Environmental law

Republic v Samantha (CR 68 of 2020) [2020] SCSC 776 (20 October 2020);

Anonymous — Fri, 01 Jul 2022 09:51:56 +0000

Republic v Samantha (CR 68 of 2020) [2020] SCSC 776 (20 October 2020);

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Criminal law

Environmental law

Anonymous (not verified) Fri, 07/01/2022 - 09:51

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2020-scsc-776.pdf

SUPREME COURT OF SEYCHELLES

[2020] SCSC 776
CR 68/2020

THE REPUBLIC

and

E.AJITH SAMANTHA ACCUSED

Neutral Citation: The Republic vs E .Ajith Samantha (CR68/2020) [2020] SCSC 776[20 October 2020]

Before:                   G Dodin
Summary:
Heard:                    [15 July 2020]

Delivered: [20 October 2020]

ORDER

SENTENCE

DODIN J,

The Convict E. Ajith Samantha stands convicted on his own guilty plea of one count of fishing without a Foreign Fishing Vessel Licence Contrary to Section 11(1) read with Section 58 and Section 69 of the Fisheries Act 2014 and punishable under section 58 (a) of the same Act.
The offence was detected on the 15th day of July 2020 between 65 and 70 nautical miles South East of Mahe Platteau. The Vessel Dhammi-01 registration no. IMUL-A-1516MTR, is a Sri Lankan Vessel skippered by the convict, a 44 years old Sri-Lankan national.
Learned Counsel for the convict moved the Court in mitigation to impose a lenient sentence on the convict who is married and is the father of two daughters, both presently at University in Sri-Lanka. The convict is the sole breadwinner as his wife is unemployed.
Learned Counsel referred the Court to the case of the Republic v Ramesh Nilanga. CR68/2020, where the convict was fined SCR 400, 000 with SCR 100, 000 to go towards the expenses incurred by the state for maintaining the convict and the crew of the offending vessel.
The vessel, according to the survey conducted by Mr. I.N Basset, has a length of 13.8 metres and a beam of 2.78 meters. It was recently built, in 2017 and its value is estimated at SCR500, 000.
Under Section 58 (a) of the Fisheries Act, for a vessel with overall length not exceeding 24 metres, the sentence should be a fine not less than SCR 2, 500, 000.
As stated in the case of Republic V Atoomani CR19/2020 [2019] CSC 584 (15 July 2019) with reference to the trend setting case of Ponoo V Attorney General (2011) SLR 423, the court should impose a sentence which is proportionate and appropriate for the case. Considering the circumstances of this case and the precedent cases of illegal fishing without a foreign fishing vessel’s licence I consider the following sentence to be fair and to commentate with the offence committed.
I impose as sentence a fine of SCR 300, 000 out of which the expenses amounting to SCR 22,655.24 to be deducted as expenses to be re-imbursed by the state. The fine shall be paid within 30 days of today, failing which the vessel may be old and the fine shall be deducted from the proceeds of sale with the remainder returned to the convict.
I further Order the seizure of all fishing gears including storage equipment, nets, lines and any accessories used to conduct illegal fisheries.
I further Order that the convict be repatriated to his country of origin or residence as soon as the sentencing Order herein are complied with.
He can appeal against the sentence within 30 working days.

Signed, dated and delivered at Ile du Port on 20 October 2020.

____________
Dodin J

SUPREME COURT OF SEYCHELLES

[2020] SCSC 776
CR 68/2020

THE REPUBLIC

and

E.AJITH SAMANTHA ACCUSED

Neutral Citation: The Republic vs E .Ajith Samantha (CR68/2020) [2020] SCSC 776[20 October 2020]

Before:                   G Dodin
Summary:
Heard:                    [15 July 2020]

Delivered: [20 October 2020]

ORDER

SENTENCE

DODIN J,

Signed, dated and delivered at Ile du Port on 20 October 2020.

____________
Dodin J

Albert & Anor v Vielle (SCA 7 of 2018) [2020] SCCA 14 (21 August 2020);

Anonymous — Thu, 04 Mar 2021 05:56:29 +0000

Albert & Anor v Vielle (SCA 7 of 2018) [2020] SCCA 14 (21 August 2020);

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Environmental law

Property Law

Anonymous (not verified) Thu, 03/04/2021 - 05:56

Headnote and holding

The appeal is dismissed in its entirety with costs to the Respondents.

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2020-scca-14.docx

JUDGMENT

Twomey, JA

1. The Plaintiff (now the Respondent) and the Defendants (now the Appellants) were neighbours in a housing estate at Perseverance. During the presidential election campaign at the end of 2015, the Respondent complained that the Appellants were repeatedly playing loud music usually with political overtones causing serious disturbance to the neighbourhood.

It was the Respondent’s case that whenever complaints were made to the police, the volume of the music would be turned down as soon as the Appellants would be aware that the police had arrived but as soon as they left it would be turned up again.
The Respondent claimed that she was living in a state of constant fear because apart from the loud music, the Second Appellant had attempted to assault a neighbour whom she suspected had reported her to the police about the noise. After she obtained interim relief by a court order in April 2016 and the subsequent related contempt order, the situation improved. The Respondent therefore prayed for the interim injunction to be made permanent and for damages to be awarded for the inconvenience, anguish and trauma she had been subjected to.
In his decision in the court a quo, the learned trial judge agreed with the principles adopted in relation to the issue of nuisance in the cases of Hallock v Green (1979) SLR 72, Bouchereau v Francois (1980) SLR 80, De Silva v UCPS (1996) SLR 74, Laporte v Berjaya (2002-2003) SCAR 135, namely, that the tort of nuisance is proved if the acts complained of exceed the ordinary standards of the neighbourhood; the character of the neighbourhood determines the acceptable duties of each neighbour and is relevant in this assessment. There is no absolute standard for nuisance by noise or smell and it is a question of degree whether the interference with comfort or inconvenience is sufficiently serious to constitute a nuisance.
In considering the above authorities, the learned trial judge added that noise can become a nuisance if it becomes an unlawful interference with a person’s use or enjoyment of land or of some right over, or in connection with it. He added that the process of determining what level of noise constitutes a nuisance can be quite subjective. Ultimately, he found that the Respondent and her witnesses had been truthful and consistent in their testimony and that the Second Appellant, the sole witness for the Appellant’s case was evasive, lacking in consistency in his answers and altogether not at all convincing. He concluded that the Respondent had succeeded in proving her case that the Appellants had played loud music causing a nuisance during the period in question and were therefore liable. He awarded the sum of SR 65,000 in total for damages suffered and ordered a permanent injunction against the Appellants prohibiting them from playing loud amplified music unless authorised by the Court or the Commissioner of Police for a special occasion.
From this decision the Appellants have appealed on the following grounds:

1. The learned judge erred when he made a finding that the Respondent had proved her case against the Appellants despite the lack of expert evidence establishing whether the interference with comfort or inconvenience was sufficiently serious to constitute a nuisance.

2. No expert having been called to measure the level of noise complained of by the Respondent, the judge erred in holding the Appellants liable for the tort of nuisance without proof that “damage exceeded the measure of the ordinary obligations of the neighbourhood”.

3. The learned judge erred in finding the Appellants liable for the tort of nuisance without first satisfying himself that it is a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance in the absence of expert evidence.

4. The learned judge failed to objectively consider and evaluate the testimony of the Plaintiff for inconsistencies and also failed to evaluate and consider the testimony of Mrs. Brioche and that of Officer Aimable and also failed to objectively evaluate and consider the entire evidence in the case.

The grounds of appeal are all considered together as they are inextricably linked. They are to the effect that in cases of nuisance occasioned by noise, it is necessary that an expert be called as to the level of noise emanating for the tortfeasor and that the learned trial judge did not objectively evaluate the test for nuisance with the evidence adduced.
Counsel for the Appellants has not produced any authority for his submissions on the necessity for an expert witness in cases of nuisance. However, the court notes and there was a discussion on this issue during the hearing of the appeal, that pursuant to section 29 of the Environment Protection Act, a person emitting noise in excess of the noise emission standards established under the Act without authorisation is guilty of an offence and liable on conviction, to imprisonment for one year and a fine of R50,000 and, if the offence is continued after conviction, is liable to a further fine of R5000 for each day during which the offence is so continued. There are noise emission standards provided under the Environment Protection (Noise Emission Standards) Regulations.
It is clear that these laws and regulations are only applicable to criminal convictions for public nuisance. However, it does not extend to cases in private law, which applicable law is found in the Civil Code and the jurisprudence constante.
The law relating to delict generally, and private nuisance specifically, is found in Article 1382 of the Civil Code which provides:

“1. Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it.

2. Fault is an error of conduct which would not have been committed by a prudent person in the special circumstances in which the damage was caused. It may be the result of a positive act or an omission.

3. Fault may also consist of an act or an omission the dominant purpose of which is to cause harm to another, even if it appears to have been done in the exercise of a legitimate interest.”

As confirmed by Sauzier J in the landmark case of Desaubin v United Concrete Products (Seychelles) Limited (1977) SLR 164, these provisions codified French jurisprudence on certain elements of fault including those relating to nuisance. Specifically, the troubles de voisinage (neighbourhood disturbances) was invented by the Court de Cassation of France in the nineteenth century (see the authority of Cass. civ., 27 nov. 1844.) with the principle that: nul ne doit causer à autrui un trouble anormal de voisinage (no one may cause an abnormal neighbourhood disturbance to another)". The Court de Cassation of France fudged the application of both Articles 1382 and 544 of the Code civil in this respect and did so in a number of subsequent cases finding that even the legitimate exercise of one’s right to property could generate a disturbance for the neighbourhood when it exceeded the measure of the ordinary obligations of neighbourhood (See req., 3 janv. 1887, 2e civ. 24 mars 1966, n°64-10737, 3e civ. 3 janv. 1969). The principle of troubles de voisinage independent of both Articles 1382 and 544 were firmly established in a number of subsequent cases, namely the arrêt of Cass. 2e civ. 19 nov. 1986, n°84-16379.
Sauzier J in Desaubin (supra) expresses the principle developed by French jurisprudence, although basing it in tort, finding that the tortfeasor is liable for behaviour which goes over and beyond what would be expected for ordinary neighbourly relations, at 166-167:

“Under the Civil Code [of France], the jurisprudence was settled in France, Mauritius and Seychelles. The principle evolved in cases where the plaintiff complains of noise, smoke, smell or dust is that the defendant is liable in tort only if the damage exceeds the measure of the ordinary obligations of neighbourhood…. It is not necessary that the author of the nuisance should have been negligent or imprudent in not taking the necessary precautions to prevent it. Liability arises even in cases where it is proved that the author of the nuisance has taken every permissible precaution and all the means not to harm or inconvenience his neighbours and that his failure is due to the fact that the damage is the inevitable consequence of the exercise of the industry.” (Emphasis added)

In distinguishing between the law applicable under the old provisions of the Code civil and the new Civil Code of Seychelles Sauzier J finds that the former recognised the principle that there is faute if the damage suffered exceeds the measure of the ordinary obligations of the neighbourhood. After examining the provisions of Article 1382 of our Civil Code, he concludes that although an attempt had been made to restrict the definition of faute the opposite effect had been achieved, that of expanding the definition of fault in Seychelles.
The Court of Appeal in Green v Hallock (1979) SCAR approved Desaubin (supra) finding that:

“it is common ground that the relevant provisions of the Civil Code correspond with those of the French Code civil, which applied previously and that French decisions are relevant and persuasive” (at p.145).

It appears, therefore, that the French principles of troubles de voisinage have been conflated under our provisions of Article 1382.
With regard to delictual liability generally, the provisions of Article 1382 clearly establish that three elements are necessary to establish an action: fault, damage and causality. Additionally, French jurisprudence has established four cumulative conditions to establish liability for neighbourhood disturbances:

Il doit exister une relation de voisinage entre l’auteur de ce trouble et sa victime c’est-à-dire que celle-ci doit se trouver dans le voisinage de l’auteur, à une distance reasonable;

La victime doit faire état d’un préjudice, préjudice de jouissance ou préjudice de santé par exemple du fait du trouble;

Troisième condition il doit exister un lien de causalité entre le trouble et le préjudice ;

Enfin le trouble doit véritablement être anormal c’est-à-dire être bien supérieur aux inconvénients dits normaux que tout un chacun doit pouvoir supporter dans une société vis-à-vis du voisinage (See Christophe Sanson https://www.christophe-sanson-avocat.fr/publications/video-n0-6-quappelle-t-on-un-trouble-anormal-de-voisinage, https://youtu.be/4hysioPSngQ

In other words, first, there must be neighbourly relations between the perpetrator of the disturbance and the victim, in other words the latter should be in proximity to the former, at a reasonable distance. Secondly, the victim must establish the prejudice – for example, prejudice of their right of enjoyment of a noise-free environment or prejudice to their health as a result of the disturbance. Thirdly, there should be a link of causality between the disturbance and the prejudice. Fourthly the disturbance must, without doubt, be of an abnormal nature – in other words, it must be over and beyond the inconveniences considered as normal, which everyone should be able to tolerate in a community insofar as neighbourhood relations are concerned.
Cadiet Loïc in his “Theorie des inconvenients anormaux de voisinage et droit commun de la responsabilité (Revue Judiciaire 1983-1 pp 33-51) sums up the test for nuisance as follows:

“La responsabilité du voisin qui crée les nuisances naît précisément de la violation du devoir de ne causer à autrui aucun trouble dépassant les inconvenients ordinaires nés du voisinage. Elle se déduit, objectivement, indépendamment, de la demonstration d’une malveillance ou d’une negligence, de l’obervation d’une nuisance anormale.”

The test, therefore, for the abnormal nature of the disturbance is not by way of an expert establishing what number of decibels of noise was registered and whether it created a disturbance for which damages are liable. Rather, the test is one of appreciation by the trial judge of the abnormality of the disturbance in each case in its own circumstances. Hence the repeatedness of the disturbance, for example playing the same CD over and over may be as disturbing as playing loud music. In Bouchereau v Francois (1980) SLR 80, the court stated that nuisance by noise is something for which no absolute standard can be applied and that it is a question of degree whether the interference with comfort and convenience is sufficiently serious to constitute a nuisance.
It is apparent in this case that the learned trial judge accepted the evidence of the Respondent and her witnesses including that of the Sub Inspector of Police who investigated the disturbance and interviewed five neighbours who confirmed the Respondent’s narrative. Based on this evidence and in view of the test of degree of comfort and convenience as stated in Bouchereau (supra), I cannot find fault with his appraisal of the evidence as a whole including finding the Respondent and her neighbours more credible than the Second Appellant who was the only person to testify for the Appellants. I therefore see no reason to interfere with his findings.
Counsel for the Appellants tried to raise a ground on the quantum of damages at the appeal. He relied on Rule 31(4) of the Seychelles court of Appeal Rules. I stated at the hearing that he could not be permitted to do so as the issue was not canvassed in the appeal grounds. I emphasize that the rule he has referred to is one granting discretionary power to the Court of Appeal to hear further evidence in certain cases. It certainly is not meant to result in a breach to party’s right to a fair hearing. When a ground has not been canvassed in a notice of appeal, the other party is ambushed. In any case a decided issue which has not been appealed against is taken to be res judicata (l’autorité de la chose jugée). I am supported in this view by jurisprudence and doctrine. In the Mauritian case of Gilbride v Desvaux de Marigny [1972] MR 224, which citing French authorities stated:

″un jugment si grave … n’en a pas moins l’autorité de la chose jugée, aussi longtemps qu’il n’a pas été attaqué par une voie de recours″.

Gilbride (supra), cited note 2185 from Ripert et Boulanger, II ―

306 […]

No3. ― Identité d’objet.

L’appel, en effet, peut ne point porter sur tous les chefs de la decision rendue par les premiers juges. Dans ce cas les points sur lesquels il n’a pas été appelé acquièrent définitivement l’autorité de la chose jugée, et ne peuvent plus être réformés en appel. […]. Dans le même ordre d’idées, il faut remarquer que les juges du second degré ne peuvent pas reformer la decision des premiers juges, dans l’intérêt de l’intimité, quand celui-ci n’a pas relevé appel incident…″

The authorities and French doctrine on the subject state that l’autorité de la chose jugée apply to the matters on which parties do not appeal against.
The ground of appeal is therefore dismissed and the relief granted by the learned trial judge therefore stands.
In the circumstances, the appeal is dismissed in its entirety with costs to the Respondents.

Signed, dated and delivered at Ile du Port on 21 August 2020

Twomey JA

I concur: Fernando, JA

I concur: Robinson, JA

JUDGMENT

Twomey, JA

It was the Respondent’s case that whenever complaints were made to the police, the volume of the music would be turned down as soon as the Appellants would be aware that the police had arrived but as soon as they left it would be turned up again.
The Respondent claimed that she was living in a state of constant fear because apart from the loud music, the Second Appellant had attempted to assault a neighbour whom she suspected had reported her to the police about the noise. After she obtained interim relief by a court order in April 2016 and the subsequent related contempt order, the situation improved. The Respondent therefore prayed for the interim injunction to be made permanent and for damages to be awarded for the inconvenience, anguish and trauma she had been subjected to.
In his decision in the court a quo, the learned trial judge agreed with the principles adopted in relation to the issue of nuisance in the cases of Hallock v Green (1979) SLR 72, Bouchereau v Francois (1980) SLR 80, De Silva v UCPS (1996) SLR 74, Laporte v Berjaya (2002-2003) SCAR 135, namely, that the tort of nuisance is proved if the acts complained of exceed the ordinary standards of the neighbourhood; the character of the neighbourhood determines the acceptable duties of each neighbour and is relevant in this assessment. There is no absolute standard for nuisance by noise or smell and it is a question of degree whether the interference with comfort or inconvenience is sufficiently serious to constitute a nuisance.
In considering the above authorities, the learned trial judge added that noise can become a nuisance if it becomes an unlawful interference with a person’s use or enjoyment of land or of some right over, or in connection with it. He added that the process of determining what level of noise constitutes a nuisance can be quite subjective. Ultimately, he found that the Respondent and her witnesses had been truthful and consistent in their testimony and that the Second Appellant, the sole witness for the Appellant’s case was evasive, lacking in consistency in his answers and altogether not at all convincing. He concluded that the Respondent had succeeded in proving her case that the Appellants had played loud music causing a nuisance during the period in question and were therefore liable. He awarded the sum of SR 65,000 in total for damages suffered and ordered a permanent injunction against the Appellants prohibiting them from playing loud amplified music unless authorised by the Court or the Commissioner of Police for a special occasion.
From this decision the Appellants have appealed on the following grounds:

The grounds of appeal are all considered together as they are inextricably linked. They are to the effect that in cases of nuisance occasioned by noise, it is necessary that an expert be called as to the level of noise emanating for the tortfeasor and that the learned trial judge did not objectively evaluate the test for nuisance with the evidence adduced.
Counsel for the Appellants has not produced any authority for his submissions on the necessity for an expert witness in cases of nuisance. However, the court notes and there was a discussion on this issue during the hearing of the appeal, that pursuant to section 29 of the Environment Protection Act, a person emitting noise in excess of the noise emission standards established under the Act without authorisation is guilty of an offence and liable on conviction, to imprisonment for one year and a fine of R50,000 and, if the offence is continued after conviction, is liable to a further fine of R5000 for each day during which the offence is so continued. There are noise emission standards provided under the Environment Protection (Noise Emission Standards) Regulations.
It is clear that these laws and regulations are only applicable to criminal convictions for public nuisance. However, it does not extend to cases in private law, which applicable law is found in the Civil Code and the jurisprudence constante.
The law relating to delict generally, and private nuisance specifically, is found in Article 1382 of the Civil Code which provides:

“1. Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it.

3. Fault may also consist of an act or an omission the dominant purpose of which is to cause harm to another, even if it appears to have been done in the exercise of a legitimate interest.”

As confirmed by Sauzier J in the landmark case of Desaubin v United Concrete Products (Seychelles) Limited (1977) SLR 164, these provisions codified French jurisprudence on certain elements of fault including those relating to nuisance. Specifically, the troubles de voisinage (neighbourhood disturbances) was invented by the Court de Cassation of France in the nineteenth century (see the authority of Cass. civ., 27 nov. 1844.) with the principle that: nul ne doit causer à autrui un trouble anormal de voisinage (no one may cause an abnormal neighbourhood disturbance to another)". The Court de Cassation of France fudged the application of both Articles 1382 and 544 of the Code civil in this respect and did so in a number of subsequent cases finding that even the legitimate exercise of one’s right to property could generate a disturbance for the neighbourhood when it exceeded the measure of the ordinary obligations of neighbourhood (See req., 3 janv. 1887, 2e civ. 24 mars 1966, n°64-10737, 3e civ. 3 janv. 1969). The principle of troubles de voisinage independent of both Articles 1382 and 544 were firmly established in a number of subsequent cases, namely the arrêt of Cass. 2e civ. 19 nov. 1986, n°84-16379.
Sauzier J in Desaubin (supra) expresses the principle developed by French jurisprudence, although basing it in tort, finding that the tortfeasor is liable for behaviour which goes over and beyond what would be expected for ordinary neighbourly relations, at 166-167:

In distinguishing between the law applicable under the old provisions of the Code civil and the new Civil Code of Seychelles Sauzier J finds that the former recognised the principle that there is faute if the damage suffered exceeds the measure of the ordinary obligations of the neighbourhood. After examining the provisions of Article 1382 of our Civil Code, he concludes that although an attempt had been made to restrict the definition of faute the opposite effect had been achieved, that of expanding the definition of fault in Seychelles.
The Court of Appeal in Green v Hallock (1979) SCAR approved Desaubin (supra) finding that:

It appears, therefore, that the French principles of troubles de voisinage have been conflated under our provisions of Article 1382.
With regard to delictual liability generally, the provisions of Article 1382 clearly establish that three elements are necessary to establish an action: fault, damage and causality. Additionally, French jurisprudence has established four cumulative conditions to establish liability for neighbourhood disturbances:

Il doit exister une relation de voisinage entre l’auteur de ce trouble et sa victime c’est-à-dire que celle-ci doit se trouver dans le voisinage de l’auteur, à une distance reasonable;

La victime doit faire état d’un préjudice, préjudice de jouissance ou préjudice de santé par exemple du fait du trouble;

Troisième condition il doit exister un lien de causalité entre le trouble et le préjudice ;

In other words, first, there must be neighbourly relations between the perpetrator of the disturbance and the victim, in other words the latter should be in proximity to the former, at a reasonable distance. Secondly, the victim must establish the prejudice – for example, prejudice of their right of enjoyment of a noise-free environment or prejudice to their health as a result of the disturbance. Thirdly, there should be a link of causality between the disturbance and the prejudice. Fourthly the disturbance must, without doubt, be of an abnormal nature – in other words, it must be over and beyond the inconveniences considered as normal, which everyone should be able to tolerate in a community insofar as neighbourhood relations are concerned.
Cadiet Loïc in his “Theorie des inconvenients anormaux de voisinage et droit commun de la responsabilité (Revue Judiciaire 1983-1 pp 33-51) sums up the test for nuisance as follows:

The test, therefore, for the abnormal nature of the disturbance is not by way of an expert establishing what number of decibels of noise was registered and whether it created a disturbance for which damages are liable. Rather, the test is one of appreciation by the trial judge of the abnormality of the disturbance in each case in its own circumstances. Hence the repeatedness of the disturbance, for example playing the same CD over and over may be as disturbing as playing loud music. In Bouchereau v Francois (1980) SLR 80, the court stated that nuisance by noise is something for which no absolute standard can be applied and that it is a question of degree whether the interference with comfort and convenience is sufficiently serious to constitute a nuisance.
It is apparent in this case that the learned trial judge accepted the evidence of the Respondent and her witnesses including that of the Sub Inspector of Police who investigated the disturbance and interviewed five neighbours who confirmed the Respondent’s narrative. Based on this evidence and in view of the test of degree of comfort and convenience as stated in Bouchereau (supra), I cannot find fault with his appraisal of the evidence as a whole including finding the Respondent and her neighbours more credible than the Second Appellant who was the only person to testify for the Appellants. I therefore see no reason to interfere with his findings.
Counsel for the Appellants tried to raise a ground on the quantum of damages at the appeal. He relied on Rule 31(4) of the Seychelles court of Appeal Rules. I stated at the hearing that he could not be permitted to do so as the issue was not canvassed in the appeal grounds. I emphasize that the rule he has referred to is one granting discretionary power to the Court of Appeal to hear further evidence in certain cases. It certainly is not meant to result in a breach to party’s right to a fair hearing. When a ground has not been canvassed in a notice of appeal, the other party is ambushed. In any case a decided issue which has not been appealed against is taken to be res judicata (l’autorité de la chose jugée). I am supported in this view by jurisprudence and doctrine. In the Mauritian case of Gilbride v Desvaux de Marigny [1972] MR 224, which citing French authorities stated:

″un jugment si grave … n’en a pas moins l’autorité de la chose jugée, aussi longtemps qu’il n’a pas été attaqué par une voie de recours″.

Gilbride (supra), cited note 2185 from Ripert et Boulanger, II ―

306 […]

No3. ― Identité d’objet.

The authorities and French doctrine on the subject state that l’autorité de la chose jugée apply to the matters on which parties do not appeal against.
The ground of appeal is therefore dismissed and the relief granted by the learned trial judge therefore stands.
In the circumstances, the appeal is dismissed in its entirety with costs to the Respondents.

Signed, dated and delivered at Ile du Port on 21 August 2020

Twomey JA

I concur: Fernando, JA

I concur: Robinson, JA

Ah-time v R (CN 49 of 2016) [2019] SCSC 304 (27 March 2019);

Anonymous — Wed, 03 Mar 2021 13:10:50 +0000

Ah-time v R (CN 49 of 2016) [2019] SCSC 304 (27 March 2019);

Flynote

Environmental law

Marine species and fisheries

Anonymous (not verified) Wed, 03/03/2021 - 13:10

Headnote and holding

Appeal against conviction of one count of possession of excess quantity of shells without a permit contrary to regulation 11(7) of the Fisheries Regulations and punishable under Regulation 26 of the Fisheries Regulations made under the Fisheries Act CAP 82 of the laws of Seychelles. Appeal dismissed.

Download

2019-scsc-304.docx

DODIN J.

[1] The Appellant, Michel Ah-Time was convicted of one count of possession of excess quantity of shells without a permit contrary to regulation 11(7) of the Fisheries Regulations and punishable under Regulation 26 of the Fisheries Regulations made under the Fisheries Act CAP 82 of the laws of Seychelles. The Appellant was sentenced to pay a fine of SCR 10,000 which is the maximum fine under Regulation 26. In addition to the fine, the learned Magistrate ordered that all the shells and the three large cooking pots in which some of the shells were found be forfeited to the Republic.

[2] The Appellant had also been charged with one count of possession of mature coco de mer nuts without approved labels and possession of unworked turtle shells. However although exhibits were produced for these two counts, the accused was acquitted of both counts. The learned Magistrate in sentencing the Appellant also ordered that the exhibits in respect of the two counts for which the Appellant had been acquitted be forfeited to the Republic unless the Appellant except in respect of the coco de mer nuts for which the Appellant was given 4 weeks to show that they were in his lawful possession by producing the necessary approved labels for them.

[3] The Appellant now appeals against both conviction and sentence raising the following grounds of appeal:

Against conviction:

i. The learned Magistrate failed to take into consideration various facts that would have brought to the amount of marine shells the Appellant was alleged to be in possession of (eg. Corals, gunny bags, permit from the Seychelles Fishing Authority.)

ii. The Learned Magistrate failed to take into consideration that the Appellant was in lawful possession of at least 594.155 kg of marine shells by virtue of a valid permit from the SFA.

iii. The Learned Magistrate failed to take into consideration corroborated oral evidence that the Appellant had other permits from the SFA which meant there was reasonable doubt he was in unlawful possession of any of the marine shells allegedly in his possession.

iv. The Learned Magistrate failed to consider from the facts that there were other persons who were in possession of some of the marine shells that the Appellant was charged to be in possession of.

v. The Learned Magistrate failed to take into consideration the evidence of the marine shells expert, Dr Rowatt that he did not go through all of the alleged marine shells to confirm that there were indeed 1340.9 kg of marine shells.

Against sentence:

i. The learned Magistrate erred in giving the maximum sentence, that is, a fine of SCR10,000 given that there were no aggravating factors and given that the Appellant had the belief that he had lawful possession of the marine shells.

ii. The Learned Magistrate erred in ordering the forfeiture of any item given that the prosecution never moved for forfeiture and the Appellant has therefore never been given an opportunity to be heard with regards to the forfeiture orders.

iii. The Learned Magistrate erred in ordering for the forfeiture of any coco de mer and its kernels given that there was no conviction on the matter.

[4] The grounds of appeal against conviction are rather nebulous and centred on the learned Magistrate’s analysis of the evidence adduced against the Appellant at the trial. The first four grounds of appeal are centred on the aspects of amount, weight and number of permits or possible owners in respect of the shells. As pointed out by the learned Magistrate, this line of defence requires the Court to do some mathematics but the fact remained that the Appellant still did not have the necessary licenses to cover 1340.9 kg of shells. At the most the licenses he had might cover only 594.15 kg for which he provided two documents leaving 756.75 kg outstanding and not covered by any permit. Secondly how can the Court determine which of the shells were covered by the permit and which were not?

[5] Regulation 7(11) states that

“No person shall possess more than 20 kilogrammes of shells except pursuant to a permit granted by the SFA”.

The offence is committed when the person exceeds the allowable 20kg of shells in his possession. It follows therefore that if the person has a license for 594.9 kg, it includes the first 20kg. If the person has more than the licence allow, in this case more than 594.9 kg the person commits an offence not only for the kilograms in excess of the permit but for exceeding the allowable or licensed amount. The law does not require any calculations to be made in that respect and in any event the weight does not have any bearing on the offence except in so far as it exceeds the allowable or permitted amount.

[6] I find that the learned Magistrate took the proper approach in analysing the evidence adduced and the law as it stands. I therefore find no merits in these grounds of appeal and I dismiss all four grounds accordingly.

[7] In respect of the fifth ground of appeal against conviction, I find also that it centres on the evidence of one witness, Dr Rowatt who admitted that he did not go through all of the alleged marine shells to confirm that there were indeed 1340.9 kg of marine shells. Going over the record of evidence, the person who counted and weighed the shells was Andre Freminot. Dr Rowatt testified as to the types of shells as an expert. The fact that he did not weigh each of them is immaterial and certainly not fatal to the charge against the Appellant as the weight had already been established by another witness. I therefore dismiss that ground appeal as well.

[8] Learned Counsel for the Appellant also submitted that the learned Magistrate placed the legal and evidential burden of proving that he had the necessary permits on the Appellant. As a general rule in criminal matters, the burden of proof, both legal and evidential rest on the prosecution. As stated by Zulman JA in S v V 2000 (1) SACR 453 (SCA) at 455a–c:

"It is trite that there is no obligation upon an accused person, where the State bears the onus 'to convince the court'. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but beyond any reasonable doubt it was false. It is permissible to look at the probabilities of the case to determine whether the accused's version is reasonably possibly true, but whether one subjectively believes him is not the test”.

[9] It is true that the choice of wording of the learned Magistrate appears to place the legal and evidential burden of proving that he had the necessary licences on the Appellant. However having gone over the records of trial, I find that the learned Magistrate did not base the conviction of the Appellant solely on the fact that the Appellant failed to discharge the evidential burden of proving that he had a license. The learned Magistrate after having been satisfied that the prosecution had discharged its legal burden of proof only then considered whether there was any onus on the Appellant to at least produce his license if he had one and concluded rightly that in such circumstances and for such type of case, the burden for producing the license rests on the holder of the license who also has peculiar knowledge which marine shells were covered by which license.

[10] I do not consider this approach fatal to the charge for which the Appellant stands convicted. I therefore dismiss the appeal against conviction and uphold the conviction of the Appellant of the offence of possession of excess quantity of shells without a permit contrary to regulation 11(7) of the Fisheries Regulations.

[11] On the appeal against sentence learned counsel submits that learned Magistrate erred in imposing the fine of SCR 10,000 which is the maximum fine allowed by law as there was no aggravating factors and the Appellant believed that he had lawful possession of the shells. Regulation 26 states:

“A person who contravenes any of these Regulations is guilty of an offence and is liable, where no penalties is provided for the offence, to a fine of R.10,000”.

No penalties are provided for the offences under regulation 7. It is a basic principle that a criminal sentence must be proportionate to the crime for which an accused has been convicted. Generally it is true that unless there is requirement for the imposition of the maximum sentence, a maximum sentence should not be imposed particularly for a first offender. I note nevertheless that SCR 10,000 is not a big amount of money by any means in this day and age where protection of the environment and natural resources are at the forefront. In my view, it is time for the sentences under the Fisheries Regulations to be reviewed.

[12] Nevertheless adhering to the principle of proportionality I recognise that maximum sentences should be reserved for offences where there are more aggravating factors. In the circumstances of this case I find reasonable to reduce the sentence imposed, that is the fine, from SCR10,000 to Rs6,000. I order accordingly.

[13] In respect of the forfeiture orders, in usual circumstances, when a person is acquitted of an offence, items or exhibits which were seized from that person would be returned to that person where lawful ownership is not in contention. However where there is requirement to demonstrate lawful ownership or possession of a thing through valid document, such return may not be as a matter of course but rather upon proof of lawful possession or ownership.

[14] In this case, the law requires documentary proof of ownership of coco de mer nuts and its kernels. I find that the learned Magistrate did in fact give the Appellant 4 weeks to produce his documents of entitlement to the coco de mer nuts. It appears that the Appellant failed to produce the same as the matter is still in contention on appeal. The Appellant was nevertheless given the opportunity to make representations establishing his right to possess the said items. I find that it was not necessary for the learned Magistrate to have done more or to require an application for forfeiture. The same condition is extended to the unworked turtle shells.

[15] In respect of the large pots, I do not find any order in the sentence imposed by the learned Magistrate for the forfeiture of these pots. The law does not require the Appellant to have documentary proof of ownership or possession of those pots. The Appellant was not convicted of the offence involving the use of the specialised pots. In the circumstances the specialised pots should be returned to the Appellant.

[16] In summary, the appeal against conviction is dismissed in its entirety. The Appeal against sentence is partly allowed as follows: the fine of SCR10,000 is reduced to SCR6,000; In respect of the coco de mer nuts and kernels and the unworked turtle shells, the Appellant must show proof of lawful possession as required by law failing which these items would be forfeited to the Republic. I maintain the period of 4 weeks from the date of this judgment as reasonable period for the Appellant to do that. The specialised pots are returned to the Appellant.

Signed, dated and delivered at Ile du Port on 28 March 2019.

____________

Dodin J.

DODIN J.

[3] The Appellant now appeals against both conviction and sentence raising the following grounds of appeal:

Against conviction:

ii. The Learned Magistrate failed to take into consideration that the Appellant was in lawful possession of at least 594.155 kg of marine shells by virtue of a valid permit from the SFA.

iv. The Learned Magistrate failed to consider from the facts that there were other persons who were in possession of some of the marine shells that the Appellant was charged to be in possession of.

Against sentence:

iii. The Learned Magistrate erred in ordering for the forfeiture of any coco de mer and its kernels given that there was no conviction on the matter.

[5] Regulation 7(11) states that

“No person shall possess more than 20 kilogrammes of shells except pursuant to a permit granted by the SFA”.

“A person who contravenes any of these Regulations is guilty of an offence and is liable, where no penalties is provided for the offence, to a fine of R.10,000”.

Signed, dated and delivered at Ile du Port on 28 March 2019.

____________

Dodin J.

R v Nilanga (CR 23 of 2020) [2020] SCSC 330 (22 June 2020);

Anonymous — Wed, 03 Mar 2021 12:27:16 +0000

R v Nilanga (CR 23 of 2020) [2020] SCSC 330 (22 June 2020);

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Criminal law

Environmental law

Anonymous (not verified) Wed, 03/03/2021 - 12:27

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2020-scsc-330.docx

TWOMEY CJ

The convict has pleaded guilty to using a foreign fishing vessel which is not licensed contrary to section 11(1) of the Fisheries Act 2014 as amended (the Act), for fishing in Seychelles waters contrary to section 58 of the Act and punishable under section 58(a) of the Act. The particulars are that on the 13th day of March 2020, in Seychelles waters at a position of 85 nm ESE of the south point of Mahé, Seychelles, the convict, a Sri Lankan national, being the skipper/master of the fishing vessel “Sampath” used the said fishing vessel that was not licensed or authorised for fishing in Seychelles waters.
A Seychellois surveillance air force aircraft was conducting patrols when it spotted the fishing vessel. The occupants of the aircraft observed the vessel, which was without a flag, actively fishing in Seychelles waters. The coast guard patrol boat was alerted, deployed and intercepted the fishing vessel. The boarding team, found a crew of seven on the boat including the master who were all Sri Lankan nationals. They also found fishing gear, water, food, fuel and fresh fish in the storage compartment of the boat. The crew members were all arrested and brought to St. Anne Island where they were checked by the health authorities and later detained by court order. Six of the crew members were subsequently released without charge. The fishing vessel measuring 14.5 feet, the fresh fish and the fishing gear were seized.
The value of the fishing vessel is set at SCR700,000, and the government of Seychelles has expended SR100,000 to maintain the seven crew members thus far. The convict accepts all these facts but states that the value of the vessel is much less in Sri Lankan terms.
In his plea of mitigation, the convict, aged 33, claims that he is a first time offender and that he is deeply remorseful for his actions. He is married with two children aged 10 and 8 years old and is the sole breadwinner of his family.
Counsel for the Republic has stated that the vessel is of a length overall not exceeding 24 meters and the offence conducted with such a vessel attracts a fine of not less than SCR2, 500,000 under section 58 of the Act.
In Republic v Fonsek & Anor (CO 43/2019) [2019] SCSC 715 (02 September 2019), the Court recognised that there is an established pattern of sentencing in such cases given the constraints of the provisions of the Fisheries Act: a fine and the forfeiture of the vessel to the State.
However I do note that in Republic v Attoomani (CR 19/2019) [2019] SCSC 584 (15 July 2019), the Supreme Court in similar circumstances stated that:

“In Poonoo v Attorney General (2011) SLR 423 the Court of Appeal reiterated that sentencing is an intrinsic judicial power involving the human deliberation of the appropriate conviction to be given to a particular offender in the circumstances of the case. In line with that authority therefore, I wish to impose the sentence I find appropriate in this case.”

In this regard, I take into account the plea in mitigation by Learned Counsel for the accused and the remorse shown by the accused. He has also indicated that the owner of the boat is willing to pay the fine to be imposed by the Court in this case. He has pleaded with the court not to forfeit the vessel.
I note before proceeding any further that it is not contested that the boat’s owner is not the convict. I also note that the exemptions to forfeiture as set out in the Criminal Procedure Code and as explained in the case of Republic v Tarani & Ors (CM 25/2020 (arising from CO 25/2016)) [2020] SCSC 290 (17 June 2020) are not applicable in the present case as forfeiture at the discretion of the Court is expressly provided for by section 70 of the Act.
Counsel for the Republic has not commented on the forfeiture discretion as provided for by section 70 (1) of the Act.
In the circumstances, I sentence the accused to a fine of SCR400,000. SR100, 000 is to be defrayed from this amount for the expenses incurred by the State for maintaining the crew. If the SR 400,000 is not paid by the end of July 2020, the vessel is to be forfeited to the State in lieu of payment for the fine.
I further recommend that the convict be repatriated to his country of origin or residency as a prohibited immigrant as soon as is reasonably practicable unless the fine as ordered is paid and he be allowed to leave on the vessel.
The convict has a right of appeal against the conviction and sentence in this case.

Signed, dated and delivered at Ile du Port on 22 June 2020

____________

Twomey CJ

TWOMEY CJ

The convict has pleaded guilty to using a foreign fishing vessel which is not licensed contrary to section 11(1) of the Fisheries Act 2014 as amended (the Act), for fishing in Seychelles waters contrary to section 58 of the Act and punishable under section 58(a) of the Act. The particulars are that on the 13th day of March 2020, in Seychelles waters at a position of 85 nm ESE of the south point of Mahé, Seychelles, the convict, a Sri Lankan national, being the skipper/master of the fishing vessel “Sampath” used the said fishing vessel that was not licensed or authorised for fishing in Seychelles waters.
A Seychellois surveillance air force aircraft was conducting patrols when it spotted the fishing vessel. The occupants of the aircraft observed the vessel, which was without a flag, actively fishing in Seychelles waters. The coast guard patrol boat was alerted, deployed and intercepted the fishing vessel. The boarding team, found a crew of seven on the boat including the master who were all Sri Lankan nationals. They also found fishing gear, water, food, fuel and fresh fish in the storage compartment of the boat. The crew members were all arrested and brought to St. Anne Island where they were checked by the health authorities and later detained by court order. Six of the crew members were subsequently released without charge. The fishing vessel measuring 14.5 feet, the fresh fish and the fishing gear were seized.
The value of the fishing vessel is set at SCR700,000, and the government of Seychelles has expended SR100,000 to maintain the seven crew members thus far. The convict accepts all these facts but states that the value of the vessel is much less in Sri Lankan terms.
In his plea of mitigation, the convict, aged 33, claims that he is a first time offender and that he is deeply remorseful for his actions. He is married with two children aged 10 and 8 years old and is the sole breadwinner of his family.
Counsel for the Republic has stated that the vessel is of a length overall not exceeding 24 meters and the offence conducted with such a vessel attracts a fine of not less than SCR2, 500,000 under section 58 of the Act.
In Republic v Fonsek & Anor (CO 43/2019) [2019] SCSC 715 (02 September 2019), the Court recognised that there is an established pattern of sentencing in such cases given the constraints of the provisions of the Fisheries Act: a fine and the forfeiture of the vessel to the State.
However I do note that in Republic v Attoomani (CR 19/2019) [2019] SCSC 584 (15 July 2019), the Supreme Court in similar circumstances stated that:

In this regard, I take into account the plea in mitigation by Learned Counsel for the accused and the remorse shown by the accused. He has also indicated that the owner of the boat is willing to pay the fine to be imposed by the Court in this case. He has pleaded with the court not to forfeit the vessel.
I note before proceeding any further that it is not contested that the boat’s owner is not the convict. I also note that the exemptions to forfeiture as set out in the Criminal Procedure Code and as explained in the case of Republic v Tarani & Ors (CM 25/2020 (arising from CO 25/2016)) [2020] SCSC 290 (17 June 2020) are not applicable in the present case as forfeiture at the discretion of the Court is expressly provided for by section 70 of the Act.
Counsel for the Republic has not commented on the forfeiture discretion as provided for by section 70 (1) of the Act.
In the circumstances, I sentence the accused to a fine of SCR400,000. SR100, 000 is to be defrayed from this amount for the expenses incurred by the State for maintaining the crew. If the SR 400,000 is not paid by the end of July 2020, the vessel is to be forfeited to the State in lieu of payment for the fine.
I further recommend that the convict be repatriated to his country of origin or residency as a prohibited immigrant as soon as is reasonably practicable unless the fine as ordered is paid and he be allowed to leave on the vessel.
The convict has a right of appeal against the conviction and sentence in this case.

Signed, dated and delivered at Ile du Port on 22 June 2020

____________

Twomey CJ