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Present: Bertram C.J. and De Sampayo J.
JAYAWAEDENA v. WILLIAM.238-239—D. G. Colombo, 52,053 and 52,152.
Person acting within limits of his authority—Paying off grudge—Constableusing insulting and opprobrious language to person under arrest.
A person actingwithinthe limits ofhis authoritydoes not
commit an actionablewrong,even when heso acts withthe object
of paying off a grudge.
A constable who,prompted by personalmalice, usesin public
insulting and opprobrious language to persons under arrest mayrender himself liable in damages.
tjp B K facts appear from the judgment.
Garvin, S.-G. (with him V. M. Fernando, G.C.), for the appellant.
H. J. G. Pereira (with himR. L. Pereiraand Mendia), for the
January 28, 1920. Bertram O.J.—
This case has taken some time to argue, but as it involves questionsaffecting the liberty of the subject, it has points of importance.There are questions of fact and questions of law to be considered.In an appeal on a question of fact, one must have, of course, respectfor the findings of the Court below, but when the facts of the casehave been discussed for two days and more, and we ourselves haveanalyzed all that has to be said, naturally we must form our ownconclusions, and, therefore, if I state my own conclusions on thefacts, it is not that I do not recognize the authority to which ajudgment of District Court on a point of fact is entitled.
The learned Solicitor-General has invited us to treat the case ofeach side as a whole, and to'say that because. certain parts of theevidence on behalf of the plaintiff are not entitled to credit, weshould treat with suspicion and condemnation the whole case.1 do not take that view. I feel that it is the duty of the Court, inspite of the defects of the witnesses, to disentangle the actual truth,if the actual truth can be ascertained.
Now, the facts briefly, as I understand, are these. On the morningof November 17 there was an incident between the principalplaintiff Jayawardens and the defendant constable. There is. noquestion in my mind that this left unpleasant feelings in the mindsof both. The constable reported the matter to his Sub-Inspector.When he got to the station h.e made a formal complaint. He
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underlined that complaint as against Jayawardena (so I conjecture)by seeing that a correction was made in the Information Book.I impute no bad faith to the correction. It was made at the time.But is shows that the mind of the person taking down the statementwas specially directed to the part played by Jayawardena. I havevery little doubt that the constable resented the interference ofWhat he considered that Jayawardena had been guilty. Later inthe day this same constable happens to be at the level crossingjust at the time when the Jaffna Express is due at Veyangodastation. The gates are closed, but people are crossing the line bytrespassing through the fence. The. gateman draws his attentionto that fact. He complains, at any rate, generally. Just at this verymoment it happens that there crossed the line with his partner (theplaintiff in the other action) this same Jayawardena, who had comeinto conflict with the constable earlier in the morning.
Now, whether or not the attention of the constable was drawnspecifically to Jayawardena by the gateman I do not think mattersvery much. His attention; at any rate, was drawn generally topeople crossing the line. Seeing this man with his companion, hetook steps to have them both arrested. He says himself: “I toldthe gateman to take them to the station.” Acting in pursuance ofthat direction, he says the gateman “ detained ” the two personstill the train had passed and “ removed ” them to the police station.But for these words of the constable, I should have doubted whetherany arrest was actually made. I should have been disposed tothink that they all proceeded to the station with a view to investi-gating the charge. But the constable makes it quite clear thatthere was an arrest, and that he himself was responsible for it.When they got to the station, the matter was inquired into withgreat tact and intelligence by the Sub-Inspector. He makes, whatI think, a very clear and concise record of the occurrence. Heinquired into the matter, said quite truly that the constable oughtnot to have intervened, reprimanded him, and referred the matterto the railway authorities.
Now, the question of fact, in the first instance, is this. Hereis a man who has been reprimanded for an excess of action. Thereprimand was justified. What was the reason of this excess ofaction? Was it a mere error of judgment, or was it a thing intowhich he was impelled by the resentment in his mind about theoccurrence in the morning. That is a question of fact. I may sayas to that that I am stating the facts as they strike me personally..1 feel a very strong impression that had the constable not had thecircumstances of the morning to his mind, he would have taken amore moderate course. He would not have insisted bn Jayawardenaproceeding to the police station. He was reprimanded by hissuperior officer for taking that course. In ordinary circumstances,he would have acted more judiciously.
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.■.'here is a further question of fact. It was alleged in the pleadingsthat the defendant wrongfully and unlawfully insulted the plaintiffsin both actions. This is a question of fact, but I do not know, inthe view I take of the law, whether I need say much on the subjeot.But the opinion I have formed is that the constable seeing Jayawar-dena, with whom he had come into conflict early in the morning,in this position, did address him in disrespectful and opprobriouslanguage at the railway crossing. As to the law I will say a fewwords in one moment.
Now, first of all, as to the law on the other point, the question ofarrest. The Solicitor-General says that in any case no action liesin respect of the arrest, because under the Bailway Ordinance twooffences had been committed, and in respect of these offences a policeofficer may arrest without warrant. The first is a breach of section36 (2), and the second is a breach of section 32. In my opinionboth these points are good. The train was at the time due atVeyangoda. Prima facie evidence of that fact was the closing ofthe gates. It is quite true that the gates were about thirty yardsfrom the end of the platform. But for the protection of the public,it is necessary to close the gates, when a train is due at the station.It has been aptly pointed out that these trains are sometimes ofgreat length, and that they may have to go beyond the platform.Too narrow a view must not be taken of a provision designed forHie protection of the public against accidents, and the question atwhat spot a train ought to be considered due must be interpreted inthe light of the precautions necessary for the safety of the public atthe place where the gates are.
I think it would be taking far too narrow a view to hold that thetrain was not due at the gates when it was due at the platformthirty yards off, and, therefore, it appears to me that the constablewas within his legal rights in making the arfest. Quite, apart fromthis, Hie appellant was guilty of a technical trespass, and, therefore,liable to arrest on this ground also. If a man acts within thelimits of his authority, even though he may be inspired by mixedmotives, even though his mind may be clouded by personal resent-ment, even though he may feel a personal satisfaction in beingable to pay off a grudge against the man with whom he is dealing,yet,. nevertheless, he has not committed an actionable wrong.
The next point is the law on the subject of wrongful insult. If aconstable uses insulting and opprobrious language to persons underarrest, that action is most reprehensible, and, I am sure, that thepolice authorities themselves, if they are satisfied with the fact,would take satisfactory measures to deal with a case of this 'kind.Further, I hold that a person in that position is entitled to appealto the Court's for protection, both criminal and civil, and that ina proper case, that is to say, if those opprobrious words are utteredin public and by reason of personal malice, in my own opinion,
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damages may rightly be claimed. I am not able to see, however,in this case, that this ever really was the gist of either of theseactions. There is no actual statement of defamation as a causeof action in the plaint. Nor were issues framed which would beframed in such a case, nor does the learned District Judge deal withthe action as containing a separate claim in respect of defamation.
In my opinion, although both the plaintiffs resented certainexpressions used by the constable, these did not very seriouslyaffect their minds until after they left the police station. I amstrongly confirmed in that conclusion by the evidence of the witnessSamarasinghe, who appears to me to have given his evidence veryfairly, and whose statement that the plaintiff complained to himof the language of the constable seems to me to refer to a complaintafter they had left the police station.
I do not think, therefore, that this charge, of defamation was everseriously part of the case. It was only, I think, intended to healleged by way, of aggravation. I say this, in spite of the fact that thewords “ wrongfully and unlawfully ” are nsed in connection with it.So much for the points of fact and law.
But other points have been gone into, and it is right that I shouldsay a few words in regard to them. In the first place, as I havesaid, I think that the plaintiffs, though from the point of view ofthe facts they would be entitled to sympathy, even though they,could not succeed on the law, have very greatly destroyed theirclaim to any sympathy by the evidence they have given. I entertainno doubt myself that much of their evidence was adduced to meetthe plea put forward in the answer that the arrest was the arrestof the gatekeeper and not of the constable. It is not necessary forme to go through all these statements. There is one initial state-ment they made which vitiates the evidence of them both, and thatis, they signed their statements without inquiring into their contents,that they were not allowed to read them, and that they put theirhands to them without even desiring to know what they contained.
It is quite clear that there is no truth in these statements, parti-cularly when we remember the position of plaintiffs and their relationswith the Sub-Inspector. Also their repudiation of the statementsrecorded in the Sub-Inspector’s inquiry in their hearing is, I think,rightly criticised with severity by the Solicitor-General. Further, Ithink, there is no foundation at all for the suggestion that theconstable was actuated by personal malice against Thelenis. A moreshadowy ground of malice could hardly be imagined. Further, itis obvious that the evidence of the porter is worthless. He is clearlya witness not so much concerned with the truth as with the effectof his evidence on the side he wishes to favour. There is no reasonto think, and it does not appear to be suggested in this Court(although there are one or two expressions in the judgmentof tbe learned District Judge which seem to suggest it), that the
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Sub-Inspector’s report was otherwise than bona fide. These are,briefly, the points on which, I think, comment is necessary. I should 'Bay that with regard to the facts, I am stating what is myown impression. The case really turns upon the question of law.The opinion I have expressed must, therefore, be taken simply as myown conclusions and impressions so far as the facts are concerned.
The appeals are allowed. In regard to the costs, I think theappellants are entitled to the costs of the appeal in both cases. Withregard to the costs in the Court below, I think that the fairest ordershould be that there should be no costs on either side.
De Sampayo J.—I agree.
JAYAWARDENA v. WILLIAM