, which states: 1)The driver of a motor vehicle that, by reason of its operation, causes harm to persons or property is liable for that harm. (2) It is a defence to a claim under paragraph (1) to prove a) absence of fault or negligence on the part of the defendant; (b) that the harm was solely or partly due to the fault or act of the injured party or of a third party; or (c) that the harm was due to an act external to the operation or functioning of the vehicle (cas fortuit). (3) Vehicle defects or the breaking or failure of its parts are not cas fortuits. 12 Ibid., p.3. 13 (SCA 2 of 2004) [2005] SCCA 3 (19 May 2005). 14 (SCA 22 of 2017) [2019] SCCA 24 (22 August 2019). [20] Article 1388 has not changed the existing law but has codified the jurisprudence that had been applied under Article 1383(2), the provision it replaced. However, even if I were to assume that the learned trial judge had Article 1388 of the Civil Code (formerly Article 1383(2)) in contemplation, his judgment reveals a fundamental misapplication of our well-established strict liability regime for motor vehicle accidents. This Court's jurisprudence has been unequivocal: when operating under Article 1388, drivers bear not merely a burden of proof, but what amounts to a statutory duty to conclusively demonstrate that the victim's exclusive or partial negligence or some external cause entirely independent of their own operation of the vehicle was the sole proximate cause of the accident. [21] The Supreme Court explained the regime of strict liability in Sullivan as follows: “24…while the victim of the damage benefits from a presumption of causality (responsibility) by the custodian, the latter may be exonerated fully or partially if you can show that there existed natural events (e.g. vis major), the intervening act of a third party, or the act of the victim himself. [22] Sauzier J in Vel set out the court procedure: 1. The plaintiff need only allege that an accident involving a driver caused damage to persons or property; negligence of the driver need not be averred or proved. 2. The burden then shifts to the driver, and liability is rebutted only if he proves the damage was caused solely by the victim’s negligence.16 3. The judge must assess and weigh the driver’s evidence to decide if the presumption is rebutted.17 [23] In this regard, while I acknowledge that the assessment and weighing of evidence essentially fall within the trial judge's discretion, it is equally well-established that an appellate court retains the authority, and indeed, the duty, to intervene where factual findings are manifestly erroneous or unsupported by the pleadings and/or evidence.18 This principle, deeply rooted in our jurisprudence, ensures that judicial 15 Op. cit fn 15, p. 11. 16 Ibid., p.10. 17 Ibid., p. 12. 18 Beeharry v R (2012) SLR 71, Rene v R (SCA 12 of 2018) [2018] SCCA 37 (13 December 2018)Richet & Others vs. Payet (SCA 21 of 2023) [2024] (Arising in CS 96/2021) (3 May 2024),. discretion does not become unbridled license. The present case exemplifies a situation where the trial judge has not only improperly assessed and weighed the evidence but also appears not to have indicated the reasoning process behind his findings. Where a trial court's decision lacks transparent reasoning and misapplies evidentiary standards, this Court must, as a matter of justice, conduct its own thorough assessment of the record to determine whether the findings can reasonably stand. [24] In the present case, the Respondent had admitted liability by failing to traverse the Plaint’s averments of negligence in not following road traffic rules, failing to heed pedestrians, and driving dangerously (paragraphs 12.2 -12.4). In court, he admitted he was involved in a collision with the deceased. [25] Even if I accept his denial of paragraph 12.1 (alleging dangerous driving), his alternative claim that “the deceased crossed the road without negligently (sic), without care and attention” is grammatically incoherent, equivocal, and insufficient to rebut the presumption under Article 1388(2)(b). [26] Contributory negligence must be expressly pleaded with particulars if evidence of it is to be introduced- see Jumaye v Government of Seychelles,19 Pillay v Nourrice & Ors.20 [27] No such particulars were pleaded here, making it improper for the trial judge to allow evidence on this issue. [28] The Respondent wholly failed to rebut the presumption of liability under Article 1388. Strict liability attaches automatically in motor accident cases, and the burden was on the Respondent to prove, with credible corroboration, that the deceased’s sole or contributory negligence caused the collision. [29] Even considering his evidence, the Respondent produced no independent witnesses, no expert testimony on road conditions, visibility, or reaction times, and no objective evidence such as skid marks or CCTV footage. He related some matters that were 19 (1979) SLR 103. 20 (SCA 68 of 2019) [2022] SCCA 53 (19 August 2022). inadmissible hearsay about the fact that someone who was not called as a witness observed the deceased looking at his phone. His inconsistent and ambiguous testimony fell far short of the standard of balance of probabilities required (Constance v Grandcourt).21 [30] Apart from restating the evidence adduced, the only assessment of the evidence is in the conclusion of the trial judge’s decision: “32. In the final analysis, therefore, having given due consideration to the evidence laid before this court now on the court’s record, particularly, the explanation given by the Defendant as to how the accident happened, it is my considered opinion, that the Defendant has successfully discharged its burden of proof to escape the strict liability regime under section 1383(2) of the Civil Code of Seychelles act. As a consequence thereof, this court dismisses the plaint against the Defendant with costs.” [31] The trial judge inverted the statutory framework by accepting unsubstantiated assertions instead of requiring affirmative proof of exoneration. Strict liability demands compelling evidence, not mere allegations. [32] This is not a minor error but a fundamental misunderstanding of the regime consistently upheld from Vel v Tirant,22 to Pillay v Lucie,23 Laurette v Simeon,24 Auguste v Julienne,25 Marie v Morel,26 and Sullivan v Magnan27 our courts have consistently maintained that Article 1388 creates a formidable presumption that can only be overcome by the most convincing evidence of exclusive fault elsewhere. The trial court's approach, by contrast, would render this strict liability provision a nullity, allowing defendants to escape responsibility through vague allegations rather than through compelling evidence. 21 (CS107/2014) [2016] SCSC 868 (10 November 2016). 22 (1978) SLR 7. 23 (1982) SLR 323 24 (1982) SLR 333 25 (1984) SLR 88. 26 (187) of 2003 [2007] SCSC 24 (20 May 2007). 27 (CS134/2011) [2016] SCSC 491 (11 July 2016). [33] These grounds of appeal therefore succeed. 4. The exclusion of evidence regarding the Respondent’s criminal conviction [34] Evidence of a party’s criminal conviction is admissible under our law under section 29 of the Evidence Act as follows: “1. In a trial the fact that the person, other than, in the case of a criminal trial, the accused, has been convicted of an offence by or before any court in the Republic shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in the trial, that that person committed the offence or otherwise, whether or not any other evidence of his having committed that offence is given. 2. in a trial, other than a civil trial for defamation, in which by virtue of this section a person, other than, in the case of a criminal trial, the accused, is proved to have been convicted of an offence by or before a court in the Republic he shall be taken to have committed that offence unless the country is proved. [35] The Appellants had averred in their Plaint at paragraph 9 that: “The defendant, as a result of his commissioning (sic) the accident, pursuant to his dangerous driving, has also been charged by the Attorney General's Office for the offence of causing death by dangerous driving as early as July 2019.” [36] In his statement of Defence, at paragraph 6, the Respondent admits the averment. [37] However, the learned trial judge excluded evidence of the Appellant’s criminal conviction. In his judgment, he explains this exclusion as follows: “22. …in the instant case, the conviction was not made part of the pleadings. 23. It is well settled law, that one cannot be allowed to tender evidence to prove a fact that is not pleaded.” [38] The issue that arises from the learned judge's finding is whether it was correct to exclude evidence of the Appellant’s criminal conviction on the ground that no specific averment about it had been made in the Plaint. [39] As I have already set out, the relevant pleadings on this issue are clear. It is common cause that there was a criminal trial concerning the Appellant arising from the collision. The trial judge’s reasoning appears to have been that, because the conviction was not expressly pleaded, it could not be adduced in evidence. [40] Section 71 of the Seychelles Code of Civil Procedure provides in relevant part: The plaint must contain the following particulars: … (d) a plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain the action…” (emphasis added) [41] The rationale for this rule is to uphold fairness and efficiency in legal proceedings. Pleadings define the boundaries of the case by setting out each party’s claims and defences with precision, while evidence serves to substantiate those claims with concrete facts. This strict demarcation keeps trials focused, prevents unfair ambush tactics, and ensures that both sides can prepare and respond effectively to the issues in dispute. Departures from this principle risk undermining judicial integrity, wasting court resources, and prejudicing the opposing party’s right to a fair hearing. [42] As outlined in Gallante v Hoareau:28 ″[t]he function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the Court will have to adjudicate in order to determine the matters in dispute between the parties.” [43] In the present case, the Plaint pleaded that the Respondent had been charged with the offence of dangerous driving, a material fact squarely within section 71(d). The Respondent was thus on fair notice that this matter could be raised at trial. Restricting cross-examination on this pleaded and material fact, as the trial judge did, was both unfair and improper. [44] The modern approach to pleadings, as emphasised in the recent UK High Court case of Ali v Dinc,29 is pragmatic: judges should not be governed by unnecessary 28 Op cit fn 9. 29 [2022] EWCA Civ 34. formalism where it would be unjust to do so. The rule is concerned with the interests of justice, particularly in avoiding prejudice to the losing party. [45] In this case, there was no prejudice to the Respondent, as the fact in question was properly pleaded and he had due notice. The exclusion of cross-examination regarding the Appellant’s prior criminal conviction constituted an error in both law and procedure. Section 29 of the Evidence Act explicitly allows the admission of a prior conviction, when relevant, as evidence that the offence was committed, establishing a rebuttable presumption to that effect. By barring cross-examination on a fact that was both pleaded and admissible under statute, the trial judge not only denied the Appellant the opportunity to rely on a statutory presumption but also compromised the fairness and integrity of the proceedings. Such a restriction is legally untenable. [46] This ground of appeal also succeeds. Damages [47] In view of the fact that the Respondent did not sufficiently deny liability or adduce credible evidence to rebut the presumption of fault under the doctrine of strict liability as imposed by Article 1388, I find that the burden of proof has not been discharged. Consequently, liability for the collision is hereby established against the Respondent. The failure to provide a compelling defence or substantiate any grounds for exemption from responsibility leaves no basis to contest the application of strict liability, and thus, the Respondent is held wholly accountable for the damages arising from the incident. [48] The issue of damages was raised on appeal. I am aware of the fact that the deceased passed away 4 years ago and the proceedings in the case have been protracted. However, the issue of damages was not substantively addressed in this case, as the court found no liability on the part of the Respondent. While it may be tempting to examine the various heads of damages, doing so would be unfair, as neither party had the opportunity to present exhaustive submissions or arguments on the matter. [52] For the avoidance of doubt, I concur with the reasoning and conclusions of Twomey- Woods JA concerning the following substantive issues arising from the grounds of the appeal, set out at paragraph [4] of her judgment as follows — "[4]…First, the misapplication of the burden of proof; Second, the analysis of contributory negligence; Third, the legal effect of the Respondent's admissions;". [53] I do not support the reasoning and conclusions related to the exclusion of evidence regarding the Respondent's criminal conviction, which is set out at paragraph [4] of the judgment by Twomey-Woods JA. This issue arose from grounds 3 and 5 of the appeal. [54] I have read carefully the views of Twomey-Woods, Andre JJA with respect to the issue of whether it was correct for the learned Judge to exclude the evidence of the Respondent's criminal conviction on the ground that no specific averment about it had been made in the plaint. I have written my analysis regarding the issue in question. It is noted that Andre JA has also examined the evidential impact of pleading a conviction, but I do not propose to form an opinion about the said issue in this judgment. [55] I have to determine what particulars should be contained in the plaint where the Appellants rely on a criminal conviction. Section 29 of the Evidence Act stipulates — "29(1) In a trial the fact that the person, other than, in the case of a criminal trial, the accused, has been convicted of an offence by or before any court in the Republic shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in the trial, that that person committed the offence or otherwise, whether or not any other evidence of his having committed that offence is given. (2) In a trial, other than a civil trial for defamation, in which by virtue of this section a person, other than, in the case of a criminal trial, the accused, is proved to have been convicted of an offence by or before a court in the Republic he shall be taken to have committed that offence unless the contrary is proved." [Emphasis is mine] [56] The main purpose of having pleadings was succinctly stated by Lord Woolf M. R. in McPhilemy v Times News Papers Ltd [1999] 3 All E. R. 775, where he said (at p.793) that even after the introduction of the Civil Procedure Rules — "[p]leadings are essential for defining the boundaries of the case being presented by each party. They are crucial for identifying the key issues and the extent of the dispute between the parties. It is important for the parties to clearly express the overall nature of their case. This principle holds true under both the old and the new rules". [57] The case-law of the Seychelles Court supports the same principle. For instance, in Tirant and Another v Banane [1977] 219, Wood J made the following observations ― ″[i]n civil litigation, each party must state his whole case and must plead all facts on which he intends to rely, otherwise strictly speaking he cannot give any evidence of them at the trial. The whole purpose of pleading is so that both parties and the court are made fully aware of all the issues between the parties. [58] I hold the view that given the Appellants intention to rely on a criminal conviction in civil proceedings, which they claimed is admissible under section 29 of the Evidence Act, the plaint must contain the following particulars to meet the requirements of section 71 of the Seychelles Code of Civil Procedure: (i) the Court which convicted the Respondent, (ii) the type of conviction, and (iii) the issue in the plaint to which it relates. The key aspect under section 29 of the Evidence Act is that the conviction must be "relevant to any issue in the trial". Clearly, paragraph [9] of the Appellants' plaint does not contain these particulars. Paragraph [9] of the plaint is framed as follows: "9. [t]he defendant as a result of his commissioning the accident, pursuant to his dangerous driving has also been charged by the Attorney General's office for the offence of causing death by dangerous driving as early as 2019". [59] In Marie-Ange Pirame v Armano Peri SCA No. 16 of 2005, the Court of Appeal held: "…this Court did state (in CA 8/87) inter alia that evidence outside the pleadings although not objected to and the relief not pleaded for, cannot and does not have the effect of translating the said issues into the pleadings or evidence. Indeed, we should reiterate here that the quoted views of this Court still remain to be good law". [60] In light of the above, it is irrelevant that the learned Judge prevented the Appellants from presenting evidence of the criminal conviction, as the Appellants' pleadings did not state the necessary material particulars. Hence, the Appellants cannot strictly give DISSENTING JUDGMENT ANDRE, JA (dissenting) INTRODUCTION [1] I have had the benefit of reading in draft the concurring judgment of my learned sisters Twomey-Woods JA and Robinson JA. With utmost respect, I am unable to agree with their reasoning and conclusion. I therefore set out my dissenting opinion. [2] This matter arises from a delictual action filed in the Supreme Court in Rakotoasimbola & Or v Sinon (CS 94 of 2021) [2025] SCSC 39. The first plaintiff is the widow of the deceased, and the second plaintiff is his minor child. They sought SCR 1,000,000 in damages under Article 1383(2) of the Civil Code of Seychelles, alleging that the defendant, while driving a rental vehicle, negligently caused the death of the deceased pedestrian on the 7th May 2017. [3] According to the plaintiffs, the defendant was operating the vehicle at an excessive speed, failed to keep a proper lookout, and struck the deceased who was lawfully crossing the road, thereby causing his death and resulting in emotional and financial loss to the plaintiffs. In response, the defendant denied fault and pleaded that the deceased had negligently run into the road from the opposite side, giving the defendant no opportunity to avoid the collision. The defence thus rested on the assertion that the accident was solely attributable to the deceased’s own conduct. [4] The learned trial judge, Adeline J, noted that Article 1383(2) imposes a presumption of liability on the custodian of a thing which causes harm, unless they can prove that the harm was due solely to an external cause. The court also examined the evidence presented, which included the testimonies of the plaintiffs, the defendant, and expert medical witnesses. It concluded that the plaintiffs had not proven that the defendant’s conduct was the direct cause of the accident. [5] The judge found that the defendant had rebutted the presumption of fault under Article 1383(2) by demonstrating that the deceased acted in a sudden and unforeseeable manner, darting into the road. As such, the burden of proof had shifted and was discharged by the defendant. The judge noted the lack of evidence establishing that the defendant could have avoided the accident under the circumstances. [6] Additionally, the plaintiffs sought to rely on a criminal conviction against the defendant as evidence of civil liability. However, the court declined to admit this evidence on the basis that it had not been specifically pleaded, and that judicial notice could not be taken of facts outside the pleadings and record. The court ruled that the exclusion of this evidence was justified in law and practice. [7] Accordingly, the plaint was dismissed, and costs were awarded to the defendant. Dissatisfied with the ruling, the plaintiffs have appealed to this court on the following grounds. GROUNDS OF APPEAL [8] The Appellants raise five grounds on appeal, which are listed as follows; Ground 1 The learned Judge however does not rule that this Appellant being the Plaintiff failed to prove those three elements of 1. Fault; 2. Damage and 3. A causal link between the two, necessary for faute, has on his own volition decided to shift the burden on the Respondent (Defendant) and erroneously, in a rapid decision without proper reasoning, decided that the Respondent discharged its burden, thus the dismissal of the Plaint is erroneous. Ground 2 The learned judge in the Court below, failed to outweigh the overall evidence while failing to appreciate that the Appellants have proved their balance of probabilities in terms of the Plaint claim, through “three uncontroverted witnesses” Ground 3 The learned judge failed to appreciate the proper reading of the Appellants’ plaint pleadings vide paragraph 9 that on the date of filing the Plaint dated 7th October 2021 that the criminal proceedings against the Respondent (Defendant) was pending but erroneously concluded that the conviction was not part of the Plaint pleadings on the context of disallowing the questions on conviction to the Respondent, during cross examination while his rational that this was not pleaded, is erroneous. The learned judge failed to analyze the ratio decidendi of the Appellants’ case laws on this issue. Ground 4 The learned judge thoroughly failed to take note of the admission of the Respondent both in his pleading as well as in his oral evidence (both in chief and in cross examination) of his fault in driving, consequent death of the deceased. Ground 5 The learned judge in the court below failed to note that the Appellants being the Plaintiffs had carriage of conducting their civil case when the matter was due for hearing but erroneously decided that the Appellants ought to have waited for the completion of the criminal proceedings against the Respondents while the issue of question of the Respondent’s conviction came about in cross examination. SUBMISSIONS APPELLANT’S SUBMISSIONS Ground 1 - Alleged Misapplication of the Burden of Proof and Error in Finding No Fault [9] Ground 1 of the appeal challenges the manner in which the learned Judge addressed the burden of proof under Article 1383(2) of the Civil Code. The Appellants contend that the Judge did not find that they had failed to establish the three elements necessary to ground a claim in faute, namely: fault, damage, and a causal link between the two. Instead, they argue that the Judge prematurely and erroneously shifted the burden to the Respondent, and summarily found that he had discharged it, without adequate reasoning or analysis. [10] According to the Appellants, they had demonstrated, on a balance of probabilities, that the Respondent, through his operation of a motor vehicle, had caused the death of the deceased. They maintain that this was sufficient to trigger the statutory presumption of fault under Article 1383(2), and that the Judge was therefore wrong to dismiss the suit without requiring the Respondent to rebut that presumption. The Appellants assert that Article 1383(2) places the burden on the driver of a vehicle involved in an accident resulting in damage to prove that the accident was due to the negligence of the victim, a third party, or an act of God. In their view, this legal framework was misapplied. [11] The Appellants rely on authorities such as Constance v Grandcourt [2016] SCSC 8, §68, and Marie v Morel (187 of 2003) (187 of 2003) [2007] SCSC 24 (20 May 2007)), which they claim support their position that Article 1383(2) gives rise to a form of strict liability. They further refer to Jumaye v Government of Seychelles (1979) SLR 10 for the proposition that in collisions involving two vehicles, the presumption of fault applies to both drivers, and that the injured party is not required to prove fault beyond the fact of injury. [12] In addition to the presumption under Article 1383(2), the Appellants also invoke section 29 of the Evidence Act. They argue that the Respondent’s prior conviction for causing death by dangerous driving was relevant and admissible, and should have been treated as presumptive evidence of fault. According to them, section 29(1) permits the admission of criminal convictions in civil proceedings, and section 29(2) allows the court to presume that the convicted person committed the offence, unless the contrary is proved. They contend that the Judge did not adequately engage with this statutory framework, and erred in disregarding the conviction as irrelevant. [13] The Appellants maintain that the learned Judge’s approach resulted in a flawed and premature dismissal of the Plaint. They argue that the Judge failed to engage with the pleaded and proven facts, improperly shifted the burden of proof, and failed to address the evidentiary implications of the criminal conviction. In their view, these missteps cumulatively led to a miscarriage of justice, and warrant the intervention of this Court. Ground 2 - Contributory Negligence and Sole Causation [14] Ground 2 of the appeal alleges that the learned Judge in the court below failed to properly assess the totality of evidence adduced by the Appellants, particularly the testimony of three witnesses whom they describe as “uncontroverted.” The Appellants argue that their evidence, taken as a whole, established liability on the part of the Respondent on a balance of probabilities and that the Judge failed to appreciate its probative value. [15] They assert that the Respondent’s own testimony in court reveals, by implication, that he caused the death of the deceased. Reference is made to page 151 of the record, where the Respondent is quoted as stating that he saw someone appear in front of him, applied the brakes, and described the individual as having “let himself fall on the car,” resulting in damage to the windscreen. Further, on page 153, the Respondent is said to have acknowledged that the deceased’s head struck the windscreen and that he had to pay for the repairs because the vehicle was rented. According to the Appellants, this testimony amounts to an implicit admission of impact, if not of fault. [16] They submit that there was no categorical denial by the Respondent, either in examination-in-chief or under cross-examination, that he struck the deceased. Instead, the Respondent’s answers are characterised as evasive, and it is contended that, but for the trial Judge’s intervention during cross-examination, further admissions may have been elicited. On this basis, the Appellants argue that the trial court failed to consider the evidentiary weight of the Respondent’s own words, and by so doing, misdirected itself in evaluating fault. [17] The Appellants also challenge the treatment of contributory negligence. While acknowledging that the Respondent’s defence alluded to the deceased’s failure to take due care when crossing the road, they assert that this assertion was vague and unsupported by evidence. Moreover, they argue that contributory negligence was not specifically pleaded, and as such, it should not have been relied upon by the court to reduce or exclude the Respondent’s liability. In their view, even if there had been evidence of some contributory fault by the deceased, this would only have justified a partial apportionment of liability, not a full exoneration of the Respondent. [18] To support their position, the Appellants refer to the decision of the Court of Appeal in (Public Utilities Corporation v Una Esther & Others (SCA 69 of 2019; SCCA 42 of 2022). According to them, that authority confirms the principle that contributory negligence must be both pleaded and proved to affect the allocation of damages, and that a failure to do so results in full liability resting on the defendant. They submit that the learned Judge failed to apply this principle correctly and improperly accepted an unpleaded defence. [19] In sum, the Appellants contend that the Judge failed to weigh the available evidence holistically, overlooked crucial admissions or implications in the Respondent’s own testimony, and misapplied the legal framework on contributory negligence. These errors, they argue, led to an unjust dismissal of the Plaint and should be rectified on appeal. Ground 3 - Admissibility and Relevance of the Respondent’s Criminal Conviction [20] Ground 3 of the Appellants’ case challenges the trial Judge’s refusal to allow cross- examination of the Respondent regarding his criminal conviction, on the basis that such conviction had not been pleaded. The Appellants argue that this ruling was erroneous because the existence of the criminal proceedings had already been referenced in their Plaint, specifically in paragraph 9, which stated that the Respondent had been charged with causing death by dangerous driving. The Appellants submit that this reference sufficed to put the conviction in issue and laid the foundation for raising it during trial once the conviction had been secured. [21] They further argue that the Judge failed to consider the context in which the civil claim was brought - namely, that when the Plaint was filed in October 2021, the criminal trial was ongoing and had not yet resulted in a conviction. As such, it was not possible for them to plead the outcome of the criminal proceedings at that stage. The Appellants contend that once the conviction occurred, it became a material fact relevant to the Respondent’s fault and should have been admissible either through judicial notice or through cross-examination. They submit that the Judge erred in refusing to admit questions on the conviction during cross-examination on the ground that the conviction had not been expressly pleaded. [22] To illustrate this, they point to the proceedings recorded at pages 155 to 158 and page 184 of the record. During cross-examination, when counsel for the Appellants attempted to question the Respondent about why he was in prison, counsel for the Respondent objected, arguing that the matter was not pleaded. The Judge sustained the objection and maintained that any evidence of the conviction would introduce a fact not pleaded in the Plaint. Despite counsel’s repeated reference to paragraph 9 and his contention that it was a matter arising during proceedings that should be allowed for examination, the Judge refused to permit the line of questioning. [23] The Appellants also argue that the trial Judge failed to engage with the authorities they cited, particularly the decision in (Solo v Payet (CS 24/2014), where Twomey J explained the effect of Section 29 of the Evidence Act on the admissibility of criminal convictions in civil proceedings. According to the Appellants, the principles set out in that case, based on both local and English jurisprudence, establish that where a party has been convicted of a criminal offence, such conviction is admissible in a civil matter to prove the commission of the offence, unless the contrary is proven. [24] They rely on Section 29(1) and (2) of the Evidence Act, which permits the admission of a conviction to prove that the offence was committed and provides that, unless rebutted, the convicted person is deemed to have committed the act. They argue that the Judge failed to appreciate the legal significance of this statutory framework and improperly excluded relevant and probative evidence. [25] The Appellants also emphasise that, had the Judge admitted the evidence of conviction, it would have materially affected the analysis of liability. In paragraph 31 of the trial judgment, the Judge found that the burden had shifted to the Respondent to prove that the accident was caused by an extraneous occurrence beyond his control. The Appellants submit that a conviction for causing death by dangerous driving would have made it significantly more difficult for the Respondent to rebut that presumption, and could have altered the Judge’s ultimate finding that the Respondent bore no civil liability. [26] In their view, the Judge’s refusal to admit or consider the conviction constituted a misdirection on both procedural and evidentiary grounds. They argue that this failure undermined the fairness of the proceedings and amounted to an error of law warranting appellate intervention. Had the Judge properly considered the pleaded reference to the criminal proceedings and the applicable statutory provisions, they submit, the conviction would have been admitted and would have materially strengthened their case on fault. Accordingly, they contend that Ground 3 discloses a significant error that justifies allowing the appeal. Ground 4 - Alleged Ignored Admissions by the Respondent [27] Ground 4 of the Appellants’ case is premised on the contention that the trial Judge failed to take sufficient note of what the Appellants characterise as admissions of fault by the Respondent both in his pleadings and oral evidence - regarding his role in the fatal accident. The Appellants assert that although the Respondent denied liability, his pleadings and testimony contained statements which, when viewed in context, constituted implicit or tacit admissions that he caused the accident which led to the death of the deceased. [28] They highlight the Respondent’s acknowledgment in his Defence that the accident occurred, and that he was the driver of the vehicle involved, as facts that were never in dispute. The Appellants argue that while the Respondent stopped short of explicitly admitting negligence, his vague denials, lack of coherent exculpatory explanation, and references during oral evidence to the location of the deceased “in the middle of the car” amounted to an effective admission of fault. They describe his answers in cross-examination as evasive and internally inconsistent, and contend that this conduct, coupled with the absence of a clear alternative theory of causation, should have weighed in favour of finding that the Respondent bore civil liability. [29] Furthermore, the Appellants argue that the trial Judge failed to recognise that the emotional and moral harm they suffered due to the loss of the deceased, who was the spouse of the First Appellant and father of the Second, was directly linked to the Respondent’s fault. They submit that this harm, coupled with the Respondent’s admitted involvement in the fatal incident, created a compelling inference of faute (wrongful conduct) under Article 1383(2) of the Civil Code of Seychelles. [30] The Appellants also criticise the Judge’s application of the burden-shifting mechanism under Article 1383(2). They argue that the Judge mischaracterised the Respondent’s evidence as sufficient to rebut the statutory presumption of fault, without undertaking a rigorous analysis of whether the Respondent had met the requisite standard of proof. In their view, the Judge too readily accepted the Respondent’s narrative and did not subject his explanations to the degree of scrutiny that the strict liability regime demands. They contend that the Judge thereby relieved the Respondent of a burden that should have remained with him under the statute. [31] According to the Appellants, this misdirection distorted the legal analysis and undermined the finding that the Respondent was not liable. They assert that a proper assessment of the Respondent’s statements and conduct, in both his pleadings and oral evidence, should have led the Judge to conclude that he failed to discharge the burden of rebutting the presumption under Article 1383(2), and that liability had accordingly been established. Ground 5 - Timing of Civil Proceedings in Relation to Criminal Trial [32] Ground 5 of the Appellants’ case challenges what they characterise as the learned trial Judge’s erroneous suggestion that they ought to have postponed the filing or hearing of their civil suit until the conclusion of the criminal proceedings against the Respondent. According to the Appellants, this view - allegedly expressed during the trial and reflected in the court’s treatment of certain evidentiary matters - amounted to the application of a “wrong principle in law.” They maintain that no procedural rule barred them from instituting the civil action while the criminal matter was still pending, and that their decision to proceed with the civil claim was entirely within their rights. [33] They further argue that the issue of the Respondent’s conviction arose organically during the course of the trial, specifically in cross-examination, and should have been admitted as relevant evidence. The Appellants contend that the Judge’s refusal to allow questions regarding the conviction - on the ground that the result of the criminal case was not expressly pleaded - ignored the contextual pleading in paragraph 9 of their Plaint, which referred to the ongoing criminal proceedings at the time of filing. They argue that this reference was sufficient to ground subsequent questions about the outcome of the criminal case, especially since the conviction occurred after the suit had already been filed. [34] In the Appellants’ view, the Judge’s approach to this issue reflects a broader failure to properly assess the cumulative legal and factual foundation of their case. They assert that the Judge’s insistence on a rigid reading of the pleadings, despite clear indications of the criminal prosecution, resulted in a miscarriage of justice and hindered their ability to present relevant and probative material. The Appellants also link this ground to their other substantive grounds of appeal, asserting that the Judge’s rejection of the conviction evidence weakened their position on liability under Article 1383(2) of the Civil Code and should be considered in conjunction with Grounds 1 through 4. [35] The Appellants submit that the erroneous handling of this issue materially impacted their ability to establish the Respondent’s fault, and that it had broader implications for the fairness of the trial. They maintain that had the Judge admitted the conviction into evidence and properly applied section 29 of the Evidence Act (as interpreted in case law such as Solo v Payet), it would have supported their claim that the Respondent was legally at fault for the accident. [36] On quantum, the Appellants request that if this Honourable Court finds the Respondent liable, it should proceed to award damages in the sum of SCR 1,000,000, comprising SCR 350,000 for the First Appellant (as moral damages) and SCR 650,000 for the Second Appellant (as material damages for loss of support). They cite the deceased’s age (42 years), earning capacity (approximately USD 5,700 per annum), and expatriate benefits (food and housing allowances) as grounds to support the reasonableness of the claimed amounts. They further rely on case law, including Seychelles Breweries Ltd v Sabadin and P. U. C. v Una Esther & Ors (SCA 69/2019), to submit that courts are permitted to adopt a flexible, context-sensitive approach in calculating damages, particularly where the victim’s future support would have substantially benefitted surviving dependents. [37] In conclusion, the Appellants urge the Court of Appeal to reverse the Supreme Court’s dismissal of their case, uphold liability against the Respondent, and award them damages in the sum of SCR 1,000,000, along with costs in both courts. RESPONDENT’S SUBMISSIONS [38] In response to the appeal, the respondent submits that the learned trial judge correctly appreciated the evidence and applied the relevant principles under Article 1383(2) of the Civil Code. Ground 1 – Alleged Error in Burden of Proof and Misapplication of Article 1383(2) [39] In response to the Appellants’ first ground of appeal, the Respondent firmly rejects the claim that the trial judge erred in applying Article 1383(2) of the Civil Code or in shifting the burden of proof improperly. The Respondent submits that the judge correctly applied the principle of faute présumée (presumed fault) under Article 1383(2), which creates a statutory presumption of liability against drivers of motor vehicles involved in accidents causing damage. [40] According to Article 1383(2), now Article 1384 in the Civil Code of Seychelles 2020, where a motor vehicle causes damage by reason of its operation, the driver is presumed to be at fault unless he proves that the damage was solely due to the negligence of the injured party or to some unavoidable cause. The provision thereby imposes a rebuttable burden on the driver, and the judge is duty-bound to apply this presumption once the fact of the accident is established. [41] The Respondent argues that the learned trial judge explicitly acknowledged this legal position in paragraph 31 of the judgment, stating that the burden of proof had shifted to the defendant “to prove, on a balance of probabilities, that the accident… happened as a result of an event outside his control.” Far from shifting the burden “on his own volition,” as the Appellants contend, the judge simply applied the law as mandated by Article 1383(2). [42] On the evidence, the Respondent maintains that he discharged the burden placed upon him by offering a credible and coherent account of the circumstances leading to the accident. He testified that the deceased pedestrian suddenly appeared in front of the moving vehicle without warning. There was no zebra crossing at the location, and the deceased emerged so abruptly that evasive action was impossible. Although the Respondent applied the brakes, the deceased fell onto the car, shattering the windscreen, which indicated the point of impact was the front bonnet. The trial judge accepted this account as truthful and found no evidence suggesting that the Respondent was speeding, distracted, intoxicated, or otherwise driving negligently at the time. [43] The Respondent further argues that the Appellants failed to lead any evidence to contradict his version of events. No eyewitnesses were produced, and no expert or police reports were tendered. The only evidence led by the Appellants related to the fact of the death and its consequences, not the issue of fault. As such, the statutory presumption under Article 1383(2) was effectively rebutted by the Respondent, and the Appellants did not meet any residual evidentiary burden to affirmatively establish the Respondent’s fault. In this regard, the Respondent cites Zirant v Banane, Constance v Grandcourt [2016] SCSC 85, and Barbe v Hoareau SCA 5/2001, where courts have consistently held that a defendant may escape liability if he proves that the incident was due to an external cause or the victim’s own negligence. [44] The Respondent also notes that the Appellants, in their own submissions on appeal, appear to concede that the deceased’s conduct was a factor in the accident. They argue that contributory negligence ought to have resulted in an apportionment of damages rather than a full dismissal of the plaint. However, the Respondent stresses that once the presumption of fault was rebutted, and no positive evidence of faute was adduced by the Appellants, no basis for apportionment existed. There must first be a finding of fault before contributory negligence can be considered. [45] The Respondent underscores that this position is in line with authority from the Court of Appeal, including Pillay v Nourrice & Ors (SCAGS of 2019), Morel v Simeon (CS 57/2012), Eden Holistic Spa (Pty) Ltd v Woodland Holdings Ltd (CA 15 of 2020), and Jupiter v Tregarthen & Ors (CS 93/2015), all of which confirm the conditions under which Article 1383(2) liability can be rebutted. [46] Finally, the Respondent refers to Emmanuel v Joubert [1996] SCCA 49 of 1996, where Ayoola JA observed that for delictual liability to arise, three elements must co- exist: fault, damage, and a causal link. Here, although the elements of damage and causation were evident, fault was not established once the statutory presumption was rebutted. [47] Accordingly, the Respondent submits that there was no legal or factual error in the trial judge’s reasoning or conclusions regarding the burden of proof or application of Article 1383(2). The trial judge applied the correct legal standard, evaluated the evidence reasonably, and was justified in dismissing the plaint. The Respondent prays that Ground 1 of the appeal be dismissed in its entirety. Ground 2 – Contributory Negligence and Sole Causation [48] In response to Ground 2 of the appeal, the Respondent contests the Appellants’ assertion that the learned trial Judge erred by attributing full causation of the accident to the deceased pedestrian. The Respondent argues that the Appellants’ claim that the defence of contributory negligence was neither properly pleaded nor sufficiently proven is without merit. [49] The Respondent first contends that although the specific term “contributory negligence” was not used in the Statement of Defence, the defence nonetheless pleaded facts that clearly invoked the deceased’s sole negligence as the cause of the accident. In paragraph 3 and 10 of the Statement of Defence, the Respondent averred that the deceased crossed the road “without due care and attention to the traffic,” thereby expressly denying that the accident was due to any fault on his part. These averments were sufficient in substance to alert the Appellants that the Respondent intended to rely on the victim’s fault as an exonerating factor under Article 1383(2) of the Civil Code. Accordingly, the issue of the deceased’s negligence was squarely raised on the pleadings and met the threshold under section 73 of the Seychelles Code of Civil Procedure (CPC), which only requires that material facts, not precise legal language, be pleaded. [50] The Respondent further notes that the Appellants’ counsel fully engaged with the defence theory during trial, particularly in cross-examination. The record shows that the Appellants’ advocate sought to undermine the Respondent’s version by questioning inconsistencies and pressing him on his description of the accident. This demonstrated that the Appellants understood that the conduct of the deceased was at issue. Unlike in Lesperance v Larue, where a statutory defence was raised by the court without being pleaded, here the deceased’s negligence was both pleaded and litigated throughout. Thus, the Appellants cannot now assert that they were taken by surprise or that the issue was not properly joined. [51] On the factual question of causation, the Respondent submits that the learned trial Judge correctly found that the deceased’s sudden and imprudent actions were the sole cause of the accident. The Respondent’s uncontradicted testimony was that the deceased emerged suddenly into the path of the vehicle at a place without a zebra crossing, leaving the driver no opportunity to avoid a collision despite applying the brakes. The Respondent’s description that the deceased “let himself fall on the car” suggests the pedestrian was not paying attention or otherwise acted recklessly. There was no evidence of poor driving, speeding, intoxication, or any other conduct indicating fault on the part of the Respondent. The trial Judge accepted the Respondent’s account as credible and held that the deceased’s conduct was the exclusive cause of the accident, thereby rebutting the presumption of fault under Article 1383(2). [52] The Respondent points out that the Appellants’ heads of argument on appeal tacitly concede this narrative by suggesting that if anything, liability should have been apportioned. This line of argument, however, misunderstands the legal position. The principle of apportionment or tort partagé applies only where both parties are at fault. Under Article 1382, a finding of contributory negligence may reduce damages; but under Article 1383(2), where the victim’s negligence is found to be the sole cause of the accident, the defendant is fully exonerated. The law is explicit that the presumption of fault is rebutted if the damage was “solely due to the negligence of the injured party.” The Respondent emphasises that this is precisely the finding made by the trial court, and the correct legal consequence of such a finding is dismissal of the claim in full, not a partial award. [53] The Respondent also addresses the Appellants’ argument that the pleadings lacked “clarity and distinctness,” allegedly violating section 75 CPC. He submits that while the pleadings may not have been couched in precise legal terminology, they plainly and sufficiently conveyed the central defence theory - that the deceased’s negligence alone caused the accident. The Appellants did not seek further particulars, did not raise any objection at trial, and did not move to strike out or amend. In law, by participating in the trial without demur, they are deemed to have accepted the pleadings as sufficient and cannot now raise that objection for the first time on appeal. Furthermore, they cannot introduce a new issue on appeal - namely, the clarity of pleadings - that was never raised or adjudicated upon in the court below. [54] Finally, the Respondent invokes the settled appellate standard of review. The finding of sole negligence by the deceased was a factual determination based on the Judge’s assessment of the evidence and credibility of the witnesses. There is no indication of legal error, misdirection, or misapprehension of material fact. In the absence of such errors, the appellate court must defer to the trial judge’s conclusions. Citing Verlaque v Government of Seychelles (2000-2001) SCAR 165 and Audrey Kimberly Lisparon v Gerard Philo SCA 4/2021, the Respondent submits that no basis exists for appellate interference. [55] For all these reasons, the Respondent prays that Ground 2 of the appeal be dismissed in its entirety. The Judge acted within the bounds of law and reason, properly applied the presumption under Article 1383(2), found it rebutted by compelling evidence, and lawfully dismissed the plaint based on a finding of sole fault attributable to the deceased. Ground 3 – Admissibility and Relevance of the Respondent’s Criminal Conviction [56] In answer to Ground 3, the Respondent refutes the Appellants’ claim that the learned trial Judge erred by excluding reference to the Respondent’s criminal conviction for causing death by dangerous driving. The Appellants had argued that such conviction, although occurring after the filing of the plaint, was nonetheless relevant and admissible under section 29 of the Evidence Act as proof of civil fault. The Respondent, however, maintains that the Judge acted correctly in refusing to admit this evidence, both on procedural and substantive grounds. [57] First, the Respondent points out that the alleged conviction was never properly pleaded in the Plaint. Paragraph 9 of the Plaint merely referred to the pendency of a criminal charge at the time of filing. It did not allege that the Respondent was guilty or convicted, nor did it describe any facts establishing negligence on his part. Since the criminal case had not been concluded by the time the plaint was lodged, the Appellants could not and did not plead a conviction. However, by the time of trial, a conviction had occurred - yet the Appellants took no steps to amend their pleadings to include it, despite the availability of a procedure under section 146 of the Seychelles Code of Civil Procedure to amend the plaint. The Respondent submits that this omission was fatal. The legal requirement that material facts be pleaded meant that the conviction, carrying significant implications of fault, could not be introduced without notice. The Judge therefore properly upheld an objection to the Appellants’ attempt to raise it during cross-examination, maintaining the integrity of the pleadings. [58] Second, the Respondent submits that even if the conviction had been pleaded, it was not infact proved at trial. Section 29 of the Evidence Act allows a criminal conviction to be admitted as presumptive evidence of the offence in subsequent civil proceedings. However, for the presumption to arise, the conviction must first be “proved” in the civil court — typically by producing a certified copy of the judgment or having the defendant admit the conviction under oath. Here, the Appellants did neither. No court record or certificate was tendered, and the Respondent never admitted being convicted during his testimony. He merely acknowledged that he had been imprisoned, without confirming the offence. Thus, the existence of the conviction was never formally established before the trial court. The Respondent argues that the Judge’s decision to disallow the line of questioning on this issue was a proper exercise of discretion in managing evidence and avoiding prejudice from unpleaded and unproven allegations. [59] Third, the Respondent submits that even had the conviction been proven, it would not have been determinative of liability. Under section 29(2), the presumption raised by a conviction is rebuttable. The standard of rebuttal in civil proceedings is the balance of probabilities. In the present case, the Respondent gave a detailed and credible account of the accident, stating that the deceased pedestrian had suddenly run into the road and left him no time to react, despite braking. This version of events, accepted by the trial Judge, was sufficient to rebut any presumption of fault that might have arisen from the criminal conviction. As clarified in Esparon v Philo [2012] SLR 53, section 29 should not be interpreted to impose a heavier burden on a civil defendant than the law requires; the presumption must yield to credible exculpatory evidence. [60] Fourth, the Respondent emphasizes the importance of maintaining fair trial standards under Article 19 of the Constitution. The introduction of a criminal conviction late in the civil trial, without prior notice or opportunity to respond, would have violated his right to a fair hearing. The standards and evidence in criminal proceedings differ from those in civil matters, and importing conclusions from one into the other without procedural safeguards is inherently prejudicial. The trial Judge rightly observed that counsel for the Appellants had previously indicated an intention to wait for the conclusion of the criminal proceedings before commencing the civil claim. Yet they proceeded without waiting and, once the criminal conviction occurred, attempted to introduce it without seeking amendment or admitting it properly into evidence. The Respondent argues that the trial Judge correctly rejected this procedural ambush and maintained the proper boundaries of the trial. [61] Lastly, the Respondent refutes the Appellants’ reliance on the foreign case of Solo v Payet, noting that the trial Judge was not obliged to consider inapplicable or unproven foreign authority, particularly where the conviction itself was not in evidence and the relevant statutory threshold under section 29 was not met. [62] In conclusion, the Respondent submits that Ground 3 is wholly unmeritorious. The Appellants failed to plead or prove the conviction, failed to introduce it in compliance with section 29 of the Evidence Act, and failed to overcome the fair trial and evidentiary safeguards that the law demands. The Judge’s exclusion of the conviction was justified both as a matter of legal principle and case management. Accordingly, the Respondent prays that Ground 3 be dismissed. Ground 4 – Alleged Ignored Admissions by the Respondent [63] In response to Ground 4, the Respondent contends that the Appellants’ assertion - that the trial Judge failed to consider alleged admissions of fault made by the Respondent - is unsubstantiated and unsupported by the record. The Respondent argues that no such admission of fault was ever made in the pleadings or during oral testimony, and the Judge cannot be faulted for failing to consider what did not exist. [64] Firstly, with regard to the Respondent’s pleadings, the Defence did not contain any express or implied admission of negligence. The Respondent argues that they unequivocally denied the allegations of dangerous or negligent driving and instead pleaded that the deceased was responsible for his own death by crossing the road without exercising due care. While the Defence did concede that an accident occurred and that the deceased died as a result - facts which were not in dispute - these cannot be construed as admissions of liability. The Respondent maintains that acknowledging the occurrence of an accident does not equate to admitting fault, particularly where the Defence concurrently pleads an exonerating cause such as the victim’s negligence. [65] Secondly, the Respondent rebuts the claim that he made any damaging admissions during his oral testimony. According to the record (including the Appellants’ own recounting), the Respondent submits that he consistently maintained that he was not at fault and that the accident occurred due to the deceased's sudden and unforeseeable action of running into the road. At one point, the Respondent stated that “he [the deceased] let himself fall on the car,” which the Appellants apparently seek to cast as an admission. However, the Respondent submits that this statement is not an acceptance of culpability but rather a vivid description of the unexpected nature of the collision. Likewise, his acknowledgement that he paid to repair the damage to the rental vehicle reflects a contractual obligation with the car hire company - not an admission of civil liability for the death. [66] The Respondent submits that for a statement to constitute a legal admission, it must be clear, unambiguous, and intentional. None of the cited remarks rise to that threshold. The Judge was therefore correct in treating the evidence as denying fault rather than admitting it. If the Appellants genuinely believed that the Respondent had made a binding admission, they could have sought to have it formally recorded as such or requested the court to treat it as conclusive under the applicable evidentiary rules. They did not. [67] Furthermore, the Respondent emphasizes that the Judge did not ignore or overlook the Respondent’s testimony. On the contrary, the Judge carefully reviewed the entire body of evidence - including the Respondent’s account - and concluded that the presumption of fault under Article 1383(2) had been rebutted. There is no indication that the trial court disregarded any crucial statement or failed to take account of the Respondent’s evidence in reaching that conclusion. The Judge also correctly noted that admissions of being the driver or of the accident occurring - which were not disputed - did not suffice to establish fault in law. In delictual claims, liability arises from faute, which must either be proven or presumed and unrebutted. An accident resulting in death, no matter how tragic, is not by itself sufficient to establish fault. [68] Finally, the Respondent highlights the appellate standard of review, noting that appellate courts do not interfere with factual findings absent a clear showing of error, oversight, or perversity. In the absence of any specific statement amounting to a legal admission or of any demonstrated judicial omission, this ground cannot succeed. The Respondent relies on the principle set out in Verlaque v Government of Seychelles (2000–2001) SCAR 165, where the Court of Appeal held that appellate intervention is unwarranted unless there is a demonstrable failure by the trial court to appreciate the facts or apply the law. [69] In sum, the Respondent submits that Ground 4 is without merit, as it is predicated on misconstrued or non-existent admissions. The learned Judge did not ignore any relevant evidence, but instead properly assessed the testimony in its totality. The Respondent urges that this ground be dismissed. Ground 5 – Timing of Civil Proceedings in Relation to Criminal Trial [70] In response to Ground 5, the Respondent submits that this ground of appeal is misconceived and fails to disclose any reviewable error on the part of the learned trial Judge. The Appellants complain that the Judge wrongly suggested they ought to have awaited the conclusion of the criminal case before initiating or proceeding with the civil suit. They characterise this as the application of an incorrect principle of law, namely that civil proceedings must be stayed or delayed pending the resolution of related criminal charges. [71] The Respondent agrees that there is no legal bar to instituting or proceeding with a civil claim while related criminal proceedings are ongoing. However, the Respondent emphasizes that this is not the basis upon which the suit was dismissed. That, the trial court’s decision on the merits was that the Appellants had failed to prove the Respondent’s liability, either directly or through the operation of Article 1383(2) of the Civil Code. That the Judge made no ruling to the effect that the civil claim was barred or improperly filed due to the timing of the criminal proceedings. [72] Rather, the remarks by the Judge alluded to by the Appellants arose in the context of rulings on evidentiary matters, particularly regarding the admissibility of the Respondent’s criminal conviction. During trial, the Judge noted that the Appellants had elected to proceed with the civil suit prior to the conclusion of the criminal case and had failed to amend their pleadings to incorporate the conviction once it was obtained. The Respondent argues that these comments were not dispositive of the case, nor did they reflect the Judge’s application of an erroneous legal principle. Instead, they formed part of the Judge’s explanation for why the criminal conviction was excluded from evidence a matter dealt with comprehensively under Ground 3. [73] The Respondent submits that Ground 5 essentially rehashes the same complaint as Ground 3 namely, that the Appellants were prejudiced by not being allowed to rely on the subsequent conviction of the Respondent. However, as already shown, the exclusion of the conviction was justified on procedural and evidentiary grounds, including the failure to plead or prove it at trial. The Respondent emphasizes that the Judge did not penalise the Appellants for bringing the civil case earlier; rather, he enforced the rules of pleadings and relevance in relation to evidence the Appellants sought to introduce late in the day. [74] Even assuming, arguendo, that the Judge’s comment on the prudence of waiting for the criminal case to conclude was misplaced or ill-advised, it was clearly an obiter dictum — a passing remark made in the course of addressing procedural objections — and not part of the ratio decidendi of the judgment. The substantive dismissal of the claim rested squarely on the failure to prove fault on the part of the Respondent. Accordingly, any suggestion that the Judge relied on an incorrect legal principle is unfounded. [75] In conclusion, the Respondent submits that Ground 5 raises no separate or material issue for this Court to determine. It is either a repetition of Ground 3 or a misunderstanding of the Judge’s remarks. The Appellants were not penalised for exercising their right to bring a civil claim; they were held to standard procedural and evidentiary requirements, which they failed to satisfy. The learned Judge applied no wrong legal principle in that regard, and the dismissal of the suit was lawfully and reasonably made. Ground 5 should accordingly be dismissed. Additional Alleged Weaknesses in the Appellants’ Case and Respondent’s Final Position [76] In addition to addressing each of the formal grounds of appeal, the Respondent further alleges material deficiencies in the Appellants’ case. [77] First, the Respondent raises a threshold concern regarding the Appellants’ locus standi. The civil action was brought by the 1st Appellant, Mrs. M. Rakotoasimbola, in her capacity as the deceased’s “widow,” and purportedly on behalf of the 2nd Appellant, her minor child. The claim included heads of damages for both préjudice moral (emotional distress and grief) and préjudice matériel (pecuniary loss, particularly loss of financial support). However, the Respondent argues that the Plaint did not establish whether the 1st Appellant was acting solely in her personal capacity or also in a representative capacity, such as executrix of the deceased’s estate. Moreover, there was no evidence of a grant of probate or other letters of administration to that effect. Unlike the facts in Lesperance v Larue, where the claimant was expressly appointed fiduciary of the co-owners, there was no documentary proof of legal standing in the instant case. [78] That this issue was compounded by the failure to adduce key documentary evidence such as a marriage certificate or order authorising the 1st Appellant to sue on behalf of the minor child. While the pleadings asserted a spousal relationship and dependency, the Defence challenged these assertions and put the Appellants to strict proof. In the absence of marriage or guardianship documentation, the Appellants’ standing to bring the claim - especially for categories of damages that may only be claimed by heirs or legal dependents under Article 1383(3) of the Civil Code (now Article 1385) - remained procedurally defective. The Respondent concedes that these issues were not determinative at first instance due to the case being dismissed on liability grounds, but maintains that these foundational flaws would have precluded recovery in any event, had the case progressed further. [79] Second, the Respondent submits that the Appellants entirely failed to prove the quantum of damages sought. The claim included a lump sum of SCR 1,000,000 - SCR 350,000 for the widow’s moral damages and SCR 650,000 for the minor child’s material loss of support. The Respondent argues that there was a total absence of evidentiary substantiation for these figures. That the Appellants provided no documentary or testimonial evidence of the deceased’s actual financial support or income, aside from a bare statement in the Plaint claiming a salary of SCR 15,000/month. That there was no corroborative documentation or actuarial evidence to substantiate the loss of dependency claim. Nor were any expenses or needs of the minor child particularised or evidenced. [80] Similarly, the 1st Appellant’s claim for moral damages was made without supporting medical or psychological evidence of the grief or emotional impact. The Respondent argues that while it is recognised that moral damages are awarded at the discretion of the court and need not be proved with mathematical precision, there is nonetheless an expectation of some factual foundation and contextual clarity, especially where the claimed amount is significant. That in the present case, the Appellants simply offered unsubstantiated, round figures. The Respondent argues that as such, even if liability had been found, an award of damages would have been speculative at best, and may have been limited to nominal damages or far less than claimed. The Respondent argues that this evidentiary failure reflects a broader pattern of insufficient preparation and unsupported claims. [81] The Respondent further notes that the claims by the 1st and 2nd Appellants may have been duplicative, particularly where the 1st Appellant, as a parent, would presumably use any award to support the child, raising concerns about double recovery. That these questions, while ultimately rendered moot by the dismissal on liability grounds, nevertheless illustrate that the Appellants’ case suffered from multiple procedural and substantive infirmities at every stage - in the pleadings, in their legal basis, and in evidentiary support. [82] Accordingly, in conclusion, the Respondent submits that the learned trial Judge’s decision should be affirmed in full as the Judge appropriately confined himself to the pleaded issues, applied the correct evidentiary rules, and rightly excluded unpleaded or prejudicial material. [83] The Respondent argues that the Appellants’ approach on appeal is an attempt to revise and rebuild their case by invoking unpleaded facts (such as a criminal conviction) and mischaracterising legal thresholds (such as presumptions of liability and admissibility standards). Such conduct, it is submitted, is incompatible with the rule of law and fairness to the opposing party. Citing Gallante v Ioareau [1988] SLR 122, the Respondent reiterates that the role of the court is not to re-cast the parties’ case post hoc, but to adjudicate disputes as properly framed and proved. [84] The Respondent thus prays that the appeal be dismissed in its entirety, with costs in this Court and, if not already awarded, in the court below. ANALYSIS OF THE COURT [85] The grounds of appeal, though infelicitously drafted, nonetheless disclose discernible complaints against the judgment of the trial court. While they do not rise to the level of being so defective as to amount to no grounds of appeal at all, they are articulated in a manner that lacks clarity and precision, thereby requiring this Court to engage in some interpretive reconstruction to properly identify the legal and factual issues raised. [86] In this regard, I shall consolidate Grounds 1, 2, and 4, as they collectively challenge the trial judge’s appreciation and evaluation of the evidence - a central issue running through these grounds. Grounds 3 and 5 will be analyzed jointly as far as they relate to the same issue which is the Respondent’s conviction in the criminal case arising from the same circumstances. Grounds 1, 2 and 4 [87] Articles 1382 to 1399 Civil Code of Seychelles relate to actions that cause harm intentionally, unintentionally, by negligence or by accident and such actions should be repaired by the person responsible. More specifically for purposes of this case, the trial judge relied on Article 1383(2) of the old Civil Code which provides that: 2. The driver of a motor vehicle which, by reason of its operation, causes damage to persons or property shall be presumed to be at fault and shall accordingly be liable unless he can prove that the damage was solely due to the negligence of the injured party or the act of a third party or an act of God external to the operation or functioning of the vehicle. Vehicle defects, or the breaking or failure of its parts, shall not be considered as cases of an act of God. [88] It should however be noted that this case was filed on the 13th of October 2021, well after the commencement of the 2020 Civil Code of Seychelles.30 As such, the law applicable to this specific issue is Article 1388 which largely reflects the old Article 1382 position of the old Civil Code and provides that: (1) The driver of a motor vehicle that, by reason of its operation, causes harm to persons or property is liable for that harm. (2) It is a defence to a claim under paragraph (1) to prove — (a) absence of fault or negligence on the part of the defendant; (b) that the harm was solely or partly due to the fault or act of the injured party or of a third party; or (c) that the harm was due to an act external to the operation or functioning of the vehicle (cas fortuit). (3) Vehicle defects or the breaking or failure of its parts are not cas fortuit. Operation of Motor Vehicle and Resulting Damage [89] To establish liability under Article 1388 of the Civil Code of Seychelles, the plaintiff must first show that the defendant was the driver of a motor vehicle and that, by reason of the operation of that vehicle, damage was caused to a person or property. The article applies specifically to damage arising from the functioning or movement of a motor vehicle, not merely its ownership or presence. Presumption of Fault 30 The Act, numbered as Act 1 of 2021, was brought into operation on July 1, 2021, following a commencement notice published in the Seychelles Government Gazette. [90] Once such damage is established, the law presumes the driver to be at fault. This creates a rebuttable presumption of liability. The claimant is not required to prove negligence; rather, the burden shifts to the defendant-driver to disprove fault. Defences [91] The defendant may only escape liability by proving, on a balance of probabilities, that the damage was caused solely by one of three exonerating factors: (i) the negligence of the injured party, (ii) the act of a third party, or (iii) an act external to the operation of functioning of the vehicle. Each of these defences must stand as the exclusive cause of the damage; contributory causes will not suffice. [92] The defence of negligence of the injured party requires proof that the injured party’s own actions were the sole cause of the harm, thereby interrupting the chain of causation from the driver’s operation of the vehicle. [93] Alternatively, the defendant may point to the act of a third party as the exclusive cause. This must be an intervening act, not attributable to the driver, which is sufficient to sever the causal link between the driver’s conduct and the resulting damage. [94] The final defence is an act external to the operation of functioning of the vehicle - that is, an unforeseeable, irresistible, and external natural event. Importantly, the law expressly excludes internal vehicle defects, malfunctions, or breakages from qualifying as such acts external to the vehicle’s operation. As such, mechanical failure, however unexpected, does not absolve the driver of liability. [95] In sum, the elements required to establish liability under Article 1388 are: damage caused by the operation of a motor vehicle, followed by the failure of the driver to prove that one of the three exclusive defences applies. Assessment of the Trial Judge’s Findings on Liability under Article 1383(2)/1388 [96] In the instant case, I find no fault with the trial judge’s conclusion that the Defendant, as the driver and custodian of the vehicle bearing registration number S8060, was subject to a strict liability regime pursuant to Article 1383(2) of the Civil Code of Seychelles. As correctly stated by the learned judge a quo, once it was established that the damage - in this case, the death of the deceased - arose by reason of the operation of the motor vehicle, the Defendant was presumed to be at fault and accordingly liable. [97] The law imposes a rebuttable presumption of fault upon the operator of a motor vehicle where damage results from its functioning or operation. To discharge this burden and avoid liability, the Defendant must show, on a balance of probabilities, that the damage was caused solely by an extraneous occurrence - that is, an event external to the functioning of the vehicle, such as the negligence of the injured party as is alleged in this case. [98] The trial judge was therefore correct in holding that the evidential burden shifted to the Defendant to adduce cogent evidence capable of demonstrating that the accident which led to the fatality was due to a cause outside his control. In the absence of such evidence, the presumption of liability remains intact. [99] The next step, therefore, is to assess whether the Defendant succeeded in discharging this burden and whether the trial judge correctly evaluated the evidence in determining that the defence advanced fell short of rebutting the presumption of fault. This requires a careful consideration of the factual matrix and the credibility and sufficiency of the evidence tendered at trial. [100] The analysis that follows is based on the applicable law and well-established principles, applied objectively to the facts as determined from the record. Evaluation of Whether the Defendant Rebutted the Presumption of Liability [101] At the outset, it is critical to restate the well-established principle that an appellate court, when reviewing a case, generally defers to the trial court’s findings of fact, especially those based on the credibility of witnesses, unless the trial court’s decision is deemed plainly wrong or unreasonable. See Lepere v Lepere (Civil Appeal SCA 11/2020 [2022] SCCA 44 (19 August 2022) (Arising in CS 08/2017 [2020] SCSC 20) where this court held that: [16] It is trite law that “An appellate court does not rehear the case on record. It will accept findings of fact that are supported by the evidence believed by the trial court, unless the trial judge’s finding of credibility is perverse” (Akbar v R (1998-1999) SCAR 175). [102] The trial judge, upon a comprehensive analysis of the evidence and the explanation proffered by the Defendant, concluded that the Defendant had successfully discharged the burden of proof required to escape the strict liability regime imposed under Article 1383(2) of the Civil Code. According to the Defendant’s account, he had been driving at a moderate speed of approximately 40 km/h from Au Cap in the direction of Victoria when, without warning, a pedestrian suddenly appeared in front of his vehicle. He asserted that he immediately applied the brakes in an attempt to avoid a collision, but the individual had already made contact with the vehicle, striking the bonnet and windscreen. [103] The Defendant maintained that he was observant and vigilant at the time, aware that there was no designated pedestrian crossing in the vicinity and therefore had no reasonable expectation of someone abruptly entering the roadway. He further alleged that an eyewitness - a woman observed the victim crossing the road while distracted by a mobile phone and had seen that a live Facebook session was active on the victim’s device. However, this purported witness was not called to testify, nor was her account independently corroborated. [104] In contrast, the Plaintiffs led evidence establishing two of the three necessary elements to engage the presumption of liability under Article 1383(2): namely, (i) that damage occurred, and (ii) that it was caused by the operation of the Defendant’s vehicle. This was substantiated through the testimony of Dr Marcus Kurt Daniel Belle, who introduced the post-mortem report (Exhibit P5) prepared by Dr Mina Batista Sautos. The report detailed severe head trauma, including skull fractures and cerebral edema, as the cause of death. [105] However, the Plaintiffs’ evidence did not address the third critical element - that the damage was not exclusively caused by the fault or negligence of the injured party. Article 1388(2)(a) expressly provides the custodian of the vehicle to avoid liability if they can establish that the harm was solely attributable to the actions of the victim or an extraneous cause. On an objective assessment of the record, the Defendant’s unrebutted account - that the victim crossed the road suddenly and without due regard for oncoming traffic - if accepted, is capable of severing the causal link between the Defendant’s conduct and the harm suffered.31 [106] While the absence of the eyewitness testimony arguably weakened the Defendant’s case, it does not render his explanation implausible. His assertions as to the conduct of the deceased prior to the accident went unchallenged. This Court in Trevor Zialor v R (SCA 10 of 2016) (6 December 2017), basing itself on numerous English Authorities had the following to say regarding the consequences of such failures: “That being the case the rule in Browne v Dunn(1893) 6 R. 67 has direct application, namely, that if the only evidence on a material fact in issue in the case emanates from a particular witness, the failure to cross examine such a witness may amount to a tacit acceptance of the evidence of such witness on such material fact. Lord Morris put it as follows “…the witnesses having given their testimony, and not having being cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case…it was impossible for the plaintiff to ask the jury at trial, and it is impossible of him to ask any legal tribunal, to say that these witnesses are not be credited.” (p. 79). A decision not to cross examine a witness at all or on a particular point is tantamount to an acceptance of the unchallenged evidence as accurate unless the testimony of the witness is incredible. We cannot exclude undisputed facts (see Wood Green Crown Court exparte Taylor [1955] Crim L. R. 873.).” 31 This conclusion follows directly from the wording of Article 1388 (2) (a) and established appellate authority on the presumption of liability, as affirmed in Lepere v Lepere (SCA 11/2020 [2022] SCCA 44 AT [16], applied to the unrebutted facts on record. [107] The trial court was entitled to assess the credibility of the Defendant’s version and to weigh it against the entirety of the evidence before it. Given the lack of direct evidence or testimony challenging the Defendant’s version of how the collision occurred - particularly any evidence ruling out victim fault - I am unable to find that the trial judge erred in concluding that the Defendant had, on a balance of probabilities, rebutted the presumption of fault. [108] Accordingly, the burden having shifted, and the Defendant having provided a reasonably coherent explanation that, if believed, points to the exclusive fault of the victim, the trial judge was within his rights to find that the strict liability presumption had been successfully rebutted. There is, therefore, no basis upon which this appellate court may interfere with that finding. [109] Accordingly, grounds 1,2 and 4 of the appeal fail. Ground 3 and 5 Admissibility of the Criminal Conviction in the Civil Proceedings [110] The civil suit giving rise to this appeal was filed on 13 October 2021 and heard on multiple occasions, including 2 March 2023, 17 November 2023, 22 November 2023, and 3 December 2024. Judgment was eventually delivered on 3 March 2025. During the pendency of the civil suit, the Defendant was separately prosecuted and convicted of the offence of causing death by dangerous driving, with judgment in the criminal matter delivered on 28 September 2023. [111] At the civil case hearing on 3 December 2024, during cross-examination of the Defendant, learned counsel for the Plaintiff sought to ask the Defendant: “What happened to the criminal case?” (Record, p. 184). Counsel for the Defendant, Mr. Elizabeth, objected to this line of questioning on the ground that the conviction had not been pleaded. In support of his objection, he stated: “I object. Mr. Sundaram was advised to wait until the criminal case is completed and then start the civil case. He decided to start the civil case without waiting for the criminal case. And because of that he did not plead that point.” [112] In response, counsel for the Plaintiff pointed to paragraph 9 of the Plaint, which states: “The Defendant as a result of his commissioning the accident pursuant to his dangerous driving has also been charged by the Attorney General's office for the offence of causing death by dangerous driving as early as 2019.” [113] It was contended that since the charge was pleaded and not denied in the Defence, the Plaintiff was entitled to ask about the outcome of the case. However, the learned trial judge sustained the objection, holding that while the pleading referred to the charge, it did not refer to a conviction, which constituted a new factual development requiring express pleading. The trial judge explained: “That is why it is advisable that when there is a criminal prosecution, the civil case is halted until the criminal prosecution is completed, because when the criminal prosecution is completed, then if there is a conviction, this conviction is used for the purpose of proving the case and that conviction is essential because the conviction has been on a higher standard of proof. This has to be pleaded. The pleading should say that you were charged with offence x, and you were convicted with offence x. So in your pleadings, you have said that he was charged. That's okay. Now, because you have pleaded that he was charged, you are perfectly entitled in cross examination to challenge him on that to say ‘Were you not charged with this case?’ But you cannot ask him whether he was convicted or pleaded.” [114] Mr. Rajasundaram, for the Plaintiff, respectfully disagreed, arguing: “And at the time of filing my Plaint, the Defence which admits that there is a charge pending, I am certainly entitled to ask a question what happened to the case…we cannot be expected to plead the result of the case when the case has been charged much prior to the judgment of the criminal case.” [115] Nonetheless, the Court reaffirmed its view that: “This is an adversary system…There is an opposition from the other side…As the orbiter in this hearing I have to say whether this objection is sustained or it is overruled. I am saying that this objection is sustained because you cannot cross- examine or examine a witness outside the boundary of your pleading.” (Record, p. 189) [116] In doing so, the Court referenced an article recently circulated by Justice Twomey emphasising that: “The Court should not admit evidence outside the pleadings.” [117] Mr. Rajasundaram concluded by asserting: “My pleading is there black and white—there is a pending case for causing death by dangerous driving which is admitted, so I am touching this as a matter arising as to what has happened to that case. I don’t think my Lord can stop me to ask this question.” To which the Court reiterated: “You have to stay within the spectrum of your pleading.” [118] Ultimately, the line of questioning was disallowed, and the Plaintiff closed his cross- examination. This sequence of exchanges forms a critical part of this appeal and calls into question whether the learned trial judge erred in disallowing the Plaintiff’s attempt to lead evidence of the Defendant’s conviction, which had occurred subsequent to the filing of pleadings but prior to the conclusion of the trial. [119] Section 29 of the Evidence Act explicitly allows evidence of a criminal conviction to be admitted in civil trials - except for defamation cases - for the purpose of proving that a person committed the offence, provided it is relevant to an issue in the trial. It provides that: 1. In a trial the fact that a person, other than, in the case of a criminal trial, the accused, has been convicted of an offence by or before any court in the Republic shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in the trial, that that person committed the offence or otherwise, whether or not any other evidence of his having committed that offence is given. 2. In a trial, other than in a civil trial for defamation, in which by virtue of this section a person, other than, in the case of criminal trial, the accused, is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved. 3. …. 4. In a criminal trial where evidence is admissible of the fact that the accused has committed an offence, in so far as that evidence is relevant to any matter in issue in the trial, if the accused is proved to have been convicted of the offence by or before any court he shall be taken to have committed that offence unless the contrary is proved. 5. Where evidence that a person has been convicted of an offence is admissible under this section, then without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based (a) the contents of any document which is admissible as evidence of the conviction; and (b) the contents of the information, complaint or charge sheet on which the person was convicted, shall be admissible in evidence for that purpose. [120] Section 29(2) further strengthens this provision by creating a rebuttable presumption: the person shall be taken to have committed the offence unless the contrary is proven. Thus, the legal position in Seychelles now permits reliance on criminal convictions in civil matters, subject to relevance and fairness. [121] Conversely, it should be noted that a person being acquitted of an offence is not admissible under section 29 as proof that they did not commit the alleged acts of which they were acquitted and on which the civil action is founded. (Mathiot v Camille & Others (CS 64/2012) [2017] SCSC 948 (29 October 2017) paras. 27–28; Karabash v Soudhooa & Others (CS125/2017) [2020] SCSC 436 (2 February 2020) para. 87). [122] In Esparon v Philo (SCA 17 of 2021) [2023] SCCA 15 (26 April 2023) the Court of Appeal held a criminal conviction is prima facie evidence that the person in question was convicted of the offence in question and as such, that fact is admissible under s. 29(2). The Court referred to s. 29(2) and held that: ‘The…provision creates a presumption that the matter exists unless the contrary is proved. Section 29(2) thereof requires that the Respondent adduce evidence to prove his innocence. Under the prima facie rule, the record of conviction in the criminal case is admissible in the subsequent civil case as prima facie evidence of the facts stated therein, thereby shifting the burden of disproving such facts to the accused. The trial Judge affirmed that a legal burden of proof was on the defendant in such a case, which must be discharged on the balance of probabilities. This was explained in the case of Sovereign Camp W. O. W. v. Gunn that ‘the other party should not be entirely concluded and shut off from showing there was a miscarriage of justice in the criminal case’ [123] Apart from the evidence of the conviction of the offence which is admissible under ss. 29(1) and (2), the facts on which the conviction was based are also admissible under s. 29(5). The facts may be admissible, for example, to determine the extent to which the person who was convicted of the offence was negligent in the commission of the offence. This could help the court to determine the amount of damages to award to the victim of the offence.32 [124] Thus the ruling from this court in Esparon v Philo (supra) denotes another point which is that a person objecting to admissibility of the previous conviction in civil matters had to prove that they were innocent of the offence they were convicted of. [125] In the instant case, paragraph 9 of the plaint expressly refers to the defendant having been charged with the offence of causing death by dangerous driving, which was at the time of filing pending. It is accepted that the conviction postdated the filing of the plaint. However, by the time of the hearing on 3rd December 2024, the conviction had been secured on 28th September 2023. Counsel for the plaintiff sought to cross- examine the defendant on the outcome of the criminal case. The trial judge sustained 32 Jamil Ddamulira Mujuzi, The partial abolition of the rule in Hollington v Hewthorn in Seychelles and the admissibility of criminal convictions in civil trials: Analysing s. 29 of the Evidence Act, The International Journal of Evidence & proof 2025, Vol. 29(3) 186-200 an objection to this line of questioning, on the basis that the conviction was not pleaded, and therefore the issue lay outside the pleadings. [126] While it is axiomatic that parties must plead material facts upon which they intend to rely, this principle does not operate so mechanically as to exclude all post-pleading developments which are directly relevant to the matters in issue. It would defeat the purpose of Section 29 and result in a triumph of form over substance if a conviction - directly relevant to the pleaded cause of action were excluded merely because it occurred post-pleading. [127] I also find the respondent’s argument - that the plaintiff ought to have waited for the conclusion of the criminal proceedings before instituting the civil claim - wanting. The accident occurred on 7th May 2017, while the criminal case was only concluded on 28th September 2023, with final judgment delivered on 3rd March 2025. Requiring the plaintiff to await the outcome of the criminal proceedings would have risked rendering the civil claim time-barred, in light of the prescriptive timelines established under the Civil Code. It would be manifestly unjust to penalize a litigant for initiating proceedings within the legally prescribed period simply because a related criminal process - over which they have no control - remained unresolved for several years. The law cannot expect a plaintiff to await the uncertain and protracted conclusion of a criminal matter before preserving their civil rights. Accordingly, the trial judge’s suggestion that the plaintiff’s timing foreclosed reliance on the subsequent conviction does not withstand legal scrutiny. [128] Moreover, there is merit in the appellant’s argument that the pleadings already foreshadowed the criminal proceedings and that raising the outcome in cross- examination was a natural extension of that narrative. The trial judge opined that allowing reference to the conviction would be tantamount to admitting evidence of facts not pleaded, potentially leading to unfair surprise. However, this concern is mitigated by the fact that both parties were aware of the pending criminal proceedings, and the matter was squarely put in issue by the pleadings and admissions. [129] That being said, mere awareness of the criminal trial was not sufficient notice for the Defendant. I will explain. [130] Once a prior criminal conviction is raised in civil proceedings, the convicted party must be given an opportunity to rebut the presumption arising therefrom. As Esparon v Philo (supra) demonstrates, once a conviction is raised, the defendant must be given an opportunity to displace the presumption it creates. The burden is discharged by the Defendant if he can prove that the conviction was either unsafe33, wrong34 or erroneous.3536 [131] The phrase “unless the contrary is proved” as used in section 29 of the Evidence Act signifies that while a prior criminal conviction creates a prima facie presumption that the convicted person committed the offence, it is not conclusive. The provision expressly preserves the Defendant’s right to rebut the presumption by adducing evidence to the contrary. In this sense, the conviction serves as compelling but not irrefutable proof, and the rules of fairness and due process require that the Defendant be granted a full and fair opportunity to challenge its applicability or relevance in the civil context. [132] I rely on the persuasive authority of earlier Supreme Court judgments in Karabash v Soudhooa & Others (CS125/2017) [2020] SCSC 436 (2 February 2020) citing its earlier decision in Saunders and Other v Loizeau (1992) SLR 214, and held that: …evidence of a previous conviction is admissible only to prove that a defendant committed the offence. Once admitted for this purpose, the burden of proof shifts in a civil trial to the defendant to prove the conviction was erroneous and a failure to do so results in a defendant being treated for all purposes as having committed the offence for which sentenced. [133] Had the Plaintiff been allowed to proceed with cross-examination on the conviction without affording the Defendant time to prepare, it may have resulted in an unfair surprise on the Defendant. 33 Raja v Van Hoogstraten & Others [2005] EWHC 1642 (Ch) (29 July 2005) paras. 39-40 34 CXX v DXX [2012] EWHC 1535 (QB) (1June 2012) para. 25 35 H-N and Others (Children) (Domestic Abuse: Finding of Fat Hearings) (Rex 2) [2021] EWCA Civ 448 (30 March 2021) (para. 73. 36 Jamil Ddamulira Mujuzi, The partial abolition of the rule in Hollington v Hewthorn in Seychelles and the admissibility of criminal convictions in civil trials: Analysing s. 29 of the evidence Act, The International Journal of Evidence & proof 2025, Vol. 29(3) 186-200 [134] The Defendant needed time to prepare a defence that challenges the reliability or fairness of the conviction. In this regard, the Defendant could not reasonably have anticipated that the Plaintiff would seek to use the conviction - secured after the close of pleadings - as substantive evidence of liability without amendment, notice, or adjournment. To allow the Plaintiff to cross-examine on this matter mid-trial would have introduced an element of surprise inconsistent with fair trial principles. [135] Accordingly, although the trial judge’s legal reasoning - that pleadings must include any material fact such as a conviction - was technically flawed given the statutory regime under Section 29 of the Evidence Act, the decision to disallow the line of questioning was ultimately correct in result. The objection should have been sustained on the basis of procedural unfairness, not a rigid rule about pleadings. The Plaintiff’s appropriate recourse was to apply to amend the pleadings or to seek the court’s indulgence to formally introduce the conviction with notice to the other side. That was not done. [136] In the circumstances, while this Court disagrees with the trial court’s rationale, it does not find sufficient grounds to overturn the decision to exclude the line of questioning. The procedural fairness owed to the Defendant - who faced a rebuttable presumption of liability under Section 29 outweighed the Plaintiff’s right to spring the conviction upon him during cross-examination without amendment or adjournment. [137] Grounds 3 and 5 fail. Additional Alleged Weaknesses in the Appellants’ Case [138] The Respondent, in addition to addressing the appeal grounds, raised a new argument challenging the Appellants’ locus standi. He contended that the 1st Appellant failed to clarify whether she was suing in a personal or representative capacity and did not provide any documentary evidence (such as a marriage certificate, grant of probate, or guardianship order) to support her claim or that of the minor child. These omissions, he argued, would have rendered the Appellants procedurally unqualified to recover damages under Article 1383(3) of the Civil Code. 51