Chang Time v Baptiste & Ors (CS 66/2014) [2020] SCSC 467 (13 March 2020)

SUPREME COURT OF SEYCHELLES In the matter between: SELMON CHANG TIME (rep by Mr France Bonte) and LEROY JEAN BAPTISTE COLLIN MARCEL JANICE ESPARON CORRIN ESPARON GUYZELA MUSSOODEE LITAMARCEL (All rep. by Mr Elvis Chetty) Reportable [2020]SCSC .~Ef-l CS66/2014 pt Plaintiff 1st Defendant 2nd Defendant yd Defendant 4th Defendant 5th Defendant 6th Defendant Neutral Citation: Chang Time v Jean Baptiste & Ors (eS 66/2014) [2020] sese ;L.34 Before: Summary: Heard: Delivered: (13 March 2020). Govinden J, Delictual action; plaint dismissed; 29 July 2019 13 March 2020 JUDGMENT failure to discharge burden of proof. GOVINDEN J The Pleadings [I] The Plaintiff and the Defendants are neighbours residing at Anse Aux Pins, Mahe. He avers in his Plaint that for the past years, the Defendants have been the author of continuing harassment and threats towards him and his family and that on the 30th of July 2014 he was verbally assaulted and threatened by the Defendants and the police had to intervened. The Plaintiff further avers that the Defendants verbally threatened to set fire to his vehicle whenever he passed by on the public road. He avers that he fears for his life as he has to access his house through a one way access road which passes in front of the Defendants house. He avers that the Defendants even blocked the said access road in order not to allow him to pass in his vehicle. As a result it is averred that the Defendants acts consist of a "faute" in law and that unless restrained the Defendants will continue to disturb, harass, molest, instigate and or assault the Plaintiff. As a result he avers that he has suffered loss and damages for which the Defendants are liable. The particulars of damages are claimed as follows; for stress and anxiety, Rs 300,000;for trespass to person ,Rs 300,00 and for moral damage, Rs 300,00, totalling to Rs 900,000 as damages with interest and cost and for any other order as this court deems fit. [2] The Defendants denies the averment of 'faute'ia their Statement of Defence. They deny of having jointly or severally, harassed or threatened the Plaintiff or any members of his family. As far as the incident of the 30th of July 20 14 is concerned the Defendants aver that the police was called to the residence of the Plaintiff and they requested him to move his vehicle which had been parked by him in a manner blocking the access on the common access road. It is deny that the Defendants have abused or threatened the Plaintiff or his family or had said that they would set fire to his vehicle. The Defendants finally aver that the Plaintiff had instituted the said suit out of malice and pray to this court to dismiss the Plaint and with cost. Facts in issue [3] The contested facts of this case shows that in issue for this court determination are the following; whether there has been a long term harassment; threats, and abused by the Defendants of the Plaintiff, which culminated into a verbal assault and threats which necessitated the police intervention and whether these incidents amounted to a "faute" in law and secondly, whether the Plaintiff suffered any loss or damage as a result of the "faute ". The Plaintiff's case [4] Mr Selmon Chang time testified on his own behalf. He was the first witness for the Plaintiff. His testimony is that he was living at Ramo estate Anse Aux Pin, at his mother's house at all material time averred in the Plaint. This house is in close proximity with the house in which most of the Defendants lived. Their residence is separated by a one way access road, which both he and the Defendant has to use in order to access their residences. According to him he has been harassed by the Defendants over the years. On the 30th of July 2019 upon attempting to return to his residence he saw a red car that was parked in the access road and blocking him access to his house. He horned his car but no one appeared, so he took the decision to park his truck at the back of the parked car as he had to go home and take care of his son. The witness go on to say that later one Linda Esparon, the driver of the car came to move her car and she could not as his truck was blocking the way and that was when the commotion started as the driver had called her relatives and the latter came and swore and threatened him. According to him these people were Leroy Jean Baptiste, Corin Esparon, Guyzela Mossudee and Janice Esparon, being the 15t;' 4th; 5th and 3rd Defendant, respectively. Then the police came and he moved his truck and Ms Esparon was able to go her ways and that was when Lita Marcel, the 6th Defendant, swore at him, telling him that he was gay and that he did not know to have sex and that his son was not his. [5] The Plaintiff further testified that he filed this case one month after the incident when the 5th Defendant swore at him. He further gave evidence of many other subsequent incidents in which some of the Defendants or their relatives had swore at him or had temporarily block the access road with their vehicles. He insisted that accordingly this court should grant him all of his prayers. [6] Police Constable David Louise was the 2nd witness for the Plaintiff. He is an officer stationed at the Anse Aux Pins police station. He testified that he recalled attending the scene of a complaint at around 10 pm at the vicinity of the house of the Plaintiff. The complaint was made by the Plaintiff and he wanted the police to assist him remove his vehicle. At the time Mr Chang Time was inside the compound of his house and he said that he was surrounded by other people. In his presence the Plaintiff moved his transport and then he went back to the station. According to him the Plaintiff could not move his vehicle because of a number of people around his vehicle. [7] The Plaintiffs counsel closed the Plaintiff's after leading the evidence of the Plaintiff case. The Defendant's case [8] Leroy Jean- Baptiste, the 151 Defendant, was the I st witness called by the Defendants. He said that he recalled the 30lh of July 2014 incident. According to him the incident happened because the Plaintiff had parked his car in the middle of the road and said that a lady name Jacqueline had blocked and that when the latter had informed him to remove his car he had said to them to tell the police or take the bus. According to him at some point of time the Plaintiff had removed his t shirt and wanted to fight with 2 girls. [9] Collin Marcel, the 2nd Defendant, testified next. His testimony is that he was not at Anse aux Pins on the 30th of July 2014 and he had had no reason to fight or assault the Plaintiff before. He was not cross examined. [10] Janice Esparon, the 3rd Defendant was the yd witness. She said that she was at her house at Anse Aux Pins on the 30th of July 2014. Then she was informed that the Plaintiff had parked his car and blocked the vehicle of one of her relative, who was at her house on that day. They saw the blockage but did not took any action until the evening when the relative had to live. At that time when they asked the Plaintiff to move his vehicle his mother informed them to call the cops or take the bus and they had to call the police. According to her when the Plaintiff was asked to move his vehicle he removed his t-shirt and wanted to fight her and her cousin. According to the witness the Plaintiff only moved his vehicle because the police asked him. [11] Corrin Esparon, the 4th Defendant also testified, she said that on the 30lh of July 2014 she was sitting at Janice Esparori's place and somebody informed them that the Plaintiff had parked his car and the back of Jaquleline Esapron's car (Janice's aunt). Following this one of her relative moved the Jacqueline's car in a corner of the road. However, when Jacqueline was to leave in the evening they saw that the Plaintiff's vehicle had blocked her vehicle. Then Janice; the witness and a couple of other relatives came and asked the Plaintiff to move his vehicle and the latter's mother informed them to call the police ortake the bus. She saw the Plaintiff removing his shirt to fight. Beside this incident the witness testified that she has never been involved in a similar incident with the Plaintiff. [12] The 5th Plaintiff was the last witness for the Defendants. She testified substantially to the same effect as the other Defendants. [13] The 6th Defendant had been deceased at the time ofthe hearing of the case. Submissions of the Plaintiff and the Defendant. [14] The Learned Counsel for the Defendants made the following submissions. He submitted that the Defendants have denied all material allegations and therefore the Plaintiff has to prove the allegations that he affirms. Counsel submitted that the Police officer called by the Plaintiff only corroborated the Plaintiff's evidence only to the extent that a complaint was made regarding the incident of the blocked access and nothing more. [15] Thereafter, the Learned Counsel attempted to dispute the case in regards to each and every one of his cl ients. As regards the jSt Defendant he submitted that he was a mere bystander and evidence shows that he only disapproved to the Plaintiff removing his shirt in order to fight the 3rd and 4th Defendant. [16] In respect of the 2nd and 6th Defendant Counsel submitted that they were not even present at the incident of the 30th of July and that all allegations against them fall outside the averments of the Plaint. [17] Concerning the 3rd and 4th Defendant, Learned Counsel submitted that an altercation took place between them and the Plaintiff, but evidence shows that it was a verbal exchange. The said exchange being triggered by the Plaintiff blocking the way and refusing to remove his vehicle. [18] As regards the 5th Defendant, Learned Counsel submitted that she was only a mere bystander who took no active steps in the altercation. [19] As a result Counsel for the Defendants moved this court to dismiss this case as the Plaintiff has failed to prove the case on a balance of probabilities. [20] The Learned Counsel for the Plaintiff chose not to make any Final Submission and informed the Court that he would be relying on the evidence. The law [21] Obviously, the Plaintiff action is based on a "faute" or fault which in Seychelles gives rise to delictual liability. Accordingly, the principles of law applicable to this case are that to be found under Article 1382 (1); (2) and (3) of the Civil Code of Seychelles. This Article reads as follows; [22} (1)"Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it [23} (2)"Fault is an error of conduct which would not have been committed by a prudent person in (he special circumstances in which the damage was caused. It may be a positive act or omission. [24) (3)" Fault may also consist of an act or omission the dominant purpose of which is to cause harm to another, even ifit appears to have been done in the exercise of a legitimate interest" [25] The three essential elements that needs to be proved when making a claim based in delict are the fault; the injury or damage and the causal link between the "faute" and the damage. Emmanuel vs Joubert, (1996) SeA.. Further there should loss or damages caused to a Plaintiff as a result of the act. In general a "faute" has been held to be an error of conduct which would not have been committed by a prudent person in the special circumstances in which the damage was caused. [26] Tn this case the error of conduct averred against the Defendants consist of verbal assaults; threats and insults and the blocking of the Plaintiffs right of way. The legal burden lies on the latter to prove on a balance of probabilities that the facts giving rise to this alleged error of conduct existed by producing evidence in court., either through material evidence or deposition of witnesses. [27] The substantive law of defamation 111 Seychelles is governed by the common law of England, whilst the procedure is govern by our local law. In this case the Plaintiff appears to have taken offence by certain remarks made by some of the Defendants towards him, both on the 30th of July and thereafter. In assessing his evidence it appears that he is also making and basing his claim for damages based on these alleged remarks. At the outset r wish to say that this is beyond the Plaintiffs case. His Plaint is based on the cause of action of "faute" and not that of defamation, which in law is another tort and another cause of action. At any rate there is no reference in his Plaint of any averments of defamation or defamatory imputations. As a result this court is not going to make any determination or findings in respect of damages caused by any of those alleged defamatory remarks. The only event that can likely be the foundation of a "faute" therefore is the blocking of the right of way and related incidents. Analysis and determination [28] The concept of "faute " does to our law what "duty" and "careless breach of duty" do for the English law. It determines in other words, both whether a person can act without adverting to the consequences of his conduct and whether the standard of care fixed by the judge has been attached by the Defendant in question. Despite its crucial significance for article 1382 of the Civil Code the notion has received little statutory definition. In the last resort, however. The question or whether there is or there is no "faute " is one of law that remains within the province of the trial judge. [29] Having examined the evidence of both parties in this case, respectively. In the light of the pleadings and having place emphasis on the outcome of the credibility of the different testimonies, following cross examination, 1 have come to the view that an altercation did take place between the Plaintiff and the Defendant on the 30th of July 2014. The incident happened on a one way estate road that access the properties of the Plaintiffs mother and that of the yd Defendant. I find that the altercation was prompted by the Plaintiff after he had blocked the car of Jacqueline Esparon, the aunt of the yd Plaintiff. Following this he was asked to move his car by the 2I1d;yd;: 4th and yh Defendant. When he refused to do so and a verbal battle took place between the two parties. I am of the view that at that time temper and anger had flared up and that this was the flame that appeared to light up the tinder box of years of hostility between the parties. The dispute ended when the police came on the scene which led to the Plaintiff to remove his car. [30] To my mind both parties committed a "faute" in this case. The Plaintiff was at fault to have parked his car at the back of Jacqueline's Esparon's car and having parked there to exit his car and went away without bringing this to the attention of the other driver. The Plaintiff should have been more diligent and should have informed Ms Esparon that she was blocking his access. I-Ie made no effort diffused the situation. On the other hand, the Defendants, excepted the 211dand 6th Defendants, committed "faute" when they swore at and threatened the Plaintiff, who felt assaulted and outnumbered stayed inside the compound of his mother's house. This prompted police escort to allow him to remove his vehicle. The prior "faute" of the Plaintiff does not, however, exonerate the said Defendants, their reactions were exaggerated and out of proportion with the acts of the Plaintiff. Their actions amount to a breach of the peace. [31] As far as the 211d Defendant is concerned the only evidence against him from the Plaintiff, relates to a post 30th of July incident concerning the same stretch of road, which is as follows; [32] Q, "Did he removed it (the car ). [33] A, After maybe one minute he removed if and then when f was going Collin Marcel he pressed his horn as ifhe 'was mocking at me ", [34] On this set of facts [ find that the act of mocking, even ifproven to be true, though arguably a wrongful act, cannot lead to a finding of liability. The incident is so mundane and ordinary that no damage can result from the act. At any rate the Plaintiff has not lead evidence of any damage in that regards. As a result no "faute IJ is committed by the 2nd Defendant. [35] As far as the 6th Defendant is concerned, the court was informed of his demised by Counsel of the Defendant during the course of the hearing and this was not disputed. His "ayant cause IJ was not substituted on the Plaint by the Plaintiff's Counsel, as such the case is otiose as regards this Defendant. [36] Tn respect of the Post 30th of July incidents. The Plaintiff testified of certain wrongdoings which amount to only disparaging remarks regarding his person. alleged r have determined that these cannot amount to the subject matter of liabilities on the part of the Defendants as the cause of action in the Plaint is in delict and not defamation. [37] Did the Plaintiff suffered any loss or damage as a result of the acts of the 1st; 3rd;4th and 5th Defendant? . In respect of his loss and injuries the Plaintiff testimony is that the actions of these Defendants made him worry, especially given that his mother stayed at home alone when he went to work during the course of the day. He claimed that he has not been personally assaulted by any of the Defendants. He does not testifies as to how and in what circumstances that he feared for his life. Police officer Louise does not testified about damages. This is the only evidence on record in respect of the losses of the Plaintiff. To my mind this evidence is dismally shallow, when the Plaintiff bears the burden of proving stress and anxiety and trespassed to his person on a balance of probabilities. The "faute IJ committed by the relevant Defendants being somewhat trivial has in my view led to Mr Chang Time not being able to substantiate any material loss on his part. As a result I find that he has not been able to prove any damage or loss on a balance of probabilities. [38] In my final determination, therefore, I find that the Plaintiff has failed to prove the case against the Defendants on a balance of probabilities. The Plaint is dismissed with cost in favour of the Ist to 5th Defendants. [39] Signed, dated and delivered at lie du Port on this 13 day of March 2020. 10