IN THE SEYCHELLES COURT OF APPEAL

SEYCHELLES NATIONAL PARTY -Appellant

v.s

LISE MEME -Respondent

Civil Appeal No. 6 of 2004

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(Before: RAMODIBEDI, P; BWANA AND HODOUL, JJA)

Counsel: Mr. B. Georges for the Appellant

Mr. J. Renaud for the Respondent

Heard on: 12 May 2005

Judgment delivered on: 20 May 2005

JUDGMENT OF THE COURT

The Issues

1. The Respondent herein was a police officer of the rank of Inspector. She was promoted to that position on 16 November 2001. Before her promotion she was a sub-inspector, a rank she was elevated to in January 1999 following her completion of Cadet Officer’s course at the Police Academy of Seychelles. All in all twelve police officers attended that course and it is uncontroverted that out of the twelve, she was graded twelve (meaning she came last) in their final course examinations. All the twelve cadets were, however, promoted to the rank of Sub-inspector upon completion of the said course.

2. About two years later, the Respondent (together with another officer namely Wirtz was promoted to the rank of full Inspector. That promotion especially of the Respondent, was not taken happily by some of her former cadet officers’ course mates, including Antoine Durup (DW 1) as it is shown later herein. The promotion of the Respondent came a few months after the national general election. It also came at a time when the Respondent was facing likely assault charges following a complaint filed against her at Anse Etoile police station. It was alleged in the said complaint that she had assaulted her boyfriend – a foreigner – seriously injuring him.

3. Consequent to the above, NOUVO VIZYON – a newsletter belonging to the Appellant political party – published an article on 13 March 2002 (in its Vol. II No. 9) which the Respondent considered to be defaming her. The article was titled “VYOLANS DAN LA POLIS” and contained the following statement:-

“i. Manm lafors lapolis pe espere pou war ki pou arrive avek en zofisye madanm ki’n pwanyard son imsye anviron 2 semenn pase dan en ka vyolans domestik.

2. I resanble ki malgre ki sa ka in ganny raporte kordgard Anse Etoile keksoz touf-toufe.

2. Serten i dir ki posib i napa narnyen ki pou arrive akoz sa madanm i en Golan letan i ti ganny promosyon tou dernyenman i ti dir byen for: “Mon’n ganny mon promosyon akoz mon’n byen vote.”

Translated into English, those words are said to mean the following:-

“i. Members of the police force are waiting to see what would happen to a woman officer who assaulted her husband about two weeks ago in a case of domestic violence.

2. It looks like the matter, which was reported at the Anse Etoile police station, is being covered up.

2. Certain people are saying that nothing would happen because the lady is a “Golan”. When she received her promotion lately, she shouted aloud: “I got my promotion because I have voted well.”

A copy of the said “Nouvo Vizyon” was produced in the trial court as an exhibit.

4. It was averred that the said statements complained of, in their natural and ordinary meaning or by innuendo, may be understood to refer to the Respondent. Further, that the said statement may be understood to mean that the Respondent was promoted to a higher rank of Police Inspector because she was a “Golan” – a word used to mean a supporter of the Seychelles Peoples Progressive Front (the SPPF), the ruling political party and which won the 2001 elections. Supporters of the opposition Seychelles National Party (the SNP), the Appellant, are referred to as “Karya.” She disputes that and believes that she was promoted on merits. It was the further averment of the Respondent that by reason of the printing and publication of the said statements, she was severely injured in her credit, character and reputation and had been brought into ridicule, hatred and contempt generally by her colleagues, friends and those of her inferiors. Therefore, she averred, she had suffered prejudice as a police officer and as a private person. She has since resigned from the police force as a result of that libellous article.

5. In support of the aforegoing, one Rurestina Rose (PW 2), also a police officer, did testify that from what she understood of the article, there was a woman police officer who had been promoted to the rank of Inspector because she was an SPPF supporter. According to her knowledge, that officer was Lise Meme, the Respondent. Only two officers had been promoted then to the rank of Inspector. As it was being talked around, people thought she had been promoted because she was a “Golan”. PW 2 also took those words to mean that the Respondent had been promoted not on merits, but because she supported SPPF.

6. The Respondent then decided to sue inter alia, the Appellant, the owner of Nouvo Vizyon newsletter. The defendants at the trial court denied the allegations by Miss Meme but in the alternative, raised the defence of justification. Two defence witnesses (Dw’s) testified in support of that defence of justification. Having lost their case before the Supreme Court (before Karunakaran, J), the Appellant has filed before this Court, a single ground of appeal namely:-

“The acceptance by the Court of the evidence of the plaintiff and its rejection of that of the witnesses for the defendants is unwarranted and clearly unsound on an objective appraisal of the testimonies of the plaintiff and defendant’s witnesses.”

The Appeal

7. We note that only the SNP has appealed seeking this Court to set aside the judgment of the Supreme Court and allowing the appeal with costs. The other defendants in the Supreme Court, namely, Regar Publications (Pty) Ltd and X-Press Printing, did not appeal.

8. When Mr. Georges, Counsel, argued the appeal before us, it became evident that the issue before the Court should be zeroed around the trial Court’s assessment of the veracity of the witnesses – both for the Appellants and Respondents respectively in light of the defence of justification. Both Counsel did not challenge the trial judge’s analysis of the law pertaining to defamation. We will revert to that at a later stage of this judgment. What seems to form a ground of appeal, are the following words by the trial judge in his judgment (at p. 7 thereof):-

“I meticulously perused the entire evidence adduced by the parties in this matter. I gave careful thought to the submission made on behalf of the defendants. First, on the question of credibility of the witnesses, I find that the plaintiff and PWs were truthful in their testimony. Their evidence is cogent, consistent, reliable and corroborative on material points. Hence I accept their evidence in toto. On the other hand, DW 1, Mr. Durup who appeared to have a grudge against the plaintiff over her promotion, did not appear to be a reliable witness for obvious reasons. His demeanour and deportment did not appeal to me in the least. I cannot attach any credibility to his inconsistent and contradictory evidence. I reject particularly, his conflicting evidence that he heard the plaintiff saying: “I have voted well that is why I have been promoted …” (emphasis provided).

9. The issue this Court is left with is whether to accept as correct the assessment of the trial judge with regard to the witnesses. It is a well established and indeed settled principle of law that the trial court has the right to accept or reject the evidence of a witness. This principle of law is gleaned from a long standing practice that it is the trial court which is most suited to study and assess the demeanour of the witnesses before it. Hence, an appellate court should not easily depart from such an appreciation unless for good cause. Therefore Lord Thankerton (in Watt v Thomas – 1947 (1) All ER 582, at 587) was correct when he gave the following views:-

“I. Where a question of fact has been tried by a Judge without a jury, and there is no question of misdisrection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge’s conclusion;

II. The appellate court may take the view that without having seen or heard the witness, it is not in a position to come to any satisfactory conclusion on the printed evidence;

III. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it is unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court …” (emphasis added).

This court had the opportunity to comment along similar lines in two recent cases from this jurisdiction (see: Serge Esparon and Another vs Andre Esparon SCA – C. App. No. 15/91; and Philip Rath vs Anne Hunt & Another SCA. C. App. No. 17/94).

10. The above discourse applied to the issue at hand, can it be said that the trial judge either did not have good cause or misdirected himself in rejecting the DWs evidence and accepting that of the PWs, and accepting it in toto?

The record speaks for itself and we had an opportunity to peruse through it. The following facts are apparent from the said record.

1. That although both Durup and Ms. Meme attended the same cadet’s course, two years after their graduation, the latter got promoted to a senior rank than the former, leaving the former with the same rank that both were promoted to soon after their “graduation” from the police academy. It is our view that promotions do not necessarily depend on class room or final examination performance only. Other factors are normally taken into consideration, factors some of which may be confidential. We note that two years had passed by when Ms. Meme got her promotion (together with another officer.) Therefore coming last in an examination is not an end in itself.

2. Mr. Durup was obsessed by Ms. Meme’s promotion. He states thus in cross-examination (p. 65 of the record):

“Q: Why did you have to leave the force?

A: For my personal reasons.

Q: There must be a reason …

A: I did not agree with the way promotion was being given. We all attended the course together and in the end only Ms. Meme who was promoted.

Q: Because of this you left?

A: It is part of the reasons why I left plus others.

Q: But principally because Meme was promoted before you?

A: This is one of the reasons. I think that she is not to have been promoted.

Q: You remember Mr. Wirtz who was in the same course as you … he was also promoted …?

A: Yes …”

It is obvious that Mr. Durup was not happy with the way things went in favour of Ms. Meme. Therefore his evidence in court against Ms. Meme was taken with caution by the trial judge. He was right. Again there are contradictions in Mr. Durup’s evidence when it comes to the number of people promoted together with Ms. Meme. Those contradictions were noted by the judge in his findings. He was correct.

Much may be said about the words used by the trial judge (such as “accept it in toto”). What is important is not the words used in a judge’s discussion cum analysis of the issues before him, but rather, the conclusions he arrives at.

3. Likewise, the trial judge did not pay much attention to the evidence of Allan Jonathan Fred, who describes himself as a former boyfriend of Ms. Meme. He also admits to be a close friend of the leader of the Appellant political party. Looking at his evidence, it is clear that it has material contradictions. Equally one has to bear in mind the danger of such a partner testifying against his former girl friend. We do agree with the trial judge’s cautious approach in considering the evidence of that witness.

4. As stated by Goburdhum, President of this Court (as he then was), in the Rath case (supra):

“On questions of fact, the judge is sovereign unless there are breaches of some fundamental principles.” (emphasis added).

We are unable to fault or observe any breaches of fundamental principles in the findings of the trial judge in respect of his analysis of the evidence of the witnesses.

The above discourse disposes of this appeal.

11. We would like to state, albeit in passing, that the law governing defamation and the defence of justification as raised by the defence were correctly discussed by the trial judge. The fact that the Respondent had been promoted soon after the elections does not support the claim that it was because of her affiliation to the SPPF. Similarly, her non prosecution for the alleged assault to her boy friend could not be attributed to the alleged “close” relationship with the Commissioner of Police. There was more evidence required to support justification. The Appellant provided none. We do not believe that – as stated earlier – coming last in class should be a criteria in promotions, two years later. That piece of evidence ought to be taken with the required circumspection when it comes to the defence of justification.

11. There was need for independent proof of the Respondent’s allegiance to the SPPF, an Anse Etoile police diary book (or a photocopy of the relevant page thereof) in support of the claims advanced by Durup and Fred, the two material defence witnesses, who unfortunately had their respective grievance/grudges against Ms. Meme. That kind of independent evidence was necessary in order to prove the truth of justification. Having decided not to rely on the evidence of the two witnesses, the trial court was left with nothing in support of justification.

13. In deciding whether or not the article complained of was defamatory, the test is always objective – what would an ordinary and reasonable member of society believe upon reading that article, if the words complained of were to be given their natural and ordinary meaning? The evidence of Rurestina Rose is very cogent on this aspect. How fellow officers thought of Ms. Meme’s promotion. It is not in dispute that upon reading that article in the Nouvo Vizyon it became clear that the officer referred to therein was Ms. Meme. There is no evidence to counter the plaintiff’s averment that because of that libellous article and its consequences, she had to leave the police force.

14. As a consequence of the libel, the Respondent has suffered, including as stated above, loss of her employment. This court had an opportunity of laying down principles that should guide courts when awarding damages for libel (see SBC and Another v B. Barrado, Civil Appeal Nos. 9 & 10 of 1994, and P. Pillay v Regar Civil Appeal No. 3 of 1997). We do agree that the trial judge addressed himself correctly on those principles as enunciated therein – and awarded damages in the sum of Sr. 30,000/-. The Respondent had prayed for a sum higher than that.

15. In conclusion, this appeal is dismissed in its entirety. Costs of this appeal and of the Supreme Court are awarded to the Respondent, Lise Meme.

……………………………………

S. J. BWANA

JUSTICE OF APPEAL

I concur: ……………………………………

M. RAMODIBEDI

PRESIDENT

I concur: ……………………………………

J. HODOUL

JUSTICE OF APPEAL

Delivered at Victoria, this 20^th day of May 2005