Mondon v Prudence (3 of 2007) (3 of 2007)  SCCA 5 (23 August 2007);
IN THE SEYCHELLES COURT OF APPEAL
JULIEN MONDON -Appellant
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
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 2nd 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 1st defendant withdrew from the case on payment of damages to the Respondent then plaintiff. The case then proceeded against the Appellant as 2nd defendant only.
Interestingly enough the Appellant in his pleadings in defence paragraph 2, on page E1 of the record, states that “the 2nd defendant (Respondent) 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:
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.
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 24th August 2007, Victoria, Seychelles.