SAMARAJvOON, C.J.—Independent Xewsjiapara Ltd. v. da Mel
1978 Present: Samarakoon, C. J., Weeraratne, J. andSharvananda, J.
THE INDEPENDENT NEWSPAPERS LIMITED, Defendant-
RONALD JOSEPH GODFREY DE MEL, Plaintiff-Respondent
S. C. 287/71 (F) —D. C. Colovibo 69262/M
SA2IARAK.OON, C. J.—Independent Newspapers Ltd. v. de Mel'~'i 59
Defamation—Words per se defamatory of plaintiff—Presumption ofanimus injuriandi—Burden of negativing this on defence—Howdischarged—Defences to an action for defamation.
Retraction and apology made and pleaded—Whether absolute defence—Mitigation of damages.
Innuendo—Duty of trial Judge when innuendo pleaded—Award ofdamages—Circumstances when appellate Court will increase awardof trial Judge.
Held: (1) That where in an action for defamation the plaintiffhas established that the words are defamatory of him per se and/orby innuendo, animus injuriandi is presumed because a man istaken to intend the natural consequences of his act. Once presumedthe burden is shifted! to the defence and a defendant cannot dischargethis burden by merely stating that in his own mind he had or couldnot have had an intention to injure. He can only do this by takingone of the specific defence known to Roman Dutch Law. Theappellant in the present case, although he had in the District Courtpleaded bona fide mistake as a defence, did not raise the issuenor make any attempt to establish it and he therefore failed todischarge the burden that the law cast upon him.
(2) That although there has been a retraction and apology bythe newspaper concerned, an apology in itself is not an absolutedefence nor a complete and sufficient recompense for the damagealready caused. It may however be considered as a factor inmitigation.
(31 That in the circumstances of this case, the amount awardedagainst the two Sinhala newspapers of the appellant, namely the“ Dawasa ” and “ Sawasa ” was inadequate and should be increased.
Held further •' That in the present case the learned trial Judge’sanswers of “ not proved ” to the issues based on the innuendopleaded by the plaintiff could not stand as he had failed to considerwhether these innuendoes were capable of being placed on thewords complained of.
Cases referred to :
Fradd v. Jacquelin, (1882) 3 Natal Law Reports 144.
New Age Press Ltd. v. O’Keefe, (1947) 1 S.A.L.R. 311.
Cassidy v. Daily Mirror Newspaper Ltd., 141 L.T. 404; (1929) 2K.B. 331; (1929) All E.R. Rep. 117; 45 T.L.R. 485.
Ramanathan v. Fernando, 6 S.C,C. 89.
Perera v. Pieris, 50 N.L.R. 145 (P.C.) ; 39 C.L.W. 42 ; (1949) A.C. 1 ;64 T.L.R. 590.
Associated Newspapers of Ceylon Ltd. v. Gunasekera, 53 N.L.R.
De Costa v. Times of Ceylon, 65 N.L.R. 217 (P.C.).
j^PPEAL from a judgment of the District Court, Colombo.
R.A. Kannangara, with Varuna Basnayake and M. A.Bastiansz, for the defendant-appellant.
C. Tfaiagalingam, O.C. with S. A. Parathalingam, for theplaintiff-respondent.
Cur. adv. vulf
60SAMAKAKOON, C.J.—IiidepLiulc7it■ A ewspapcrs Jjul. v. d& Alel
March 9th, 1978. Samarakoon, C.J.
The defendant-appellant is the proprietor, printer andpublisher of the newspapers—the 11 Sun-'’ an English Daily,
“ Dawasa ” and “ Sawasa ” two Sinhala publications. The“ Sawasa ” is published in the evening and the “ Dawasa ” in themorning. The plaintiff-responden t was at all relevant timesa Member of Parliament, returned by the Devinuwara electoratein the deep South of the Island. After a brilliant academiccareer he was appointed to the Ceylon Civil Service in the year1948, a service which, in the course of trial, was referred to as
the Brahmin Caste of the Public Service and an exclusive
group. As a member of this “ Charmed circle ” he held atvarious times responsible and high office in the GovernmentService. He resigned from the Civil Service even though heknew he would not get a pension by so resigning. He then tool;to politics. He stated that as he was by conviction a Socialisthe joined the Sri Lanka freedom Party which he claimed wasat that time a Socialist Party working for the Common Manand the Working Class. He was first elected to the Parliamentat a by-election in 1967 for the Devinuwara Electorate. He wasre-elected from the same electorate at the General Election heldin 1970.
On the 1st March, 1968, the appellants published in the “ Sun ”“ Dawasa ” and “ Sawasa ” a report concerning the respondentwhich he claims was defamatory of him and caused him intensepain of mind and humiliation. I am reproducing them verbatimas counsel for the appellant has sought to distinguish them andto argue that two of them are not defamatory of the respondent.The report in the “ Sun ” (PI) was published on page 3 underbanner headlines—
“ M.P. ordered to Pay Compensation ”
It reads as follows : —
“ The M.P. for Devinuwara, Mr. Ronnie de Mel, has beenordered by the Panadura District Judge, Mr. M. A. M. Hus-sain, to pay Rs. 45,000 as compensation to three persons whowere employed at Geekiyanakanda Estate, Matugama.
S AilAJR AKOOX, C.-J.—Independent Newspapers Ltd. v. de Mel
In this case, Mr. Ronnie de Mel was charged with havingnot paid compensation to the three employees, A. Savari-muttu, Thangappa and Velupiilai, as ordered by the IndustrialCourt.
The case for the prosecution was that the three men wereemployed by Mr. Ronnie de Mel, the owner of the Geekiyana-kanda Estate, Neboda, Matugama as watchers for the past15 years. When their visas expired they asked for emolumentsfrom the owner to leave the estate and go to India. Instead,he discontinued them from the service.
Subsequently, on a complaint,.-* the Labour Department,Kalutara, inquired into the case and charged him before theLabour Tribunal.
Mr. de Mel contested the case. At the conclusion of thetrial, he was ordered to pay Rs. 45,000 as compensation to thethree employees.
He was later charged before the Panadura District Courtby the Labour Department for neglecting the LabourTribunal’s order.
Mr. Navaratnarajah, Q.C., with Mr. Thiagalingam andMr. Nimal Senanayake instructed by Mr. Ranjith Deeraratnaappeared for Mr. Ronnie de Mel.
Mr. Alles, Crown Counsel, with the Assistant Commissionerof Labour, conducted the case.”
The report in the “ Dawasa ” (P2) appeared on the front pageunder the heading—
“ Ronnie has to pay compensation ”and is as follows : —
“ The District Judge of Panadura, Mr. M. A. M. Hussein,yesterday ordered Mr. Ronnie de Mel, Member of Parliamentfor Devinuwara to pay damages in a sum of Rs. 45,560 tothree employees who had served under him as estate workers-
SAMAR AKOON, C. J.—Indcpendct l Newspapers Lild. v. d? Mcl
The said order was made by the District Judge in the courseof his judgment given <n a case filed against Mr. Ronnie deMel for neglecting to pay a sum ordered to be paid to threeemployees who worked on the Geekiyanakanda Estatebelonging to Mr. De Mel. ”
The report in the “ Sawasa ” (P4) appeared on page 12 underthe heading—
“ Ronnie pays Rs. 45,560 as compensation to 3 dismissedemployees ”
and is as follows : —
“ The District Judge of Panadura, Mr. M. A. M. Hussein,yesterday ordered Mr. Ronnie de Mel, Member of Parliamentfor Devinuwara to pay damages in a sum of Rs. 45,560 tothree employees who had served under him as estate workers.The said order was made by the District Judge in the courseof his judgment given in a case filed against Mr. Ronnie deMel for neglecting to pay a sum ordered to be paid to threeemployees who worked on the Geekiyanakanda Estatebelonging to Mr. De Mel.
This case had been filed by the Assistant Commissioner,Kalutara.
It was stated in the plaint that Savarimuttu, 'Thangappaand Velupillai had served for 15 years on the GeekiyanakandaEstate, Neboda which belongs to Mr. Ronnie de Mel, Memberof Parliament for Devinuwara and that, when they askedMr. De Mel for money to go to India as the period allowedby the visas for their stay in Ceylon had expired, insteadof giving money they were dismissed from service.
Later, the Labour Department held an inquiry into “thismatter and the Commissioner of Labour, Mr. Lincoln Abcy-weera, ordered that the three employees be paid Rs. 45,560but as the respondent Mr. De Mel had failed to comply withthe said order this case had been filed against Mr. De Mel inthe District Court of Panadura by the Assistant Commissionerof Labour, Kalutara.
SA^IAJ^-AJKLOOX, C. J.—Independent Newspapers Ltd. v. do JIcl
The Assistant Commissioner cf Labour with Mr. Alles,Crown Counsel preferred the plaint while Mr. P. Navaratna-rajah, Queen’s Counsel with Messrs. Pogalingam, Ran jitDeeraratne and Nimai Senanayake, Advocates appeared forthe respondent Mr. Ronnie de Mel. ”
Soon thereafter the appellant realised that the publicationswere false, had no factual basis whatsoever, and that no proceed-ings had been instituted against the respondent in any' Court inthe Island. On the 4th March, 1368, the appellant published in eachof the three newspapers a correction, stating inter alia that eachof the reports was “ totally false ”, there was “ no truth whatso-ever ” in the news report, and there never was any charge framedagainst the appellant in any Court. The “ Suh ” apologised to theappellant “for any embarrassment, inconvenience or pain ofmind caused to him ”. The “ Dawasa ” apologised “ for the insult,embarrassment and pain of mind caused to him ” and the“ Sawasa ” apologised “ if any inconvenience, embarrassment orpain of mind have been caused to him ”. Nevertheless the respon-dent instituted action against the appellant pleading that thesaid three reports were defamatory of him per se and byinnuendo. He claimed a total sum of Rs. 100,000 as damages. Theappellant filed answer admitting the publications but stated thatthe words complained of in each of them were “ published byerror, in the ordinary course of business, in the mistaken, butbona fide belief that they were a true and accurate report ofproceedings had in the District Court of Panadura ”. Theappellants also pleaded the above-mentioned retractions andapologies which were reiterated on 8th April, 1968. After a lengthytrial the learned District Judge held that each of the reportswas per se defamatory and awarded a total sum of P.s. 25,000as damages. The appellant appeals against this finding andaward ; and the respondent has filed a cross-appeal complainingthat the sum awarded is woefully inadequate. These are thesalient facts of the case.
I should like to deal first with the* learned Judge’s answers toissues 5, 10 and 15 as “Not proved” although he has answeredissue 17 in the affirmative. They raised by way of issue the
SAALA K.VKOON, O..I.—Tndepchilr.nt New-p ipers Lid. t de Mel
insinuation set out in paragraphs 6, 10 and 14 respectively.Each of the paragraphs raises the identical innuendos asfollows : —
“ (a) That the plaintiff does not pay the legitimate dues othis employees.
That the plaintiff who is a Member of Parliament him-self violates the laws of t.he land.
That the plaintiff who is a Member of Parliament does
not carry out the lawful orders of the Labour Courtsand other Labour Authorities.
(d.) That the plaintiff discontinues his employees merelybecause they ask for their emoluments.
That the plaintiff does not pay the emoluments ofnhis
That the plaintiff was charged before the Labour
Tribunal inasmuch as he had violated the Labour Lawsof the country.
That the plaintiff unjustifiably contested the claims of
That the plaintiff was charged before t.he District Court
for violating lawful orders.
(?) That in all the circumstances the plaintiff who is aMember of Parliament is not honest and straightfor-ward in his dealings with his employees and with theLabour Authorities. ”
When a plaintiff relies on words which he pleads are defama-tory per se it seems unnecessary to plead an innuendo. But itis usual to plead innuendos in such cases “ to bring out the fullsignificance of the words ” in order to point the sting of theimputation and also to show the full extent of the damage caused—New Age Press Ltd. v. O’Keefe (1947) 1 S.A.L.R. 311. An in-nuendo is a particular construction which the plaintiff placeson the words complained of to show that they could be understood
SAilAKAKOOK, 0.1.—Independent 17ev.spapers Ltd. v. de Mel65
in that particular sense. The first question then is: Are thewords reasonably capable of the meaning attached to them,with or without the allegation of special circumstances ? Thisis a question of law to be decided by the Judge. Ramanathan v.Ferguson, 6 S.C.C. 89 at SO. “As a matter of law, then, thequestion is whether the words complained of,.together withthe facts set out in the summons or declaration, are reasonablysusceptible of the innuendo placed on them. In other words theinnuendo must be. justified, i.e. made out by the words used.
The Law of Defamation in South Africa by Nathan, page 41. Itwas then primarily the duty of the learned Judge to considerwhether the innuendos pleaded in paragraphs 6, 10 and 14 werecapable of being placed on the respective libels pleaded in theplaint. This he has not done. I hold that all the innuendos, exceptinnuendo (e), are capable of being placed on the words usedin PI, P2 and P4. Innuendo (e) is prima facie applicable only toPI. Issue 17 (a) and must be answered accordingly.
^Counsel for tthe appellants whilst conceding that the reportin the “ Sun ” PI was defamatory, per se because of the use of theword “ emoluments ” argued that the reports in the “ Dawasa ■’(P2) and “ Sawasa ” (P4) were not defamatory per se because
in its context. It is stated that the Commissioner of Labourordered payment of this money, and that order being ignored,action was instituted in the District Court of Panadura and theJudge of that Court ordered the payment. This clearly indicatesthat the “ money ” was legally due to the labourers, and the non-payment of such dues was sought to be enforced through theDistrict Court of Panadura. These facts clearly make the reportsP2 and P4 defamatory per se.
The learned District Judge in rejecting the defence statedthat the respondent made no “ attempt to remove, or displacethe presumption of animus injuriandi by any of the accepteddefences in actions of this nature”. Counsel for the appellantdemurred stating that this was a concept of the English Law aliento the Roman Dutch Law “ as under the latter ”, he stated, “ the
look at the entire reports and take the word “ mone*- ”
“ money ”. One must however
they each used the word
SAMAKAJECOON, G'.J.—Independent Newspapers Ltd. v. de Mel
presumption of animus injuriandi could be displaced by anyevidence which on (sic) probability showed that the intentionto injure was absent. ” Asked to clarify, he contended that proofof absence of animus injuriandi simpliciter absolved the defen-dant from liability. This being the Roman Dutch Law he statedthe learned Judge could have found absence of animus if hedirected his mind to the following facts : —
I quote him :—
“ (a) The news item was a complete false account of a non-existent Court case. It is inconceivable that any news-paper would have concocted a non-existent Court case.The falsity of the report would be exposed in a matterof days, leading to the complete discomfitureembarrassment and culpability of the paper. ”
" (b) It is the only unchallenged evidence in this case thatthe news item appeared in the ‘ Observer ’ of the 29thFebruary and was copied from it into the 1st Marcheditions of the ‘ Sun ’, ‘ Davasa ’ and ‘ Savasa ’. Abey-wickreme was called for purpose of producing D4.During his cross-examination it was elicited by Courtthat one of the reporters had copied the articles fromthe ‘ Ceylon Observer ’ and sent it to the News Desk.Had it been anything but the report of a Court casethere would be inadvertence. But if a prominent legalluminary of Hulftsdorp was fooled by the apparentauthenticity of the report how could one blame areporter. ”
“ (c) When the matter was brought to the notice, of thedefendant a full and complete retraction and anapology was published in banner headlines on page 1 ofthe papers of the 4th March. ”
“ (d) The defendant further offered to publish anything theplaintiff wanted but the offer was ignored. This mustbe regarded as an admission that the Plaintiff knew
SAMARAK.OON, C. J.—1 adapt,ident Newspapers Lid. v. do iMel07
that the harm done to his good name had been undone
without any further, publicity. ” .
I cannot agree with this contention. All injurious words arepresumed to be false and newspapers have been known to concoctnon-existent facts. Unfortunately too many readers are inclinedto accept newspaper reports without question. It is wrong to saythat evidence of copy from the “ Observer ” was unchallenged.Abeywickreme, the sole witness for the defence stated that “ ithad been copied from a report which appeared in the “ CeylonObserver ”, but there was no proof of this fact. The “ Observer ”was not produced. The learned Judge’s affirmative answer toissues 2, 7 and 12 that these reports were fabricated by theappellant means that the evidence of Abeywickreme has beenrejected. Retraction and offer to publish further, as set out in
above, is the normal conduct of a newspaper when it findsthat what it believed to be true has turned out to be false. Inany event how does one prove the absence of animus injuriandisimpliciter ? It is a mental element and cannot be proved subjec-tively. The Roman Dutch Law therefore looks at it objectively.When the plaintiff has established that the words are defamatoryof him per se and/or by innuendo animus injuriandi is presumedbecause a man is taken to intend the natural consequences ofhis act. “ Animus injuriandi being a state of mind has in thegenerality of cases to be inferred from the words and the occasionon which and the context and circumstances in which they areused. ” De Costa v. Times of Ceylon, 65 N.L.R. 217 P.C. at 224.Fradd v. Jacquelin, (1882) 3 Natal Reports 144, Perera v.Peiris, 50 N.L.R. 145, Associated Newspapers of Ceylon Ltd. v.Gunasekera, 53 N.L.R. 431. Once presumed the burden ofrebutting the presumption is shifted to the defence. He cannotdo this by merely stating that in his own mind he had or couldnot have had in intention to injure. Cassidy v. Daily MirrorNewspapers Ltd. 141 L.T. 404 at 410. He can only do this byone of the specific defences known to the Roman Dutch Law.(Law of Defamation in South Africa by Nathan, page 87). “InRoman Dutch Law animus injuriandi is an essential element inproceedings for defamation. Where the words used are defama-
030A3IAKAKOOi, C.O.—UjulspeivJdm dxbicspapera Lid. v. de Jlci
tory of the complainant, the burden of negativing animus injuri-anai rests upon the defendant. The course of development ofRoman Dutch Law in Ceylon has, put broadly, been to recogniseas defences those matters which under the inapt name of privilegeand the apt name of fair comment have in the course of thehistory of the common law come to be recognised as affordingdefences to proceedings for defamation. But it must be emphasisedthat those defences or, more accurately, the' principles whichunderlie them, find their technical setting in Roman Dutch Lawas matters relevant to negativing animus injuriandi. In thatsetting they are perhaps capable of a wider scope tharf thataccorded to them by the common law. ” per Lord Uthwatt inPerera v. Pieris, 50 N.L.R. 145 at 158. Counsel for the appellantstated that the Roman Dutch Law does not restrict the defendantto the four defences referred to by the Privy Council in thiscase. There are others. Nathan refers also to insanity, minority,jest, rixa and mistake. Absence of animus injuriandi simpliciteris not one of the defences mentioned. It is interesting to notethat the appellant, although it pleaded bona fide mistake as itsdefence, made no attempt to establish it. In fact no issue wasraised in the District Court by the appellant on this plea. Inappeal counsel contended that rhe newspapers were victims ofa hoax but there was no evidence led to support this. Theappellant has failed to discharge the burden that the law castupon it.
The learned Judge in awarding damages has assessed Rs. 10,000for the “ Sun ”, Rs. 10,000 for the “ Dawasa ” and Rs. 5,000 forthe “ Sawasa ”. The appellant states that there was a promptand complete retraction. Such there was. But it is quite a differentthing to say that no damages could be awarded. An apology isnot in itself an absolute defence nor is it a complete and sufficientrecompense for damage already caused. It may however beconsidered as a factor in mitigation. The “ Sun ” and “ Dawasa ”carried unqualified apologies but the “Sawasa” qualified itsapology by prefacing it with the word “ if ”. The learned Judgehas agreed with Dr. Colvin R. de Silva “ that some mud wouldstick. ” Neither the witness ncr the Judge adduced reasons for
GI7NASEEEKA.. 7. —Sehar.ayagom v. SeUammah69
this opinion which must necessarily be based on a rejection ofthe unqualified apology. It would be more correct to state thatsome hurt and pain of mind would linger even after the retraction.The respondent is a public man and a member -of the country’slegislature. He has sacrificed a promising career in the StateService to serve the people in the way he thought best. Thelearned Judge has characterised him as a person of integrityand high principles. Such a man has been defamed by fabrica-tions. The “ Sun ” being an English newspaper reaches a smallbut influential section of the public. The respondent’s Uncontra-dicted evidence was that theDawasa ” was popular in hiselectorate, Devinuwara, and that it was extremely popular inthe South. The publications in the “ Dawasa and “ Sawasa ”therefore succeeded in reaching a reader and an area whichwould hurt the respondent most. The respondent has filed cross-objections against the quantum of damages -awarded to him. Inmy view the amount awarded is inadequate. While not interfer-ing with the award cf Rs. 10.330 in respect of the “ Sun ” I wouldincrease the award in respect of the “Dawasa” to Rs 25,000 andthe “ Sawasa ” to Rs. 20,000. In the result I award the respondenta total sum of Rs- 55,030 without costs of appeal. The defendant-appellant’s appeal is dismissed with costs.
Weerahatne, J.—I agree.
Sharvananda, J.—I agree.
Ai.oc.rd of damages enhanced •on cross-appealof plaintiff-respondent.