Desaubin despite many difficulty to obtaining his rights stood firm with his idea that justice shall be served. Many told him going after the Seychelles Port Authority meant going after the state and the state would always win whether you are in the right. Some of those very same persons and so called friends of his whom were pro government and as well as oppositions in the Seychelles left him standing on his own at the corners of Le Mariniere with his panel, protesting for his right while most sat at the electoral reform table for free tea, free meal and a sum for participation even if nothing was working. No coverage from those very same media oppositions that is still crying out freedom of the press and is asking for access to freedom of information.
John as he is known to all or simply "Tata" by nick name. Even had to report his former Lawyer Anthony Derjaques whom is also chairman of the Seychelles Bar Association and member of the opposition of the seychelles national party, when that very lawyer rudely withdrew himself from his case later stating that Desaubin had made a threat on his life by means of illegal nature which was untrue and an arrogant ploy because his client asked why was the case being mentioned everytime rather than hearing. Desaubin plaint to the courts for incomplete work by the lawyer on the legal code of ethics and equally received a fair response as to whereby the Chief Justice then had the lawyer Derjaques fork over Part of money paid by Desaubin which he had taken for the case as legal fees and not worked for.
Eventually the supreme court gave its verdict and "TATA" was there to enjoy the fruits of his labour. Sadly after; the Seychelles Port Authority again thru the same lawyer Basil Hoareau filed an appeal against the judgement critisizing the supreme courts judges judgement. This was a move seen by many seychellois whom spoke to Desaubin and his partner as the part where he will shortly live his victory and the credibility of the appeal courts put to test. Again Desaubin never once gave up on his commitment to see his rights upheld and the violation against him his business remedied.
However his legacy will remain as he stood all by himself in the den of the lions and he prevailed.
Naboth Desaubin Left a Letter to Publish addressing the president of Seychelles in relation to the Seychelles port authority under orders of Andre Ciseau an army lieutenant colonel, even after death he continues to test the limits of seychelles human rights under the word of his excellency himself President James ALix Michel "Ziz Mon Par Mon Aksyon". Holding the president accountable to act against these agent in his authorities and government that holds no respect for humanity.
(1)
John Desaubin had been
running a bar and a restaurant, Le Marinier,
for the past 21 years on the premises of the Seychelles Ports Authority
(“SPA”), Inter Island Quay. On the expiry of the lease in 2006, John Desaubin
requested for a renewal and was refused. He, therefore, soon after lodged a
case in Court against his likely eviction by the SPA coupled with a Motion for
Injunction. At one stage, learned Counsel appearing for the appellant gave an
undertaking that pending the disposal of the case, the respondent will not be
evicted. The case dragged on for one reason or the other. The blame is being
cast on him for the delay when the evidence and the record shows that it was
not he who was in control. If the SPA wanted to have the case heard earlier,
it was open for it to make the motion
for same or write to the Registrar or the Chief Justice for that matter. The
SPA did none of this.
(2)
Be that as it may, the
matter was fixed for 19 January 2011. On 10 December 2010, a month before the
case was to be heard and just under two weeks before Christmas, SPA landed manu military out of the blue, defying
Court, defying law, defying counsel, defying the respondent, broke open the
door and took all his movables out in the open. There is evidence that
following the eviction and the humiliating treatment, the respondent’s health
deteriorated markedly. He had to proceed abroad a couple of times for such
medical treatment as he could not obtain in Seychelles spending his savings.
He brought a case for illegal eviction against the SPA and claimed
SRs2,157,500. He survived the hearing of his case at the trial below. But he
has not survived the hearing of this appeal.
(3)
The learned Judge in a
particularly well written judgment dealt with all the relevant issues in law
and facts. He also referred to the relevant judicial authorities, some of
which had not been submitted to him by counsel. He found the case proved against the
appellant and awarded him damages in the sum of SRs869,500.00. The SPA has still
prosecuted this appeal, pursuing the deceased respondent as it were even
beyond his grave.
(4)
The appellant had pleaded
that the respondent had failed to take steps to have the case disposed of with
due dispatch so that by January 2011, even the motion let alone the main case
was still awaiting disposal on account of the delaying tactics employed by the
respondent. It is common knowledge that there are a number of factors beyond
the control of litigants which delay cases in court. And the evidence hardly
points to the Respondent’s laches. On the contrary. The least said about it
the best.
(5)
The SPA’s excuse for its
reprehensible conduct is that the respondent had been carrying out his trade
illegally inasmuch as the Licensing Authority on 12 August 2010 had notified
the appellant as the owner that the premises were being used to conduct
business without a valid licence. It is the case of the appellant, therefore,
that being a statutory corporation, wholly owned by the Government, it fell
under a duty and an obligation to evict the respondent from the premises and
used only such force as was reasonable in the circumstances. It has produced
no authority to show that it could, as a agency of government, so conceive of
a law on its own, decide illegality on its own, deliver justice to itself on
its own and then execute the orders on its own. Our comment on this
misconceived zeal by SPA is that this is the very type of despotism which our
democratic system of government cannot brook. An investigation should have
been carried out by government to decide who took, and who were those who
became privy to, such a rash and reckless decision for the purposes of an
appropriate action.
(6)
Be that as it may, the
appellant has appealed against that decision of the learned Judge. It has
advanced 6 grounds of appeal, as follows:
1. The
Learned trial Judge erred in law on the evidence in holding that the
Respondent had adduced evidence to prove damages awarded by the trial judge.
2. The
Learned Trial Judge erred in law and on
the evidence in failing to attach sufficient weight to the failure of the
Respondent to produce and keep commercial books, account and business
documents and to draw the necessary inferences from such failure.
3. The
Learned Trial Judge erred in law and on
the evidence in relying on the testimony of the Respondent, in respect of the
damages, as the respondent was not a credible witness.
4. The
Learned Trial Judge erred in law and on
the evidence in holding that there was an unwritten agreement or undertaking
that the Respondent would continue to operate his business without a licence
until the issue of the lease and licence were [sic] resolved.
5. The
Learned Trial Judge erred in law and on
the evidence in failing to hold that in view that the Respondent did not have
a licence to operate a bar and restaurant business in the premises, the
Respondent cannot legally claim damages for loss and profit from an illegal
business.
6. The
Learned Trial Judge erred in law and on
the evidence in awarding damages to the Respondent for an activity which was
against policy [sic].
(7)
The respondent is resisting
the appeal and supporting the decision of the learned Judge.
(8)
All the grounds evoked have
to do with the appreciation of evidence. The law needs no citation that an
appellate court will not interfere with the appreciation of the evidence of a
trial court unless it is shown that the conclusion reached was wrong in the
application of the relevant law, based on irrelevant facts, not supported by
sufficiency of evidence or simply unwarranted. Grounds 1, 2, 3, 5 and 6 have
to do with damages. Ground 4 makes no mention of damages and we assume in
favour of the appellant that it has to do with liability. We propose to deal
with the issue of liability before dealing with the issue of damages.
GROUND
4
(9)
Ground 4 questions the
learned judge’s finding that there was an unwritten agreement or undertaking
that the Respondent would continue to operate his business without a licence
until the issue of the lease and licence were [sic] resolved.
LT, COLONEL ANDRE CISEAU CUTS CORNERS IGNORING RULE OF LAW
(10)
We would grant the
appellant the argument that the respondent could not assume that he could
operate without a licence and no one has the authority to represent to another
that you may operate without a licence. An agreement therefore that someone
operates without a licence, whether written or unwritten, is against public
order and invalid.
(11)
However, the action of the
plaintiff was not based on that. It was based on the fact that the SPA itself
defied the law and the Courts to enter the premises manu military, remove his movables and, thereby, accelerate his
demise.
MILITARY MAN IN COMPLETE DISREGARD TO HUMANITY SHAMES THE CHURCH
(12)
Learned counsel can only challenge that
finding if he can show that there was no evidence at all on which such a
finding was based. As a court of appeal, we are ill-placed to come to our own conclusion
in a matter where the trial court retains sovereign competence of
appreciation: see Government of
Seychelles v Shell Company of the Islands SCA 11 of 1988.
(13)
On the question of whether
the respondent was operating without without a licence, there are at least 8
pages of transcript where the issue has been canvassed in examination in
chief, cross examination and re-examination. It would be pedantic to recite
them in this frivolous appeal.
(14)
In the light of the above,
we see no merit in Ground 4. We dismiss it.
We now come to the other grounds of appeal.
GROUNDS
1
(15) Ground
1 and 3 are general grounds. As such, they amount to no grounds at all. They
are dismissed. Any comment of evidence will be taken along with other proper
grounds. Credibility is a matter for the trial court. What reads one thing in
a transcript may present itself very differently in real life. True it is that
the respondent shows himself irascible and impatient but his answers are
typical post-traumatic reactions. No one either in the Ports Authority of the
Licensing Authority for that matter would have liked to be treated in such a
fashion in a democratic society, albeit the fact that he is not an angel.
Grounds
3
(16)
Grounds 3 challenges the
basis on which the learned Judge awarded the damages in that the Respondent
had not adduced evidence for the purpose; that the necessary inference was not
drawn from the failure of the Respondent to produce and keep commercial books,
account and business documents; that the Respondent was not a credible
witness. Our short answer to it is that this was not a claim by the tax
officers on the returns of his day to day business. It was a claim in tort and
all he had to show was to give a reasonable account and amount of the
prejudice which had been caused to him, moral and material. The case was
postponed so that he could come with some papers. He came with some papers on
which the Court was entitled to come to the conclusion it did with respect to
his earnings per month, his profits, what he paid to the workers, the
prejudice he suffered in terms of loss of good-will, equipment, furniture,
kitchenwares and other materials. A court is entitled to make a reasonable assessment of damages on
whatever little evidence which is at his disposal in a claim: see Monica Kilindo v. Sidney Morel SCA 12 of
2000.
Grounds
5 and 6
(17)
Under ground 5, the
decision of the learned trial Judge is
impugned for the reason that in law and
on the evidence he should have held – which he did not - that since the Respondent
did not have a licence to operate a bar and restaurant business in the premises,
he could not legally claim, and if he did, the learned Judge should not have
allowed, damages for loss and profit from an illegal business.
(18)
Ground 6 repeats the
principle with a different wording in that the learned Trial Judge erred in law and on the evidence in awarding
damages to the Respondent for an activity which was against policy [sic].
(19)
Learned counsel argued for
the application of the maxim ex turpi
causa non oritur actio. He cited Halsbury
Laws of England, Vol. 12(1) 4th Ed. Reissue. However, the same
citation goes on to state that “many regulatory offences are not
reprehensible.” In Beresford v Royal
Insurance Co. Ltd [1937] 2 KB 197at 200, Lord Wright is cited to have
observed that there were statutory offences and crimes of inadvertence where
the application of the principle of ex
turpi causa non oritur actio lacked moral justification (see also Marles v Philip Trant & Sons Ltd (no.
2), (Mackinnon) [1954] 1 QB 29.)
(20)
Learned counsel would have
had a point and the above maxim would have applied if the respondent was
operating without a licence stricto
sensu in that he had never been licensed or cared to obtain one. But this
was not the case. This was a case where the respondent had been operating
under a valid licence for the past 21 years but, on a dispute arising between
them as to the nature of the lease which ended up in court. The Licensing
Authority of prosecuting the respondent for trading without a licence did none
of those things. Instead, it chose to consort with the Ports Authority to
administer a justice privée while at
the same time aiding and abetting it to commit a contempt of court. The
Licensing Authority has no business to write to a lessor to inform him that
any trader is carrying on his activities without a licence. Its business is to
prosecute and not to act as informant. The plea that they are government
agencies so they act under a duty and obligation to evict does not permit them
to use muscular power but institutional power. They had no power to evict by
taking the law, the procedure and the determination and the execution into
their own hands. This is exactly the sort of State activity that has been
sought to be prevented when the Constitution speaks of democracy and the rule
of law. The objective was to replace
mini-despots exercising justice privée
by democratic people at the head of agencies under the rule of law account
taken of the Separation of Powers.
MARYSE BERLOUIS THE CONSORTING FIGURE TO VIOLATES HUMAN RIGHTS
(21)
Such an argument cannot
ignore a number of facts particular to the case: first, that there was a
dispute both as regards the lease and the licence; second, that this dispute
was before the court and was sub judice;
third, that the learned judge had found as a fact that an agreement had been
reached that the respondent would continue trading pending the decision of the
court. As to whether the action lodged by the respondent was a reasonable
action, the facts show that he was a protected tenant because the furniture
belonged to the respondent. What the Ports Authority attempted to do is by
high handed means to oust him of his legal rights.
(22)
Parliament by creating
authorities did not intend them to be a law unto themselves with pockets of
unbridled power outside the rule of law. They were created to operate within
the bounds of their statutory powers and functions for the purposes of
regulating certain specific activities and not for the purposes of ruling over
people under the guise of their statutory power: see Doris Raihl v Ministry of National Development SCA 6 of 2009. .
THE MAN BECOMES THE AUTHORITY IF LEFT UNCHECKED AND UNCHALLENGED
(23)
On the issue of damages, it
was incumbent upon the appellants to show that the damages were excessive: see
Danny Mousbe v Jimmy Elizabeth SCA 14
of 1993. On the contrary, taking
account of the fact that the learned Judge should have awarded exemplary
damages for the high-handed manner in which a public authority attempted to
flout government authorities to do justice
privée to itself. It is fortunate that the respondent has not cross
appealed for an increase in the sum awarded.
IT IS SHAMEFUL TO SEE THIS CHARACTER NEXT TO A MAN OF FAITH
(24)
We order interests in this
case to be paid from the day of the lodging of the plaint at the legal rate on
account of the conduct of the appellant, the unsoundness of the pleas, the
unreasonableness in prosecuting this appeal.
(25)
We are grateful to learned
counsel for the appellant for having shown his good faith in seeking last
minute instructions from his client before standing in for them in this appeal
to the best of his ability.
BASIL HOAREAU COUNSEL FOR ANDRE CISEAU
(26)
All the grounds having been
seen to have no merits, we dismiss the appeal with costs. The appeal was
frivolous and a culpable waste of tax payer’s money. We only wish that no government and no
government agency resorts to such reprehensible conduct in the future and no
counsel lends itself to condone such actions. We order that the damages bears
interest at the legal rate from the date of the lodging of the plaint.
WILL THE HEAD OF STATE KEEP THIS ATROCITY WITHOUT ACTION??
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