Supreme Court of Mauritius, 27 janvier 2020, 2020 INT 15 – M J K VAYTHILINGON V D TEEMUL AND ANOR

1 M J K VAYTHILINGON V D TEEMUL AND ANOR

2020 INT 15

CN:- 797/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Marie Joelle Kathleen Vaythilingon Plaintiff v/s 1. Devyani Teemul 2. Jerusha Teemul Defendants JUDGEMENT The present case is scheduled to be made out as defendants have left default. The names of the defendants were called both inside and outside Court room. In the absence of the defendants, plaintiff’s counsel moved to make out the case. Motion was granted in terms of section 16 (1) of the District and Intermediate Courts (Civil Jurisdiction) Act which provides as follows:

“Where on the day so fixed in the summons, or at any continuation or adjournment of the Court or cause in which the summons was issued, the defendant does not appear, or does not sufficiently excuse his absence, the Court, upon the proof of the service of the summons, may give judgment in terms of the plaint or, where the cause includes a claim for substantial damages, proceed to the hearing of the witnesses and trial of the cause on the part of the plaintiff only, and in either case, the judgment shall, subject to subsection (2), be as valid as if both parties had attended.”

2 In a proecipe dated 10 July 2017, the plaintiff has averred that on the 22 May 2014, defendant no.1 lodged a complaint at the Vacoas Police Station to the effect that a larceny had occurred at her place of residence and stated that she would be able to identify the suspect who was a lady. The plaintiff was arrested on the 01 November 2014 and her premises were also searched on that day but nothing incriminating was found at her place. On the same day, defendant no. 2 gave a statement the Vacoas Police Station wherein she identified the plaintiff as being the person she saw in her yard at the time of the offence. On the 28 September 2015, the Vacoas CID informed the plaintiff of the charge of Rogue and Vagabond against her and that she stood charged for the said offence before the District Court of Upper Plaines Wilhems for which she had to attend court on several occasions. On the 08 July 2016, the said charge was dismissed against the plaintiff by the Learned Magistrate. The plaintiff has further averred that she verily believes that the defendants acted with malice and ill-will when they targeted the plaintiff and that they did so with a view to tarnish the plaintiff’s unblemished reputation in as much as the aforesaid allegations made against her were unjustified, unfounded and defamatory and was done in utter bad faith in order to cause harm to the plaintiff by discrediting her and/or affecting her reputation and integrity in the society. The plaintiff is thus claiming damages in the sum of Rs 500,000 from the defendants for the prejudice she suffered due to the acts and doings of the defendants, which amount to faute.

The plaintiff deposed to the effect that she is a person of good character and that she never committed the alleged offence. On the 01 November 2014, at about 03.00 hrs about 15 CID officers raided her place and arrested her for investigation. She was made to participate in an identification parade and she was positively identified by defendant no.2 as being the person who was in their yard. She however denied such allegations in her statement to the police. She stated that she does not know the defendants and that she was never found on their premises on the alleged date and time of the offence. She was in fact at home together with her husband as she was ill. She suffers from depression. Such averments were confirmed by her husband who deposed under solemn affirmation.

The plaintiff further stated that she had to attend court on several occasions during the twenty months during which she stood charged with the offence. She resides in Grand Gaube and she had to wake up early to be able to reach court at 09.00hrs. It was not easy for her as she suffered from poor health. As for the defendants, they would absent themselves from court on several occasions and the matter had to be postponed each and every time. Eventually the

3 matter was heard and because of conflicting evidence from the complainant, the charge was dismissed against her. The plaintiff testified that defendant no. 1 assisted by defendant no. 2, made the declaration against her with intent to harm her. She was very much affected and she also felt embarrassed vis a vis her neighbourgs. She had to take a lot of of medication which caused much harm to her. She suffers from insomnia and is still not able to forget about the incident to date. For such reasons therefore, she is asking for damages in the sum claimed.

I have duly considered all the evidence on record. It is trite law that in an action for damages in a case of the present 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 is instituting such proceedings acted with malice or with such recklessness and imprudence as is tantamount to malice.’’ – Mamode Issop Assenjee v Ismael Ramdin [1932 MR151].

In the present case, I note that in the declaration made by defendant no.1 to the police, she did not mention the name of the plaintiff at any point in time. It would appear that it was during the course of police enquiry that the plaintiff was arrested by the police and was made to stand an identification parade during which she was identified by defendant no.2. Bearing the above in mind, I find that there is nothing on record suggesting the bad faith of both defendants in the present case. True it is that as per the evidence on record the plaintiff was at home at the time of the offence but this does not in any way establish the bad faith of defendant no.1 in making a declaration of larceny to the police or the bad faith of defendant no.2 in positively identifying the plaintiff during the identification parade.

I find it apposite at this juncture to refer to the case of D. Mohun v C. Jugnah & anor [2002 SCJ 36], where the Supreme Court pointed out 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

4 unpleasant and perhaps strong questioning during a consequential police enquiry avers and proves “faute’’ on the part of the declarant.’

I further wish to highlight that the fact that the criminal case against the plaintiff was dismissed does not per se establish that the complaint to the police was made in bad faith. Indeed, in the case of Baladeen v Transinvest Engineering & Contracting Ltd [1995 SCJ 147], the Supreme Court highlighted that “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 and malicious for there may be many reasons for a dismissal.”

Taking the evidence as a whole therefore, I find that the evidence on record falls short of establishing the bad faith of the defendants or any intention of the defendants to maliciously harm the plaintiff by making the declaration to the police.

For the reasons given above therefore, I find that the plaintiff has failed to prove her case on a balance of probabilities against the defendants and the present plaint is accordingly dismissed against both defendants.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 27 January 2020