Court of Appeal delivers decisions in several cases |04 May 2022

Over 15 appeal cases have been heard and judgment delivered during the April 22 session of the Court Appeal that was concluded last week.

Among the appeal cases were breaches of contracts, defamation, unlawful termination of employment, divorce and matrimonial, fraud, appeal against a sexual assault conviction, invalidity of an affidavit filed in support of a constitutional petition, paternity among others.

In the defamation ‒ defence of truth and fair comment ‒ case between Ahmed Afif and David Savy, the appeal filed by Mr Afif has been dismissed and the latter, the appellant has been ordered to pay Mr Savy the sum of R50,000 together with interests from the date of the judgment of the Supreme Court and costs of the suit and the appeal.

The case dates back to 2015 in the run-up to the presidential elections in September when political rallies and meetings were taking place across the country.  Mr Savy, a businessman who previously had been the chief executive of Air Seychelles, the national airline, in a suit filed in October 2015, claimed damages for defamation of his character by Mr Afif, then the secretary general of political party Lalyans Seselwa.

The defamation complained of was alleged to have taken place at a public gathering at a conference centre in Bois de Rose where Mr Afif is alleged, inter alia, to have meant either in the words and slides he used or by innuendo that Mr Savy “had committed corruption in the manner he ran Air Seychelles Limited, that he was a corrupt and/or dishonest individual, that he sold tickets at a low price to his friend so that his friend could make a profit by selling these tickets at a higher price to the detriment of Air Seychelles Limited, [that he had] abused his position as the chairman and CEO of Air Seychelles Limited and took decisions which were not in the interest of Air Seychelles Limited, [that he was ] responsible for Air Seychelles going bankrupt or facing financial difficulties; and or [that ] the plaintiff [was] corrupt and dishonest like Sunil Shah with whom the plaintiff [kept] company and was a close friend of.”

The meeting was recorded and published on video and at the time of the suit was available on the YouTube website.

In his statement of defence, Mr Afif averred that the comments he made were in the public interest, not defamatory but were made on matters of purely public interest, in good faith and without malice. He further averred that the words used were not understood to bear the meanings alleged and denied that the words were false and malicious or had any defamatory meaning. Instead, he stated, the words used in their natural and ordinary meaning were true in substance and fact and were justified. Similarly, the slides used during his speech and presentation.

Mr Savy testified during the trial and adduced evidence of two witnesses. Mr Afif testified and produced documentary evidence of the financial affairs of Air Seychelles. The court a quo after a lengthy trial found in favour of Mr Savy. It found that despite Mr Afif’s denials, his choice of words, pictures and presentation impugned Mr Savy’s integrity and that an objective view of the words and the presentation supported the view that Mr Savy was placed at the centre of the allegations to suggest that his actions in the management of Air Seychelles with corrupt elements had led to its demise. The court found that the state of affairs of Air Seychelles could have been said without reference to Mr Savy. The court added that Mr Afif’s defence and testimony were that his statements were substantially true and that he made them in the public interest but in this respect he had been unable to bring evidence, as he was wont to, to show that Mr Savy had caused the losses or was responsible for managing the company in a corrupt way and that the corruption had led to the demise of Air Seychelles. Ultimately, the court found that Mr Afif’s defence of justification and fair comment failed. Dissatisfied with this decision, Mr Afif filed an appeal.

As to the appeal against his conviction for sexual assault contrary to section 130(1) read with section 130(2) of the Penal Code and the sentence of 20 years imposed on him, the appellant Daniel Lespoire filed an appeal on the grounds that the chief justice erred in finding that on the evidence presented it was established beyond a reasonable doubt that the he was guilty of having sexually assaulted the complainant.

The chief justice – in the instance that conviction is upheld – erred in convicting Lespoire to 28 years’ imprisonment, the sentence being manifestly harsh in the circumstance.

The only two persons who could testify to the alleged incident are the prosecutrix and the appellant, Lespoire himself.

After hearing the witnesses, justices Fernando, Robinson and Tibatemwa-Ekirikubinza came to the conclusion that in this case there is a lurking doubt as to whether the conviction should stand based on an analysis of the evidence of both the prosecutrix and the appellant and the general feel of the case.

The appeal was allowed, the conviction quashed and the appellant, Lespoire acquitted. 

Meanwhile, her appeal case for invalidity of an affidavit filed in support of a Constitutional petition against the government of Seychelles and the Attorney General,Nasim Onezime has seen her appeal dismissed.

Onezime had appealed against the decision of the Constitutional Court dismissing her constitutional petition on the ground that her affidavit, in support of her constitutional petition, was defective and inadmissible.

In her petition before the Constitutional Court  Onezime had complained that her right to dignity under article 16, her right to liberty under article 18(1), her right to privacy under article 20, her right to freedom of movement under article 25(1), and her right to own and peaceful enjoyment of her property under article 26 of the Constitution, have been contravened by the government through its agents, representatives, servants and or employees and had brought the action against the government.

Nasim Onezime, a Kenyan national married to a Seychellois, was arrested in 2021 and subsequently deported to Kenya and following her deportation, she filed a petition before the Constitutional Court of Seychelles seeking damages against the government.

Marie-Anne Lepathy