Mondon v Prudence (3 of 2007) (3 of 2007) [2007] SCCA 5 (23 August 2007);






IN
THE SEYCHELLES COURT OF APPEAL








JULIEN
MONDON
-Appellant







v.s






WILLIAM
PRUDENCE
-Respondent






SCA
No: 3 of 2007



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


Before:
MacGregor,
P., Hodoul, Domah, JJA






Counsel: Mr.
B. Hoareau for Appellant



Ms. Domingue for REspondent










J
U D G M E N T





MacGREGOR,
P.






1. This
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
the
Appellant then 2
nd
defendant in the court below.







The
court below found for the Respondent then plaintiff. It is pertinent
to note that before its decision there were two defendants,
until the
1
st
defendant withdrew from the case on payment of damages to the
Respondent then plaintiff. The case then proceeded against the
Appellant
as 2
nd
defendant only.







Interestingly
enough the Appellant in his pleadings in defence paragraph 2, on page
E1 of the record, states that “
the
2
nd
defendant
(Respondent)
was hired by the 1
st
defendant on a day-to-day basis
.”







There are five grounds of appeal
under heads I have captioned as follows:







2. Burden
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
probabilities.







The
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
blasting
is located at a much higher level, almost on top of the mountain
while the garden is at a lower level. There is relatively
a steep
gradient between the two places.”







At
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
of the
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
probabilities.







Grounds 1 and 2 fail.







3. Judicial
Notice.



Ground
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
down.”







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. “Trouble
de voisinage.”



Ground
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
only between
neighbours.”
I
do not think that the learned judge based himself or relied on the
principle of “trouble de voisinage” as such but on
the
principle of “faute” or fait based on articles 1382 –
1384: namely that whoever has control of a thing or object
bears
responsibility for its action where injury is caused to another.







Desaubin
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
action..”
In
any event there is evidence of neighbourhood, the land where the
material rock originated as per evidence is 33 metres away from
the
land where the damage occurred. Ground four fails.







5. Jurisdiction



Ground
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
was not
transferred to the Supreme Court in accordance with the “The
Court (Transfer of Civil Suits) Rules” as made under
section 44
of the Court Act’ and as such the hearing and the judgment is a
nullity.”
From
the outset this Court cannot entertain this argument for the very and
basic reason it was not pleaded, raised or argued in the
court below.
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
cannot and
should not be expected to fish for issues for itself.







Incredibly
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.
Lucas
:
If my friend does not submit, the matter is very simple,
I
will leave the matter to your lordship
.
Mr. Ally:
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
there
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
it.
Mr.
Lucas
:
This shows that the issue of presumption has been raised.
But
we will leave that to the court
.”
From
the very conduct of the Appellant’s counsel then, it is not
fair or judicious to entertain this argument nor do I find
that the
non-use of procedure causes a nullity. Ground 5 fails.







Appeal dismissed with costs.










……………………….. …………………………… …………………………..



F. MacGREGOR J. M. HODOUL S. B.
DOMAH



President Justice of
Appeal Justice of Appeal














Dated
this 24
th
August 2007, Victoria, Seychelles.