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I. D.

Mussoodee v Le Defi Plus Ltd & Ors

2018 INT 265

CN133/2015
THE INTERMEDIATE COURT OF MAURITIUS

(CIVIL)

In the matter of: -


Ivan Desire Christian Mussoodee
Plaintiff
v/s

1. Le Defi Plus Ltee


2. Ehshan Kodarbux
3. Femi Publishing Co. Ltd
Defendants
JUDGMENT

1. This is an action for damages brought by the plaintiff, an entertainment manager well known in
the tourist entertainment circuit, against the defendants, respectively the publisher, editor-in-
chief and printer of Le Defi Plus weekly newspaper, in respect of an alleged defamatory article,
which appeared in the issue no.686 of 25 April to 1 May 2009. The plaintiff avers that he has a
good reputation and the defendants have portrayed him as a crook, an untrustworthy, dishonest
and deceptive individual who formed an intimate relationship with Mrs C. Bastian, the tourist,
for the purpose of “retrieving” (sic) Rs9m from her. Mrs Bastian and he had a love affair but
she left him to marry one F. Y. David. He never received Rs9m from her or used deception
and/or dishonest means to “retrieve” (sic) the fictitious sum of Rs9m from her. The article
misrepresents the facts and contains false allegations and was made with the intention to
denigrate and affect his reputation. Alternatively by writing and publishing/causing to be
published the article the defendants acted unlawfully, maliciously, tortuously, imprudently,
negligently and/or out of want of caution. The article constitutes faute and caused him
prejudice which he values at Rs2m, but which he reduces to Rs500,000 to meet the jurisdiction
of the court, which the defendants are bound jointly and in solido to make good to him. He
therefore prays for a judgment condemning and ordering the defendants jointly and in solido to
(i) to pay to him the sum of Rs500,000 and (ii) “to publish a French translation of the
judgment of the Court, (duly vetted and approved by the Plaintiff) in the edition of “Le Defi
Plus” which would appear immediately after the judgment of the Honourable Court in the
present suit, and in such place, character and size as the Court shall deem fit and proper.”
(sic) with interests and costs.

2. In an amended plea the defendants admit being the publisher, editor-in-chief and printer of Le
Defi Plus newspaper and that they published the photo of the plaintiff and the article and that
he is “l’animateur” mentioned therein, but deny any defamation, insinuation that the plaintiff
is a crook or any intention to cause prejudice to him. They aver good faith and the truth of the
contents of the article and plead having made all necessary verifications prior to publishing it.
They aver that the statement reproduced was obtained from the plaintiff following a telephone
call made by a then employee of defendant no.1. They had no intention of denigrating him, of
affecting his character, honour and reputation or of lowering him in the eyes of the public or
cause him prejudice. They aver that the plaintiff is not entitled to the prayers and pray that his
action be dismissed, with costs.

The case for the plaintiff

3. In essence the evidence for the plaintiff is as follows: he worked as entertainer at different
hotels (Docs. B, C, D and E) and is now self-employed as skipper and enjoys a good
reputation. In the edition no.686 of 25 April to 1 May 2009 of Le Defi Plus newspaper the
defendants published his photo on the front page with the title “Sexe, argent et poursuites
l’animateur pompe Rs9m a la touriste” and an article at pages 20 and 21 mentioning his name
several times (Doc. F). The “animateur” mentioned in the article is him and the article
depicted him as trifling and dishonest. The defendants did not contact him or ask his
authorisation before publishing the photo and he did not make any statement to them.

4. He met Mrs Bastian in 2006 and they entered into a relationship, got engaged in 2007/08 (Doc.
G) and intended to marry, but he learned that she civilly married his ex-skipper. F. David and
this ended their relationship. She obtained a protection order against him. She gave him about
Rs1.2m at the end of 2007 and 2008. According to documents she transferred money to him
(CHF194,483) but he did not receive same. He was the owner of only one boat, which they
purchased and he purchased accessories for about Rs400,000. Mrs Bastian gave him the boat as
a Christmas present. He did not purchase a new boat or houses from money that she transferred
to him, but did so from earnings from the first boat and from a MBC loan. Mrs Bastian did not
give him a debit card for an account she opened at the MCB and he did not withdraw
Rs646,000 from it. He refunded about Rs600,000 to her from earnings from the boat. Mrs
Bastian entered a claim of Rs3m against him at the Supreme Court, but did not mention the
Rs9m he allegedly took from her. He has also lodged a case against her.

5. The article contains for a great part Mrs Bastian’s version, but is not of good faith and does not
have a legitimate purpose It is defamatory and has caused damage and prejudice to his
reputation: it was published illegally, maliciously, imprudently, negligently and without
caution, which has caused him stress, caused people to call him a thief and affected his work.
He denies the version of the defendants as contained in their plea. He has reduced his claim for
damages to meet the jurisdiction of the court and he moves for the judgment to be published in
the edition of the newspaper following the judgment.

The case for the defendants

6. The gist of the evidence for the defendants is as follows: Messrs V. Moonien and defendant
no.2 deposed in their respective capacities as Senior News Editor, and Editor-in-Chief of Le
Defi newspaper. Mr Moonien, author of the impugned article, was contacted by Mrs C. Bastian
and he checked the information she gave him against the document at the Supreme Court, at
the Registrar and talked to the plaintiff, although he did not have the details of the phone
numbers in his possession whilst deposing. He got the figure of Rs9m from the bank
documents Mrs Bastian gave him, even though the claim before the Supreme Court is Rs3m.
He noted that the plaintiff acquiring boats and houses was not compatible with his earnings.
According to Mr Moonien the plaintiff told him on the phone that Mrs Bastian was lying, the
money was his and he would get back to him, but failed to do so. According to defendant no.2
Mr Moonien told him that he had obtained a statement from the plaintiff. Both witnesses said
that they gave the plaintiff the chance to explain what happened and published his side of the
story. Defendant no.2 was satisfied that the procedure was respected in relation to the
concerned article.

7. Both witnesses said that the article was worthy of publication as it was of public interest and
Mr Moonien specified that there had been many complaints of older women being lured by
younger men working in the tourism industry into buying them property and giving them
money and inasmuch as the reputation of Mauritius was being tarnished. Mr Moonien did not
know if the plaintiff was a public figure, but according to defendant no.2 the plaintiff was well
known and asking for permission to print someone’s photo would depend on the context.

8. Mr Moonien denied that he did not act diligently in publishing the plaintiff’s photo without his
authorisation or had the intention to harm the plaintiff: he stated the facts and there was public
interest in doing so. Both witnesses denied that the defendants acted unlawfully, maliciously,
tortuously, imprudently, negligently and unprofessionally, that the whole article maliciously
misrepresents the facts, portrays the plaintiff as a crook who had an intimate relationship with
Mrs Bastian to get Rs9m from her, contains false allegations and was made with the intention
to denigrate and affect the plaintiff’s reputation and lower him in the eyes of the public, that the
article constitutes faute and is highly defamatory of the plaintiff and constitutes an attack on his
character, honour and reputation.

9. Mrs C. F. Bastian met the plaintiff whilst on holiday in Mauritius in 2006. She got a permit to
live in Mauritius in 2008 when they created a company and they lived together until 2009.
They had a loving relationship at the start, but later he ill-treated her and told her he would do
so until she went back to Switzerland. She found out that he was having an affair. Their
relationship did not deteriorate because F. David, to whom she is currently married, came into
the picture. She asked for a protection order after a second incident where he pulled her hair
and lodged a plaint against him in 2011. The business they had decided to set up did not
materialise although she made various bank transfers totalling CHF350,493 (about Rs9m) to
him in 2006 and 2007 for the purchase of boats, land, house and a car (Documents H, H1 to
H9) and incurred all their living expenses. Once the plaintiff had the property he told her he did
not need her anymore. The contents of the article are true as she gave that version as well as the
photo on the front page to the newspaper in 2009 and she showed the journalist bank records.
The facts in her plaint dated 2011 are exact and the amounts mentioned therein are based on
bank records. The plaintiff lodged a plaint against her on 18 November 2009. She started
procedures in 2009 and her applications for protection order and an injunction were not
successful. She is claiming the refund of some Rs2.7m and damages of Rs5m. She transferred
sums to her account, but the plaintiff withdrew money from it with her card and she is claiming
a certain amount, although not the whole amount.

Discussion

10. It is admitted that the defendants published the photo of the plaintiff on the front cover of the
issue of Le Défi Plus newspaper (no.686) of 25 April to 1 May 2009 and the impugned article
written by Mr Moonien at pages 20 and 21 of the said issue of the said newspaper. The photo
bears the caption “Sexe Argent et Poursuites L’animateur pompe Rs9M à la touriste” and the
article bears the following title and sub-titles:

“Elle le traine en Court suprême


Un animateur pompe Rs9m à une touriste
Elle était en manque d’affection. L’animateur était là. Un mois après, elle lui offrait un
demi-million de roupies pour démarrer un business, De là, elle a acheté deux autres
bateaux, un terrain et une maison qu’elle a mis au nom de son bel ami. Deux ans plus
tard, elle veut récupérer ses biens.”

11. Thereafter, the article consisting of several paragraphs and page 20 and half of page 21
mentions the name of the plaintiff throughout.

12. I note that the copy of the press article produced by the plaintiff contains handwritten notes of
the case. I make complete abstraction of them as they should not have been on the document ab
initio.

13. It is not disputed that the plaintiff and Mrs Bastian were in a relationship and subsequently
parted. Therefore, the photo of them together, taken at better times – Doc. G – is neither here
nor there. It is also not in dispute that it was Mrs Bastian who contacted the defendants and
gave them, more particularly Mr Moonien, journalist with defendant no.1 at the time,
information about her relationship with the plaintiff, showed him bank documents and gave
him photos.

14. I note that at paragraphs 6 and 7 of the plaint the plaintiff makes a distinction between the
photo on the front page and the article at pages 20 and 21 and that at paragraphs 12.3, 15, 16,
17 and 18 it is averred that the article constitutes ‘faute’. In court however, the plaintiff
claimed that he did not authorise the defendants to publish his photo and Mr I. Mamoojee,
counsel for the plaintiff, submitted that the photograph published is malicious and constitutes
an attack on the character, honour and reputation of the plaintiff. Since pleadings have to be
certain and bind a party and since the plaintiff did not aver that the photo constitute ‘faute’ I
shall make abstraction of it. Even if the photo was to be taken as part of the article, it would
have had to be considered as a whole together with the article.

15. I have now to decide whether the impugned article amounts to defamation of the plaintiff and
affects his reputation. In R. R. Dookhony v La Sentinelle Ltd & Anor [2008 SCJ 61] the
Supreme Court said:

“Where an allegation or imputation of fact which amounts to a “faute” has caused


prejudice to someone, that person may claim damages from the person liable for that
“faute” - … Lesage v Mason [1976 MR 172]. It has been constantly held by our Courts
that a defamatory statement was always presumed to have been made with malice
(«intention de nuire»).

16. In Atchia v The Queen and Atchia [1955 MR 21] Glover, Ag. J referred to Dalloz, Répertoire
Pratique, Vo. Presse-Outrage-Publication, § 682 as follows:

« … la diffamation exige l'imputation d'un fait déterminé, c'est-à-dire suffisamment


précis pour que la preuve de son existence puisse en être rapportée »

17. The Learned Judge then went on to say “To constitute defamation the imputation of a fact must
be made « sous la forme d'une articulation précise de fait de nature à être sans difficulté l'objet
d'une preuve et d'un débat contradictoire.”
18. In Slim v Daily Telegraph Ltd [1968 1 AER 497 504] referred to in J. R. Dayal v G. Ahnee and
Ors [2002 SCJ 303] and Couldip Basanta Lala v Le Mauricien and Ors [2005 SCJ 42] it was
said that in determining whether words have a defamatory meaning or not “…What does
matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as
reasonable men should have collectively understood the words to mean.”

19. I also find pertinent what the Supreme Court said in Honourable Lesage v Honourable Mason
[1976 MR 172] namely that “The English law of libel is not the law of Mauritius, but
guidance may be sought from English authorities and case-law on the subject where the
principles applicable to any question arising in the action are the same in the French and
English systems...”

20. The test proposed by Lord Atkin in Sim v Stretch (1936) 2 All E.R 1237 is whether the words
“would tend to lower the plaintiff in the estimation of right-thinking members of society
generally?”

21. The context in which the words were used and the publication as a whole must be considered,
including the title, heading and sub-headings (see Pascal Beuk & Anor v Le Mauricien Ltd &
Anor [2002 SCJ 105] quoting Charleston v. News Group Newspapers [1995 2 A.E.R p. 313]
and Duncan and Neill on Defamation [1983] 2nd edition p. 13, para. 4.11].

22. I find that the article is a report of facts communicated by Mrs Bastian, which involved herself
and the plaintiff, and a statement from the plaintiff. The use of the word “pompé” might, a
priori, appear objectionable, but it cannot be considered in isolation: it must be looked at
together with the article in its entirety. It is to be noted that Mrs Bastian reported to the
defendants that she was the one who offered to help the accused financially, that they started a
business together and she invited him to Switzerland, giving the impression that she was the
one intent on the relationship at first and that he was not the one who started the relationship
for the purpose of getting money out of her. I have no compunction in believing Mr Moonien
that he did indeed contact the plaintiff and obtained his version in reply to the account of Mrs
Bastian, which is a flat denial, and which version he reproduced in the said article. There are
remarks made by the journalist in the article, but they are common clichés used in the specific
context and I find that there are no words specifically used with the intention to show
animosity towards the plaintiff.

23. The plaintiff has admitted that he was in a relationship with Mrs Bastian and that she had given
money to him, but his explanations about not receiving money transferred to his him and about
the manner in which he came into possession of a boat are unconvincing. Whilst the testimony
of Mrs Bastian in respect of transfers of CHF to his account is supported by bank documents,
his version that he used his earnings and from a loan obtained from the MCB is not supported
by any documentary evidence. Bearing in mind that his only source of revenue at the time was
his salary of Rs35,000 per month, and the absence of any evidence about alleged earnings from
the boat purchased, his purchase of property does indeed appear incompatible with his income.
Therefore, I find that his averments that the article contains false information is not plausible.

24. Mr Mamoojee has made an issue of the Rs9m mentioned in the impugned article. I am alive to
the fact that Mrs Bastian’s plaint before the Supreme Court does not mention that sum, but Mr
Moonien relied on the bank documents she showed to him. The fact that there is no averment
in respect of the sum of Rs9m in the plaint before the Supreme Court does not lead to the
conclusion that the defendants published false allegations in the impugned article. As rightly
pointed out by counsel for the plaintiff himself, the plaint was lodged well after the impugned
article was published and Mrs Bastian gave evidence to the effect that she had not necessarily
claimed every cent that she gave to the plaintiff.

25. Having found that the impugned article does not contain false allegations and unverified facts
and was not written and published with the intention to denigrate the plaintiff and therefore
does not constitute ‘faute’ I could have rested my findings here since “in a case of defamation
based on article 1382 it is, first, incumbent upon the plaintiff to establish « faute ». But once
this is done, it is for the defendant who sets up good faith as a defence to prove that he was
acting in good faith ‘surgie d’un ensemble de faits justificatifs.’” – R. R. Dookhoony v La
Sentinelle Ltd & Anor (supra).

26. In that case the Supreme Court went on to say that “Good faith as a live issue will therefore
arise in this case only if the plaintiff shows that the offending allegation or imputation of fact is
defamatory or that the allegation of fact is untrue and had resulted in prejudice to him, thus
amounting to « faute ».

27. Still for the sake of completeness I shall address the defence of good faith and the truth of the
impugned article. Although public interest has not been pleaded, it would be encompassed in a
defence of good faith based on “faits justificatifs” as pointed out by Lam Shang Leen J. (as he
was then) in R. R. Dookhony v La Sentinelle & Anor (supra).

28. In Dalloz Action, Droit de La Reponsabilité et des Contrats, Philippe Le Tourneau, 7ème Ed.,
note 1988, it is said “La bonne foi «suppose la légitimité du but poursuivi, l’absence
d’animosité personnelle, la prudence et la mesure dans l’expression ainsi que la fiabilité de
l’enquête … Ces quatre éléments avaient été dégagés par le président Mimin dès 1938. En
deux mots la bonne foi suppose l’honnêteté intellectuelle dans un écrit justifié par le souci de
l’information ou de la connaissance.”

29. In Hon. J. K. Cuttarree v J. R. Valayden [2006 SCJ 222] the Supreme Court the court said:

“It is trite law… that fair comment made in good faith on a matter of public interest is a
complete defence to an action in defamation and that the burden is on the defence to
establish on a balance of probabilities the ‘faits justificatifs’ which must be averred as
being the substratum of the comment.”

30. Counsel for the plaintiff has produced a copy of the Code de Déontologie, Manuel des
Rédacteurs de la Sentinelle, in support of his submissions that the press/journalists have a code
of conduct which has not been respected in the present matter. The defendants in this case are
not La Sentinelle and cannot be taken into account to determine a case of defamation against
the defendants and in any event a Code de déontologie is not binding on a court of law.

31. The press and the media generally have a duty to verify the source of information they obtain
and counter-check same, as admitted by witness Moonien and defendant no.2. Here, I find that
the defendants have established that they verified from the appropriate authorities the
information that Mrs Bastian imparted to the journalist, who relied on official documents and
contacted the plaintiff with a view to obtain his version. It is to be noted that the article relates
the version of Mrs Bastian and that whatever she said to the journalist is reproduced between
quotes. Bearing in mind the inconsistent version of the plaintiff about his receipt of money and
property from Mrs Bastian and the fact that she did have recourse to courts of law for
protection and safeguard of herself and her property, it cannot be said that the article was based
on inaccurate information.

32. Although the impugned article is primarily about Mrs Bastian and the plaintiff, it also mentions
by name other women tourists who were entered into relationships with Mauritian men
employed in the tourism sector and who ended up in situations similar as Mrs Bastian.

33. During the trial the fact that the accused being a public figure or not was made an issue.
Notwithstanding the fact that he averred in his plaint that he was well-known in the tourism
entertainment circuit he is not a public figure. However, this is not material inasmuch as facts
concerning a person who is not a public figure may still be worthy of publication if they would
have an impact on society and on the image of the country.

34. Counsel for the plaintiff also made an issue of the fact that the impugned article is dated 2009
and that the plaint before the Supreme Court is dated 2011. It is to be noted that there is
undisputed evidence on record that Mrs Bastian started legal procedures in 2009, that she made
an application for an injunction before the Supreme Court and that witness Moonien said that
he had verified a document at the Supreme Court, although he was unsure whether it was an
affidavit or a plaint. I note that the plaintiff has said in court that he lodged a case against Mrs
Bastian, as confirmed by the latter, and that his counsel cross-examined defendant no.2 about
the case lodged against her in 2009. This has never been pleaded and the plaintiff has not
caused a copy of the said plaint to be produced before the court and the outcome of the case is
unknown.

35. It is also to be noted that the plaintiff has lodged the present action for defamation some six
years after the publication of the article and that there is no explanation for the delay.

36. During the trial evidence was elicited from Mr Moonien that it is not the first time that Le Defi
is being sued for defamation. This is completely irrelevant to the present case. Each case has to
be decided on its own merits and the fact that a press group has been sued before does not
mean that it necessarily has published something defamatory or committed a ‘faute’.

37. In the light of the above I find that the defendants cannot be said to have acted rashly and to
have misrepresented the facts and published false allegations against the plaintiff. I find that
they were of good faith when they published the article which was “surgie d’un ensenble de
faits justificatifs” and that there was a public concern which would have justified the
publication of such an article at the time.

38. I find that the impugned article is not defamatory and that the defendants did not commit a
‘faute’.

39. In the circumstances, there is no need for the court to consider the issue of damages.

40. Before concluding, I wish to add that part of the plaintiff’s prayer, namely the order to the
defendants “to publish a French translation of the judgment of the Court (duly vetted and
approved by the Plaintiff)” is not only outlandish, but also contrary to procedure.

Conclusion

41. I find that the plaintiff has failed to establish his case against the defendants on a balance of
probabilities. I accordingly dismiss the plaintiff’s action, with costs.

W. V. Rangan
Vice-President
Intermediate Court (Civil Division)

This 03 October 2018