Christ v Kurtz (SCA 24/2012) [2014] SCCA 43 (12 December 2014);

 

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     F. MacGregor (PCA) , S. Domah (J.A), M. Twomey (J.A) ]

Civil Appeal SCA 24/2012

(Appeal from Supreme Court Decision CS 207/2007)

 

Helmut Christ

 

 

Appellant

 

 

Versus

 

 

Reinhard Kurts

                          

 

Respondent

 

 

Heard:             04 December 2014

Counsel:          Mr. Basil Hoareau for Appellant 

                       Mr. Frank Elizabeth for Respondent 

Delivered:       12 December 2014

 

JUDGMENT

 

 

F. MacGregor (PCA)

[1]        I have read the judgment of my fellow judges and agree with them that there was grave abuse of process in this case by Appellant.  The number of adjournments sought, as has been pointed out, number 24. In one ridiculous incident Counsel is absent on a date already fixed for the whole day for the hearing of the case. No explanation or excuse is made. The court is simply told Counsel is away for 3 weeks.

[2]        I am also appalled at the behavior of the Appellant’s Counsel who when asked by the learned trial judge to argue the issue of prescription in limine litis refused to do so and instead withdrew from the case. I am in any case not persuaded that prescription as pleaded merited any attention by the trial judge.       

[3]        In the pleading of the Respondent a loosely worded paragraph he considered as a plea in limine litis contains an averment of the receipt of the defamatory material. There is in fact no general denial but simply the averment that the defendant is unaware of the fact that the material fax was received and that the matter is time barred. In my view these pleadings did not meet the standard of particularity expected by section 75 of the Seychelles Civil Procedure Code. 

[4]        Similarly, I am not persuaded by the submission of learned Counsel for the appellant on the issue of publication.  In my mind the fact that the letter addressed to the President contained the word ‘copied to’ is consistent with publication being effected. In the pleadings the Respondent in the alternative admits the material defamatory words and that they were published but states that they were made on an occasion of qualified privilege.

[5]        For these reasons I am of the view that all the ingredients of the delict of defamation were proven.  

[6]        I respectfully dissent with my learned fellow judges and would dismiss this appeal.

                

M. Twomey (JA)

[1]           The Respondent sued the Appellant for defamation for a letter written to the President of Seychelles on 11th March 1998 and copied to the Chief Justice of the Supreme Court of Seychelles and the Honorary Consul of the Republic of Germany in which he claimed that the Respondent had engaged in a plethora of criminal offences including breaking and entering a private house, stealing, criminal damage, running a brothel, dealing arms, engaging in underage sex and procuring abortions.

[2]        The matter was initially defended with the Appellant retaining counsel. Pleadings were completed after numerous false starts to which we will avert later on in this judgment. The Appellant’s defence was that he had written a confidential letter to the President, that the allegations were true in substance and fact but in the alternative that they were written and published on an occasion of qualified privilege of which he gave particulars of a court case where the Respondent had had to pay damages for assault. He further pleaded prescription of the Respondent’s action.

[3]        The proceedings in this matter were convoluted due only to the Appellant’s clear abuse of process. Before the hearing of this matter in the Supreme Court we have taken note of 24 adjournments granted because of the Appellant’s laches. The Appellant’s attitude together with his then Counsel Ms. Pool bordered from what can only be described as irresponsible, ridiculous to contemptuous. At the 24th   application for an adjournment the following exchange too place:

“Court: You can address on the plea, I will give a disposal. What is your application now? If your client is not the country, tell him “I leave it to the court, I withdraw my appearance”

Ms. Pool: I would move for an adjournment…”

[4]        This was the demand for the 25th adjournment that was finally refused by the learned trial judge. We are singularly unimpressed by the Appellant’s behaviour and would not like to see him benefit from it in any way.  

[5]        That said we have to look at the appeal before us. The hearing of this matter was set for the 11th July 2012 at which date counsel for the Appellant withdrew her representation after the court rightly refused a further adjournment. The matter then proceeded ex parte and judgment was delivered ex tempore by learned trial judge Karunakaran.

[6]        The Appellant has now appealed against this judgment on the following grounds:

  1. The learned trial judge erred in law and on the facts in failing to hold that the action for defamation was prescribed.
  2. The learned trial judge erred in law in failing to hold that the Respondent’s pleading did not disclose all the material particulars, namely that there was publication of the letter to third parties and/or to name the third parties.
  3. The learned trial judge erred in law and on the evidence in failing to hold that there was evidence adduced to prove that there was publication of the letter to any third party.

[7]        Counsel for the Respondent, Mr. Elizabeth has argued that the appeal should not be allowed as it is an abuse of process since the Appellant had been given ample opportunity to defend the matter at the hearing and had not done so. He further submitted that since the matter was heard ex parte and judgment given ex parte the only ground that could be raised by the Appellant would be the validity of the ex parte hearing itself. We commend Counsel for the ingenious and attractive arguments he makes and we agree with him that the Appellant has shown little diligence in defending this matter. Unfortunately these propositions are not based on any procedural or substantive legal foundations and must fail. Whether hearings are heard inter partes or ex parte, the principle remain the same as far as the Plaintiff is concerned: he who avers must prove. This is trite law but is also founded on article 1315 of the Civil Code of Seychelles which requires that the person who demands the performance of an obligation shall be bound to prove it. It is not the law that when there is an ex parte hearing a plaintiff is relieved of his duty to prove his case.

 [8]       Hence although we are quite appalled at the Appellant’s behaviour in the way he conducted his case, we are nevertheless duty bound as the court of last resort to ensure that the law has been complied with. It may well be that the learned trial judge in giving the decision ex tempore did not alert his mind to the basic ingredients that must be proved for a case of defamation to succeed. This was clearly a case of libel and yet in several parts of his judgment he alluded to slander which is proven in an entirely different way.

[9]        We are also in agreement with counsel for the Appellant that the matter of publication was not addressed by the learned trial judge. The defamation laws of Seychelles are in a time warp frozen at circa 1 January 1976 when the amended Civil Code came into effect. We are unfortunately forced to look at old authorities and tattered and old editions versions of Gatley on Libel and Slander. Gatley states that

“No civil action can be maintained for libel or slander unless the words complained of have been published. ‘That material part of the cause of action in libel is not the writing, but the publication of the libel.’

[10]      This fundamental rule was ignored by the Respondent and the trial judge in deciding the matter. Although the letter states it its right hand corner:

‘Copy to: Chief Justice Vivekanand Alleear, Supreme Court, Victoria

 Mrs. Maryse Eichler de St. Jorre, Honorary Consul, Republic of Germany”

there was no evidence led that it was actually sent to these third parties. We therefore cannot find any evidence of publication (viz Hills v O’Bryan [1949] 2 D.L.R. 716, Lee v Wilson 51 C.L.R. 287, Knupffer v London Express [1944] A.C.116, Talma v Henriette SSC 338/1996)). We are minded however to add that the law of defamation needs to be urgently addressed as the issue of publication is live given the technological changes brought by the internet.         

[11]      Had we found that publication was proved, we are also in agreement with Mr. Hoareau for the Appellant that this matter was in any case prescribed. The letter was written on 11th March 1998 and the case instituted in 2007 nearly 9 years later. This appeal is now being heard nearly 16 years later after the alleged defamation.

 Article 1383 (3) of the Civil Code states that:

 "The provisions of this article and of article 1382 of this Code shall not apply to the civil law of defamation which shall be governed by English law."

[12]      It is our view that this provision only refers to the substantive law of defamation and not its procedure. If English rules relating to limitation of actions were to be applied it would have had to be by way of an express legislative direction. In any case article 1383(3) is in a body of substantive rules.

[13]      In Biscornet v Honoré [1982] SLR 455 in Sauzier J disagreed stating:

"In cases of defamation therefore it is the English law in force when the Civil Code of Seychelles 1975 was enacted which applies. That means not only to the substantive law of defamation but also to the procedural rules of defamation."

[14]      Procedural rules of defamation should not be confused with substantive rules of prescription contained in the Civil Code of Seychelles. Hence, in a number of cases, subsequently, both the Supreme Court and the Court of Appeal have found that the procedural law to be applied in defamation cases in Seychelles is Seychelles law (viz Gappy v Barallon SCA 19/2007, Samson v Ally SSC 96/2006 and Prea v SPPF SSC 7/2004).

Article 2271 of the Civil Code of Seychelles provides that:

“ All rights of action shall be subject to prescription after a period of five years except as provided in articles 2262 and 2265 of this Code.” 

[15]      It is clear that under this provision the present action was clearly prescribed.  Even if the matter was to be adjudged under English law no proof was brought by the Respondent on when he came to know of the defamation.

[16]      In the circumstances we allow this appeal but in view of the laches on the part of the Appellant in this case we do not allow him costs either in the court below or in this appeal.          

M. Twomey (JA)

I concur:.                                ………………….                                           S. Domah (J.A)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014