IN THE INTERMEDIATE COURT OF MAURITIUS

Transcription

1 S.Boodhoo v R. Ram and anor 2017 INT 196 Cause Number : 186/2012 IN THE INTERMEDIATE COURT OF MAURITIUS Seewan Boodhoo Plaintiff Judgment v. 1. Ravind Ram 2. Top Turf Defendants The Plaintiff claims from the Defendants the sum of 200,000 as damages as a result of the unlawful acts and doings of the Defendants which have caused much prejudice to the Plaintiff. The amended proecipe dated contains the following main averments as regards the unlawful acts and doings of the Defendants: 4. On the 30 th of April 2009, Defendant no.1 made a declaration to the Police to the effect that on 31 st March 2009, one Ravind Boodhoo and the Plaintiff had stolen petrol from the store at St Geran and put it in the boot of the private car DX 255. The Plaintiff avers that the said declaration was made in bad faith and it was false and made maliciously with intent to defame and cause annoyance and prejudice to Plaintiff. The Plaintiff made the following averments as regards the prejudice suffered: 5. The Plaintiff, together with the said Ravind Boodhoo was subsequently prosecuted (Cause No:8036/09) before the District Court of Flacq on an information under two counts, namely,

2 (i) Larceny with other aggravating circumstance, to wit: Larceny committed by two individuals, for allegedly stealing a pail of petrol being two in number; and (ii) Possession of articles obtained by means of a crime, namely a pail of petrol. 6. Plaintiff avers that further to the said declaration he was arrested and had to be bailed out. It is further averred that he felt humiliated during the said process in front of his neighbours and the world at large. 7. The Plaintiff was thereafter subject to a prohibiting order by the court whereby he was prohibited from leaving the country until the determination of the said case. 8. The Plaintiff avers that he had to undergo stress and anxiety for more than a year because of the said case which was finally dismissed by the District Magistrate of Flacq, by virtue of a judgment delivered on the 22 nd June In their common amended Plea dated , the Defendants admitted that Defendant no.1 made a declaration to the Police on but denied that the said declaration was made in bad faith. They further averred that the declaration was made in good faith and was true. They also averred that the matter was duly investigated by the Police before the Plaintiff was prosecuted so that they prayed that the present action be dismissed with costs. In the light of above averments, it is clear that the present action against both Defendants is based on an alleged false and malicious denunciation in writing which falls squarely under article 1382 of the Civil Code as confirmed in Rousom R. v D. Beeharry 1998 SCJ 151 and which deals with responsabilité du fait personnel. Article 1382 of the Civil Code reads as follows: Tout fait quelconque, de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer. The proecipe has at no times averred negligence or imprudence so that it is also clear that article 1383 of the Civil Code has no relevance here and it is essential to make such a distinction from the outset, particularly when the following extract from Rousom (supra) is considered : First, the action was based on an alleged false and malicious denunciation, which falls clearly under article 1382 of the Code Napoléon. There was no pronouncement by the trial Court that the appellant had been actuated by malice. Instead it found that the appellant was

3 imprudent, a cause of action falling under article 1383 Code Napoléon, which was never that of the respondent as set out in his plaint. The Supreme Court has outlined the principles which are applicable in such cases as the present one in Mamode Issop Assenjee v. Ismael Ramdin 1932 MR 151 as follows: 7. In order to succeed in a case of this nature it is not sufficient for the Plaintiff to prove that he has suffered a prejudice he must establish to the satisfaction of the Court that the criminal proceedings taken against him were devoid of reasonable and probable cause, and that the Defendant in instituting such proceedings acted with malice or with such recklessness and imprudence as is tantamount to malice. In Baudry Lacantinerie and Barde 3rd Edition, Vol. XV, para: 2855, at page 542, we read: D'après une jurisprudence constante, lorsque celui qui soutient un procès comme demandeur ou comme défendeur agit de mauvaise foi ou par suite d'une erreur grossière il peut être condamné à payer une indemnité à son adversaire. Again in Note (1) under Cassation 25 Octobre, in D.P , we find that: Les poursuites et actions judiciaires donnent lieu à des dommages-intérêts lorsqu'elles ont été inspirées par un esprit de fraude et de vexation dont les tribunaux sont appréciateurs souverains Vide also: Cassation 11 juin 1890 D. P ; Pavade v. Mootoosamy [1869 MR 56]. Fayd'herbe v. Rosalie [1910 MR 39]; Pataroo v. Bigaignon [1917 MR 72]; Coralie v. Fatim [1922 MR 61]. 8. It is thus settled jurisprudence that no fault giving rise to an action in damages can be imputed to a person who, acting within the limits of his rights, applies to the Courts for a decision. Furthermore, in D Mohun v. C Jugnah & Anor 2002 SCJ 36, the Supreme Court held the following basic principles when dealing with an action in damages arising from an alleged false and malicious denunciation in writing: We wish to spell out that the basis of tortious liability under art and 1383 of the Civil Code is still faute in its normal dictionary meaning of wrongful act done either deliberately or through negligence or imprudence. Where a citizen suffers loss as a result of what is glaringly a criminal act it is clearly open to him to report the matter to the police for enquiry. It is also logical that he should impart to the police any information on the identity of the wrongdoer or suspected wrongdoer, depending upon the situation; unless the declarant is of bad faith, and the declaration is false and malicious, he stands no reason to fear any legal action from any person he has named and who may have been subjected to questioning by the Police. It is therefore essential, for his action to succeed, that the person who may have been subjected to unpleasant and perhaps strong questioning during a consequential police enquiry avers and proves faute on the part of the declarant.

4 Thus, it is imperative for the Plaintiff to aver and prove faute on the part of the declarant and to show on a balance of probabilities that the declarant is of bad faith and that the declaration is false and malicious. The question therefore before this Court is whether, in making the declaration on , the Defendants acted with malice so that they are of bad faith. The first consideration is therefore the declaration made by the Defendant no.1 and which is dated , produced in Court CPL Boodhoo (Document B refers). The Defendant no.1 has stated therein that whilst he reported for duty at St. Geran Belle Mare on at hrs, he met with his supervisor, Mr. Ravind Boodhoo. Whilst he was taking his tools from the store, he saw Mr. Ravind Boodhoo removing petrol in a pail and putting it in the boot of the private car DX 285 which was being driven by a person whose name is unknown to him but who resides at Poste de Flacq. The said car was parked on the private road near the store. The driver then drove away with the pail of petrol in the boot. He did not report the matter to his manager, one Mr. Callychurn since the latter was a good friend with Mr. Ravind Boodhoo. However, when he realized that he should not condone such acts, he reported the matter to Mrs. Dawoo on who advised him to report the matter to the Police for enquiry. The case file bearing cause number 8036/2009 before the District Court of Flacq in respect of the criminal matter Police v Ravind Boodhoo and Seewan Boodhoo for Larceny made by two individuals and Possession of articles obtained unlawfully by means of crime was also produced before this Court (Document A refers). Suffice it to say that it is unambiguously clear following section 7 of the Criminal Procedure Act as well as such cases as Faridan v Savannah S.E 1965 MR 62 and La Conte and Wife v Ismael Sheik Ally 1936 MR 17 that the fact that there has been a conviction or dismissal in the criminal prosecution against a party is not an evidence in the civil suit. Thus, the said court case record (Document A refers) is only evidence that there has been a prosecution against Plaintiff and that there has been judgment delivered. The fact that there might have been a dismissal of the charge against the Plaintiff during his criminal trial is no evidence whatsoever before this Court. The Supreme Court has held in no uncertain terms in Baldeen S. v Transinvest Engineering & Contracting Ltd 1995 SCJ 147 that: I understand the Plaintiff that the prejudice he had suffered was due to the fact that he was prosecuted. It must be borne in mind that any decision to prosecute is that of the Police and after an enquiry. The fact that the criminal charge had been dismissed is not proof that the complaint to the police was false

5 and malicious for there may be many reasons for a dismissal The only evidence which matters is therefore which was adduced before this Court to establish on a balance of probabilities that the Defendants had deliberately made false and malicious declarations in bad faith against the Plaintiff. The Plaintiff deposed under oath before this Court to the effect that the allegation made by the Defendant no.1 against him was in bad faith since he did not commit the said offence; he added that the false allegation against him was as a result of an act of vengeance against him. He claimed that Defendants nos. 1 and 2 made a false allegation against him in bad faith which therefore constituted a faute. He conceded that Defendant no.1 had a right to report an illegal act, albeit not after a certain lapse of time. He nevertheless admitted that there was no time limit to report an illegal act. He denied that the declaration was made in good faith since it was made after a month and not immediately. When the version put forward by the Plaintiff is duly considered, I find that according to the Plaintiff, the false declaration against him was inspired by revenge. However, I do not find any evidence of any past incident or relationship between the Plaintiff and the Defendant no.1 which might have prompted the latter to do so out of spite or vengeance. The fact that Defendant no.1 did not know him prior to the declaration has also not been disproved on a balance of probabilities. It is most relevant to note here that when Defendant no.1 gave the declaration on , he merely stated that the driver is unknown to him but is aware that he resides at Poste de Flacq. Learned Counsel for the Plaintiff cross examined the Defendant no.1 on this score but was unsuccessful in raising any possibility that Defendant no.1 knew Plaintiff or had any dealing with him in the past. There is also no evidence whatsoever of any bad blood against them. Hence, there is no reason whatsoever why Defendant no.1 would have made a false and malicious denunciation in writing against Plaintiff out of revenge. He then stated that the declaration was made in bad faith since it was made after a month since the alleged offence. He nevertheless himself conceded that there is no time limit to report an illegal act. Moreover, the Defendant no.1 had explained in his declaration itself that he did not report the matter earlier since Mr. Ravind Boodhoo and his manager Mr Callychurn were good friends. He further stated in Court that he was scared since Mr. Ravind Boodhoo was his supervisor and could harm him. He thus explained why he did not report the matter immediately and this Court finds his explanation plausible in the given circumstances; it is not always easy to report an act against one s superior. Furthermore, he explained that he only reported the matter after having informed his personnel manager who advised him to

6 make a declaration to the Police. True, it is that there is a discrepancy as to when he informed the Personnel Manager about the incident since he stated in Court that it was on whereas the declaration (Document B refers) mentions However, such an inconsistency is only comprehensible when the time lapse since the alleged incident in 2009 is considered so that it can safely be brushed aside as being a very minute and minor one, which does not affect Defendant no.1 s credibility. It however reveals that the declaration was not a spontaneous one but rather a prompted one by his Personnel Manager. Bad faith cannot therefore be inferred in those circumstances. The Defendant no.1 maintained throughout that he reported only what he saw and denied having given a false declaration in bad faith against the Plaintiff. There is therefore no evidence that Defendant no.1 had acted out of malice and bad faith with intent to defame the Plaintiff and cause him annoyance and prejudice. The plaintiff has not established on a balance of probabilities that Defendant no.1 made a false and malicious denunciation against him. As regards Defendant no.2, the averment of the proecipe discloses that the defendants are being sued directly as tortfeasor under article 1382 of the Civil Code. It is however clear that there is no evidence which shows that Defendant no.2 deliberately did an act which might have caused prejudice to Plaintiff. No fait personnel therefore can be imputed against Defendant no.2, the more so since it is not disputed that it was Defendant no.1 who made the said declaration to the Police. Thus, there is no evidence which shows even an atom weight that Defendant no.2 could be held personally liable for any false and malicious denunciation in writing. In fact, it has been averred and admitted that Defendant no.1 was employed by Defendant no.2 at the relevant time. When the representative of Defendant no.2 deposed in Court and maintained that the declaration was made in good faith by Defendant no.1, he was cross examined to the effect that as the employer of Defendant no.1, Defendant no.2 was therefore equally liable to which the said witness replied in the negative. Thus, it is clear that the Defendant no.2 was intended to be put into cause as a commettant so that such an averment should have been made in the proecipe to the effect that Defendant no.2 has been put into cause under article 1384 of the Civil Code. However, the proecipe does not contain any averment that the said Defendant is being sued as commettant, hence Plaintiff s action against Defendant no.2 is not founded on faute under article 1384 of the Civil Code. There is no averment to the effect that the Defendant no.2 is being sued as a result of a faute of its préposé but rather it has been averred under paragraph 9 that, the Plaintiff avers that the unlawful acts and doings of Defendants 1 & 2 have caused much prejudice to him which amounts to a faute.

7 In the given circumstances and following the principles in Sauzier v The Central Electricity Board 2000 SCJ 193, I find the absence of any averment of commettant and preposé is fatal to the plaint, the more so in the absence of such an averment, such a relationship cannot be inferred as held in Boodhoo v The Government of Mauritius 1995 MR 63, particularly when there is no averment that Defendant no.2 is responsible for the prejudice caused as a result of the faute of its préposé. In the light of above and having found that the Plaintiff has not been able to prove its case on a balance of probabilities, I dismiss the present case against the Defendants nos. 1 and 2. With Costs. Neerooa M.I.A Magistrate, Intermediate Court. This 30 May 2017.