IN THE SEYCHELLES COURT OF APPEAL I- I BR44) CHARLES LUCAS 4F Lu V Jw.. S KRISHNA LABONTE RAYMOND LOUISE Civil Appeal No. 6/95 Before: H. Goburdhun,P., E.O. Ayoola,.L.E. Venchard, JJ.A. Mr. P. Boulle for Appellant Mr. A. Juliette for 1st Respondent Mr. A. Fernando for 2nd Respondent JUDGMENT OF THE COURT DELIVERED Charles Mr. appellant, BY E.O. AYOOLAL_J.A. Lucas, an Atrney-at-Law Supreme Court Seychelles practing h pression in Seychelles. 1st Respondent, reporters and Corporation for staff On 17th day February 1993 Mr. Krhna Labonte, publhed Seychelles broadcast on Televion and Broadcasting Radio, which publication ok place on that same day, following words which are Englh translation lil now complained : re are three men who are "At moment ing at Police Station. detained While I am talking you, re are three men ing detained. re a possibility re are some amongst m who will remanded afternoon morrow in court." "Yes, it true that re a lawyer who Central Police ing detained at Station since yesterday. We are treating him as a suspect, as an accessory after fact murder." "May I. will simplify it, "accessory after fact murder".
-3limited validity judgment in regard cause action founded on words publhed on 17th February 1993. Amerasinghe J. rightly considered or matters in sue fore court and rejected defences justification fair-comment and qualified privilege -. regard In second respondent, he was view that " 1st Defendant acting in capacity public relations ficer was acting within scope h employment refore he could make 2nd Defendant liable if he was or "prepose" 2nd defendant. - He held agent that 2nd Respondent as Commsioner Police was liable vicariously ficers. for rts committed by h subordinate However, he remarked that 2nd Respondent had not en sued in a representative capacity but as a defendant personally responsible for lil. He considered sue damages which he assessed at a tal R.175,000, as R.75,000 ing moral damages and R.100,000 ing loss earnings. appellant has appealed against decion while respondents have appealed in dmsing regard rejected defences. judgment suit It evident that if can sustained on grounds or than those relied upon by Supreme Court as contended in cross-appeal respondents fate main appeal will substantially affect order learned Judge. not dmsal made by It refore expedient consider cross-appeal first. defences stated. at La background facts as are relevant special put forward by 1st Respondent can briefly Upon murder one Captain Michel and h wife Mere, Police commenced investigation in alleged crime. On 16th February 1993, appellant was arrested by Seychelles Police and kept in cusdy but was
-5- way any appellant's complicity in in murder couple. However, it difficult see how an allegation that Police was treating a person as suspected ing an accessory after murder can lead an fact imputation guilt crime. suspected a committing crime To say that a person capable ing defamary, but when justification asserted what justified that in fact he was so suspected. dtinction tween suspicion and guilt has en commented on in several cases. Daily telegraph Ltd. (1963) 2 In Lew v. All ER 151 Lord Hodson said at pp.167-168: tween suspicion and " dtinction guilt illustrated by case Simmons v. Mitchell (1880) spoken words which convey a decided that mere 6 App. Cas. 156 which that plaintiff has suspicion crime committed a impronment will punhable by not support an action without pro special damage." n furr, he said: "It may defamary say that someone suspected an fence, but it does not that person has carry that it with committed fence, for th must surely fend against ideas justice, which reasonable men are supposed entertain." In opinion Lord Devlin in that case at pages 173-174, it broad impression created by lil that should considered. Even considering "broad impression" words complained in th case, a conclusion ficial spokesman it difficult come imputation guilt. A statement by an Police Force that a person detained by Police as a suspect, as an accessory after
-7- In my view, had learned Judge adverted difference tween suspicion and guilt, he would not readily have rejected plea justification in view h finding that: "It establhed that plaintiff in-fact was arrested and detained as a suspect in a murder case." Although re evidence by Police that appellant was arrested as suspect murder and was released on receiving slen property, that doe-z not affect fact in so far as truth that particular fact concerned that when he was arrested and detained, it was on suspicion as a suspect murder. Th borne out by following piece evidence which came during cross-examination evidence which came during Mr. cross-examination Gaetan Didon (D.W.1) as follows: "Q. Did you dcover overnight that your reasons for arrest was not sufficient that you had release him on a different charge. A. It normal in investigation. For on process particular fence investigation, you can release th person on a lesser fence." In my view, imputation has en justified that polcice were treating appellant as a suspect. Just as where lil imputed a crime a plea justification which sets out circumstances suspicion only will not hold, so also an imputation suspicion does not call for a pro guilt justify lil. respondents have establhed plea justification and learned Judge should have so held. He erred in. holding orwe. cross-appeal would allowed. On view that we have formed on sue justification points raed in appeal and furr questions qualified privilege raed by cross-appeal
-g- pleading that or how person whom publication was made identified appellant as person referred. all depends on view from circumstances. I find support It for th statement in Gatley on Lil and Slander 8th Edn. para. 1306 that: not plaintiff) where ( mentioned at all, extrinsic evidence must lil with given " connect For th purpose witnesses plaintiff." testify that y can called undersod, from reading lil in circumstances narrated and li g ht ir acquaintance with plaintiff, that person referred. he was evidence may given generall y : grounds upon which witnesses formed left ir may opinion cross-examination." investigated on (Emphas mine). It a cardinal rule pleading that facts and not evidence are pleaded. Secondly, inconvenience witness or or party hardly a valid ground for refusing leave a party call paramount consideration a witness. wher interest justice would reby served or occasioned or party if wher injustice will dcretion exerced favour in call witness. balance convenience party seeking determinant facr rar than ing balance justice. sought called, it not Thirdly, where a witness right for Court speculate as what witness was coming say and conclude on such speculation that he was not possessed knowledge what he was going testify about. In holding that witness who identified appellant as person whom publication was made gave evidence outside pleadings, learned Judge overlooked fact that re-publication on pleaded in paragraph 4. televion and radio was It was open witnesses who