Seychelles National Party v Meme (6 of 2004) (6 of 2004) [2005] SCCA 10 (19 May 2005);






IN
THE SEYCHELLES COURT OF APPEAL











SEYCHELLES
NATIONAL PARTY
-Appellant







v.s







LISE
MEME
-Respondent










Civil
Appeal No. 6 of 2004



====================================



(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.









  1. 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.








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









  1. 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.








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









  1. 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.








  1. 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.











    1. 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.









    1. 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.











    1. 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.








  1. 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.













  1. 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 20th day of May 2005