ALLES v. WEERASINGHE

015-SLLR-SLLR-1997-2-ALLES-v.-WEERASINGHE.pdf


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Alles v. Weerasinghe
185
ALLES
V.
WEERASINGHE
COURT OF APPEAL.
EDUSSURIYA, J.
A. 459/85(F).
C. COLOMBO 83672/M.
JUNE 21, 1996.
Defamation – Publication of material defamatory – Defence of truth andjustification; fair comment and privilege – Damages.
The plaintiff-appellant instituted action to recover damages from the defendant-respondent on the ground that the respondent caused the publication of materialdefamatory of him by printing and disseminating pamphlets (P10, P11 and P14).The respondents filed answer denying these publications and pleading that theyare not defamatory took up the defences of truth and justification, fair commentand privilege.
The Learned District Judge held that the statements P10, P11 and P14 referred tothe plaintiff-appellant, that they were defamatory of the plaintiff-appellant and heldagainst the defendant-respondent on the defences of truth and justification andfair comment, but held with the defendant-respondent on the defence of privilegeexcept with regard to item 3 on the reverse of P11 and awarded the plaintiff-appellant damages in a sum of Rs. 15,000/- in respect of same.
The plaintiff appealed against the judgment. On appeal,
Held:
When the occasion is privileged a communication made on that occasion isprima facie protected. However if the communication is not germane to theoccasion, that is, has no relevance to the occasion or is made to the defendantbeing actuated by an improper motive such as malice, it is not protected.
The moment the learned District Judge decided that the occasion wasprivileged there was an end to the case unless express malice is proved. It isthen left to the plaintiff to prove that the communications complained of weremade from an indirect motive, such as anger or with a knowledge that they weretrue or without caring whether they were true or false and not for the reason whichwould otherwise render them privileged.
If the defendant made the statements believing them to be true, he would not losethe protection arising from the privileged occasion, although he had noreasonable grounds for such belief.
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The fact that an occasion is privileged does not necessarily protect all that issaid or written on that occasion. Where the statements are relevant butunnecessary, the fact that unnecessary statements had been introduced might beevidence of express malice but that the mere fact that the statements wereunnecessary did not establish malice.
Per Edussuriya, J.
“Where a defamatory statement which is not relevant to the privileged occasion isthe only evidence of malice, Courts will be slow to draw the inference that themalice attaching to the irrelevant statement extends to the entire communication-including the privileged portion in the absence of other evidence of malice eitherbefore or after the publication.
Another instance of malice and motive on the part of the defendant is theconduct of the defendant in persisting with the plea of truth and justification, butmade no endeavour to establish same.
There was no duty to be discharged because those persons who wereentitled to receive communication in the performance of the duty were alreadyaware of the communication prior to the publications of P10, P11, P14 on thedefendants own showing.
However, it is proved to the satisfaction of Court that the defendant used aprivileged occasion for an improper motive viz. to maliciously injure the plaintiff.
APPEAL from judgment of the District Court of Colombo.
Cases referred to:
Pullman v. Hill 1891 – 1QB524.
Clark v. Molyneux- 1877 – 1878 3 Q.B.D. 237.
Middler v. Hamilton – 1923 TPD – 79.
Horrocks v. Lowe 1975 AC at 138 and 150.
5.. Yates v. Macrae 1929 T.P.D. at 493.
Chandrasena v. Phillips 49 N.L.R. 271.
Adam v. Ward{ 1917) AC 309 at 320.
Turner v. M.G.M. Pictures 1950 1 All ER 449 at 455.
Simpson v. Robinson 1848 – 12 QB 511.
Faiz Musthapa, PC. with A. A. M. Illiayasfor plaintiff-appellant.
R. K. W. Gunasekara for respondent.
Cur. adv. vult.
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Alles v. Weerasinghe (Edussuriya, J.)
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November 12, 1996.
EDUSSURIYA, J.
This is an appeal from the judgment of the learned District Judgeof Colombo in an action instituted by the plaintiff-appellant (appellant)to recover damages from the defendant-respondent (respondent) onthe ground that the respondent caused the publication of materialdefamatory of him by printing and disseminating pamphlets 'P10' ,‘P11 ’ and ‘P14’ which were produced marked A, B and C with theplaint. ‘P10’ and *P11 ’ were dated 9th November 1979, whilst ’P14’was dated 24th November, 1979.
It is in evidence that ‘P10’ and ‘P11 ’ had been distributed at theentrance to D. S. Senanayake Vidyalaya on 13th November, 1979 and14th November, 1979 respectively. The appellant was the principal ofthe said school at that time. It is also in evidence that ‘P14’ wasdistributed to those attending the Royal College Prize Giving.
‘P10’ purports to be a publication of a society called the Children’sRights Protection Society under the heading “Your Child’s BasicRights. Education State of Affairs at D. S. Senanayake Vidyalaya" andopens with the words “Even if you stay close to D. S. SenanayakeVidyalaya you will not be able to admit your child to this school. Onlygem mudalalis, fish mudalalis and other outstation mudalalis’ childrenare admitted to this school because they are paying the highestbribes. Now let us give you facts and figures”.
Then ‘P10’ goes on to give certain figures regarding admissionsfor the year 1980 and states that for 200 vacancies only 51 havebeen selected and out of that 20 names have been copied from theRoyal College list of selectees, and that therefore only about 30students have been selected for admission to D. S. SenanayakeVidyalaya and that the balance 170 students will be admitted throughthe back channel for the “highest bidding bribes". ’P10’ concludes bycalling for ideas and opinions and to forward them to the respondentwho is designated the Co-ordinating Secretary of the Children’sRights Protection Society. ‘P1 O' also sets out that it is publicationNo. 005 of the Children’s Rights Protection Society.
*P11 ’ is a similar pamphlet, alleged to be, publication No. 004 ofthe Children’s Rights Protection Society and is similar to ’P10’ but with
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certain additional statements such as “This same procedure(obviously a reference to students being admitted on payment ofillegal gratifications) happened during the past few years. As a resulthis personal wealth has increased rapidly. Estates, Luxury Cars,Residences with princely comforts, fixed deposits and bank accountsare only few amongst these”.
Then 'P14' states that although it is said that children in the vicinityhave been admitted to this school it had become necessary toarrange for a large number of buses to transport children to school,thus implying that they are not from the vicinity. 'P1T also concludesby calling for comments and gives the name and address of therespondent as Co-ordinating Secretary of the Children’s RightsProtection Society.
The reverse of 'P1T states, to expect publication No. 006 and setsout 4 items, namely,
properties purchased, details of bank accounts, amounts paidfor Scotch Whiskey and French Brandy.
a list of names of mudalalis residing in Ratnapura, Negombo,Marawila, Kurunegala who are complacent after paying a part ofthe bribes to admit their children.
reasons for young lady teachers applying for transfer.
acts against public welfare that take place behind the upstairdoor with a round glass.
Both ‘P10’ and ‘P1T carry the legend that they were printed by thedefendant at the Samantha Press.
‘P14’ is an open petition to the Bribery Commissioner which hadbeen, according to the plaintiff, distributed on 24th November, 1979at Royal College on the Prize day.
'P14' sets out that the plaintiff,
holds a bank account with a credit balance exceedingRs. 200,000/-,
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owns a car worth more than Rs. 300,000/-,
has a partly constructed house and the conservative estimateof the cost of construction being Rs. 200,000/-,
maintains his son at a foreign educational institution and remits£300/- per month.
has household effects acquired during the preceding two yearsincluding stereo sets, three refrigerators, televisions and luxuryfurniture valued at over Rs. 100,000/- which have all beenacquired with illegal gratification collected by the plaintiff on theadmission of children to the school.
'P14' has been signed by the respondent and is referred to aspublication No. 009 of the Children’s Rights Protection Society.
The respondent filed answer denying these publications and thenpleading that they are not defamatory of the appellant took up thedefences of truth and justification, fair comment and privilege.
The learned District Judge after trial held that,
the statements 'P1 O’, 'P11’ and ‘P14’ referred to the appellant,
that they were defamatory of the appellant and held againstthe respondent on the defences of truth and justification and faircomment, but held with the respondent on the defence of privilegeexcept with regard to item 3 on the reverse of *P11 ’ and awardedthe appellant damages in a sum of Rs. 15,000/- in respect of thesame.
The appellant has appealed from this judgment.
It is appropriate to mention at this juncture that this appeal wasargued on 21st June, 1996 and oral submissions were concluded onthat day. At the conclusion of the oral submissions the respondent'sCounsel was granted time to tender any authorities relating to theappellant’s Counsel’s contention that where it is held that malice
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attaches to any particular statement of a document complained ofthen such malice taints the entire communication and that it cannotbe held that malice attaches to that statement only and that the restof the document is privileged.
However learned Counsel for the respondent tendered writtensubmissions wherein he had dealt with matters which were notreferred to at the hearing of the appeal. Besides, learned Counsel forthe respondent had also made written submissions regarding thelearned District Judge’s findings that 'P10’ and 'P11' referred to theappellant and that they were defamatory of the appellant and also thefindings against the respondent on the defences of truth andjustification and fair comment. In any event there was no appeal filedby the respondent nor were any oral submissions made et thehearing of this appeal regarding those matters.
For these reasons I will not take into consideration anything in thewritten submissions other than the authorities I called for, in decidingthis appeal.
The learned District Judge has held that the occasion wasprivileged and this finding was not canvassed by the appellant at thehearing of this appeal.
The learned District Judge also held that the communicationscontained in *P1 O', ‘P11 ’ and ‘P14’ other than item 3 on the reverse of'P11 ’ are privileged and awarded damages in respect of thepublication of that- particular defamatory statement. Thus, it is clearthat the learned District Judge was of the view that item 3 on thereverse of 'P11 ’ was not relevant to the discharge of the duty thatarose on that privileged occasion and therefore malicious.
At the hearing of this appeal, Counsel for the appellant contended,firstly, that the learned District Judge had erred in holding that maliceattached to only item 3 on the reverse of 'P11 ’ and not to the otherdefamatory statements in 'P11' and submitted that the finding ofmalice must necessarily extend to the entire communication andcannot be restricted or confined to that irrelevant defamatorycommunication alone.
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Counsel for the plaintiff-appellant also contended that the learnedDistrict Judge has not examined the question whether the appellanthas established an improper motive and submitted that the fact thatthe respondent took up the defence of truth and justification andunrepentantly persisted in it while not making any effort to prove it,also showed malice. Further, that the learned District Judge failed toconsider the contents of the respondent's letter ‘P5’ in this connectionand that, all that the learned District Judge had done was to seewhether there was reasonable and probable cause for the publicationwhereas that was not necessary.
Before I proceed to examine the evidence on the question whetherthe plaintiff-appellant has established an improper motive or not, Iwish to refer to some statements made by the learned District Judgein the course of his endeavour to ascertain whether the defendant-respondent had reasonable and probable cause to make thestatements complained of. Although the learned District Judge hasdone this in order to see whether the defendant-respondent had actedbona fide or not (page 192) once it is decided that the occasion wasprivileged then all statements, though defamatory, made on thatoccasion, which are relevant to the discharge of the duty that givesrise to the privileged occasion are protected and it is presumed thatsuch statements were made bona fide in the discharge of that duty,whether there be or be not reasonable or probable cause and theburden falls fairly and squarely on the shoulders of the plaintiff toprove an improper motive such as a malice, etc.
At one point of the judgment the learned District Judge has stated"Outward manifestations such as possession of luxury cars, estates,residences with royal comforts, fixed deposits and bank accountsleads one to the belief that the possessor has accepted bribes”,(page 197)
The plaintiff-appellant admitted having used a Peugeot – 504 carwhich belonged to the Vice Principal. However there is no evidenceof any outward manifestation that the plaintiff-appellant ownedestates or residences with royal comforts although there wasevidence that the plaintiff-appellant’s wife owned two allotments ofland from a land called Galawila Estate which her father hadpurchased for her. As far as residences were concerned, at the time
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of the publication in question the plaintiff-appellant did not own anyresidences, except that if at all he was in the process of constructingone. In this connection the plaintiff appellant has said that hecommenced construction of the said residence in January 1980, thatis after the publications in question. Then again, at the time of thepublications the plaintiff-appellant was residing in a house providedby the Education Department at Gregory's Road and the onlyoutward manifestations of royal comforts if they can be so called wasa Sanyo Stereo Set and two refrigerators, one of which wasaccording to the uncontradicted evidence twenty-three years old. Asfar as bank accounts are concerned almost every Tom, Dick andHarry have bank accounts for the purpose of transacting their dailybusiness like payment of electricity bills, etc.
Of course the position would have been different if the plaintiff-appellant had a bank account with a credit balance in a large sum ofmoney. The plaintiff produced his bank statement for the month ofOctober 1979 (P10) which showed a bank balance of Rs. 2312.09cts. and he stated that at the most he would have had a bankbalance of Rs. 10,000/-. There is no evidence of the plaintiff-appellanthaving any money in Fixed Deposit Accounts.
Then again the learned District Judge’s statement "I concede thatthe amount in the plaintiff’s bank account has not been shown toexceed Rs. 300,000/-” (This should actually be Rs. 200,000/- as thatis the sum mentioned in ‘Pi 1’) is to say the least ridiculous, because,the bank balance was at the most Rs. 10,000/- according to theuncontradicted evidence of the plaintiff-appellant.
Then again the learned District Judge has stated at page 199 that“In the state of mind in which the defendant was after his child wasrejected, and in the light of the plaintiff running about in a Peugeotcar, constructing a house spending over Rs. 600,000/- owning anestate, and assets revealed in ’P20’ and having a son following acourse abroad, I cannot blame the defendant and it is not a surpriseif he raised his eye brows and felt that something untoward hadhappened”.
Here again, the construction of the house was completed inSeptember 1981 long after the publications in question. Besides, the
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figure mentioned in the publication was Rs. 200,000/- and it was theplaintiff-appellant who said in evidence that cost Rs. 600,000/- andhe explained how he obtained the money. Then again as statedhereinbefore there was no evidence that the plaintiff-appellant ownedan estate.
The learned District Judge has also made reference to the plaintiff-appellant’s conduct regarding admissions to the school beingquestioned in Parliament.
The plaintiff-appellant was questioned about his disregardingverbal instructions given by the Minister of Education (page 98 and99) and the plaintiff-appellant explained that those verbal instructionsrelated to leaving room for special admissions and this must be so,because instructions regarding regular admissions are contained in acircular as disclosed by the evidence in this case. Besides there isno evidence to the contrary. In any event this question had arisen inParliament after the publication of 'P10', 'P1T and 'P14'.
I have referred to the above mentioned comments of the learnedDistrict Judge because the learned District Judge appears to havebeen influenced by them in arriving at his decision.
I will next proceed to deal with the submissions of the plaintiff-appellant’s Counsel, and the law relating to the defence of privilegeand improper motive.
The learned District Judge has held that the occasion wasprivileged. When the occasion is privileged a communication madeon that occasion is prima facie protected. However, if thecommunication is not germane to the occasion, that is, has norelevance to the occasion or is made due to the defendant beingactuated by an improper motive such as malice, it is not protected.
In the present case before me the learned District Judge has heldthat the communications contained in ‘P10’, 'P11’ and 'PI 4’ otherthan item 3 on the reverse of ‘P1T are privileged. Thus it is clear thatthe learned District Judge considered item 3 on the reverse of ‘P1Twas not relevant to the occasion and therefore had been made withan improper motive (malice) and not relevant to the discharge of theduty relevant to the privileged occasion.
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The moment the learned District Judge decided that the occasionwas privileged there was an end to the case unless express malice isproved Lopes L.J. in Pullman v. Hill™. It is then left to the plaintiff toprove that the communications complained of were made from anindirect motive, such as anger or with a knowledge that they wereuntrue, or without caring whether they were true or false and not forthe reason which would otherwise render them privileged. On theother hand if the defendant made the statements believing them tobe true, he will not lose the protection arising from the privilegedoccasion, although he had no reasonable grounds for such beliefClark v. Molyneux(2). However in the present case that prima facieprivilege will not extend to item 3 on the reverse of ‘P1T according tothe learned District Judge’s finding.
The learned District Judge has however in an effort to ascertainwhether the communications were made bona fide, consideredwhether the contents of the pamphlets ’P10’, *P11 ’ and ‘P14’ were"palpably false or whether the defendant had reasonable or probablecause for his belief as to the contents of the pamphlets".
As mentioned hereinbefore if the defendant made the statementsbelieving them to be true, he will not lose the protection arising fromthe privileged occasion, although he had no reasonable grounds forhis belief, and it has been held in Middler v. Hamilton™ that "absenceof reasonable grounds for a defendant’s belief in the truth of adefamatory charge is no doubt not sufficient proof of honesty in thatbelief but is strong evidence in that direction”.
However even if there was reasonable and probable cause andthe defendant had a genuine belief in the statement, it is quiteconsistent with the existence of malice if he used the occasion for animproper motive. In order to avoid liability the defendant must havesaid it for the purpose for which the law allows such statements to bemade (Horrocks v. Lowem).
Learned Counsel for the appellant submitted that the learnedDistrict Judge had not considered the effect of the finding that item 3on the reverse of ‘P11 ’ was irrelevant to the occasion with regard toimproper motive in publishing the communications complained of.
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In Yates v. Macrae™ where the statements were relevant butunnecessary Tindall, J. had stated that, the fact that unnecessarystatements had been introduced might be evidence of expressmalice but that the mere fact that the statements were unnecessarydid not establish malice. In the present instance item 3 on the reverseof 'PH’ cannot be considered to be relevant to the allegation ofirregular admissions to the school and bribery, as it refers to reasonsfor young lady teachers applying for transfers.
Learned Counsel for the respondent referred the Court to thedecision in the case of Chandrasena v. Phillips™ where it was heldthat where there was one statement to which the privilege attachingto the occasion did not apply as it had been made recklessly, notcaring whether it was true or false, the Defendant was liable only inrespect of that statement.
In that case the statements complained of had been made in replyto a pamphlet published by a supporter of the plaintiff (who wasstanding for election) which had stated that the plaintiff had duringthe war, when schools became disorganised, found otheraccommodation for teachers and pupils at his expense.
Soertsz S. P. J. had in the course of his judgment referred to andrelied on an observation of Earl Loreburn in the case of Adam v.Ward™ that "the fact that an occasion is privileged does notnecessarily protect all that is said or is written on that occasion.Anything that is not relevant and pertinent to the discharge of theduty or the exercise of the right or safeguarding the interest whichcreates the privilege will not be protected” and then come to theconclusion that, a particular statement had been made with cruelrecklessness, not caring whether it was true or false and held that,that statement was in excess of the privileged occasion and thateven if it were not, the first respondent made it with malice. So thatthe question whether, malice attaching to that particular statementextended to the other parts of the publication and was evidence of animproper motive had not been considered by Their Lordships in thatcase.
In the case of Adam v. Ward (supra) the question arose whethercertain defamatory statements contained in the libel were irrelevant tothe discharge of the duty which gave rise to the privileged occasionand Lord Finlay in the course of his judgment said (page 318) "Theprivilege extends only to a communication upon the subject with
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respect to which privilege exists, and it does not extend to acommunication upon any other extraneous matter which thedefendant may have made at the same time. The introduction of suchextraneous matter may afford evidence of malice which will takeaway the protection on the subject to which privilege attaches, andthe communication on the extraneous matter is not made upon aprivileged occasion at all, inasmuch as the existence of privilege onone matter gives no protection to irrelevant libels introduced into thesame communication". At page 321 Lord Finlay went on to say “I willonly add that when one part of a libel is held to be protected byprivilege and the other part not protected, the jury ought to be toldthat they cannot give damages in respect of the first part at all,unless they are satisfied that it was malicious, which may be provedby the character of the unprotected part or by other evidence”.
In the course of his judgment in the same case Lord Dunedinstated (page 329) “It might thus occur, though, the case will probablybe rare, that, as above imagined, defamatory words in the nonprivileged paragraph 2 could afford evidence of express malice inconnection with the expressions used in the privileged paragraph 1”.
It is also appropriate to mention that Lord Atkinson in the courseof his judgment in the same case in discussing the "effect ofembodying separable foreign and irrelevant defamatory matter in alibel” posed the question whether it would make the occasion ofthe publication of the libel no longer privileged to any extent, orwhether those portions of the libel which would have been withinthe protection of the privileged occasion, if they had stood aloneand constituted the entire libel, still continue to be protected, theirrelevant matter not being privileged at all and furnishingpossible evidence that the relevant portion was published withactual malice, and reached the conclusion that in the absence ofall guiding authority the latter, namely, that the irrelevant matternot being privileged at all furnished possible evidence that therelevant portion was published with actual malice. Finally LordShaw of Dunfermline said in this connection, in the course of hisjudgment (page 348) the introduction of such matter which is notin any reasonable sense germane to the subject matter of theoccasion into a communication otherwise protected by theoccasion may sometimes (this is conceivable) have a bearingupon the issue of whether the other and unprotected matter waspublished with express malice.
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However as Lord Diplock observed (Harrocks v. Lowe (supra))there may be evidence of the defendant’s conduct upon occasionsother than that protected by the privilege, which justify the inferencethat upon the privileged occasion too his dominant motive inpublishing what he did was personal spite or some other impropermotive, even though he believed it to be true. Lord Diplock thenwent on to observe at page 151 of his judgment in Horrocks v. Lowe(supra) that “Logically it might be said that such irrelevant matterfalls outside the privilege altogether whereas, as everyoneknows, ordinary human beings vary in their ability to distinguishthat which is logically relevant from that which is not and fewapart from lawyers, have had the training which qualifies them todo so”. So that Lord Diplock has drawn a distinction betweenlawyers and non-lawyers who publish material which fall outside theprivilege and therefore not relevant to the discharge of the duty,arising on the privileged occasion, and the defendant in this casehappens to be a lawyer.
In this connection Lord Diplock also said that, “as regardsirrelevant matter the test is not whether it is logically relevant butwhether, in all circumstances, it can be inferred that the defendanteither did not believe it to be true or though believing it to be true,realised that it had nothing to do with the particular duty or interest onwhich the privilege was based, but nevertheless seized theopportunity to drag in irrelevant defamatory matter to vent hispersonal spite, or for some other improper motive. Here too, judgesand juries should be slow to draw this inference”.
In Turner v. M. G. M. Pictures™ Lord Porter observed that “Ifhowever, the plaintiff can show any example of spite, or indirectmotive, whether before or after the publication, he would establish hiscase provided the examples given are so connected with the state ofmind of the defendant as to lead to the conclusion that he wasmalicious at the date the libel was published; each piece of evidencemust be regarded separately, and, even if there are a number ofinstances where a favourable attitude is shown, one case tending toestablish malice would be sufficient evidence on whicih a jury couldfind for the plaintiff. Nevertheless, each particular instance of allegedmalice must be carefully analysed, and if the result is to leave themind in doubt, then that piece of evidence is valueless as aninstance of malice whether it stands alone or is combined with anumber of similar instances.
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In this connection it is appropriate to refer to the learned DistrictJudge’s findings on item 3 on the reverse of *P11 ’ wherein he saysthat the main theme in ‘P10’, ’PH’ and ‘P14’ is the irregularadmissions of children by accepting bribes and that item 3 on thereverse of ‘P11’ has no connection with that theme.
There is no appeal filed from that finding. Further, there is noevidence from which it can be inferred that the defendant believedthat item 3 on the reverse of 'P11 ’ was relevant.
The position therefore is that where a defamatory statement whichis not relevant to the privileged occasion is the only evidence ofmalice, the Courts will be slow to draw the inference that the maliceattaching to the irrelevant statement extends to the entirecommunication including the privileged portion, in the absence ofother evidence of malice, either before or after the publication.
Bearing the above in mind I will next proceed to examine theevidence,
The pamphlets in question have been published in the name of asociety, by the defendant-respondent, but there is no evidence of theexistence of such a society. Pamphlets 'P10', ’PH' and ‘P14’ arereferred to therein as publication numbers 005, 004 and 009respectively. There is also reference to a future publication number006 in ‘P11’. However there is no evidence of publications 001, 002,003, 007 and 008 nor is there evidence of number 006 beingpublished. The only inference that Court can draw is that there wasno such society because, 'P10', ‘P11’ and ‘P14’ do not set out thenames of the President and the other office holders, nor were thereany publications under numbers 001 to 003, 006 to 008 and that’P10’, ‘P11 ’ and 'P14' were referred to as numbers 005, 004 and 009with the intention of giving the readers of pamphlets 'P10', *P11 ’ and'P14' the impression that there was such a society in existence andthat it was active and was responsible for publications 001 to 003before ’P10’ was published. Why was this done? Was it because thedefendant himself did not honestly believe the contents of ’P10’, *P1 Vand ‘P14’ and was therefore attempting to palm the responsibility forthose publications to a non-existent society? If not did the defendantthink that, publication in the name of a society rather than in the nameof a single individual would give added weight. Be that, as it may,
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these pamphlets ‘P10’ and 'P11 * were distributed at the entrances tothe school of which the plaintiff appellant was the principal, whereas‘P14’ was distributed at the Royal College Prize Day and it is inevidence that the residents of a particular area are entitled to havetheir children admitted, to either D. S. Senanayake College or RoyalCollege.
The learned Counsel for the defendant-respondent submitted that‘P14’ was distributed at the Royal College Prize Day because someparents had children in both schools. If that be so, then distribution atthe D. S. Senanayake Vidyalaya would have served the purpose.However, it could be that some of the parents who attended the RoyalCollege Prize Day may in future have to seek admission of theirchildren to the Senanayake School, as they reside within thatparticular common area, to which I have referred earlier.
In any event, by the distribution of 'P101, *P11 ’ and 'P14’ at theplaces referred to, it is clear that these pamphlets were meant toreach the parents of the children who were attending D. S.Senanayake Vidyalaya and those parents residing within the arearelevant to admissions to the D. S. Senanayake Vidyalaya. Besides'P1 ’ and 'P11 ’ are titled “Your Child’s Basic Rights – State of Affairs ofEducation at D. S. Senanayake Vidyalaya".
Thus, the duty which the defendant sought to discharge on thisprivileged occasion was a duty owed to the parents of childrenattending the D. S. Senanayake Vidyalaya and those personsresiding within the area relevant to the admission of children to D. S.Senanayake Vidyalaya, and whose children may seek admission on afuture date. According to ‘P10’, *P11’ and 'P14 the plaintiff admits tothe school only a few children of residents living within the area whichqualifies them for admission and the majority are admitted fromoutside that “qualifying area” on the acceptance of illegalgratification, and this procedure has been followed by the plaintiff forsome years.
If that be so, then the majority of the parents were aware that theplaintiff admitted children on taking illegal gratification as they,themselves had given bribes and got their children admitted. So thatthe defendant clearly had no duty to discharge as far as suchparents are concerned. As far as the parents of the other children are
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concerned, namely the parents of children who have been admittedbecause of their residential qualification also, there was no duty to bedischarged in view of the contents of the defendant-respondent’sletter ‘P5’ of 5th November, 1979 wherein he has stated that“Therefore the balance number is to be recruited throughquestionable channels which are well known to the residents. By"residents” the defendant obviously refers to those persons residingwithin the area which entitles them to get their children admitted tothe school. Further, ‘P5’ sets out that a copy of ‘P5’ was sent to theBribery Commissioner. Therefore it is clear that the reference toadmission through “questionable channels” is a reference toadmission on taking bribes. Thus, it is clear that the defendant byprinting and publishing ’P10’, ‘P11’ and ‘P14’ amongst the parents ofchildren attending the school was not conveying something which theparents of all children attending the school and also the residents ofthe area did not know, that is, that the plaintiff was admitting childrenon acceptance of illegal gratification, according to the contents of ‘P5’.
The defendant being a lawyer surely knew this. Therefore themotive behind the publishing of 'P10', ‘P11’ and ‘P14‘ could not havebeen the discharging of a duty. It is therefore clear that the defendantwas using a privileged occasion for an improper motive, with a desireto injure the plaintiff.
Whilst I am on ‘P5’ the letter by which the defendant appealedagainst the refusal to admit his son, I will refer to another matter thatarises from the contents of ‘P5
In 'P5' the defendant has mentioned the names of eight childrenwhose names appear in the Royal School admission list as well andthe names of twelve children who according to the defendant havegiven addresses which are non-existent and goes on to say thattherefore these twelve cannot have authentic documents to provetheir residence.
However at the hearing of the defendant's appeal he admitted thatthe addresses of ten out of the twelve were authentic (vide ‘P6’). It isalso significant that the appeal was heard and rejected by theplaintiff, the Chief Education Officer, Colombo referred to in ’P14’ andthe principal of another school. According to the uncontradictedevidence of the plaintiff the parents of the other two children had
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written saying that they could not attend the meeting on 22ndNovember, 1979 which dealt with the defendant’s appeal. Thereforethat proves that the addresses of those two children were alsoauthentic since the letters sent to those addresses requesting them toappear at the school on 22nd November had reached them. Thisshows that the defendant is prone to making reckless statements notcaring whether they are true or false.
'P5’ was dated 5th November, 1979, and ‘P10’ and *P11 ’ weredated 14th November, 1979 and the defendant's appeal was dealtwith on 22nd November, 1979.
I will now move onto 'P11’. Item 3 on the reverse of *P1 V has beendealt with by the learned District Judge as a communication which isnot privileged and damages have been awarded regarding the sameon the basis that it had been made maliciously. Item 1 on the otherhand has not been discussed by the learned District Judge at all. Itrefers to the publication of the properties purchased by the plaintiff,bank accounts and amounts paid on the purchase of Scotch Whiskyand French Brandy by the plaintiff, in a future publication No. 006.However there is no evidence that publication No. 006 was everpublished or even printed. Nor has the defendant produced at thetrial a list of such properties, such bank accounts and evidence ofamounts paid for liquor or confronted the plaintiff with them in cross-examination. This is clear evidence of malice as those statementshave been made recklessly not knowing or caring whether they weretrue or false. In fact the only inference one can draw in thesecircumstances is that those communications were made knowingvery well that they were false because he did not have suchdocuments or information. There is also the plaintiff’s uncontradictedand unchallenged evidence that he is a teetotaller. If in fact thedefendant had such Bank Statements and particulars of suchamounts paid on the purchase of liquor, he undoubtedly would haveconfronted the plaintiff with them at the trial, and further would havealso annexed them to 'P14' which was printed and published later.The position is the same with regard to item 2 on the reverse of ‘P1T.
Another instance of malice and improper motive on the part of thedefendant is the conduct of the defendant in persisting with the pleaof truth and justification. The defendant put in issue the defence oftruth and justification, at the trial, but made no endeavour to establishthe same.
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In this connection I would like to refer to the decision in the case ofSimpson v. Robinsonm where it was held that malice may be inferredfrom the relation between parties before or after the publication or theconduct of the defendant in the course of the proceedingsthemselves, as for eg., where the defendant persisted in a plea ofjustification while nevertheless making no attempt to prove it.
For the above mentioned reasons I hold that the plaintiff hasproved to the satisfaction of the Court that the defendant used aprivileged occasion for an improper motive namely to maliciouslyinjure the plaintiff, on the pretext of discharging the duty that relatedto the privileged occasion. At this juncture, I must repeat that in anyevent I have already held that there was no duty to be dischargedbecause those persons who were entitled to receive thecommunication in the performance of the duty were already aware ofthe communication, prior to the publication of ‘P10', 'P11’ and ‘P14’on the defendant’s own showing.
In the circumstances mentioned above, and taking intoconsideration the status that the plaintiff held in society and thenature of the defamatory statements, I am of the view that the plaintiffis entitled to damages in a sum of Rs. 250,000/- which is reasonablein all the circumstances.
Next I will deal with the appellant's Counsel’s contention that in anyevent that the damages awarded in respect of item 3 on ‘P11' evenwhen taken in isolation as the only malicious statement is inadequate.In any event the sum of Rs. 15,000/- awarded as damages in respectof item 3 on the reverse of ‘P11' is in my view inadequate as that itemsuggests that young lady teachers were applying for transfers fromthe school because of the plaintiff’s conduct. I repeat that item 3 in‘P11 ’ refers to young lady teachers and not teacher. So that itimplies that the plaintiff’s conduct was morally obnoxious to all younglady teachers.
Today, when the openly immoral behaviour of married personsholding high positions in life, which has given scandal throughout thelength and breadth of this country, is common, some people may notthink much of allegations of such conduct, but way back in 1979 welived in a more civilized and God fearing society and the plaintiff wasa married man with children and was the principal of a well knownschool.
CA
Alles v. Weerasinghe (Edussuriya, J.)
203
Taking all these factors into consideration, in respect of item 3 onthe reverse of 'P1T alone, I hold that the plaintiff-appellant is entitledto damages in a sum of Rs. 100,000/-.
However for the reasons mentioned earlier by me, I vary thejudgment of the learned District Judge and award damages asprayed for in the plaint with costs. The appeal is therefore allowedwith costs fixed at Rs. 4,200/-.
Appeal allowed.