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Colonial Cases

Mahraz v. Jenkins, 1899

[defamation damages]

Mahraz v. Jenkins

Supreme Court of Mauritius
Moncrieff and St Amand JJ, 13 March 1899
Source: Decisions of the Supreme Court of Mauritius, 1899




In a suit brought under Art. 1382 of the Code Civil for a tort, it may be sufficient to show "moral" damage, that is damage which is neither tangible nor material; but the damage must be "legal" damage.  The damage whether material or moral must be proved.

   Moral damage is not to be presumed from the mere publication of the defamatory statements; it can hardly be said, for instance, that there is moral damage caused where the persons to whom the statements were made utterly disbelieved them. (Galea v. Roussel explained.  S. C. Reports, 1891.)

   Where the evidence of the moral prejudice was very trifling and the Plaintiff had himself contributed to the spreading of what the defendant has said, the Court, on appeal, reduced the amount of the damages awarded.

   No costs.

HURRY MAHRAZ, - Appellant and D. JENKINS, Respondent.


His Hon. F. C. MONCRFIEFF, - Puisne Judge


His Honor E. DIDIER ST. AMAND, Puisne Judge.

The Hon. W. NEWTON, Q.C.,- Counsel for Appellant

M. W. Sauzier, -  Attorney  for the same

Mr. O. LAURENT, Counsel for respondent

Mr. V. PEPIN, - Attorney for same.

Record No. 1,074

13th March 1899


   This is an appeal from a judgment of the Magistrate of Plaines-Wilhelms.  The plaintiff's vase was that on the 5th November 1897, in the garden in front of the Rose-Hill Court House, and in the hearing of three persons, the defendant stated in the Creole tongue that he (the plaintiff) was a barrister who took money from both sides; and that, on the same day, the defendant made use of other defamatory expressions of a similar description in regard to him (the plaintiff) in conversation with an Indian named Mohabeer and an usher's clerk named Lavictoire.  The plaintiff says that he has been injured in his character, feelings, and reputation;  but the damage upon which he relied was stated to consist in this, that the Indian population amongst whom the plaintiff's practice chiefly lies were likely to be influenced by the statements made by the defendant not to employ the plaintiff in future.  The Magistrate gave judgment in favour if the plaintiff for Rs. 150 damages, and for costs.  From this judgment the defendant appealed on various grounds to this Court.

   We agree with the Hon. Mr. Newton that this is rather a small matter, which does not justify the warmth which it has engendered.  If all the defamatory statements which are uttered out side the Court House at Rose-Hill were brought into this Court, our terms would be fully occupied in hearing cases of a similar description.  But we are not inclined to put the case into the  category spoken of by the Lord Chief Justice.  It may be a small case, but if the professional reputation of the Plaintiff has been damaged, he must not be blamed for defending himself.

   As to the facts, the Magistrate had better opportunities of judging than awe have and it is enough to say that there was sufficient evidence to justify his finding that in the garden in the front of the Rose-Hill Court-House, the plaintiff made use of words in the presence of Mr. Autelme, Mr. Maingo and Mr. Florent to the effect that Mr. Jenkins was an advocate who took money from both sides.  There is also evidence showing that on the same day the defendant used words to the same effect to one Mohabeer, and that he spoke abusively of the plain tiff to an usher's clerk named Lavictoire.

   This suit is brought under Article 1382 of the Code Civil, which requires proof of damnum et injuria.  The question then remains: have these statements damaged the plaintiff, and if so was the magistrate right in awarding a sum of Rs. 150 b y way of damages?  Everybody knows what material damage is - there is none in this case.  But I  suits brought under Art. 1382 of the Code Civil it may be sufficient to show damage which is neither tangible nor material; that is, what is termed moral damage. The phrase is not a happy one and it sometimes tempts us to enquire whether it may not mean damage which is not legal.  Now, it is clear that, whether damage is moral or material, it   must be proved - the decisions of the Court of Cassation [(1) Dalloz - Code Civil Annote, (1382) 286-312; Siurey, 1882, 1, 264; See Cassation, 27 Jan 1885; 6 Feb 1894, Pand. Fr. Per. 94, 1, 400]  The proof of material damage presents no difficulty, but it is not so simple a matter to prove moral damage.  In this case the plaintiff must prove that his reputation  has  suffered.

   It seems to me that a mistaken impression  has arsines from the judgment in Galea1 v Roussel [Reports, 1891] to the effect that moral damage is presumed upon  proof of the defamatory article.  We find noting in that case to support such an impression.  The statements complained of were published in a newspaper, and the Court must from that fact have drawn the inference that some members of the public who read them were so influenced that the reputation  of the plaintiff was injured. But neither in the judgments nor in the decisions of the Court of Cassation do we find anything to justify the idea that it is unnecessary to prove moral damage - and for an excellent reason.  If the idea were well-founded, moral damage would be presumed, i.e., it would invariably be held proved that the plaintiff's reputation  had suffered, so that possible material damage might ensue at some future time, although the persons to whom the statements were made utterly disbelieved them.

   The Plaintiff must, therefore, in our opinion, show such circumstances as will warrant us in inferring that his reputation has suffered, or prove that his reputation actually has suffered.  His case upon this head is that the defendant is a sirdar of "Stanley," and a man possessing much influence with Indians; that the Plaintiff's practice lies chiefly among Indians, and for the most part in the Rose-Hill District Court; and that it is likely to be injured by the statements made by Hurry Mahraz.

   Now, we must refer to the origin of this master.  The plaintiff was retained by the defendant to defend his son Gunputh and others on a prosecution before the District Court of Plaines Wilhelms; he appeared several times in the case; but, upon the matter being adjourned from October 19th to the 5th November, the defendants retained Mr. Sauzier to act for them along with Mr. Jenkins.  They told Mr. Sauzier - what they did not say to Mr. Jenkins - that they retained him because there were too many adjournments.  That was quite a sensible reason.  Mr. Jenkins was much occupied, and they doubtless thought  that adjournments for a fortnight would not be necessary if the junior Counsel could continue the case in the absence of the leader.  This arrangement did  not please Mr. Jenkins.  On the 6th November he had a case at Mahebourg, which he had had begged Mr. Resnouf to have adjourned because he had a pressing case at Rose-Hill; he was not expected at Mahebourg on the 5th, but because Mr. Sauzier had been retained to assist him he retired from the defence of Gunputh and others and went to Mahebourg.  For this he has given several reasons.  The first was that Mr. Sauzier had not written to him - that is  not a serious reason.  The second was that Mr. Sauzier was retained too late, that he should have been retained at the beginning of the  case - that again is not a serious reason.

   Lastly he excused himself on the ground that Mr. Sauzier was retained to control him.  We do not believe that Mr. Sauzier would permit himself to be retained for any such purpose, and there was in fact no justification in the evidence for the supposition.  It is a good saying that members of the Bar should b e "high but not haughty."  In this case we think Mr. Jenkins was more  haughty than he needed have been, and that he should have shown more confidence in his ability to prevent anybody from controlling him in the conduct of a case in which he was leader.

   We have referred to this part of the case because the course taken by the plaintiff was to a great extent the cause of what followed.  Hurry Mahrfaz was evidently furious because his counsel had deserted him, and if he possessed the influence ascribed to him, the plaintiff had already lost his good will.

   Mr. Laurent dwelt upon the fact that Indians are quick to suspect that they are betrayed; he may therefore complain but he cannot be surprised that Hurry Mahraz should suspect that he was betrayed when the counsel whom he had retained with a fee of Rs. 120 deserted him without any sufficient t excuse.  The defendant's language was scandalous and inexcusable, the imputation was absurd and contemptible, but the question is, - did it injure the plaintiff's reputation? It was uttered in a place where a number of persons were loitering about, but there is no proof that it was heard by any body but Mr. Autelme, Mr. Maingo, and Mr. Florent.  Mr. Autelme did not believe what was said, for he denied that such words were used, and there is no pretence for supposing that Mr. Maingo and Mr. Florent believed that there was any truth in what this angry Indian sad.  Mohabeer, far from believing what the defendant  said to him, reproached him for saying it and told him that barristers did not so such things.

   There remains Lavictoire who says that the defendant called Mr. Jenkins a Batchiara and added that he had  taken money  "from him and them", and had gone when Mr. Sauzier came.  The words seem to partake rather of abuse than defamation.  He says that he repeated what had been said in the Civil Status Office, but we do not know whether Lavictoire or the gentleman of the Civil Status Office attached any importance to it.  This, in our opinion, is the evidence of moral prejudice, and it is very trifling.  Mr. Jenkins returning to Rose-Hill, the same evening, heard from Mr. Florent what the Defendant had said in his presence, and at once - apparently without going through the usual formality of asking the Defendant whether he had used the words ascribed to him - instructed his attorney to enter these proceedings, thereby informing not only the Indians in the neighbourhood of Rose-Hill, but the whole of Mauritius of what the Defendant had said.

   We are not surprised that Mr. Jenkins should resent what was said of him - but, inasmuch as he had no reason to believe that his reputation suffered any prejudice e, and the evidence of moral damage before us is of a trifling description, we think that the damages awarded are under the circumstances excessive, that the amount should be reduced to Rs. 50, and that, although the appellant has succeeded in reducing the damages, each party should bear his own costs of appeal.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School