Supreme Court of Mauritius, 25 juin 2020, 2020 INT 84 – J L POTIRON v J M SAINT MEDAR

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J L POTIRON v J M SAINT MEDAR

2020 INT 84

CN:- 1767/15 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Jean Lewis Potiron Plaintiff v/s Jacques Marcel Saint Medar Defendant JUDGMENT The plaintiff is praying for a judgment from this court condemning and ordering the defendant to pay to him the sum of Rs. 500,000 as damages for the wrongful acts and doings of the defendant which amounts to “faute”. It is being averred in the proecipe that the plaintiff is a person of good character who enjoys the esteem of everybody and that “on the 20 November 2012, the defendant in bad faith gave a false and malicious declaration against him (the plaintiff) at Rose Hill Police Station to the effect that on 16 th November 2012 at 19 00 hrs, the plaintiff had allegedly, at the junction of Adolphe de Plevitz and Mere Theresa Streets, where the plaintiff and the defendant reside as adjoining neighbours, uttered filthy words to the defendant as follows:

“Qui to pou faire, to pas sorti, to rest dans couloir meme, si to sortimo faire touytoi.””

As a consequence of the above, the plaintiff was prosecuted before the District Court of Lower Plaines Wilhems. However the charge against him was dismissed on the 09 October 2015. The plaintiff is now averring that the defendant gave the said false and malicious declaration in bad faith in as much as the defendant is not in good terms with him so much so that the latter has been engaging in mere fabrications in an attempt to soil the reputation of the plaintiff. It has further been averred that the plaintiff was not present at the place of the alleged incident at the material time and that the said declaration was made some four days after the alleged incident. The plaintiff has averred that he has suffered damages and prejudice as a result of the acts and doings of the plaintiff which amounts to ‘faute’.

The defendant has denied the averments of the plaint and has put the plaintiff to the proof of all the averments thereof except for the fact that he was not in good terms with the plaintiff and the fact that the plaintiff was prosecuted before the District Court of Lower Plaines Wilhems. The defendant has averred that the plaint constitute a sheer abuse of the process of the court and has moved that the plaint be dismissed with costs.

Both the plaintiff and the defendant have adduced evidence in court. I have duly considered same as well as the submissions of respective counsels. I do not propose to reproduce the evidence on record in this judgement as it consists of numerous pages.

Analysis In the present case, it is not disputed that the defendant gave a declaration against the plaintiff on the 20 November 2012. The only contention before this court is whether the said declaration was false and made in bad faith, thus amounting to ‘faute’.

In the case of D. Mohun v C. Jugnah & anor [2002 SCJ 36] the Supreme Court highlighted that:

‘…the basis of tortuous liability under art.1382 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 wrong doer, 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.’

The plaintiff therefore had to establish that the defendant acted with malice, that is, the declaration has been made in a bad faith. The plaintiff deposed in terms of his plaint. He stated that the defendant is related to him and they are neighbours. He explained that the bad blood between them started a long time back when he reported the defendant to the authorities for an illegal construction. Since then, the defendant has a grudge against him. As far as the declaration is concerned, he reiterated in court that at the time of the alleged incident he was not at home. He reached home at about 19.30 hrs to 20.00 hrs on that day and at that time he saw many persons gathered on the road and it seemed that there was an altercation ongoing between the defendant and one of his neighbours one Marianne. He was not in any way involved in the said incident. He opined that the defendant made the false and malicious declaration against him because they are not in good terms. Due to the said declaration, an enquiry was initiated by the police and the plaintiff had to attend police station for same. Thereafter, he was prosecuted before the District Court of Plaines Wilhems and he had to attend court on several occasions. He encountered many difficulties due to same and he was much affected, the reason for which he is now asking damages for the prejudice he suffered. He produced a character certificate in court in support of his averments at paragraph 1 of the plaint.

The plaintiff was duly cross examined by counsel for the defendant and he remained adamant on his version. He explained that the character certificate that he produced in court had been delivered prior to the lodging of the present plaint and that he was not asked to provide a recent certificate in court. However, should the need arise, he would be willing to do so. He maintained that he has never had any encounter with the law except may be for road traffic offences and that he is a person of good character. It was also put to the defendant that his version in court was not consistent with his version in his defence statement that he gave to the police in his criminal case in that in the said statement he stated that he actually saw the plaintiff and the said Marianne arguing. The defendant reiterated the version that he gave in chief and stated that both versions were consistent. He maintained that the declaration made by the defendant was false and malicious and that he has been prejudiced by same. He explained that he could not sleep well due to the above as he felt disturbed. He agreed in court that the defendant had also prosecuted him in other cases

but he could not recollect in court what the outcome had been in those cases. It was also put the plaintiff that the said Marianne was not called as a witness for the plaintiff because the incident between her and the defendant never happened but the plaintiff denied same and it came out from his testimony the said Marianne could not be called to give evidence as she had left the locality and her new address was unknown to the plaintiff.

I have duly assessed the evidence of the plaintiff and I find that he has remained consistent in his version and that he passed the test of cross examination without waver.

I have also assessed the version of the defendant carefully but I was not impressed by same. The defendant did not strike me as a witness of truth. Although he deposed in terms of his plea and he remained adamant in court that he gave a declaration to the police because the incident as averred indeed took place, I was however not convinced. I became doubtful about his version when he explained in court that he was able to go to the police station to give the declaration against the plaintiff only 4 days after the incident because he had to hide himself from other persons who wanted him harm and that he could not leave his premises out of fear that he would be attacked by the said persons. He explained in court that there was indeed an incident between him and the said Marianne on the said day and that police came on spot on not less than three occasions after he called for police assistance. Upon being asked whether he reported the alleged incident between him and the defendant when police repaired at his place, first stated that he did not do so, then he remained mute when the question was put anew to him and finally he very cunningly stated that the incident happened after that police had already left the spot. After going through the evidence of the defendant I find that he was not convincing at all in his answers and that he came up with his version only to escape the consequences of his acts. I find it hard to believe the defendant when he states that people, with the intent to harm him, had been standing on road for 4 days after the alleged incident, thus preventing him from stepping outside his house. What is more surprising is that the defendant did not deem it necessary to ask for police assistance through phone in the given circumstances, bearing in mind that the plaintiff had allegedly threatened to kill him and his life was at stake. The record shows that the defendant was not oblivious to such procedure as he had himself resorted to same when there was the incident with the said Marianne. The court therefore finds the reaction of the defendant quite unwarranted in the circumstances. Bearing the above in mind and also the bad blood that exists between the parties, I find that the probability of concoction on part of the defendant cannot be excluded. As such I find that it would not be safe to act on the testimony of defendant.

In light of the above, I have no hesitation in preferring the testimony of the plaintiff to that of the defendant and I find that the plaintiff was able to establish on a balance of probabilities that the defendant gave a false and malicious declaration against him in bad faith. It is to be noted further that the defendant himself stated in court that the criminal case against the plaintiff was dismissed for lack of evidence. I am alive to the fact that the dismissal of a criminal case does not automatically render the declaration made to the police false and malicious nor the defendant liable in damages for having made it – vide Azaree B.A v Ireland Blyth Limited [2003 SCJ 155] – but in the particular circumstances of the present case case, I find that the lack of evidence in a way confirms the bad faith of the defendant. I am therefore satisfied that the defendant committed a “faute” which caused prejudice to the plaintiff and for which the defendant is liable to the plaintiff for damages.

As far as the quantum of damages is concerned, I find that the sum claimed is excessive in the absence of any evidence to sustain same. The only contention of the plaintiff is that he felt disturbed and lost sleep over the issue and that he had to attend the District Court a few times and had to endure a trial, causing much distress to him. In the circumstances I find that the claim for Rs. 500,000 as damages is not justified. On the other hand I find that of Rs. 25,000 would be a just, fair and reasonable compensation to the plaintiff for the prejudice he suffered.

For the reasons given above therefore, I order the defendant to pay to the plaintiff the sum of Rs. 25,000 as damages, with costs.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 25 June 2020