JOHN FERNANDO AND ATTORNEY-GENERAL v. SATARASINGHE

018-SLLR-SLLR-2002-V-2-JOHN-FERNANDO-AND-ATTORNEY-GENERAL-v.-SATARASINGHE.pdf


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John Fernando and Attorney-General v. Satarasinghe
113
JOHN FERNANDOAND
ATTORNEY-GENERAL
v.SATARASINGHE
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 28/94 (F)
DC PANADURA NO. 169/MJULY 24, 2000AUGUST 02. 2000
Defamation – After institution of action defendant dies – Does the cause ofaction survive ? – Should the plaint contain die very words complained of to bedefamatory ? – Civil Procedure Code s. 392, s. 393, s. 393 – Form 89.
The plaintiff-respondent instituted action against the original 1st defendant andagainst the Attorney-General as the 2nd defendant. (Original defendant was anemployee of the State) -seeking a sum of Rs. 100,000 as damages from the 1 stdefendant allegedly for reasons of defamation. After the death of the 1st defendant,the widow was sought to be substituted. The District Judge, however, proceededto deliver judgment as prayed for by the plaintiff without making an order on theapplication for substitution.
On appeal, it was contended that –
Defamation being a cause of action based on a personal nature againstthe original 1st defendant, the right to sue ceased on the death of theoriginal defendant.
The plaint was not in conformity with Form 89 CPC in that the plaint doesnot contain the very words which were complained of to be defamatory.
Held:
(1) The maxim “Actio Personalis moritor cum persona" applies to every actionfor libel or slander and therefore where a libel or slander has been publishedby any person and such person dies, no cause of action survives eitherfor or against his personal representative.
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However, in the case of death of the plaintiff after litis contestetio the actionwould continue in favour of heirs of the plaintiff as part of the plaintiffsproperty.
The plaint does not include the defamatory words verbatin or wordssubstantially the same, therefore the plaint is defective. The originaldefendant had been deprived of knowing the defamatory statementsalleged to have been published by him to formulate a proper defence.
APPEAL from the judgment of the District Court of Panadura.
Cases referred to:
1-Deerananda Them v. Ratnasara Them – 60 NLR 7.
Vajiragnana Them v. Gintota Anomadassi Them – 73 NLR 529.
Sirisena v. Ginige — 1992 – 1 SLR 320.
Ms. M. N. B. Fernando, SSC for defendant-appellant.
Dr. Jayatissa de Costa with K. Warnasuriya for plaintiff-respondent.
Cur. adv. vult.
January 17, 2001DISSANAYAKE, J.
The plaintiff-respondent (who will hereinafter be referred to as theplaintiff) by her plaint dated 14. 03. 87, which was amendedsubsequently, instituted this action against the original 1st defendantand against the Hon. Attorney-General as the 2nd defendant-appellant,because the original defendant was an employee of the State (whowill hereinafter be referred to as the 1st defendant and 2nd defendant,respectively) seeking a sum of Rs. 100,000 as damages from the 1stdefendant allegedly for reasons of defamation.
The original 1st defendant and the 2nd defendant, by theirrespective answers filed, whilst denying the averments in the plaintprayed for the dismissal of the plaintiffs action.
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John Fernando and Attorney-General v. Satarasinghe
(Dissanayake, J.)
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The case proceeded to trial on 13 issues and when the case wasdue to be called on 24th of March, 1993, for judgment, Court, onbeing informed of the death of the original 1 st defendant postponedthe case for steps for substitution and judgment.
An application made by the plaintiff to substitute the widow of theoriginal 1st defendant as the defendant was objected to by the 2nddefendant, on the ground that on the death of the defendant the causeof action in the case being of a personal nature did not survive. Whilethis application was pending before Court, the learned District Judge 20proceeded to deliver the judgment in the main case, without makingan order in the above said application for the substitution made bythe plaintiff.
The learned District Judge by her judgment dated 07. 01. 94entered judgment for the plaintiff as prayed for with costs. The learnedDistrict Judge in her judgment further ordered that the damages ofRs. 100,000 be charged on all allowances and gratuity due to theoriginal 1st defendant from the State.
Subsequently, the learned District Judge by her order dated18. 01. 94 allowed the application of the plaintiff for substitution of 30the defendant.
The substituted 1st defendant-appellant (who will be hereinafterreferred to as the substituted 1st defendant) preferred this appeal fromthe aforesaid judgment of the learned District Judge.
Learned Counsel who appeared for the defendants in appealcontended that the learned District Judge was in error whenshe entered judgment for the plaintiff as prayed for on the followinggrounds : 1
(1) That defamation being a cause of action based on a personalnature against the original 1st defendant the right to sue ceased -»o
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on the death of the original defendant and, therefore, the actionshould have abated giving effect to the maxim "Actio personalisMoritur cum persona".
(2) That the plaint was not in conformity with Form 89 of the CivilProdedure Code, in that the plaint does not contain the verywords which were complained of, to be defamatory or wordssubstantially the same as those charged, and therefore the plaintwas defective and the defendants did not have adequate noticeof the alleged defamatory words to prepare his defense.
Learned counsel who appeared for the defendants cited the sodecisions of the following two cases to buttress her proposition thatin an action, which is of a personal nature, the cause of action doesnot survive after the death of the defendant.
The case of Deerananda Thero v. Rathnasara Therd11 where theplaintiff claiming title to the incumbency of a Buddhist Temple, suingthe defendant alleging that the latter was –
unlawfully disputing his right to the incumbency;
was disobedient and despiteful and obstructing him in thelawful exercise of his rights as incumbent and he prayed thathe be declared the incumbent and that the defendant and 60his agents be ejected from the temple.
While the trial in the action was partly heard, the defendant died.The plaintiff then made application alleging that any rights which thedefendant had to incumbency devolved on the present appellant andmoved that the appellant be substituted in place of the defendant.The appellant consented to the substitution. It was held that, on thedeath of original defendant the action abated by virtue of the provisionsof section 392 of the Civil Procedure Code. The action being oneof a personal nature against the original defendant, the right to sue
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John Fernando and Attorney-General v. Satarasinghe
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ceased on the death of that defendant. Even on the assumption that 70the appellant was the legal successor of the deceased defendant, itcould not be maintained that the appellant was liable to be ejectedon the original cause of action. The cause of action did not surviveon the death of the original defendant and the maxim "actio personalisMoritur cum persona" was applicable.
The Ratio Decidedi in the aforesaid authority was subsequentlyupheld in the case of Vajiragnana Thero v. Gintota Anomadassi Therd®.
It is to be observed that on an examination of section 392 of theCivil Procedure Code, which deals with the "continuation of action"upon the death of the party makes it conditional that if the right to sosue on the cause of action survives only, such action can be continued.Similarly, sections 393 and 398 of the Civil Procedure Code providefor the continuation of actions on the death of the defendant, onlyif the right to sue the defendant survives.
Fraser in his book "Libel and Slander" – 7th edition, at page 181,Article 45, under the heading of "Death of Plaintiff or Defendant", hasstated as follows : 'the maxim 'actio personalis Moritur cum persona1,applies to every action for libel or slander and therefore, where a libelor slander has been published by any person and such person dies,no cause of action survives either for or against his personal 90representative; on the other hand, a cause of action for the publicationof false and malicious words causing damage to any person survivesfor the personal representative of such person".
Further, under Note 1 he states as follows : "that even thoughthe action had been commenced before the death of the plaintiff orthe defendant, the death of either party puts an end to it".
On the same page he states further as follows : "On the otherhand, it is specially provided by order XVII, rule I, that there shallbe no abatement by reason of the death of either party between theverdict or finding of the issues of fact and the judgment, but judgment100may in such as be entered, notwithstanding the death".
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Odgers on Libel and Slander, 6th edition, at page 467, dealingwith the English Law Principles, under the heading "Executors andAdministrators" states as follows : “the maxim 'action personalismoritur cum persona' applies to all actions of Libel and Slander. If,therefore, either party dies before the verdict, the action is at an end".
Dr. C. F. Amerasinghe, in his book "Defamation and Other Aspectsof the Actio injuriam in Roman Dutch Law (in Sri Lanka and SouthAfrica) at page 536 commenting on transmissibility has stated thatthe death of the plaintiff put an end to the action, both the offence noand the penalty being extinguished. The death of the defendant alsoput an end to the action and did not lie against the heirs.
He has further stated that, “however, where the death of the plaintiffoccurred after ‘litis contestation the action would continue in favourof heirs", since the action was held to be part of the property of theplaintiff, [emphasis is mine]
Therefore, on the above principles it is clear that in an action fordefamation on the death of the defendant the cause of actiondoes not survive. In the case of death of the plaintiff after litiscontetatio, however, the action would continue in favour of heirs of120the plaintiff as part of the plaintiff's property. Therefore, I am of theview that in this case on the death of the defendant the cause ofaction abated and did not survive.
It is to be observed that Form 89 of the Civil Procedure Codesets out the averments that are required to be included in a plaintin an action for defamation according to which the very wordscomplained of or words substantially the same as those charged hasto be included in the plaint.
In Odgers on Libel and Slander (6th edition) at page 623, it isset out that in an action for defamation the plaint must set forth the ’3°very words complained of.
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John Fernando and Attorney-General v. Sataraslnghe
(Dissanayake, J.)
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In E. B. Wickramanayake's book on Delicts, chapter VII, page 74,on 'Pleadings in Defamation1 it is stated thus : "A plaintiff who bringsan action for defamation must set out in his plaint the very wordsabout which his complaint is made. It is not sufficient to give thesubstance or purport of it".
In the case of Sirisena v. Ginigef® it has been held that in an actionfor defamation the very words upon which the allegation of defamationis founded or words substantially the same are required to be pleadedin the plaint, to enable the defendant to know exactly the case he 140has to meet, otherwise it was held that the plaint was defective.
The alleged defamation caused to the plaintiff is set out in paragraph3 of the plaint which states that the plaintiff was forced to write afalse statement stating that she had sexual intercourse with someperson and that she was 5 months pregnant.
The plaintiff in her evidence took up the position that the allegeddefamatory statements were contained in the letter produced markedP2, which she was forced to write by the original 1st defendant.
What is contained in letter P2, is as follows :
The plaintiff has a love affair with Sri Lai and had visited the 150house of Upul at Ratmalana in Sri Lai's motorcyle and that shehad sexual intercourse in that house on 2 days and that Sri Laiinserted his male organ into her female organ on both days. Itis further stated that she went to the Mt. Lavinia Beach on SriLai's motorcycle on the pretext of going to a tuitiorn, class. Shewas kissed by him. She had been to Wewala and Batakeththaraon his motorcycle and in March she went on his motorcycle tothe Kalutara Bo Tree and she was kissed there.
It is further stated that Sri Lai's mother is aware of the love affairand that she had been to Sri Lai's house on occasions. Sri Lai had iso
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brought chocolates and handkerchiefs as presents. It is stated furtherthat she will marry him even if there is opposition from her family.
But, paragraph 3 of the plaint, which contains the averments withregard to the alleged defamation of the plaintiff, does not contain theabovesaid defamatory material either verbatim or words that aresubstantially the same as contained in letter P2.
In point of fact, paragraph 3 of the plaint contains material thatare contradictory to the contents of the letter P2.
Therefore, it would appear that since the plaint does not includethe defamatory words verbatim or words substantially the same, the 170plaint is defective and thereby the original 1st defendant had beendeprived of knowing the defamatory statements alleged to have beenpublished by him to formulate a proper defence.
Therefore, I am of the view that the learned District Judge wasin error when she entered judgment for the plaintiff. Therefore, I setaside the judgment of the learned District Judge.
The appeal is allowed with costs.
WEERASURIYA, J. – I agree.
Appeal allowed.