Sri Lanka Law Reports
(19901 1 SriLR.
K.G. N. FERNANDO
ATUKORALE, J.. FERNANDO. J. AND KULATUNGA. J.
S. C. APPEAL No. 32/86 – C. A. APPEAL No. 8/76 (F)-D. C. KALUTARA CASE No. 1821/MR.
JUNE 12. 1989.
Defamation – Privileged occasion – Assessment of evidence. – Circumstances justifyingdisturbing of findings on facts.
To an allegation in the plaint that certain words defamatory of the Appellant (namely thatthe Appellant had a “terrible reputation for being a terrible womaniser" and that “severalfemale patients had told him" that he examined them in places that are not necessary") hadbeen uttered by the Respondent in the hearing of Kingsley Wickremasinghe a leadinglawyer of Kalutara, the Respondent responded with a denial and gave as his own versionof his conversation with the said lawyer that Wickremasinghe (a friend of the Appellant) hadasked him why he does not join the Appellant and run a Nursing Home and the Respondenthad said he was not interested. When Wickremasinghe persisted the Respondent told himthat the Appellant was tactless with his patients and there was a rumour (of which he knewnothing personally and which he did not believe) that he examined patients in unwantedplaces.
The District Judge held for the Appellant accepting Wickremasihghe’s evidence.
It was argued that the Court of Appeal should not disturb findings of fact but that Courtheld that the learned District Judge had misdirected himself on the facts and the law inregard to privilege. The District Judge had attached undue weight and importance to theposition of Wickremasinghe in the community and at the Bar.
Held on appeal to the Supreme Court :
(1) There was no critical analysis of the evidence by the District Judge. The Judge hadfailed to consider the impact (or even understand the significance) of the evidence ofanother attorney-at-law Mohamed Hanaffi on Wickremasinghe's version of the
K. G. N. Fernando v. Fawzi Mohamed
circumstances in which the conversation between him and the Respondent began: Foraccording to Wickremasinghe the Respondent uttered the words complained of withoutany provocation constituting more or less, a sudden and gratuitous attack on the moralcharacter of the.Appellant.,The most glaring error in.lhe District Judge's.assessment ofevidence was his failure to consider the testimony of Mohamed Hanaffi that 2 days afterthe incident the Respondent had met Wickremasinghe in his company and asked himwhether he called the Appellant a womaniser and Wickremasinghe replied "that is themeaning of what you said*.
(2) The defence of privilege was available to the Respondent.
Case referred to:
CoKetts Lid v. Bank of Ceylon (1984) 2SriL R. 253.
APPEAL from judgment of the Court of Appeal.
D. R. P. Goonetilleke with Shiranthi de Saram for the Plaintiff-Appellant.
Lde Silva, P. C. with Fwz Mustapha, P. C„ M. D. Mohamed and Mizam Razzaq forDefendant -Respondent
Cur. adv. vutt.
At the conclusion of the hearing into this appeal we made orderdismissing the same with costs. We now set down our reasons fordoing so.
Both parties to this appeal are medical practitioners who, at therelevant times, were practising their profession inor around Kalutara.TheAppellant filed this action, which has given rise to the present appeal,against the Respondent to recover damages in a sum of Rs. 50,000 forcertain defamatory statements alleged to have been uttered regardinghim by the Respondent in the verandah of the Magistrate's Court.Kalutara, in the presence of Kingsley Wickremasinghe, an Attorney-at-law, practising at Kalutara Court. The precise words allegedly uttered bythe Respondent and forming the basis of the appellants's claim are setout in paragraph B of the plaint. They are an follows:-
“Dr. George Fernando has a terrible reputation of being a terriblewomaniser.”
“Several female patients have told me that he examined them inplaces that are not necessary.”
“I have been asked to join him several times. I will lose the little practiceI have if I join him.”
Sri Lanka Law Reports
11990] 1 Sri LR.
Dr. George Fernando referred to above is the Appellant.
In his answerthe Respondent denied that he uttered the words set outabove. He averred that ever since he commenced practice at Kalutara theAppellant had suggested to him that he should join him in running aNursing Home or a dispensary in partnership. He, however, did not givethe Appellant a definite reply although he had, in his own mind, decidedno to join the appellant in practice. On the day in question when he wentto Kalutara Courts on business Kingsley Wickremasinghe (who he knewwas a friend of the Appellant) came up to him and asked him why he doesnot join the Appellant and start a Nursing Home in Kalutara or Beruwela.He told Wickremasinghe that he was not interested in joining theAppellant. Wickremasinghe then advised him to do so. When he persistedin his refusal Wickremasinghe asked him for the reasons why he was notwilling to join the Appellant. He then told Wickremasinghe that theAppellant was tactless with his patients and that there was a rumour thatthe Appellant examined patients in unwanted places though he himselfknew nothing about it personally and did not believe it. The Respondentfurther averred that the conversation that took place between him andWickremasinghe on the day in question was in consequence of theiatter’s insistence on knowing the reasons for his refusal to join theAppellant in practice and that the communication so made by him toWickremasinghe was a privileged communication made on a privilegedoccasion and as such was not actionable. The plea of privilege set up bythe Respondent in his answer was put in issue at the trial. It is not deniedthat the material words (whetherthey be those set out in the plaint or thoseset out in the answer as having been said in response to Wickremasinghe’squery) were spoken by the Respondent in the presence of and within thehearing of Wickremasinghe only and of no one else.
The learned District Judge after hearing the evidence held that theRespondent uttered the defamatory words attributed to him in the plaint.He also held that the occasion on which they were uttered was notprivileged and that they were not privileged communications. He awardedthe appellant a sum of Rs. 25,000/- as damages. The Respondent wentin appeal to the Court of Appeal which reversed the judgment of the trialjudge and dismissed the Appellant’s action. The present appeal is fromthis judgment of the Court of Appeal.
At the hearing before us learned Counsel for the Appellant contendedthat the question that arose for decision is this case was whether the
K. G. N. Fernando v. Fawzi Mohamed (Atukorale, J.)
Respondent uttered the defamatory words set out in the plaint or not, thatit was essentially a question of fact, that the trial judge was the best judgeon questions of fact, that having seen and heard the witnesses on bothsides he accepted the version of the Appellant’s witness Wickremasinghe,and rejected that of the Respondent, that it was not open to the Court ofAppeal to have substituted its own view to that of the trial judge and thatthe Court of Appeal should not have, in the circumstances of this case,interfered with the trial judge’s findings of fact. In view of learnedCounsel’s submission it is necessary for us to examine closely thereasons which induced the Court of Appeal to disturb the findings of factof the Trial Judge.
A perusal of the judgment of the Court of Appeal discloses that themain thrust of the submissions advanced in that court on behalf of theRespondent (who was the appellant therein) was that the trial judge'sapproach to the assessment of evidence in the case, particularly that ofWickremasinghe, caused grave prejudice to the Respondent; that theTrial Judge had seriously misdirected himself on certain vital items ofevidence resulting in an erroneous evaluation of the totality of theevidence in the case and that he had misdirected himself both on the factsand the law in regard to the plea of privilege raised by the Respondent.Upon a consideration of all the matters urged before us at the hearing weformed the view that there was ample material to substantiate each of theaforesaid submissions, the first two of which, by themselves, wouldsuffice to refute the arguments of learned Counsel for the Appellant. Wewere in entire agreement with the view of the Court of Appeal, which,though not expressly stated so, was implicit in its reasoning, that but forthe wrong approach adopted and grave misdirections committed by theTrial Judge he would not have failed to uphold the Respondent's versionof what took place on the day in question upon which was founded his pleaof privilege.
One of the opening paragraph of the judgment of the trial judge makesit abundantly clear that he has attached undue importance and weight tothe position and standing enjoyed by the Appellant's witness,Wickremasinghe, in the community and at the Kalutare Bar. He statestherein that generally it must be held that a person of the standing ofWickremasinghe would not, by using such indecent words as are set outin the plaint, affirm to something which did not actually happen. He furtherstates that on a consideration of the evidence of Wickremasinghe and of
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119901 1 SriL.R.
the Respondent it is necessary to decide whether Wickremasinghe'sevidence can be accepted or not. He then proceeds to narrate brieflyWickremasinghe's evidence but there is no critical analysis of theevidence of eitherof them. In regard to the evidence of Mohamed Hanaff i,Attorney – at -law, called by the Respondent, the learned judge observesthat there is a discrepency between his evidence and that ofWickremasinghe as to whether the Respondent was introduced or not toWickremasinghe by Mohamed Hanaffi (Wickremasinghe maintainingthat he was and the latter denying the same) but that this discrepency wasof no significance and concludes that on a consideration of their evidenceit is not possible to hold that Wickremasinghe is a person who wouldtestify to words which were not uttered by the Respondent. But, aspointed out by learned President's Counsel, he has totally failed toconsider the impact or even understand the significance of MohamedHanaff i's evidence on Wickremasinghe's version of the circumstances inwhich the conversation between himself and the Respondent began.According to the evidence of Wickremasinghe the Respondent utteredthe words complained of without any provocation constituting, more orless, a sudden and gratuitous attack on the moral charactor of theAppellant. But according to Mohamed Hanaffi, Wickremasinghe came upto the spot where he and the Respondent were talking and asked therespondent why he came there. When the Respondent said that hewanted to get Mohamed Hanaffi's brother's building to start a dispensaryat Beruwela, Wickremasinghe asked him why he did not start a dispensarywith the Appellant, at which stage Mohamed Hanaffi stated he left theplace to attend to his work.
This evidence of Mohamed Hanaffi (which does not appear to havebeen seriously challenged in cross-examination) materially corroboratesthe Respondent’s version of what transpired in conversation between himand Wickremasinghe.But the learned judge has not even adverted to thesame in his judgment. Nor has the learned judge made any reference tothat passage in the evidence of Mohamed Hanaffi to the effect that whenhe, at the request of the Respondent, accompanied the Respondent tomeet Wickremasinghe about 2 days after the incident and when on thatoccasion the Respondent asked Wickremasinghe whether he had calledthe Appellant a womaniser, Wickremasinghe replied" that is the meaningof what you said." This evidence of Mohamed Hanaffi, if true, negativesWickremasinghe’s accusation that the Respondent called the Appellanta womaniser on the day in question. But, in my view, the most glaring error
K. G. N. Fernando v. Fawzi Mohamad (Atukorale, J.)
of fad committed by the learned judge which led him to outright rejectionof the Respondent’s evidence is his finding that the Respondent’s testi-mony that during his conversation with Wickremasinghe he was onlyreferring to a prevalent rumour (which he himself did not believe) that theappellant examined patients in unwanted places was a mere afterthoughton the part of the respondent trotted out by him for the first time whilst inthe witness box with no reference to it even in his answer. This finding ofthe learned judge is in the teeth of what had been stated by theRespondent not only in his answer but also in his reply (D3) to theAppellant’s letter of demand, in both of which the Respondent hasspecifically set out that he told Wickremasinghe that'there was a rumourthat the Appellant examined patients in unwanted places, though heknew nothing about it nor believed it. Thus the rejection of the Respon-dent’s evidence was based on a wholly untenable and manifestly errone-ous finding of the trial judge. Quite apart from the above matters, the trialjudge’s uncritical acceptance of Wickremasinghe’s evidence is alsoborne out by the fact that he has not paused to consider Wickremas-inghe’s conduct at or about the time that the defamatory words wereallegedly uttered by the Respondent. Wickremasinghe says he was an-noyed when the Respondent made the defamatory statements concern-ing the Appellant, who was his close friend. But he did not venture tocontradict nor even to express his disbelief of the same but remainedsilent. It is inconceivable that Wickremasinghe would have just remainedsilent if, as alleged, the Respondent made a sudden and unprovokedattack of such magnitude on the character of his good friend in his verypresence. Wickremasinghe’s silence lends support to the Respondent'sversion that he did not volunteer to make the disparaging words com-plained of or take responsibility for the same as alleged but referred, onlywhen pressed by Wickremasinghe, to such a rumour as the reason for notwishing to join the Appellant. There was also the clear evidence ofWickremasinghe himself that at one stage he thought the matter shouldhave been settled by an apology from the Respondent. This statement isconsistent more with a reference to a rumour concerning the Appellantrather than a virulent attack made directly on the Appellant's character.There was further evidence that the Appellant was Wickremasinghe'selection agent and trusted friend with whom there were business trans-actions. It was, therefore, the duty of the trial judge to approach Wick-ramasinghe’s evidence with a certain amount of caution for there was thepossibility of, perhaps, even an unintended exaggeration out of his loyalty
Sri Lanka Law Reports
11990) I SriLR.
towards a trusted friend. It was further urged by learned President'sCounsel that Wickremasinghe’s lack ot candour was evident by the factthat he repeatedly denied any knowledge of the oontents of the Respon-dent’s reply to the letter of demand and of the position taken up by him inthe answer vis-a-vis the defamatory words allegedly uttered by himdespite having attended on two occasions the chambers of counsel whoappeared for the Appellant in the lower court for consultations. It appearsto me that the learned judge from the very outset ot his judgmentproceeded on the hypothesis that Wickremasinghe, by virtue of hiscalibre and standing in life, could not but have been a truthful witness onwhose testimony he could safely act. As a result he has failed to addresshis mind to the infirmities in the evidence of Wickremasinghe or to embarkon a fair and impartial evaluation of the evidence as a whole. Thisapproach undoubtedly has caused serious prejudice to the Respondent'scase. In the circumstances it was incumbent on the Court of Appeal toreview the evidence afresh and to arrive at its own findings of fact.
Article 138 (1) of our Constitution mandates, inter alia, that the Courtof Appeal shall have and exercise an appellate jurisdiction for thecorrection of all errors in fact or in law which shall be committed by anyCourt of First Instance. The Court of Appeal has thus the power and,indeed, is under a duty to correct all errors of fact committed by an originalcourt. Nowhere has it been laid down that the Court of Appeal ispowerless to interfere on questions of fact. The submission of learnedCounsel for the appellant that it was not open to the Court of Appeal todisturb the findings of fact of the original court and substitute therefor itsown view of the facts is a preposition which is not warranted. In anappropriate case it would be the duty of the Court of Appeal to do so. Theprinciples of law upon which an appellate court will interfere with thefindings of fact of a Court of First Instance have been laid down in severaldecisions of the Supreme Court, both past and present. One of the morerecent judgments of the present Supreme Court on this point is the caseof Collettes Ltd. v. Bank of Ceylon (1). Learned Counsel did not seekto challenge the validity or applicability of these principles to the facts ofthe instant case. Nor did he make any endeavour to explain the errors andmisdirections in the judgment of the learned trial judge enumerated aboveexcept to repeat that the findings of fact, particularly the finding that theRespondent uttered the defamatory words set out in the plaint arrived at
K. G. N. Fernando V. Fawzi Mohamed (Atukorale, J.)
by the trial judge should accrue to the Appellant's benefit and should notbe disturbed. I think the following passage from the judgment ofSharvananda J. (as he then was) in the above case applies with equalforce to the judgment of the trial judge in the instant case :
“ The trial judge has everlooked relevant considerations in the as-sessment of the evidence. He had not directed his mind to relevantquestions and had failed to apply correct principles of law to the facts.The deficiencies in the judgment are such that I am convinced that anAppeal Court will be failing in its primary duty if it inhibits Itself byregarding the findings of fact arrived at by the District Judge asunreviewable and final just because credibility of witnesses is in-volved. It was significant that Counsel for the plaintiff when asked tosubstantiate certain findings of fact could fall back only on the mere factof the Judge's finding in his favour and not on any other supportingmaterial. I have no doubt, in fact I am convinced, that the DistrictJudge has grievously gone wrong in his opinion. It is a judgment whichby its manifest errors of law and fact would have resulted in amiscarriage of justice had the Court of Appeal affirmed it.”
I am of the view that the finding of the learned trial judge in the instantcase that the Respondent uttered the defamatory words testified to byWickramasinghe in his evidence is, as argued by learned President'sCounsel demonstrably unreasonable and the Court of Appeal was fullyjustified in reversing the same. In fact in the Court of Appeal learnedCounsel appearing for the Appellant appears to have presented hisarguments on the basis that the Respondent had uttered only the wordsadmitted by him and in the circumstances set out by him. To say that therewas a rumour that the Appellant examined female patients in unwantedplaces would be defamatory of him. Hence the issue that appears to havebeen substantially in dispute in the Court of Appeal was whether theRespondent’s defence of privilege was entitled to succeed. The Court ofAppeal held that it was. The Appellant, neither in the application forspecial leave to appeal nor at the hearing before us has sought to canvassthis finding of the Court of Appeal.
FERNANDO, J. -1 agree.
KULATUNGA, J. -1 agree.
K. G. N. FERNANDO v. FAWZI MOHAMED