B. Fanchette v The Attorney General (SCA 15/2011) [2012] SCCA 16 (31 August 2012);

 

JUDGMENT

MACGREGOR,  P.,

The Appellant below complained of being unlawful detained in February 2006 by the police for some 47 hours, including denied access to a lawyer, not being informed of the  charge against him,  and having to endure harsh conditions in the police prison cells.

 

The Court found his such Constitutional rights were violated and awarded him Thirty thousand (RS.30,000) damages, although no specific figure was pleaded for, nor damages specifically sought, save for a general  prayer referred in paragraph 12(iv) of his petition below dated 28th April 2006 as follows;

“granting such other orders or writ as may be appropriate to enforce the provision of the Constitution in relation to the parties”  This is repeated in the affidavit of the Petitioner at page B7 of the records;

Further in the Notice of Appeal, dated 10th May 2011, the Appellant in his sole ground of appeal refers to Rs.30,000/- damages as manifestly low.  In the relief there sought it prays for the Court of Appeal to increase the damages by awarding the appropriate damages.

It is only in the  Heads of Argument of  the Appellant’s Counsel dated 14th August 2012 six years later,  that we see actual  figures prayed for totaling Rs.160,000.

 

ISSUES

(1)              Can the Court be blamed when no figure when no figure was pleaded or canvassed before it and can counsel now raise this issue before the Court of Appeal.

 

(2)             Is the  award was manifestly low.

 

In the absence of averring specific damages in general and/or its quantification, we have taken note of the following ;

Article(46) 5 of the  Constitution state:

“Upon hearing of an application under clause (1) the Constitutional Court may:”

(a)       declare any act or omission which is the subject  of the

                                    application to be a contravention of the Charter.

 

(b)      declare any law or the provision of any law which contravenes the Charter void;

 

(c)      make such declaration or order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the applications;

 

(d)      award any damages for the purpose of compensating the person concerned for any damages suffered;

 

(e)       make such additional order under this Constitution or as may be prescribed by law.

 

FINDING

We find that as no figure was pursued either in the pleadings or submissions before the Constitutional Court  below and since opposing  Counsel was not given the opportunity to respond to this issue it cannot now be faulted for the figure arrived that.  On the quantum of damages we have taken note of the cases of Derjacques VS. Commissioner of Police (1995)  SCAR and Cesar Marie vs. Attorney General  (1998) CS 429/1998, where all the awards  were well below that awarded in the present case.

 

In Willy Charles Vs. Attorney General, SCA 11/2001  the  human rights

violations were much worse, but the award was only  Rs.10,000/-. Given the range of the awards in those authorities we do not find the award  of the Constitutional Court manifestly low.

 

Accordingly we do not find it justifiable to disturb their finding.  We so rule.  No order as to costs.

 

…………………………………

                          F. MACGREGOR         PRESIDENT

 

I concur:         ……………………………….

A. FERNANDO

                                                                   JUSTICE OF APPEAL

 

 

I concur:                                                                               ………………………………

J  MSOFFE

JUSTICE OF APPEAL

 

 

Dated this 31st August 20120, Victoria, Seychelles

 

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