containingaction —
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1917.him. At the trial the District Judge dismissed the jflaintiff’s action,
WooDholding that his failure to comply with section 461 of the Civil
Renton C.J. Procedure Code was a fatal obstacle in the way of its being main-Saranam-tained. The Supreme Court in appeal set the judgment aside, pointed
kora v.out that in view of the authorities the defendant would not be
Kcvpwralay en£jtled ^ notiee of action if his conduct had been malicious, and -sent the case back for trial on the issues generally. That trial hasnow taken place. The District Judge has given the plaintiffmodified damages, and has dismissed the defendant’s claim inreconvention. The defendant appeals.
At the close of the argument yesterday we gave formal judgmentdismissing the appeal, with costs. The following, so far as 1 amconcerned, are the reasons for that decision.
Nothing was said to us by the defendant’s counsel as to the claimin reconvention, and 1 see no ground for differing from the findingsOf the learned District Judge in regard to it. In view of the previousdecision of this Court, and also of the authorities mentioned in it, itis no longer open to the defendant to take the point that he was en-titled to notice of action whether his conduct was malicious or not.His counsel argued that there was a difference between the presentcase and any of the authorities above mentioned, in that here thereport was made in obedience to an order of the Government Agentcalling upon the defendant to answer the plaintiff’s charges. In myopinion, howeper, that circumstance in no way alters the defendant'slegal position as defined by this Court on the former appeal, althoughit would be relevant as a matter .of evidence on the question of theexistence or the non-existence of malice. The defendant cannot saythat this report to the Government Agent was privileged from dis-closure within the meaning of section 124 of the Evidence Ordi-nance, inasmuch as it was, in fact, disclosed by the Office Assistant,to the Government Agent to the plaintiff, and a copy of it wasadmitted in evidence without objection at the trial. It is clear law inthis Colony,1 as in England, that a report of this character enjoysonly a qualified privilege, which is rebutted by proof of malice. Thedefendant’s counsel called our attention to* a passage in Maas-dorp2 in support of an argument that official communicationsbetween officers of the Executive Government are absolutelyprivileged, and he further relied on the English case, of Chatterton v.Secretary of State for India in Council,3 It is not clear to my mindthat there is anything in the citation from Maas dorp which showsthat, even in South Africa, an absolute privilege would attach tosuch a report as we have to deal with in the present case. But, bethat as it may, the point is covered in Ceylon by the authority ofDahanayake v. Jayasekera {ubi supra), which is direct, and which isbinding upon us. Chatterton v. Secretary of State for India in Council9
1 Dahanayake v. Jayasekera, (1902 )8 4 Maas, 101, 102.
5 N, L. B. 257.8 (1895) 2 Q. B. 189.
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Is an authority merely for the proposition that a communication re- 1917.lating to matters of State made by one officer to another in the Wootlcourse of his official duty is absolutely privileged, and cannot be Bhnton C.Jmade the subject of an action for libel. It is obvious that there is sanmam-no analogy between a case of that kind and such an action as the kora«.present, where the defendant was called upon to report as to the Ka^vr<aaVplaintiff's allegations against him, and went out of his way to makea number of gratuitous charges against the plaintiff, which he hasfailed in any way to justify.
Shaw J.—I agree.
Appeal dismissed.