CHELLIAH v. FERNANDO

042-NLR-NLR-V-39-CHELLIAH-v.-FERNANDO.pdf


130
Chelliah v. Fernando.
1937
Present: Soertsz J. and Fernando A.J.
CHELLIAH v. FERNANDO.299—D. C. Colombo, 169.
Defamation—Truth is no defence—Public interest—-Privileged occasion—Exceeding limits of privilege—Proof of malice—Roman-Dutch law.Under the Roman-Dutch law it is no defence to an action for defama-tion that the words complained of were true in substance and in fact.It must-be proved that it was for the public benefit that they shouldbe published.
A satement is to be considered as made on a privileged occasionwhen it is fairly made by a person in the discharge of some public orprivate duty whether legal or moral or in the conduct of his own affairsin matters where his interest is concerned.
The plea of privilege will not protect a person who has publishedsomething beyond what is reasonably appropriate for the occasion.
Where the defendant has exceeded the limits of a privileged occasionit is hot incumbent on the plaintiff to prove express malice.
T
HE plaintiff who was a married' woman and maternity nurse byprofession sued the defendant to recover a sum of one thousand
rupees as damages inconsequence of the defendant having defamed herby alleging in a communication to the Superintendent of Police, ColomboNorth, that she was the mistress of more than one person, that she wasa woman of doubtful character, and that she used her certificate in mid-wifery as a cloak to hide her shameless conduct. The learned DistrictJudge held that the allegations were true and dismissed plaintiff’s action.
N. E. Weerasooria, for plaintiff, appellant.—The learned trial Judge’sfinding on the facts is wrong, the inferences drawn by him are not justifiedby the evidence. As a result of a wrong inference the trial Judgeapproached plaintiff’s case with' a bias ; he himself called a witness whodid not support his view. The allegations made against the plaintiffwere untrue in fact ; the occasion was not a privileged one ; there isevidence of ill-feeling between the parties ; the defendant was actuated bymalice ; even if the occasion was privileged the allegations complainedof went beyond the matter in regard to which a complaint to the Policemay have been made ; they were irrelevant and not for the public benefit.Counsel also cited Tissera v. Holloway * and Serajudeen v. AllagappaChetty
H. V Perera (with him Chelvanayagam.) for defendant, respondent.—The trial Judge is right on his findings of fact. The occasion was aprivileged one ; there is no evidence of malice. The intervention of thePolice was properly sought and the information was given in the courseof and for the purpose of the complaint which the defendant had aright to make. It was relevant and^ pertinent to the discharge of theduty. Counsel cited Adam v. Ward3.
Cur. adv. vult.
Weerasooria, in reply.‘ (1878) 1 S. C. C. 29.
s (1919) 21 N. L. R. 428.
» (1917) A. C. 320.
SOERTSZ J.—Chelliah v. Fernando.
131
February 11, 1937. Soertsz J.—
The plaintiff, a married woman, and a certified maternity nurse byprofession, sued the defendant to recover a sum of one thousand rupeesas damages she claimed to be entitled to, in consequence of the defendanthaving defamed her by alleging, in the course of a written communicationmade by him to the Superintendent of Police, Colombo North, that “ shehad been kept as a mistress by more than one person she is apparentlya woman of doubtful character ”—“ she uses her certificate in midwiferyas a cloak to hide her shameless conduct ”—“ she is often not at homeand when she is, there is a constant stream of callers at any time of theday or night. ”
That these statements were made is beyqnd question. The letterwas produced and was received in evidence, and the defendant admittedhe wrote it. It was not, and indeed it cannot be denied, that thesestatements are defamatory. The learned trial Judge found that f‘ theallegations made in the petition are true, ” and he went on to say,therefore plaintiff’s case for damages ' fails. ” Roman-Dutch lawrequires not only “ that the words were true in substance and in fact,but that it was for the public benefit that they should be published”.
(Botha v. Brink '.) Adultery is not an offence under our law, and I fail tosee how the private morals of a woman can be of public interest, or howit can benefit the public to be informed of them. It is not necessary,however, to consider that question further, for after a careful examinationof the evidence I am unable to agree with the District Judge thjat thestatements published of the plaintiff have been proved to be true. Thelearned trial Judge appears to have reached his conclusion by a curiouscourse of reasoning. The plaintiff in her evidence stated that “ it isnot true that my husband is really separated from me. My husbandhas been in Jaffna for the last two years. During that time he came toColombo. Before those two years, he was in Colombo for some time.He is a canvasser and has to be on the move always. He goes all overthe Island. Now he is permanently fixed at Jaffna, canvassing orders inJaffna …. My husband is a canvasser for Baur & Co. ”
A witness, Ponniah, deposed to having seen the < plaintiff’s husbandat a Hindu temple at Kochchikade about the year 1933, dressed in ahermit’s saffron robes, and Jamion (an Invoice 'Clerk at Baur’s) saidthat he had been working nearly two years at Baur’s, but that he knewof no employee of Baur’s by the name of Chelliah. This witness admittedin cross-examination “ that appointments and general supervision ofbusiness are in the hands of the manager. ”
In this state of the evidence on that point, the trial Judge says atthe very outset of his judgment ■“ She says her husband was. a canvasserat Baur’s getting a salary of Rs. 150 a month and a commission andduring the period relevant to the case employed as such canvasser atJaffna. There is evidence, for instance, the evidence of Ponniah thatthe plaintiff’s husband on the contrary has been seen, by him goingabout in a yellow garb otherwise engaged, and Jamion (an Invoice Clerkat Baur’s) says that that company did not employ canvassers and thatthere is certainly no employee of the firm called Chelliah. In his petition
> S Bush. 119.
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SOERTSZ J.—Chelliah v. Fernando.
.. .. the defendant referred to the plaintiff as being separated
from her husband. That is probably true, because the plaintiff doesnot give a true statement with regard to her husband which wouldindicate that she no longer has any interest in her husband or his doings.
X an} unable to accept the plaintiff’s evidence on that point. Thereforethe plaintiff for some purpose of her own has attempted to deceive theCourt as to her husband’s relationship with her. ” It is obvious that ajudgment which begins with so strong a bias against the plaintiff, mustend disastrously for her. I have quoted the whole of this part of thejudgment to draw attention to the fallacious reasoning that underlies it.
I do not see how the evidence of Ponniah and Jamion, assuming it to betrue, necessarily results in the plaintiff’s evidence being false. Ponniahsaw the plaintiff’s husband once in. 1933 in a Hindu temple clad in hermit’srobes. Surely, this does not mean that he could not have been acanvasser for two years—at the time the plaintiff was giving evidence—in Jaffna. Even a busy and worldly canvasser may find the time, andfeel the desire to go on a pilgrimage to a temple. Many things mayworry even a canvasser’s conscience and suggest to him the desirabilityof purification by pilgrimage in the full attire of a hermit. Chaucerspeaks of one such among his Pilgrims “ with his bargeines and hischevisance. ” With regard to Jamion, admittedly, he is scarcely theman to know who all the employees of Baur & Co. are. In a word,the evidence of Ponniah and Jamion was not sufficient for holding thatthe plaintiff was untruthful when she' said that her husband was notreally separated from her, but was residing in Jaffna as his businessrequired him to do-so. The premise of the learned Judge, resting as itdoes on insufficient data, the conclusion he draws from it “ that thereforethe plaintiff for some purpose of his own has attempted to deceive theCourt ” is not justified.
The next point made by the trial Judge is that plaintiff andCorea denied that there were any improper relations between them andthey also denied that Corea used to visit the plaintiff. The learned Judgesays with regard to this Neither party called Corea, but I consideredthat this case required proper investigation as it involved on the onehand, the character of the plaintiff, and on the other hand the bona fd.esof the defendant. I myself called Corea as a Court witness. My objectwas to see if he could give any explanation as to his presence there, for ■1 had made- up my mind that he did go there. He, however, denied havinggone there and denied even knowing the plaintiff. That evidence inmy opinion is totally false. ” Now, it is clear that if one has made upone’s mind that a certain person goes frequently to a certain house andthen asks him why he does'so, and that person denies his visits, thenatural reaction is to disbelieve the denial. But the question is whetherthere was sufficient justification for the trial Judge to have made up hismind that Corea did visit the plaintiff. In the communication addressedby the defendant to the Police, all he says is “ to the best of my beliefthis ex-married woman has been kept as a mistress by more than oneperson whose names I am in a position to divulge to you personally ”.When the plaintiff was in the witness box, defendant’s Counsel subjectedher to an exhaustive cross-examination, but he did not put one single
SOERTSZ J.—Chelliah v. Fernando.
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question to her to suggest that she had been Corea's mistress. Shewas questioned only with regard to a cousin, of her’s named Saverimuttuwho was living in the same house as the plaintiff. If the defendant had" Corea ” in mind as one of the several persons referred to in the lettersent to the Police, who had the plaintiff far mistress, it is hardly possibleto account for the omission to put one question to her on that point.After the cross-examination of the plaintiff, the trial Judge put somequestions to her and then for the first time, the plaintiff was askedwhether she knew Corea, and whether she and Mrs. Corea did not have aquarrel. It is not at all clear to me how the learned Judge knew to putthese questions, for there is nothing on the record up to that stage toshow that Corea or Mrs. Corea had been mentioned at all. However,the point I make is that defendant does not appear to have instructedhis Counsel to make any suggestion as to improper relations betweenher and Corea, and a quarrel between her and Mrs. Corea in consequence.Then again when the defendant gave evidence all he said was that theplaintiff was kept by Mr. X, and curiously enough, this too was said inanswer .to a question by the Court. Not one statement to that effecthad, up to that stage, been made by the defendant in answer to questionsby his Counsel. The defendant’s wife gave evidence and spoke in detailto certain incidents from which she inferred intimate relations betweenthe plaintiff and Saverimuttu, but did not so much as mention the namesof Corea and Mrs. Corea. The Judge put no questions to her. Thewitnesses Ponniah and S. A. Fernando speak to Corea’s relations with theplaintiff, but my own impression is that they are unreliable witnessesand their evidence would hardly have been accepted by the Judge wereit not for the fact that by the time they came to give evidence, he had“ made up his mind ” without any evidence to justify his so doing,that Corea did go to the plaintiff’s house. The Judge having thusreached the conclusion that Corea did visit the plaintiff, goes on to drawfrom Corea’s and plaintiff’s and Mrs. Corea’s denial of those visits, theinference that Corea’s visits could not have been innocent. To use hisown words “ Therefore, I think his (Corea’s) denials indicate that hisvisits could not have beep innocent. Again the plaintiff herself deniesthe visits. If they were innocent and explicable she would have admittedthem. The fact that she falsely denies these visits indicates to my mindthat these visits were not innocent. Of course, Mrs. Corea says sheknows nothing of these visits, Therefore the plaintiff was receivinginto the house rented by her the visits of Corea unknown to his wife.which she falsely denies.” I say with regret that this is impossiblereasoning. It also overlooks the facts, at least the very important factaccording to the defendant’s case that Mrs. Corea came to the plaintiff’shouse and quarrelled with the plaintiff over her relations with herhusband.
The final stage in the reasoning of the trial Judge is concerned with astatement made by the defendant in the course of his evidence, againin answer to a question by the Judge, that one day after this case hadbeen instituted, he peeped through a crack in the door and saw the plaintiffand Saverimuttu engaged in sexual relations. The defendant admittedthat he had not mentioned a word about this to his lawyers, and the
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defendant’s wife knew nothing about it. She says “ I have never seenmy husband peeping through that hole.” But so far as the trial Judgewas concerned, the weakness of this evidence appears to be its -strength.
I have examined the evidence with great care and I find it impossibleto hold on the evidence that the defendant has substantiated the allega-tions he made in his letter. As I observed earlier in my judgment,the Roman Dutch law requires a defendant in a case like this to provenot only that the defamatory statements are true, but that it was for thepublic benefit that they should he made. In my view, it was not possiblefor the defendant to contend that it was for the public good for him tomake those statements. His defence failed for that reason, apart fromthe other defence of a privileged occasion and absence of malice, but Ihave none-the-less examined the evidence on this question of the truthof the statements as found by the Judge, because I think in a case of thisnature, a person in the position of the plaintiff is entitled to the benefitof the view of this Court if it is not in agreement with the view taken bythe trial Judge.
The only other question for consideration is whether the plea of aprivileged occasion and of absence of malice protects' the defendant.Baron Parke’s dictum states the true criterion as to whether an occasionis privileged both in the English'and the Roman-Dutch law. He said inToogood v. Spyring1 that a statement is to be considered as made on aprivileged occasion.when it is “fairly made by a person in the dischargeof some public or private duty, whether legal or moral, or in the conductof his own affairs, in matters where his interest is concerned.
If fairly warranted by any reasonable occasion or exigency, honestly tmade, such communications are protected for the common convenienceand welfare of society ; and the law has not restricted the right, to makethem within any narrow limits ”. Testing the present case by thatcriterion, a privileged occasion ^rose for the defendant to make acomplaint to the Police with regard to the alleged assault on his servant,the abuse to which his wife and the other immates of his house werebeing subjected, and the fact that the previous warning said to have beengiven by the Police on an earlier complaint of his had had no effect.These are matters in which the intervention .and assistance of the Policemay properly be sought. With regard to these matters the defendanthad a right, if not a duty, to place them before the Police and the Policehad a corresponding duty or interest to be informed. But the Policecould do nothing in the matter of a woman’s morals, unless of course artoffence resulted. The fact that a woman was guilty of adulterous inter-course with one or more men is deplorable, but is not an offence and doesnot call for Police interference. Therefore, the allegations complainedof are not protected. In the words of Earl Lorebum in Adam v. Ward1“ anything that is not relevant and pertinent to the discharge of the dutyand the exercise of the right or the safeguarding of the interest whichcreates the privilege will not be protected. To say that foreign matterwill not be protected is another way of saying the same thing. Thefacts of different cases vary infinitely, and I do not think the principlecan be put more definitely than by saying that the Judge has to consider1 C. M. <£• R. 181 at p. 191.* (1917) Appeal Cases at pages 320-321.
Jay aw ardene v. Jayawardene.135
the nature of the duty or right or interest and to rule whether or notthe defendant has published something beyond what was genuine andreasonably appropriate to the occasion …. For a man oughtnot to be protected if he publishes what is in fact untrue of someoneelse or when there is no occasion for his publishing it to the person to whomhe, in fact, publishes it." I am not overlooking the earlier dictum I havequoted that communication made by a person in the discharge of someduty, or in the exercise of a right, or in matters where his interests areconcerned have not been restricted by the law within “ any narrow limits ”but I insist that to say that these allegations complained of in this casewere not relevant and pertinent to the defendant’s duty, right or interest,is not to attempt to restrict the communication within narrow limits.The defendant himself in calmer moments appears to have realized this.He says in the course of his evidence “ I was not particular that hercharacter should be investigated …. I was not concerned atall with her character.”
In my opinion, a privileged occasion had arisen, but the defendanttransgressed far beyond the proper limits of that occasion. I, therefore,hold that it is not incumbent on the plaintiff to establish express malice.The necessary element of a animus injuriandi can be inferred from thepublication of the defamatory words.
The plaintiff has, then, made out a case for damages. The sole questionleft is the amount of damages. In this connection, I think I am entitledto take into consideration the fact which emerges clearly from the evidencethat the plaintiff and the other inmates of her house acted in a veryunneighbourly and provocative manner towards the defendant and hisfamily. The plaintiff has claimed one thousand rupees as damages. Ithink it will be sufficient if I award her three hundred rupees and costsin that class both here and below.
Fernando A.J.—I agree.
Appeal allowed.