Seychelles Broadcasting Corporation v Barrado (SCA 9 of 1994) [1994] SCCA 21 (9 December 1994)

IN THE SEYCHELLES COURT OF APPEAL SEYCHELLES BROADCASTING CORPORATION 1ST APPELLANT OGILVY BERLOUIS 2ND APPELLANT BERNADETTE BARRADO RESPONDENT V. Civil Appeal Nos. 9194 & 10/94 Before Goburdhun, P., Silungwe & Ayoola, JJS. Mr. K. B. Shah for the first appellant Mrs. M. Twomey for the second appellant Mr. F. Bonte for the respondent Judgment of SilungweL_J. A. On June 22, 1992, the first appellant transmitted by radio and television a "Party Political Broadcast" made by the second appellant in his capacity as leader of the Seychelles Liberal Party. Consequently, the respondent, a civil servant who was at all material times employed as Personal Secretary of the President of Seychelle g , brought an action in defamation against the first and second appellants individually. In her plaint, the respondent, then plaintiff, averred that during the course of the broadcast, the second appellant had falsely and maliciously published, and the first appellant had caused to be published, the following words, in creole, which had been calculated to disparage the plaintiff in the office she held, and gravely affected her character, credit and reputation as the Personal Secretary of the President, and lowered her in the estimation of right thinking members of the society: Rene's "We understand that Mrs. Bernadette Barrado, Mr. Secretary following properties: this house at Bel Ombre; this petrol station at Baie Lazare, this house close to the said station at Baie Lazare; this 'boutique' in the Plantation Club Hotel; Silversands Car Hire. petrol has the -2- to because has where 'Cafe Moutia' is located? We would also like to know what the President's Office do with this building at Mont Fleuri This is when the said building was tendered out for the notice calling for tender stated tender should be submitted to the Office Cheques for rent of this building are drawn in the name of Mrs. Bernadette Barrado. the President. that of lease a civil Government's The Government's 'Public Service Order' states servant engages into any that before business permission be sought. Therefore, as her boss, Mr. Rene is know that Mrs. Barrado has all supposed these businesses. The people of Seychelles would like to know from where a secretary in the Government does obtain to buy all these businesses. money must to in all I would like to make interfering like in questions employees also properties right." it clear that I am not anybody's private affairs, but democratic countries I am asking Government We are on people's that are being shared about left and the activities who are paid with our money. questions asking the of on The respondent's averment continued in the Plaint: and/or natural meaning "By the their innuendo understood involved television dishonest, politician to enrich manner people's which is being shared about left and right." said images, gestures and words in by way of the Defendant's meant and were to mean that the plaintiff was with the President whom the said as a corrupt herself in a corrupt or state's property untrustworthy had depicted programme with and appellant had allegedly made the said The statement second and also displayed the houses and buildings referred to by visual images in a video cassette used in that broadcast which was later produced at the trial as an exhibit. The respondent testified in the Supreme Court that she had suffered mentally and physically; and that she had been treated in June 1992 for depression, nervousness and insomnia after the broadcast. She got anonymous telephone calls -3- insulting She began to irritable. Seychelles; her and people made comments wherever she went. lose in her work and became She received treatment for her condition in concentration got specialised treatment in India; and had medical consultations in Australia. The fair comment second appellant denied that first appellant admitted publication but pleaded On the other hand, the he had defamed the respondent and justification. and pleaded fair comment. The learned trial judge heard in judgment R.250,000.00 R.300,000.00 against the second appellant. of against favour damages the the case and entered her and respondent and award the appellant first It is appropriate to deal first with a ground raised by learned counsel for the second appellant. Mrs. Twomey, She submitted that the learned trial judge had been wrong to hold that no translation was necessary of the creole words used in the instant case. that failure by the call an interpreter to testify as to the respondent to correctness of translation contended She the of the creole words in the She cites Gatley on Libel and Slander, plaint was fatal. 8th edition, where the following is to be found at page 1297: "Where the words complained of are in a foreign language, the plaintiff must prove the actual words He published. must also prove'by an interpreter a witness that the translation given in the statement of claim is correct, unless has ' been admitted...." referred sworn this fact as Further, she Language) Regulations, 1976, wherein regulation 2 provides: to the Constitution (Use of Official "2. the (including the business provided in regulation 3." English shall be the official language for transaction business of the Courts) same as Government of Regulation 3 merely relates to the use of French in certain specified matters. -4- was This ground learned counsel for In dealing with this issue, the learned trial judge said, inter alia, the subject of a joint submission by the appellants in the court below. creole The 1st translation. accuracy of "In the instant, case, both defendants admitted the the statements published, as appearing in paragraph 3 of the defendant (i.e. second plaint. appellant based his request for further and better particulars on the creole words and the English Further, the examination in chief and the cross-examination of the 1st defendant were based on the creole statements and the English translations as given in the plaint, with no objections as to accuracy. Hence was no necessity for the plaintiff sworn interpreter to testify as to to call a the the translation in the plaint as ambiguity in the translation and the 1st defendant had accepted it as a translation." correctness of there was no there It seems to me that the second paragraph of the second appellant's defence has an important bearing on the issue under consideration. The paragraph reads: not admitted. "Save that it is admitted that the 1st defendant did publish the words as set out in paragraph 3 of the Plaint, paragraph 3 of the plaint The 1st defendant is denies that he spoke and published the words in the manner alleged in paragraph 3 of the plaint was understood to refer to the plaintiff in the way of her profession or calling as alleged or at all." My reading of the or third paragraph of the second appellant's defence in general, and of the first sentence of the paragraph in particular, is that, as the third paragraph of the respondent's the alleged defamatory words in creole and the English translation of the said words, what the second appellant admitted in his defence was that the words thereof had been uttered by him but that he denied that they in both creole and the English translation plaint depicts -5- were defamatory as alleged. This should be so otherwise the statement: "save it is admitted that the 1st defendant did publish the words as set out in paragraph 3 of the plaint, paragraph 3 of the plaint is not admitted", would be nonsense. that In any event, even the record of proceedings during the tendering of the respondent is testimony and the trial court's observations then tend to confirm that the English translation of the offending words in creole was accepted. From what has been said above, the learned trial judge's funding that the sworn evidence of an interpreter was unnecessary cannot be impugned in this case. Both Mr. Shah and Mrs. Twomey contended that the learned trial judge had been wrong to hold that the statements complained of were defamatory. trial judge's evidence adduced that defamation had been proved. Here, I have no hesitation in upholding the learned finding, reached after a careful review of the and the application of the law applicable thereto, However, this proof was, in my opinion, confined to the alleged receipts by the respondent of cheques in respect of rent. Learned counsel for the appellants have not been able to persuade me that the defences of privilege or fair comment were available to the I circumstances, Perera, J. S., against and proper. I would, question of severally. one of the appellants, was fair therefore, dismiss the appeal on the the appellants' liability individually and and In the am satisfied that the entry of judgment by the second appellants. first each The issue that now falls to be considered is one of damages. -6- Mr. Shah argued on behalf of the first appellant that, although the delict of defamation is governed by English law by virtue of paragraph 3 of Article 1383 of the Civil Code of Seychelles, damages are to be assessed in the case of all delicts, in accordance with the defamation, including principles contained in Article 1149 of that Code; and that the trial judge was wrong to have allowed exemplary damages as no punitive damages for delict are allowable under the Civil. Code of Seychelles. It seems to me that Mr. Shah's submission cannot be of any provision to the correct because, in the absence contrary and notwithstanding the principles contained in Article 1149 of the Civil Code, the legislature must be presumed to have intended that the civil law of defamation in Seychelles was to be governed by English law, not only in relation to liability but also as regards damages. The next ground was that as there was only one delict alleged to have been committed and both defendants were joint tortfeasors, the trial judge was wrong to have allowed a separate set of damages against them. This point was well taken since there was one delict only in this case, and the appellants (then defendants) were, therefore, joint tortfeasors. It was further argued by both counsel for the appellants that the damages were manifestly excessive. I allow the appeal against damages. As the learned trial judge erred by awarding one lump sum and as I agree that the awards made were manifestly excessive The damages in respect of both appellants are hereby set aside. I now make a single award of R.100,000.00 out of which the first appellant's share will be R.25,000.00 and that of the second appellant will be 8.75,000.00. -7-- As the appeals have been partially successful, 1 would make no order as to costs. Dated this day of )cii.,44A-ki.-, 1994. Annel M. Silungwe JUSTICE OF APPEAL