CLAUDE PERERA v. ARASU

042-SLLR-SLLR-1983-2-CLAUDE-PERERA-v.-ARASU.pdf


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CLAUDE PERERA
v.ARASU
COURT OF APPEAL
TAMBIAH, J. AND ABEYWARDENA, J.
A. 225/74 (F)
C. COLOMBO 75956/MMARCH 9. 1983
Defamation — Words defamatory per se — General abuse — Damage.
Held —
Where the plaintiff called the defendant a " bloody swine " bloody rogue" damned crook ", ” Kochchiya ", " Kallathoni " and accused him of robbing theUniversity, it cannot be said they were mere words of general abuse. Thesewords had not been uttered under the influence of anger in the course of abrawl or quarrel when there was an exchange of insulting language between theparties. The words were an unprovoked attack on the plaintiff's character. Theywere a reflection on the moral character of the plaintiff and calculated to injurehim in the estimation of others.
The damages awarded were not excessive considering the words were utteredand repeated in the presence of others and there was no response to plaintiffsoffer to accept an apology.
APPEAL from Judgment of the District Judge of Colombo.
H. W. Jayewardena. Q.C. with Lakshman Perera andRonald Perera for defendant-appellant.
A. H. C. de Silva, Q.C. with S. Mahenthiran for plaintiff-respondent.
March 9. 1983TAMBIAH, J.
The plaintiff-respondent filed action against the defendant-appellant to recover a sum of Rs. 25.000/-, as damages fordefamatory words uttered by the defendant-appellant. The causeof action set out in the plaint is as follows :—
"That on or about the 9th of September. 1971. atWellawatta, in the presence and hearing of Mrs. T.Gunawardena of No. 18. Hampden Lane, and Mrs. H. B.Peiris of No. 16, Hampden Lane, in Wellawatta. Colombo.
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and several others, the defendant abovenamed wrongfully,unlawfully, falsely and maliciously spoke and published thefollowing defamatory words of and concerning the plaintiff, towit:— Arasu is a bloody swine. He robbed the University. Bloodyrogue. Damned crock. Kochchiya, Kallathoni. "
The defendant denied that he spoke the words attributed tohim. The plaintiff’s wife and the defendant's mother are sisters.The defendant is the owner of four flats abutting Hampden Lane.Mrs. T. Gunawardena was a tenant of the defendant occupying aground floor flat, bearing assessment No. 18. Hampden Lane. Infront of flat No. 18 is an extent of land which was a roadreservation. Beyond this, there is a new roadway and abuttingthis new roadway is the residence of Mrs. H. B. Peiris. She wasmarried to the maternal uncle of the defendant. Since 1962. theplaintiff and his wife had lived as tenants of T. D. Peiris who is thedefendant's brother-in-law. in a house off Hampden Lane. In1965, the plaintiff bought a land adjoining the defendant'sbrother-in-law's premises and built a house. The defendant'ssisters reside further down the road. The defendant resided atKatunayake.
It would appear that even at the time of the plaintiff's marriageto the defendant's aunt, relations between her and thedefendant's sisters had been strained and it became worse afterthe plaintiff purchased a block of land. The defendant's sistershad instituted an action in the District Court of Colombo againstthe plaintiff, praying for a declaration that the plaintiff and hiswife were not entitled to the use of the right of way off HampdenLane leading to the house of the defendant's sisters andplaintiff's house. The defendant in the present action was addedas a defendant at. the instance of Mrs. Arasu. The case wasdismissed in the District Court and is in appeal in the SupremeCourt. The relations between the defendant's sisters and theplaintiff had been very bitter after the institution of theaforementioned action.
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At the trial, the plaintiff relied on the evidence of Mrs. T.Gunawardena and Mrs. H. B. Peiris to prove his case. He toogave evidence.
Mrs. Gunawardena's evidence was that on 9.9.71 when shewas resting in the afternoon, at about 2.30 or 3.00 p.m. thedefendant came to her home. She offered him a seat and thedefendant then asked " Who is this bloody foreigner staying atArasu's ?", and then wanted to know " Whose is this bloodyvan ?". Then Tie got out of the house, took a stone andattempted to throw it at the van when he was prevented by someneighbours. The defendant further stated " No bloody buggerowns an inch of land, I am the sole owner. " She said that thedefendant threatened to get them out of the flat if she keptcompany with his enemies. He further stated that he would makethings difficult for them if they did not vacate. He further said" Arasu is a bloody swine. He robbed the University. Bloodyrogue. Damned crook. Kochchiya, Kallathoni." She said herepeated this several times and wanted her to go and call Arasu.He further said " If I catch him over the fence I will smash him. "He went away repeating the defamatory words.
Mrs. Peiris who was living in the opposite house bears out thatthose defamatory words were used by the defendant and that thedefendant spoke the words spoken to by Mrs. Gunawardena.
The plaintiff stated in his evidence that he is the ManagingPartner of Altra Printers and that prior to 1970 he was employedas a Research Technician in the Department of Botany in theUniversity of Ceylon, Colombo, and that he worked at theUniversity for 24 years. He ceased to hold that post on 1.7.70and he resigned from the University to enter into business. Hesaid that the suggestion that he was responsible for anydefalcation or that he had robbed funds from the University wasabsolutely false. He was trained in England. He was at theUniversity of Liverpool for two years and at the University ofLondon for one year. He was an Associate Member of theInstitute of Science Technology and an Associate of the City &Guilds of London Institute. He was not accused of robbing the
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University. He had a very meritorious service and he was thankedfor his services that he rendered to the University.
The plaintiff stated that there was a commotion opposite Mrs.Gunawardena's house on the afternoon of 9.9.71 between 3 and4 p.m. He saw a small crowd gathered at Hampdan Lane. Therewas a van parked opposite Mrs. Gunawardena's place and Dr.(Miss) Ripley, his tenant and Mr. Derrick Gomas were there. Hestood near his gate and watched what was going on. At the timehe heard the commotion, he was cleaning his car. The defendantcame down the road towards him, and was on his way to thehouses occupied by his brothers and sisters. He abused him inobscene language and shouted " I will come to your bloodyhouse and smash you, you bloody rogue, you robbed theUniversity and put up a house. You think you are a Lord. " Hedenied that at any stage he robbed the University or that he usedUniversity funds to put up his house. He did not speak a wordwhen he was abused because he thought there was no point.
The defendant's evidence is that he did not go on that day inthe afternoon but that he went in the morning, as he had to takehis children back from school at 1.30 p.m. He stated that hewent about 11.30 a.m. or 12 noon on 9.9.71 to see his sisterand that on a message he had received from his sister, he wentto see Mrs. Gunawardena and that she said that she wanted hispermission to cut down the jambu tree in front of her house asthere was not enough sunlight to her house. This was denied byMrs. Gunawaradena. He then left the place, went to his sister'splace, got into his car and drove away at about 12.15 or12.30 p.m. and thereafter he did not come back to his sister'splace or to the vicinity.
Upon the evidence adduced at the trial, the learned DistrictJudge found that the defendant had spoken the wordscomplained of and he gave the plaintiff judgment forRs. 25.000/- with costs.
The finding of the learned District Judge on the evidence thatthe defendant had uttered the words was not disputed by learned
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Queen's Counsel, who appeared for the defendant-appellant. Hehowever contended that the words used are only abusive andwere uttered by the defendant in the heat of anger and thereforedo not amount to actionable defamation. The same argumentwas addressed to the trial Judge who has held that the wordscomplained of " are loaded with venom and malice ", that theyare not words of meaningless vituperation, and that they weredefamatory of the plaintiff.
" The typical example of a defamatory statement is astatement reflecting upon the moral character of theplaintiff — e.g., a statement attributing to the plaintiff thecommission of a crime, or imputing to him untruthfulness,dishonesty, immorality, or any other kind of dishonourableor improper conduct. "
(Mckerron " The Law of Delict, 3rd Edn. p. 199).
" Defamatory statements must be distinguished fromstatements which are morally abusive. More expressions ofabuse are not defamatory unless calculated to expose theperson to whom they refer to hatred, undue ridicule, orcontempt, or to diminish the willingness of others toassociate with him. " — (Mckerron at p. 201)
" No action lies for mere general abuse spoken. Wordswhich are in common use are not to be taken seriouslyunless " they convey a personal imputation reflecting uponcharacter" —
(Nathan " Law of Defamation in S. Africa, p. 79)
" Where the words complained of are defamatory in theirnatural and ordinary meaning the plaintiff need provenothing more than their publication. The onus lies on thedefendant to prove from the context in which the wordswere used or from the manner of their publication or otherfacts known to those to whom the words were published,that the words would not be understood by reasonable mento convey the imputation suggested by the mere
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consideration of the words themselves e.g. that they wereunderstood merely as a joke, or as vulgar abuse, or as in nosense defamatory of the plaintiff. The defendant will notdischarge this burden merely by proving that he did not intendhis words to convey the meaning suggested by the wordsthemselves. He must satisfy the jury that reasonable persons whoread or heard them would not understand them in thatmeaning. " — (Gatley on Libel & Slander. 4th Edn., p. 131).
" It was a defence in the classical Roman-Dutch Law thatthe defamataory words were uttered in the course of a brawlor quarrel when there was an exchange of insultinglanguage between the parties. These authorities regard thedefence as displacing the presumption of animus injuriandi.because the defendant is considered to be wanting in theintention to defame, since the influence of anger or passiondeprives him of exercising deliberate intent. This is not acase of set off in reality and must be distinguished fromcompensatio and self-defence. It is a defence which isbased on the notion of provocation. In actual fact accordingto the classical authorities it would seem that the defencehad certain objective elements as well as some subjectiveelements. Objectively (a) the words had to be uttered duringthe course of a brawl, quarrel or altercation and (b) theremust have been some provocation by insulting ordefamatory language on the part of the plaintiff, whilesubjectively the defendant must have acted on the impulseof anger. Voet also states that the words must not bepersisted in. ’’
(C. F. A'merasinghe " Defamation and OtherAspects of the Actio Injuriarum in Roman-Dutch Law ", pgs. 1 54. 1 55)
I cannot accept the submission of learned Queen's Counselthat the words uttered by the defendant are words of mere vulgarabuse or that when he spoke these words, he was acting underthe impulse of sudden anger. The defendant denied that hespoke the words attributed to him. It was not his defence that on
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the assumption that the words were uttered by him. the wordswere not actionable as they were mere abuse or spoken in anger.There is no doubt that the words " he robbed the University,bloody rogue, damned crook " are per se defamatory and are areflection upon the moral character of the plaintiff and werecalculated to injure him in the estimation of others. Thedefendant called no witnesses to say that they understood thewords as mere abuse. On the other hand there is the evidence ofMrs. Gunawardena that she formed a low opinion of the plaintiffafter she heard the words uttered by the defendant, and she wasawaiting the outcome of the case. Mrs. Peiris also testified to thefact that after she heard the words uttered against the plaintiff,she did not have the same opinion she had earlier of the plaintiff,and she thought there was some truth in the allegation made bythe defendant. The defendant himself.- when he was cross-examined. admitted that the words " Arasu is a bloody rogue. Herobbed the University " is a serious reflection on the plaintiff'scharacter; that such allegations could humiliate the personconcerning whom the words were uttered and he would beinjured in his good name, credit and reputation; that such wordscould cause him pain of mind, lower him in the estimation ofother persons and bring him into contempt.
It was an unprovoked verbal attack on the plaintiffs character.There is no evidence at all that the words were spoken in thecourse of a brawl or quarrel or that the defendant spoke underthe influence of anger, provoked by the plaintiff himself usinginsulting or defamatory language.
There is clear evidence that the defendant persisted in usingthe words attributed to him. According to Mrs. Gunawardena. thedefendant having spoken these words, he left her place repeatingthe words over and over again. Mrs. Peiris states that thedefendant got out of Mrs. Gunawardena's house shouting thesewords and thereafter proceeded in the direction of his brother'sand sister's houses, still shouting. In order to get to thesehouses, the defendant had to go past the house of the plaintiff. Itis the plaintiff's evidence that he stood at his gate and watchedthe commotion in front of Mrs. Gunawardena's flat; the
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defendant came running towards him and repeated the samewords. He said nothing and kept silent.
Learned Queen's Counsel for the defendant next submittedthat the sum of Rs. 25,000/- awarded as damages by thelearned District Judge is excessive. He stated that regard must behad to the persons to whom the words were published. Thewords were addressed to a tenant and a relative. Mrs.Gunawardena and Mrs. Peiris. The statement was not made topersons in the business world. He further stated that it was anincident among relations and referred us to the evidence of Mrs.Gunawardena and Mrs. Peiris, both of whom stated that abuseand fighting between the plaintiff and the defendant's sisters,were a common occurrence down the lane.
The learned District Judge awarded the sum which wasclaimed by the plaintiff. The plaintiff stated that he valued hisreputation at more than Rs. 25,000/- but that he restricted thedamages to this amount so that he would be able to recover thissum from the defendant. The learned District Judge took intoaccount the position of the plaintiff and his standing in life.
There are circumstances in this case which justified the awardof Rs. 25,000/- as damages. There is evidence that there was asmall crowd that gathered at the time the words were spoken bythe defendant, and that he went down the lane shouting thewords complained of. His denial of the incident altogether wasrejected by the learned District Judge as false and he has foundthat the defendant acted with malice. Regard must also be had tothe nature of the defamation — the statement alleged that he is arogue and a crook who robbed the University of its funds.
There are also in this case aggravating circumstances whichcalled for an award of substantial damages. Having taken up thedefence of denial in his answer, he attempted to prove the truthof his statement by summoning the Registrar of the University toproduce the personal file of the plaintiff. The upshot of thisexercise was the production in evidence of the letter D3 in which
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the Secretary of the University accepts the plaintiff's letter ofresignation and thanks him " for the services rendered to theUniversity. " The plaintiff, while giving evidence, stated that hewas prepared to withdraw his case if an apology was given andthe expenses he had incurred in his litigation were paid to him.There was no response from the defendant. He does not evenapologise for what he said.
The appeal is dismissed with costs.
ABEYWARDENA. J. — I agreeAppeal dismissed.