CAJSTEltEKATNE J.—Tar v. Ondatji
Yar v. Ondatji
1949 Present : Canekeratne, Nagalingam and Basnayake JJ.■)
YAR, Appellant, and ONDATJI, Respondent.
•S. C. 324—D. C. Colombo, 16,136.
Defamation—Money alleged to be borrowed from Afghan by Government, servant—Complaint to Head of Department—Innuendo—Privileged occasion—Malice.f
Defendant, an Afghan money lender, wrote a letter to the PrincipalCollector of Customs which contained the following paragraph “ Mr. O(plaintiff) employed under you along with his brother borrowed from mea sum of 300 rupees. Although I have repeatedly asked for my moneyneither of the brothers wouId pay me a cent. ”
Held, that the language reasonably implied a culpable refusal to paymoney borrowed and was defamatory.
Held further, that the occasion was privileged but that there wasmalice which destroyed the privilege.
A PDF. AT, from a judgment of the District Judge, Colombo. Thiscase was referred to a Bench of three Judges, owing to a difference ofopinion between the two Judges before whom it had been previouslylisted.
H. V. P or era, K.G., with V. S. A. Pullenayagam, for defendantappellant.—The legal issues relevant in this case are as follows: —
If the statements complained of in PI are not defamatory orunless such statements are defamatory the plaintiff's aetion fails. (2)Assuming that such statements in PI are defamatory the further questionwhether the occasion is privileged arises. (3) If the occasion is privilegedthe question of malice has to be considered. If the statements com-plained of are true in fact, no liability attaches to the defendant as theoccasion is privileged, but if such statements are false malice will bepresumed and the defendant will be liable even though the occasion isprivileged. The crucial question to be decided in this case is whetheror not the money due on the promissory note of June 11, 1938, had beenpaid before November 18, 1943, when PI was written.
The words complained of are clearly not defamatory. The allegationthat a person has borrowed Rs. 300 on a promissory note and has notrepaid it for five years is not defamatory. See Sims v. Stretch1. Itis the meaning of the words used that must be ascertained and thecontext in which words occur is relevant to find out the meaning. Conse-quences resulting from such words is different from the meaning o£ wordsand the fact that words have certain consequences,which affect a personadversely is not relevant in considering whether such words are defamatoryof that person.
There can be no doubt that the occasion is privileged. The subjectmatter was one in which both parties, i.e., the defendant and the Collector
1 (1936) 2 A. E. R. 1237 at 1,211.
-J. N. B 145037 (4/59).
CANE KESATNB J.—Yar v- Ondatji
■ of Customs, were interested. Even though it is the fact that the defen-dant’s motive was., the recovery of his money the occasion still remains^privileged. See Winstomley v. Bampton 1.
The learned judge has failed completely to appreciate the documentary•evidence in the case, particularly the endorsement on Pi by the plaShtiff,and that the action brought by the defendant was dismissed without costsand the failure by the plaintiff in this case to claim in reconvention, inthe case brought by the defendant, for damages for alleged defamation.On the evidence the only reasonable inference is that the money due onthe note had not been paid at -the time PI was written. The finding) ofthe judge that the money had been paid at the time PI was written iswrong and must be set aside. See Yuill v. Yuill2; Watt or Thomas v.Thomas 3.
Ivor Mis»o, . with T. B. Dissanayake, for plaintiff respondent.—PI is clearly defamatory because of the innuendo it contains that theplaintiff was in financial difficulties and that he would not or could notpay bis dues for a long time. See Johnson v. Rand Daily Mails'* andNathan on Defamation pp. 64, 65 and 69.
Tn Sims v. Stretch (supra) it was held that the words were not defamatorybecause it was not uncommon among many English people to borrowsmall sums temporarily from their domestic servants. Winstanley v.Bampton (supra) clearly shows that a statement such as was made in thiscase is defamatory.
It is submitted that there is no privileged occasion in the circumstancesof this. ease. The Head of the Department has no interest in such amatter as this as would make the communication to him a privileged one.Certainly the Afghan, at any rate, had no interest or duty correspondingto interest. In Winstanley v. Bampton (supra) the occasion was held tobe privileged as in that case it was proved that it was the normal practicefor an officer to write to the Commanding Officer of the debtor before anaction was instituted. As to the finding of fact by the trial judge that themoney due on the note had been paid when PI was written, that, findingwas based on clear evidence, and an Appeal Court would not interfere withsuch a finding.
Our. adv. vult.
February 28, 1949. Canekeeatke J.—
This is an appeal by the defendant from a judgment condemning himto pay a sum of Rs. 2,500 as damages for defaming the plaintiff.
The defendant, who is a money-lender belonging to the class of personscommonly known as Afghans, appears to have been approached by abrother of the plaintiff for a loan; he was prepared to lend the moneyprovided a promissory fnote for Rs. 300 was delivered to him executed bythe borrower and the plaintiff. On June 11, 1938, he lent a sum of moneyto rthe plaintiff’s brother or to him and the plaintiff on a promissory notesigned by both for Rs. 300 payable with interest at 18 per cent, per annum.The defendant according to bis story lost his account books,
1 L. B. (1943) 1 K. B. 319.3 (1947) 1 A. E. B. 582.
– (1945) 1 A. E. B. 183-4 (1928) S.A .L.B^A.D. 190 at 204.
cANJ3 KER ATNE J.—Tar v. OndatjiCANAKERATNE J.—Yar n. Ondatji
in which the money lending transactions were entered, in 1943, andsent letters of demand to the plaintiff and his brother but received noreply. This apparently annoyed the appellant and he then wrote aletter to the Principal Collector of Customs (P 1), dated November 18,1943- The plaintiff had made an application on October 29, 1943, toretire from Government Service and PI was referred to him for hisexplanation. On November 21 he sent an explanation stating that hemerely accommodated his brother who was in great difficulty at the time,and that he lost sight of the P.S.R. and requesting the Head of theDepartment to overlook this fact as it happens to be on the verge of hisretirement. The defendant instituted an action No. 6,058, for therecovery of the sum due on the promissory note on December 7, 1943.Each of the makers filed an answer and the action was dismissed ofconsent on January 30, 1945. P 1 contained the following paragraph:
Mr. Ondatjee employed under you along with his brother employedborrowed from me a sum of Rs. 300, Although I haverepeatedly asked for my money neither of the brothers would pay me acent.”
Plaintiff alleged that the statements contained in this paragraph werecapable of the meanings referred to in paragraphs 5 and 5a of the plaintand that the “ said statements and the innuendoes ” were defamatoryof the plaintiff. It was not seriously denied that the words were reason-ably capable of the innuendoes pleaded; but, Mr. Perera contended thatneither the statements nor the innuendoes were defamatory and he laidgreat stress on the decision in Sims v. Stretch l. The defendant in thatcase having enticed the plaintiff’s housemaid to leave his service, senthim a telegram containing the words, “ Please send her possessions andthe money you borrowed, also her wages – . . . ” The communi-cation was made to the debtor himself by a person on behalf of thecreditor and would not be defamatory per se. The words used weresubstantially true. A letter sent to a debtor demanding payment of adebt would not generally be defamatory, otherwise no creditor wouldbe safe in sending a letter. It may be an exhibition of bad manners todemand payment by a telegram. The trial Judge and the majority ofthe Court of Appeal held that the words were capable of conveying thatthe plaintiff had acted in a- mean way in not paying back the money hehad borrowed from his own maid and in withholding her wages. TheHouse of Lords allowed the appeal, Lord Atkin saying that, under modemconditions “ the mere fact of borrowing from a servant bears not thdslightest tinge of meanness.” His speech shows that in certaincircumstances a demand for repayment of a loan may amount to a dero-gatory imputation. The words used in the present case imply that thdplaintiff was in pecuniary difficulties, the language connptes prior demandsand a long delay. The defendant conveys hy I* 1 that the plaintiff wasso slow in paying his debt that it was necessary to get someone to urgehim to do so. The language reasonably implies a culpable Refusal torepay money borrowed. The words complained of are clearly defamatoryof the plaintiff; they bear a close resemblance to the language used inWinstanley’s case 2.
(1936) 2 A.. E. E. 1237.
* (1943 I E. R- 37a.
CAIflSKEBATNB -X.—Tear t. (Jndatji
'Then arises the question, was the publication made on a privileged'occasion ? Qualified privilege extends to all communications madebona fide upon any subject matter in which the party communicatinghas an interest, or hi reference to which he has a duty, to a person havinga corresponding duty or interest, and embraces cases where the duty isnot a legal one, but is of a moral or social character, of imperfect obli-gation. Reciprocity of interest is essential. It is easy enough to decidewhere the duty is a legal one. Often there is no difficulty in comingto the conclusion that a person’s moral or social duty is to communicatesome particular information to another, e.g., a host making a statementto his guest and friend about the latter’s servant. Sometimes it may bean officious and uncalled for act on the part of a defendant. It looks asif orje has to ascertain what view reasonable persons would take; the' quest may at times be an elusive one. It was thought that ‘ ‘ if the greatmass of right-minded men in the position of the defendant, ” to borrowthe language of Lindley L.J., “ would have considered it their duty, underthe circumstances, to give the information it would be a moral or socialduty; a duty such as is recognised by English people of ordinary intelligence,and moral principle. ’’l
A complaint addressed to someone who has some power of redressinga grievance may be one published on a privileged occasion, e.g., one tocorrect the alleged delinquencies of a local postmaster;2 A memberof the public would be entitled to make a complaint about the conductof– a Government Servant to him in a Government office. Is it limitedto the time during which the servant is within the four walls of the office ?The superior officer who is entrusted with the conduct of business in thedepartment must to some extent have an authority over the sub-ordinate. If this servant sees the man a few minutes after he made thecomplaint in a road, and .insults him or hits him, it would be a mostannomalous result to hold that in such a case the complainant had noremedy by complaint to the superior, who could take disciplinary actionagainst him, but must go before a Magistrate to enforce a remedy betweenthem as citizens. It cannot be that such a duty or power ceases themoment the servant leaves for home. Would not a complaint made ofthe illicit sale of an excisable article by a Government servant to thehead of the department be one made on a privileged occasion ? Wouldnot information furnished about the giving of a present by one who hasthe reputation of being a smuggler with the idea perhaps of gettingsome favour in the future to a servant employed at the Customs be a^privileged one? The Government has a right to the service of its employeeunhampered and unimpaired by the burden of debts and consequentlitigation ; to prevent the obstruction of public business as a consequence‘-of legal proceedings against public servants, the Government years agoobtained legislative authority. The servant has certain obligations tohis employet; one is to perform the work entrusted to him diligently*another is to be free from serious pecuniary embarrassment and not tobe a party to accommodation bills and notes. Serious pecuniary embarrass-ment is regarded as a circumstance which necessarily has the effect of
I Stuart v. Sell, (1894) 2 Q. B. D. 341, 350.-
3 Watt v. Longsdon, (1930) 1 K.. B. 144: Jones v. Boston, (1845) 2 C. & K.. 4.
CAJSTEKERATNE J.— Tar v. Ondatji
impairing the efficiency of an officer and of rendering him leas valuablethan he would be. It is conduct derogatory to the character of a Govern-ment servant, it may affect the respectability of the Public Service andthe trustworthiness of the officer1. The Head of the Department has aninterest in the Government Servants employed in his department fulfillingtheir obligations to their creditors and in upholding the respectabilityof the Public Service. Besides his interest in the payment of his justdebt the defendant had the interest which every person in the countryhas in the good name of the employees of the Government. The occasionon which the letter was written was privileged. In Winstanley v.Hampton,2 the letter which the latter wrote to the CommandingOfficer of the plaintiff’s regiment—wherein after stating “ he has been inarrears with his rent and …. is owing £50 8s ” there was athreat of taking the matter to Court—was held to have been one sent on aprivileged occasion. Counsel for the respondent contended that the reasonfor the decision was that the normal practice was for an officer to writeto the Commanding Officer of the debtor before an action was instituted.The decision, however, did not turn on this ground, nor was thiscircumstance adverted to in the judgment.
The conclusion reached by the learned Judge was that the defendantwas actuated by express malice. It is not denied that, if the sum dueon the promissory note had been paid before November 18, 1943, thefinding of the trial Judge would be correct. Mr. Perera contends that theJudge has failed to appreciate the documentary evidence produced bythe plaintiff as regards the endorsement on PI, and that the probabilitiesare in favour of the defendant.
The fact that the action brought by the defendant was dismissed ofconsent without costs is not decisive; it may bear the constructionplaced by the plaintiff or by the defendant. Stress is laid on the cir-cumstance that the plaintiff did not claim in reeonvention damages fordefamation in the action on the note. A defendant in an action is notbound to set up a claim in reeonvention and the omission to make sucha claim, where it arises on a distinct and separate cause of action, canhardly be reckoned as a circumstance against him. Different defendants,or their pleaders, may act in different ways, one may be tempted tomake such a claim, another may refrain from setting up such a claimthinking it likely to cause embarrassment to his defence or to prejudiceand delay the hearing of the action. The plaintiff admittedly did notpay any money on the note. Had the case depended on the evidenceof the parties only, it may be contended with great force that the plaintiffhad failed to discharge the burden of proof. The promissory noteremained in the hands of the creditor, and though there was a delay ininstituting the action, the circumstance that the learned Judge has notspecifically considered the endorsement made by the plaintiff on November21, 1943 (P 1a) may tend to throw doubt on the plaintiff’s story. But,it is difficult to get over the fact that the question of payment dependsreally on the testimony of Mr. Cutilan and the defendant. The versionsof the two' are irreconcilable. The plaintiff’s witness, appears, on theevidence, to be a man of property and to be a person of some importance
1 Public Servants Regulation/)—207—209.B (1943) 1 K. B. 319.
1*J. N. A 89751 (6/49)
CANEKJERATNB J.—Yar v. Ondatji
in his community. It is not disputed thathe had a hand in arranging theloan. He had no interest in the transaction or in the parties. Accordingto the witness the note was payable by instalments, according to thedefendant it was not so payable. Mr. Cutilan testified that the plaintiff’sbrother handed him on several occasions the sums payable as instalments,each of which was Rs. 30 or so, that the defendant came to his houseabout the date of each instalment and he paid the sum to the defendant,and that after the last payment by him the defendant did not come andclaim any further sum. The defendant, on the other hand, said thathe did not ask the witness to collect any instalment and that nothingwhatever was paid on the note. He admitted going to his house, butthat, according to him, was because there was at least one or twodebtors of his living in this house. The defendant appears to havecreated an unfavourable impression on the Judge. He got into somedifficulties and tried to extricate himself by saying “ I am feeling dizzy.”He made, perhaps, a slip in cross-examination about his Proctor beingpresent when the money was paid in action No. 6,058. It is not veryclear who appeared on this occasion, but the Proctor who filed thisaction was a lady ; there was no similarity whatever between her nameand that of the Proctor appearing for him in the present action. Inre-examination, however, he took upon himself definitely to make thebold assertion that it was the present Proctor who appeared for him inthe promissory note ease and that it was in his office and in his presencethat the money was paid. Did the witness make an honest mistake orwas it a reckless statement ? The Judge saw the consternation on theface of the Proctor and notes what happened in Court at the time thesestatements were made, and he appears to adopt the latter view. Hehas in vigorous language expressed his view of the two witnesses.
“ I have not the slightest doubt that the defendant has lied aboutthis payment on the trial date. I reject his evidence altogether and Iunhesitatingly hold that all the evidence of Mr. Cutilan is true, namely,that all the instalments were paid through him to the defendant andthere was nothing due.”
I am unable to determine whether the appellant or the plaintiff’switness was worthy of credit. It is a question of credit where eachgives an account of what he has done and contradicts the other. Underthese circumstances it is impossible that a Judge sitting in appeal shouldtake upon himself to say, by simply reading the typewritten evidence,which is right, when he has not had that decisive test of hearing theverbal evidence and seeing the two witnesses which the Judge had whohad to determine the question of fact, and to determine which storyto believe1.
The appeal is dismissed with costs.
Naoat.tngam J.—I agree.
Basnaxake J.—I agree. i
i From Lord Halsbury’a speech in Kilpatrick v. Dunlop S.C. 632 n.
YAR, Appellant, and ONDATJI, Respondent