121-NLR-NLR-V-59-DR.-S.-A.-WICKRAMASINGHE-Appellant-and-MATARA-MERCHANTS-LTD.-Respondent.pdf
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PULLE, J.—Wickramasinghe v. Matara Merchants, Ltd.
-.• Present:Basnayake, C.J., and Pulle, J. .■
DR. S. A. WICKRAMASINGHE, Appellant, and MATARAMERCHANTS, LTD., Respondent
S. G. 127—D.G. Matara, 19G
Defamation—Pleadings—Omission to aver in plaint the fad of publication—Maintaina-bility of action.■
Publication i3 of tho essence of an action to recover damages for defamationand tho failure to assert it as a fact in tho plaint is to render it open tothe objection that it docs not disclose a causo of action.
If a libel appearing in a leaflet is alleged in a plaint to have been printedit docs not amount to an allegation that tho printer published it.
iAlPPEAL from a judgment of the District Court, Matara.
Walter Jayazvardene, with Neville Wijeratne, for the Plaintiff-Ai>pellant.
H. V. Pcrera, Q.G., with E. R. S. R. Coomarasiuamy and N. R. JW.Daluwatle, for the Defendant-Respondent.
Gur. acZv. valt.
November 8, 1957. Pulle, J.—
The plaintiff appeals – from a decree dismissing his action on apreliminary issue. That issue was whether the plaint disclosed a causeof action against the defendant. Tho plaintiff, in paragraph 4 of theplaint, alleged that the defendant “ made and printed ” a leaflet con-taining statements defamatory of him. A copy of tho leaflet wasattached to the plaint. That the leaflet is defamatory of the plaintiffadmits of no doubt. The submission on behalf of the defendant whichwas accepted by the learned trial judge was that the plaint did notdisclose a cause of action for tho reason that it contained no allegationthat the defamatory matter was published by the defendant-.
It was alleged in paragraph 5 of the plaint that the leaflet was “ printedand published of the plaintiff” and that it was widely distributed in anumber of villages between llt-h March, 1952, and 30th May, 1952. Inparagraph G a portion of the defamatory matter taken verbatim fromthe leaflet is set out and is prefaced by the words,
“ In the said leaflet the defendant falsely and maliciously printed,
inter alia, tho following statement, to wit :”. Paragraph 7
stated, “ The said statement was calculated to injure the plaintiff in theexercise of his profession as a Doctor and his character as a public man ”.In the following paragraph the plaint alleged :
“By making, printing and publication as aforesaid of the wordsreferred to in paragraph G above the plaintiff has suffered pain of mindand has been seriously injured in iris credit and reputation. ’. Although
PVLr.E, J.— Wickramasinghe v. 3/alarci JMerchantif. Ltd. ■
550
the preliminary issue refers to a single cause of action', there Mere in factpleaded three oilier causes of action said to arise from statements in theleaflet entitling the plaintiff to recover damages for the harm done to hisreputation. It was submitted for the defendant, both in the trial courtand at the argument in appeal, that the plaintiff had advisedly omittedto make tlie'allcgation that the defendant published the leaflet and nascontent to rest his claim on two facts, first that the defendant printedthe leaflet, and secondly, that it was published in the sense that it reachedmembers of tho public. '
Reamed Counsel for the appellant contended for the validity of thefollowing propositions :—-
(i) The words in the plaint were a sufficient averm'ent of publicationof the leaflet by the defendant.
(ii) Roman-Dutch law docs not require publication of defamatorymatter to render a defendant liable for damages.
(hi) If under Roman-Dutch law publication is necessary, the printeris liable when what is printed is disseminated.
Dor the first j>roposition which concerns the form of pleading in anaction for defamation reliance was placed on English law and specialemphasis, was laid on the ease of Baldwin v. Blphinston l. We havebeen invited to hold on this authority that printing a libel is prima faciepublishing and that, therefore, the statement in the plaint that thedefendant printed the leaflet in question was equivalent to jm Wishingit. If the judgment in that ease is read in tho light of its own specialfacts it can hardly be regarded as an authority for the wide projiositionthat if a libel is alleged in a plaint to have been printed it amounts to anallegation that the printer published it.
In Baldwin v. Elphinston 1 there were two counts in the declaration.The first was for printing and publishing in a newspaper called St. James’sChronicle a libel traducing the plaintiff in his capacity of a captain inthe ISTavy. The second count was, “ Dor printing and causing it to beprinted, another similar libel. ” The plaintiff was awarded damagesand the ease was taken up to the Exchequer Chamber in Error on thopoint that in the second count the defendant nas only charged with thoprinting and not the publication of the libel and that that was insufficientto maintain the action. The judgment states, 0
“ It is therefore sufficient, if there be stated in the declaration suchmatter as amounts to a publication (without using the formal word‘ published ’), and the jury are, upon the evidence, to decide whethera publication be sufficiently proved or not. Printing a libel may bean innocent act ; but imless qualified by circumstances, shall p/fmo-facie be understood to be a publishing. Printing in a newspaper(as laid in the declaration) admits of no doubt on the face cf it ….The conclusion to tho whole declaration states that by means of the' printing and publishing of the said several libels the plaintiff is greatlyinjured. ”_
1 (1775) 96 E. 11. 610.
500
PULL.E, J.— "Viclcramasinghe v. Jllatara Merchants, Ltd.
It seems to me that this case falls to be distinguished from the factsalleged in the plaint in the present case. The publication here Avas not'in a newspaper and in Elphinston’s case there was an averment at theconclusion to the whole declaration that the libels were not merelyprinted but published. The case of Baldwin v. Elphinston 1 appearsnot to have received unqualified support in I Vails v. Fraser 2. Referringto that case Patterson, J., made an observation in which I respectfullyconcur, namely, that the court there seems to have entered into a questionof evidence which was not properly before them as a Court of Error.
The current of authority is against the view that Roman-Dutch lawdoes not require publication of defamatory matter as the basis of anaction for damages. Nathan in the Law of Defamation in South Africa(1933 edition) deals in Chapter VIII with the question from the historicalaspect, whether publication is of the essence of the action for defamationand expresses the view,
“ In other words, the Roman law and in Roman-Dutch law conlumeliais the gist of the action for defamation. ”
The learned author then proceeds to add,
“ The point, however, is only of academic importance today.
“ It is necessary to allege in a civil action for defamation, and toprove, that the statement complained of Avas published to a thirdparty. If such an allegation is lacking in the plaintiff’sde-
claration it may be successful!}' excepted to, on the ground that the
declarationdiscloses no cause of action. In other AA'ords, in the
absence of proof of publication, the action must fail. ”
Maasdorp in Chapter XIII of Book III (Vide Vol. IV, 4th edition p. 167)saj's, “ Accurate pleading in cases of defamation is of the utmost impor-tance ” and adds at p. 1C9, “ Publication Avill also ka*e to be bothalleged and proA'ed. It Avill not, for instance, be sufficient to statethat the libel Avas contained in a letter addressed to a third party ; itAvill be necessary to aA-er that it Avas actually sent to such person .” InChapter XI Maasdorp (4th edition p. 12S) states one of the essentialsof the action for damages is “ that there shall haA*e been publication ”.
McKerron on the Luav of Delict (4tli edition) p. 202 says, “ The AATongof defamation consist^ in the publication of defamatory matter con-cerning another Avithout laAvful justification.” At p. 219 the learnedauthor states, “Publication must be alleged and, as a general rule,affirmatively established.”
The third proposition for Avhich the appellant contended Avas that thetAvofold allegation of facts that the defendant Avas the printer of theoffending leaflet and that the contents Avere disseminated constituteda cause of action for tort against the defendant. This proposition Avassought to be supported on passages in Chapter X of Nathan’s Laio ofDefamation in South Africa (ide pages 164 et seg.). Under the sub-heading “ Joint Tort-Feasors. NeAvspapcrs ” the learned author deals1 {1775) 9C B. It. CIO.* (1S35) 112 B. It. 155.
PULLE, JT.—fVickramasinghe v. .1falara 1Merchants, Ltd.
5G1
principally with tlie position of editors, publishers anti printers of a libelcontained in a book, newspaper, periodical, leaflet or pamphlet. Of apublisher he says that he is “liable for defamation equally with the editor’'and at p. 105 “ The printer of libel, i.e., no matter in what form of publi-cation, is equally liable with the author, editor or publisher.” Ho quotesas authority Voe-t Book 47, Title 10, section 10. Before dealing with thiscitation I wish to observe that there is no allegation in the plaint thatthe defendant was a joint tort-feasor along with those responsible for thedissemination of the leaflet. Secondly, the distinction ought to be keptin mind between a fact which constitutes the cause of action and the modeof proving it according to the law of evidence. A presumption in regardto publication does not absolve a plaintiff of having to allege that factin order to conform to the rules of pleading. After stating in the passagealready quoted from McKerron p. 219, that publication must be alleged,and, as a general rule, affirmatively established, he continues,
“ In certain cases, however, publication will be presumed, and insuch eases the burden of disproving it rests on the defendant. Thuspublication will be presumed where the defamatory matter is containedin a book or newspaper.”
Voct says in Book 47, Title 10, section 10 (Selective Voet, PercivalGane, Vol. 7, p. 226),
“ A wrong is done by writing when a person has assailed the re-putation of someone bj’ handing a screed to the Emperor or toanother ; or with a view to the contemning and mockery and loss ofreputation of someone made up, published, noised abroad, made knownto others or printed an information, narrative, corned}', screed or jingle;or has with evil intent brought about happenings of any of tliosothings.” A footnote to this passage reads, “ Cited as showing thatcomposition is here treated as a separate form of wrong, and that thereis no need for publication.”
Apparently there is a division of opinion on this point judging by thecomment of Moriee in English and Roman-Dutch Daw (Chapter III ofPart IV on Torts) that Huber expressly states that publication is necessaryin injuria verbal is cl lileralis. In this connection Ihc case often referred 'to is De Lett re v. Kicner h It was an action for recovery of damages for. a libel in a letter admittedly wr itten b}r the defendant and which appearedin a newspaper called t-lio South African Commercial Adviser publishedon the 11th January, 1S34. After the plaintiff had closed his case itwas submitted for the defendant that there was no proof of the publica-tion by him of the letter. Counsel for the plaintiff maintained that theproof of the writing and composing of the letter by the defendant wassufficient to support the action, without any further proof of tlie publica-tion by tho defendant and quoted Voct 47, 10, 10. Wyldc, C.J.,doubted whether the facts of the case did nob afford sufficient circums-tantial evidence to bring the publication home to the defendant, but
(1835) Plenties Reports 12.
562 'Punchinona v. Gonagala Co-operative Stores Society, Ltd. ' . ■ ' ‘ ’
apparently the two judges associated witlx him thought there was no proofof publication and the action was dismissed. The report adds, “ Butnone of the Judges had any doubt that an action for’ damages couldnot be supported for writing or composing a libel which had not beenpublished. ”•-
In my opinion the authorities establish that publication is of theessence of an action to recover damages for defamation and the failureto assert it as a fact in a plaint is to render it open to the objection thatit does not disclose a cause of action.
The appeal fails and should be dismissed with costs.
Basxayake, C.J.—I agree.
Appeal dismissed.