Mondon v Prudence (3 of 2007) (3 of 2007)  SCCA 5 (23 August 2007);
THE SEYCHELLES COURT OF APPEAL
No: 3 of 2007
P., Hodoul, Domah, JJA
B. Hoareau for Appellant
Ms. Domingue for REspondent
U D G M E N T
is a case for claim of damages to a farmer’s yard allegedly
caused by a rolling rock as a result of blasting nearby by
Appellant then 2nd
defendant in the court below.
court below found for the Respondent then plaintiff. It is pertinent
to note that before its decision there were two defendants,
defendant withdrew from the case on payment of damages to the
Respondent then plaintiff. The case then proceeded against the
enough the Appellant in his pleadings in defence paragraph 2, on page
E1 of the record, states that “the
was hired by the 1st
defendant on a day-to-day basis.”
There are five grounds of appeal
under heads I have captioned as follows:
and sufficiency of proof
is raised under grounds 1 and 2 which I intend to deal with together.
(1) The Learned trial judge erred
in law, in that he never addressed his mind on the burden of proof in
a civil case, namely that
it was for the Respondent to prove on a
balance of possibilities that the rock rolled into his garden as a
result of the Appellant’s
fault or that the rock was in the
custody of the Appellant.
(2) The learned trial judge erred
in coming to the conclusion that the rock found in the Respondent’s
garden, came from the
rocks being blasted by the Appellant, in that
there was insufficient evidence to prove this fact on a balance of
Learned Judge below was the judge of facts, the pertinent ones of
which are at page 63 of the record “as
portrayed in the photographs (Exhibit PE 1 and DE 1) the two places
are not far from each other while the alleged place of the
is located at a much higher level, almost on top of the mountain
while the garden is at a lower level. There is relatively
gradient between the two places.”
page 64 of the record “from
the evidence on record this Court is convinced that the rock that was
found in the garden of the Plaintiff was there as a result
blasting activities of the defendant.”
At page 66 it says thus “both
parties and the police officer testified that the path through which
the rock rolled on the garden before finally resting
was visible and
it is not disputed either that it hit the supporting poles of the
shed house which partially collapsed on the seedbeds.”
From the above, I find the
learned judge did not err on the burden of proof nor was there
insufficient evidence to prove the facts
against a balance of
Grounds 1 and 2 fail.
3 challenges the decision in that “the
learned trial judge erred in law in taking judicial notice of the
fact that for the rock to have rolled down all the way to the
Respondent’s garden it must had been driven by the dynamite
blast and not by any other factor. The learned trial judge relied
heavily upon the above-named conclusion despite the fact that no
expert was called, to prove what might have caused the rock to roll
I do not think that the learned
judge was basing himself on judicial notice as we know it but
inevitably weighing the circumstantial
and testimonial evidence that
brought about his conclusion on a balance of probability, which I
find justified. Ground 3 fails.
4 questions the judgment in that “the
learned trial judge erred in law in relying on the principle of
“trouble de voisinage”, which is applicable
do not think that the learned judge based himself or relied on the
principle of “trouble de voisinage” as such but on
principle of “faute” or fait based on articles 1382 –
1384: namely that whoever has control of a thing or object
responsibility for its action where injury is caused to another.
v.s UCPS 1997
SLR was cited to the extent of showing that “negligence
or imprudence in not taking the necessary precautions to prevent a
faute are not indispensable for liability which may
exist even where
the author of the faute has done all he could to prevent it, and the
damage is the inevitable consequence of his
any event there is evidence of neighbourhood, the land where the
material rock originated as per evidence is 33 metres away from
land where the damage occurred. Ground four fails.
5 questions that “the
judge had no jurisdiction to hear the case, in that the case was
initially instituted before the Magistrate Court and it
transferred to the Supreme Court in accordance with the “The
Court (Transfer of Civil Suits) Rules” as made under
of the Court Act’ and as such the hearing and the judgment is a
the outset this Court cannot entertain this argument for the very and
basic reason it was not pleaded, raised or argued in the
How can a party fault the learned judge in the case below when and
if that party has not raised the issue then. A court
should not be expected to fish for issues for itself.
on the record in the case below arguments against the Respondent’s
case on negligence are negligible and the conduct
of counsel for the
appellant shows at page 58 “Court:
Any submissions. Mr.
If my friend does not submit, the matter is very simple, I
will leave the matter to your lordship.
The matter is very simple in fact its only to direct the court, its
under presumption of things that one has in his custody whereby
is a presumption and in order for defendant to rebut the presumption
he has to show the three available defences under the
law and that’s
This shows that the issue of presumption has been raised. But
we will leave that to the court.”
the very conduct of the Appellant’s counsel then, it is not
fair or judicious to entertain this argument nor do I find
non-use of procedure causes a nullity. Ground 5 fails.
Appeal dismissed with costs.
……………………….. …………………………… …………………………..
F. MacGREGOR J. M. HODOUL S. B.
President Justice of
Appeal Justice of Appeal
August 2007, Victoria, Seychelles.