ALWIS v. SENEVIRATNE

039-SLLR-SLLR-1980-V-2-ALWIS-v.-SENEVIRATNE.pdf


268
Sri Lanka Law Reports
(1980) 2 Sri LR.
ALWIS v. SENEVIRATNE
COURT OF APPEAL
ABDUL CADER J. & RODRIGO, J.
A. (S.C.) 225/75(F)
C. COLOMBO 77746/MJULY 24, 1980.
Defamation – Plea of justification and plea of privilege – Are proceedings beforethe Rent Control Board judicial in nature? – Rent Restriction Act, (Chapter 274)Sections 13(1), 20(12)-Penal Code, Sections 17, Wand 188.
Words defamatory of the plaintiff were contained in cage 10 of the applicationform made by the defendant to the Rent Control Board, which required anapplicant to state the grounds of dispute and all matters relevant thereto. Theplaintiff was occupying a rent controlled premises as tenant of the defendant. Theplaintiff sued the defendant for defamation.
Held:
The Rent Control Board holds its proceedings in a manner as nearly aspossible similar to that in which a Court of Justice holds its inquiries in respect ofany matter before it. What was stated in the application attracted immunity ofabsolute privilege by reason of the character of the Board.
CA
Alwis v. Seneviratne (Rodrigo, J.)
269
The defendant’s purpose in making the application to the Rent Control Boardwas the protection of her interests, namely the recovery of her house and theejectment of her tenant the plaintiff, on the grounds specified. She had an honestbelief in the allegation she made and what she stated in the application attractedqualified privilege. She is entitled to claim to be protected by this privilege unlesssome other dominant and improper motive on her part is proved in rebuttal.
Cases referred to:
Silva v. Balasooriya (1911) 14 NLR 452
Royal Aquarium v. Parkinson (1892) 1 QB 431 at 442
Dawkins v. Loard Rokeby NLR 8 Queen's Bench 255
Basner v. Trigger, (1946) AD 94
Horrocks v. Lowe (1974) 1 AER 669
Adam v. Ward (1917) AC 326.
APPEAL from the order of the District Court of Colombo.
H. W. Jayewardena, QC. with H. M. P. Herath and Lakshman Perera for thedefendant-appellant.
D. R. P. Gunatilake for the plaintiff-respondent.
Cur adv vult.
5th September, 1980RODRIGO, J.
The appellant is the landlady of a premises that she had let to theplaintiff. She had her own residence next door to the plaintiff’s. Therewas no fence separating the two premises, stout or otherwise, andnot surprisingly the two of them fell out before long. The appellantthereafter wanted to get back the premises let to the plaintiff and shemade an application to the Rent Control Board. This was on the 3rdFebruary 1972. In that application the relief that she claims was therecovery of the premises. She added that the premises was alsorequired for occupation by her son and also that it had becomenecessary to ascertain the authorised rent. There is a cage No. 10 inthat application form which required the applicant to state thegrounds of dispute and matters relevant thereto. In that cage shehad stated that “the tenant is a drunkard who often abuses thelandlady in abusive words, insulting and humiliating her; keepingother men’s wives and indulging in immoral acts – keepingundesirable persons in the premises to conduct Bali ceremonies andso on; making the premises filthy, damaging personal propertybelonging to me and getting others to do likewise. He does not pay
270
Sri Lanka Law Reports
(1980) 2 Sri L.R.
the house rent on the due date. The Town Council has raised the rentto a higher amount than the present rate”.
This application came for consideration before the Rent ControlBoard. That was at a public sitting of the Rent Control Board. Therehad been about 15-20 members of the public present on thisoccasion. The contents against cage 10 of the application had beenread out aloud by a member of the Board or it had been caused tobe read out. The appellant had then been asked whether she couldsubstantiate these allegations. She had answered in the affirmativeand thereafter the hearing had been postponed for evidence for the22nd of June 1972. On that date the appellant appeared with anAttorney-at-Law and the Attorney had moved to withdraw theallegations in cage 10 and that had been allowed. By this date theplaintiff, the tenant, had sent the appellant a letter of demand seekingto recover damages in a sum of Rs. 20,000/- on account of thealleged defamatory statements contained in the application of theappellant to the Rent Control Board against the plaintiff.
The plaintiff instituted action in January 1973 against theappellant, his landlady, for the recovery of damages for having madedefamatory statements against him in her application to the RentControl Board referred to. He has specified the contents againstcage 10 of the application as defamatory statements. He hadreduced his claim to Rs. 15,000/-.
At the trial the appellant stood by what she had stated in herapplication and sought to establish the truth of what she has stated.In her answer she denied that the allegations that she has made inthe application are defamatory of the plaintiff. She, however, did notsay in her answer that the words as such and the allegations are bythemselves not defamatory of the plaintiff but by reason of theallegations having being made in the course of a judicial proceedingthe allegations are not defamatory. This is how she put it.
The plaintiff admitted in evidence that he was keeping somebodyelse’s wife while his own wife and children are living, thoughelsewhere. The learned trial Judge gives the plaintiff a goodcharacter certificate because he was candid in the witness boxabout it and also because he was looking after his own wife andchildren as well. The learned trial Judge has come to a finding thatthe allegations in the application to the Rent Control Board are falseand malicious per se. In respect of some allegations of the appellant,the learned trial Judge had stated that the appellant’s imaginationwas running riot.
CA
Alwis v. Seneviratne (Rodrigo, J.)
271
The learned trial Judge had found the allegations to be defamatoryof the plaintiff. The appellant put in two pleas as a defence namely, theplea of justification and the plea of privilege. The learned trial Judgehad found against the appellant on both these pleas.
One of the questions for consideration in this appeal is whetherthe proceedings before the Rent Control Board are judicial in nature.If the proceedings are judicial then, on both principle and authoritythe allegations would appear to be protected. That is in the sense ofabsolute privilege attaching to proceedings before a judicial body.The question, also arises in the alternative, as to whether theoccasion attracts only qualified privilege. I shall consider the positionon both these footings.
On the question whether an action can be maintained for libellousmatter contained in the pleadings of a case or for words used in vivavoce pleadings in the course of a judicial proceeding, the “localauthorities speak with no uncertain voice. They are in fact unanimous.”Over a period of years it has been said over and over again thatabsolute privilege attaches to libellous matter contained in pleadings oruttered by witnesses in judicial proceedings. The subject had beendealt with at length by Lascelles, C.J., in Silva v. Ba!asooriyam and it isredundant for me to write an exposition on the topic all over again. Ithas, therefore, become necessary to examine if the proceedings beforethe Rent Control Board are in their nature judicial. If the proceedings arein their nature judicial then absolute privilege will attach to theallegations. See Royal Aquarium v. Parkinson™. If they are not, then itremains to be decided whether the proceedings before the RentControl Board attract qualified privilege and if so whether qualifiedprivilege attaches to the allegations. It is of importance therefore toexamine the Rent Acts and particularly the Rent Restriction Act(Chapter 274 as amended from time to time) since at the date of theconsideration of the application what was in operation was that Act.
The character in which the Rent Control Board acted turns, in thefirst place, on the language of the Act. Was the Rent Control Boardholding its proceedings in a manner as nearly as possible similar tothat in which a Court of Justice holds its inquiries in respect of anymatter before it? The Act itself describes the proceedings before theBoard as judicial proceedings within the meaning and for thepurposes of Chapter XI of the Penal Code and the members of theBoard are deemed to be public servants within the meaning of theAct – Section 20(12) of the Rent Act. Chapter XI is titled “Falseevidence and offences against public justice”. “A public servant”within the meaning of this Chapter includes every Judge – Section 19of the Penal Code. Then the word “Judge” not only denotes everyperson who is officially designated as a judge, but also every person
272
Sri Lanka Law Reports
(1980) 2 Sri LR.
who is empowered by law to give, in any legal proceeding, civil orcriminal, a definitive judgment, or a judgment which, if not appealedagainst, would be definitive, or a judgment which, if confirmed bysome other authority, would be definitive, or who is one of a body ofpersons, which body of persons is empowered by law to give such ajudgment. – Section 17 of the Penal Code. Then again the words"Courts of Justice” denote a judge who is empowered by law to actjudicially alone, or a body ot judges which is empowered by law toact judicially as a body, when such judge or body of judges is actingjudicially – Section 18 of the Penal Code. Among the illustrations toSection 17 of the Penal Code are instances of a President of a VillageTribunal and each Councillor of such Tribunal exercising jurisdictionunder the Village Communities Ordinance and a Provincial Registrarexercising jurisdiction under Section 20 of the Kandyan MarriageOrdinance. The said Chapter also enacts that “Whoever, beinglegally bound by an oath or affirmation, or by any express provisionof law to state tne truth, or being bound by law to make a declarationupon any subject, makes any statement which is false, and which heeither knows or believes to be false, or does not believe to be true, issaid to give “false evidence” – Section 188. In explanation (1) theretoit is enacted that a statement is within the meaning of this Sectionwhether it is made verbally or otherwise. The application of theaforesaid provisions of the Penal Code to proceedings before a RentControl Board is enacted, in my view, to make the proceedingsbefore the Board as near as possible similar to the proceedingsbefore a Court of Justice strictly so called. Every order made by theBoard is required to be reduced to writing and signed by thechairman. Its proceedings shall be open to public and minutes ofsuch proceedings including the summary of oral evidence givenbefore the Board are required to be kept; parties may be representedbefore the Board by an attorney-at-law; witnesses may be examinedon oath. Any person could be summoned to appear before it or toproduce a document and any order made by the Board is subject toan appeal to the Board of Review. All these matters are provided forby the provisions of the Act.
It is said in the judgment of Ex. Cheq. Chamber in Dawkins v. LordRokeby{3) that:
“The authorities are clear, uniform and conclusive that no actionof libel or slander lies, whether against judges, counsel,witnesses, or parties, for words written or spoken in the ordinarycourse of any proceeding before any court or tribunalrecognised by law.”
In the Royal Aquarium case (supra) Fry L.J. accepted thisproposition with this qualification namely that he doubted whether the
CA
Alwis v. Seneviratne (Rodrigo, J.)
273
word “tribunal” does not really rather embarrass the matter; becausethat word has not, like the word “court”, an ascertainable meaning inEnglish Law. He observed that the judgment of the Ex. ChequerChamber appeared to him to proceed upon the hypothesis that theword is really equivalent to the word “Court”, because it proceededto inquire into the nature of the particular court there in question andcame to the conclusion that a military court of inquiry “though not acourt of record, nor a court of law, nor coming within the ordinarydefinition of a court of justice, is nevertheless a court duly and legallyconstituted”. The Penal Code to which reference is made by the RentRestriction Act has defined a “court of justice”(supra). So that“Wherever you find a court of justice, to that the law attaches certainprivileges, among which is the immunity in question". “This immunityor absolute privilege has been constituted on the grounds of publicpolicy to ensure freedom of speech where it is essential that freedomof speech should exist and with the knowledge that courts of justiceare presided over by those who from their high character are notlikely to abuse the privilege and who have the power and ought tohave the will to check any abuse of it by those who appear beforethem”.
The Rent Restriction Act by section 13(1) enacts “notwithstandinganything in any other law, no action or proceeding for the ejectmentof a tenant of any premises to which this Act applies shall beinstituted in or entertained by any court, unless the Board, on theapplication of the landlord, has in writing authorised the institution ofsuch action or proceedings”. This carries a proviso which dispenseswith the authority of the Board in specified circumstances. Theappellant’s application apparently does not come within the proviso;or so she thought. Her application was in fact entertained by theBoard and was fixed for inquiry and evidence. What she had statedin the application attracted the immunity of absolute privilege byreason of the character of the Board as I indicated earlier eventhough “the words written or spoken were written or spokenmaliciously without any justification or excuse and from personal ill-will and anger against the person defamed”. See the Royal AquariumCase (supra).
Coming to the next question as to whether, in the alternative, theappellant's allegations in her application to the Board attracted, inany event, qualified privilege, I must mention that the appellant wasthe landlady of a premises admittedly governed by the RentRestriction Act and that the appellant could seek the ejectment of hertenant only within the provisions of the Rent Restriction Act. Shecannot therefore be faulted for making an attempt to invoke theprovisions of the Rent Act to have the tenant ejected. The allegations
274
Sri Lanka Law Reports
(1980) 2 Sri L.R.
were stated in a cage provided for that purpose. The law governingqualified privilege unlike absolute privilege in our courts is theRoman Dutch Law. The allegations are undoubtedly defamatory ofthe plaintiff. The appellant, however, denies this. What then is thedefinition of defamation ?
“Historically, there is no doubt that animus injuriandi, or intentionto injure, was the gist of our action for defamation, where wordswere used which in their natural sense conveyed a defamatorymeaning, i.e., a meaning calculated to injure the plaintiff, thedefendant, in order to succeed had to rebut the inference ofanimus injuriandi that arose from their use. He was at large totry to do this in any way that he could-it was a matter ofevidence. But in course of time there have become crystallisedin our legal system certain set or stereotyped defenceswhereby the law recognises that the inference of animusinjuriandi following from the use of defamatory words can berebutted and the plaintiff’s claim, provisionally, be met. The mostfirmly established and clearly defined are privilege and faircomment.”
“The growth of legal conceptions and rules in the way that I havementioned is a common and often useful feature in thedevelopment of law; groups of similar cases come to be dealtwith similarly and what was at one time an inference of fact ineach case hardens into a rule of law covering all the cases.Some beneficial elasticity is lost, but there is a gain in certainty”.w
What has a defendant to prove to establish qualified privilegeprovisionally? To restrict the question to this case, the appellant hadto establish that she communicated with the Board in the form ofsending an application in the protection of an interest of her ownwhich she was entitled to protect by doing so, namely, the recoveryof her house and ejectment of the tenant on the grounds specified inher application. Provision has been made by the Act forcommunicating the grounds of dispute or the grounds upon whichthe relief is sought. The appellant then has to establish that she usedthis occasion or the machinery provided to protect her interests.There was no burden on her to prove in addition that she wasactuated solely by her sense of desire to protect her interests in thisproperty. If it were otherwise, the burden of qualified privilege mightturn out to be illusory. She is entitled to claim to be protected by thisprivilege unless some other dominant and improper motive on herpart is proved. Whereas in this case, the plea of qualified privilege ischallenged “what is required on the part of the defamor to entitle himto the protection of the privilege is positive belief in the truth of what
CA
Alwis v. Seneviratne (Rodrigo, J.)
275
he published or as it is generally though tautologously termed,‘honest belief. Though the appellant withdrew the allegations whenthe matter came up for inquiry before the Board and, as it turned outfor tactical reasons, she stood by what she said in her application, atthe trial of the action by the plaintiff for defamation against him. It ismy view therefore that provisionally she had established that theoccasion was privileged and that the allegations attracted qualifiedprivilege. As I said this was only provisional for, it was open to theplaintiff to rebut the claim of qualified privilege by establishing on hispart that the appellant had not used the occasion in accordance withthe purpose for which the occasion arose. This he can establish byshowing that the appellant had used the occasion for some indirector wrong motive. The plaintiff can show “that the defendant hadpublished untrue defamatory matter recklessly without considering orcaring whether it be true or not, in which event, the defendant will betreated as if she knew it to be false.
“But indifference to the truth of what he publishes is not to beequated with carelessness, impulsiveness or irrationality inarriving at a positive belief that it is true. The freedom of speechprotected by the law of qualified privilege may be availed of byall sorts and conditions of men. In affording to them immunityfrom suit if they have acted in good faith in compliance with alegal or moral duty or in protection of a legitimate interest thelaw must take them as it finds them. In ordinary life it is rareindeed for people to form their beliefs by a process of logicaldeduction from facts ascertained by a rigorous search for allavailable evidence and a judicious assessment of its probativevalue. In greater or in less degree according to theirtemperaments, their training, their intelligence, they are swayedby prejudice, rely on intuition instead of reasoning, leap toconclusions on inadequate evidence and fail to recognise thecogency of material which might cast doubt on the validity ofthe conclusions they reach. But despite the imperfection of themental process by which the belief is arrived at it may still be‘honest’, i.e., a positive belief that the conclusions they havereached are true. The law demands no more’. See Horrocks v.Lowe.{S>
It is important to remember that a positive belief in the truth of whatis published on a privileged occasion is presumed until the contraryis proved. But this may not be sufficient to negative express malice ifit can be proved that the defendant misused the occasion for somepurpose other than that for which the privilege is accorded by thelaw, such as personal spite or ill-will towards the person he defamed.What is stated above is the English law view of principles governing
276
Sri Lanka Law Reports
(1980) 2 Sri L.R.
qualified privilege and its rebuttal. This, however, is in accord with theRoman Dutch Law view of the subject. In Basner v. Trigger(4) it is saidthat malice so understood accurately states what is necessary todefeat qualified privilege in Roman Dutch Law as in the English law.When in that case reference was made to malice so understood ithas been said that malice is not confined to spite or ill-will but meansany improper or indirect motive. Privileged occasions arerecognized, it is said therein, in order to enable persons to achievecertain purposes and when they use the occasion not for thosepurposes they are actuated by improper or indirect motives. It mighthave been an indirect motive in the present case on the part of theappellant if her dominant motive was to obtain some privateadvantage unconnected with the protection of her interests whichconstitutes the reasons for the privilege. If so, she would have lostthe benefit of the privilege despite her positive belief, which ispresumed, that what she said or wrote was true.
In the instant case it transpires from the evidence that theappellant’s purpose in making the application to the Rent ControlBoard was to recover her premises and that she had an honest beliefin the allegations that she made against the plaintiff if regard is hadto the fact at the trial she stood by what she said in her applicationand also to her condition as an ordinary woman without any claim tobeing an intellectual. It is significant in considering whether theappellant had an honest belief in what she had stated or whether theappellant was actuated by an improper motive that the plaintiffhimself unashamedly admitted in the course of his evidence that hewas keeping as his mistress in the premises in suit somebody else’swife when his own marriage was subsisting. Among the allegationsmade by the defendant there is nothing more damaging to theplaintiff’s reputation than this particular statement. Rest of theallegations by comparison in the circumstances cannot hurt himmore. It cannot be said that the appellant had no ground at all formaking these allegations since, apart from the fact that the mostsubstantial allegation that she has made has been admitted to betrue by the plaintiff, the appellant was the plaintiff’s next doorneighbour and had every opportunity to see what was happening inthe plaintiff’s house. The plaintiff had further admitted that he wasengaged in doing Bali ceremonies and such ceremonies involvedcertain activities. The appellant cannot be blamed if she found suchactivities to be offensive to her sensibilities being the kind of womanthat the appellant is. I do not agree with the learned trial Judge’sobservation that the appellant’s imagination was running riot whenshe described what she purported to have seen in the manner thatshe had so described.
Alwis v. Seneviratne (Rodrigo, J.)
277
CA
It was observed by Lord Diplock in the case Horrocks (supra) that:
“Judges and juries should, however, be very slow to draw theinference that a defendant was so far actuated by impropermotives as to deprive him of the protection of the privilegeunless they are satisfied that he did not believe that what hesaid or wrote was true or that he was indifferent to its truth orfalsity. The motives with which human beings act are mixed.They find it difficult to hate the sin but love the sinner. Qualifiedprivilege would be illusory, and the public interest that it ismeant to serve defeated, if the protection which it affords werelost merely because a person, although acting in compliancewith a duty or in protection of a legitimate interest, disliked theperson whom he defamed or was indignant at what he believedto be that person’s conduct and welcomed the opportunity of-exposing it. ft is only where his desire to comply with therelevant duty or to protect the relevant interest plays nosignificant part in his motives for publishing what he believes tobe true that ‘express malice’ can properly be found.”
It is not the case here that the appellant's allegations are not reallynecessary for her to maintain her application before the Board.Logically perhaps it might be said that one or two matters among herallegations are irrelevant to her application, but it had been pointedout in Adam v. Warcfe) the proper rule as respects irrelevantdefamatory matter incorporated in a statement made on a privilegedoccasion is not to see whether it is logically relevant but whether in allthe circumstances it can be inferred that it was so irrelevant that theonly inference is that the defendant has seized the opportunity todrag irrelevant defamtory matter to vent his or her personal spite orfor some other improper motive. Here too, it has been said judgesand juries should be slow to draw this inference. It seems to me,therefore, that what the appellant had stated in her application to theRent Board attracts, in any event, qualified privilege.
For the above reasons I am of the view that the plaintiff’s actionmust fail and accordingly I dismiss the action of the plaintiff and allowthis appeal with costs.
ABDUL CADER, J. -1 agree.
Appeal allowed.