SOERTSZ S.P.J.—Chandrasena v. Philip.
1948 Present :Howard C.J. and Soertsz S.P.J.
CHANDRASENA, Appellant, and PH 1 LIP et al., Respondent.
S. C. 4—D. C. Colombo, 14, 1965
Defamation — Privileged occasion — Recklessness in making statement — Malice.
Recklessness in making a defamatory statement, not caring whether it isfalse or trvie, amounts to malice. Such a statement is not protected evenwhen the occasion is privileged.
-A.PPEAL from a judgment of the Distriot Judge, Colombo.
H. V. Perera, K.C., with N. M. de Silva and Sam. Wijesinha, for theplaintiff, appellant.
N. E. Weerasooria, K.C., with S. R. ijayaiilake and B. Senaratne, forthe 1st defendant, respondent.
H. IV. Jayewardene, with G. T. Samarawickreme, for 2nd defendant,respondent.
Cur. adv. vult.
March 5, 1948. Soebtsz S.P.J.—
The appellant sued the respondents to recover from them jointly andseverally Rs. 5,000 whioh, he averred, were the damages fairly due tohim as compensation for the injury caused to him by oertain statementswhich, he alleged, were defamatory' and were printed by the secondrespondent, and published by the first respondent. – The trial Judgefound the statements complained of were libellous but he dismissed theappellant’s aotion for the reason that he held that the statements weremade on a privileged oeoasion and that they were not made maliciously.In other words, the trial Judge came to the conclusion that the statementswere libellous but that inasmuch as, in his view, they' were made on aprivileged occasion, they were not actionable without the appellantproving malice, and that he had failed to prove it. There can be littledoubt, if any', that the statements (A) and (B) in paragraph 5 of theplaint are defamatory', and no doubt whatever that the statement (C)is, for it states that the appellant was the Secretary of a Society for theimprovement of agriculture, that he misappropriated its funds and thatin consequenoe the society has become defunct. The questions then thatremain for consideration are : (1) Whether these statements were madeon a privileged oooasion, (2) If they were, whether the appellant hasproved malice. The first respondent’s oase in regard to the oooasionbeing privileged is that he made the statements of whioh. the appellantcomplains in the oourse of an election campaign, and in answer to apamphlet- published by a supporter of the appellant commending himto the voters of the electorate as a man who, at a time when sohoolsbecame disorganised owing to the requisitioning of school buildings bythe military authorities during the war had, at his expense, found otheraccommodation for the evicted pupils and teachers. The first re-spondent’s case appears to be that the olaim so made for the appellantwas false, that in truth he had exploited the difficult position in whichthese sohools found themselves for his personal gain, or in his own words“ to feather his nest and he says that he felt that he had a duty to
SOERTSZ S.P.J.—Cha.ndrase.na v. Philip.
repudiate that claim, in order to prevent the return of the appellant on atioket to which he was not entitled. He himself was a supporter of therival candidate and he was oonoemed to see that the electorate who hada proper interest in the eleotion should not be misled by prevaricationand misrepresentation of facts.
On the evidenoe in this case, I am inolined to the view that in regardto the statements (A) and (B) the first respondent can olaim to be, thoughsomewhat precariously, yet within the plea of a privileged oooasion andthat, if those were the only statements that we had to consider, theappellant’s aotion would fail on the ground that the oooasion wasprivileged in that the respondent who was interested in the eleotionmade the communication to others who were themselves interested in it.The fact that the language he used was strong and in exoess of what thatoooasion demanded does not by itself establish malice. The communi-cation made to the electorate was in reply to a claim made on behalfof the appellant in regard to the interest he manifested in the shoolswithin the electorate. There was no evidenoe to support malice infact. The only other point taken by Counsel for the appellant was thatthe way in which the publication was made was such that it would, in allprobability, reach the hands of persons outside the electorate who werenot interested in the election. In view of what has been said in thespeeches delivered in the leading case of Adam v. Ward1, I do not thinkthat, having regard to all the oircumstanoes of this case, the publicationwas unduly wide. In one of the speeohes in that case it was said thatin considering the question of excessive publication “ no nice soalesshould be used ”.
But, there is statement (C) left for consideration. That statementwas not in reply to the speoific olaim made on behalf of the appellant,namely, that he had done a great deal to assist the sohools of that locality.As Earl Lorebum observed in the case just cited : “ The fact that anoooasion is privileged does not neoessarily protect all that is said orwritten on that ocoasion. Anything that is not relevant and pertinentto the discharge of the duty or the exercise of the right or safeguardingthe interest whioh oreates the privilege will not be protected.” I findit difficult to avoid the conclusion that the first respondent was usingthe privileged occasion that had offered itself like a stalking horse frombehind whioh to shoot a poisoned dart at the appellant, to say in so manywords that the appellant was so far from having helped sohools as to havemisappropriated the funds of an agricultural society of whioh he was theSecretary. The first respondent had to admit that he had not a seientillaof evidenoe to show either that the appellant was the Secretary of such aSooiety or that he misappropriated any of its funds. He made thatstatement with cruel recklessness, not caring whether it was true orfalse. I am, therefore, of the opinion that that statement was in excessof the privileged oocasion and that, even if it were not, the first respondentmade it with malioe.
In regard to the second respondent he was the printer and is himselfliable along with the first respondent in respeot of that statement.
In the matter of the question of damages, I do not think a sound discri-mination oan be made between the two respondents.
1 (1917) A. C. 330.
SOERTSZ S. P. J.— VaiiUingam v. Sivagurti.
I would allow the appeal and enter judgment against the two respon-dents jointly and severally for a sum of Rg. 1,000 with costs in that classhere and below.
Howard C.J.—I agree.