071-NLR-NLR-V-05-DAHANAYAKE-v.-JAYASEKERA.pdf
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DAHANAYAKE v. JAYASEKERA.
1902.
February S.
D. C., Galle, 5,671.
Defamation—Privilege—Evidence—Malice.
I
The report of a headman made to the (ioverinuent Agent, in responseto an order to report upon the petition of an applicant praying for apost under the Government Agent, is a privileged document, which cannotform the "basis of an action for defamation, unless plaintiff is able toestablish that the statements in the report are untrue and mademaliciously.
mHIS was an action for the recovery of Rs. 1,000 as damages
J.for alleged defamation. Plaintiff applied to the GovernmentAgent of the Southern Province to be appointed a Police Officerof Maitipe. Hisapplication was referredfor report to the
Mudalivar. who referred it to the defendant as the VidaneArachchi of Ettiligoda, where the plaintifE was residing. Thedefendant reported as follows: —
“ I do not see him worthy at all to receive Government office.“ Previous to this, he was employed as a compositor in a printing“ office. Now for the last four or five years he is walking about“ doing the work of headmen. I have opportunities of seeing him” every now and then loitering about the Courts, carrying* on“ lotteries in the village, and going to outstations for the same“ purpose. By that he gets his living. He has inherited a few“ shares of lands from his parents. Now he is residing in a house“ taken on rent.”
Plaintiff averred that the foregoing report was ” false to the” defendant's own knowledge, and was made maliciously and“ injuriously, with the object of preventing the plaintiff from“ being appointedto theoffice of PoliceOfficer, Maitipe, and
“ also with the object of getting the said appointment to the** defendant's brother s sou. , who was also an applicant for the said” post. ”
The defendantpleadedthe truth ofall the statements
contained in thereport,and stated thatit was a privileged
communication.
The District Judge (Mr. F. J. de Livera) dismissed the actionholding the report to be confidential and privileged.
Plaintiff appealed.
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1902. Bawa, for appellant. Defendant has pleaded performance ofFebruary S. duty as a public officer, and privilege. But that is not sufficient toexonerate him. .Privilege depends on bond fides or good intention(Silva v. Raman Chatty, 1 N. L. R. 225; Tissera v. Holloway,
1 S. C. C. 29; Voet, 47, 10, 20). The law is well stated in Berwick,D. J’s, judgment, reported in p. 8 of Appendix D in 1 Browne’sReports, and in Villiers' Roman and Roman-Dutch Law ofInjuries, p. 208. Plaintiff alleged and was ready to prove malire,but the District Judge avoided the issue framed on this point.[Boxskr, (.'J.—It was defendant’s duty to tell the truth. He didnot volunteer it. His duty is a good defence, if he spoke the truth.Plaintiff cannot succeed without proof of malice or bad motive.]Plaintiff was not given an opportunity to prove his case. [Bonser,C.J.—What has the respondent to say to this?]
Van Langenberg, for respondent.—The District Judge stoppedplaintiff too soon.
nth February. 1!)()2. Bunker, C..J.—
In this case the judge has dealt with the case too summarily.The plaintiff alleged that the defendant had written, and publishedby sending to the Government Agent, a libel upon him, andthat he had done so from a malicious and improper motive, thatmotive being alleged in the plaint to be the desire that the plain-tiff’s candidature to a public office should be rejected by theGovernment- Agent and a relative of his own should be appointed.The defendant pleaded privilege. He alleged that he was a public .officer, and that the Government Agent, whose orders he wasbound to obey, referred to him on the question of the plaintiff’scharacter and qualifications for office, and that his communicationwas therefore privileged and that no action could lie in respect of it.
When the case came for trial, the District Judge seems tohave taken the case into his own hands, and he decided that inthe circumstances an action would not lie. But in this we thinkhe was wrong. No doubt, in the circumstances, the report madeby the defendant to the Government Agent was a privilegedcommunication, and cannot form the foundation of an action forlibel, unless plaintiff is liable to establish (1) that the statements areuntrue, and (2) that these untrue statements were made malici-ously, that is, from an improper motive. The plaintiff has pleadedthat they were made from an improper motive and were untrue,and he ought, it seems to me, to be afforded an opportunity ofendeavouring to prove his case. The opportunity he must now have.
Wendt, J.— I am of the same opinion.