110-NLR-NLR-V-58-K.-L.-M.-PERERA-Appellant-and-REV.-FATHER-BATTAGLIA-Respondent.pdf
1956 Present ; H. N. G. Fernando, J., and T. S. Fernando, J.
Iv. L. M. PERERA, Appellant, and REV. FATHERBATTAGLIA, Respondent
S. C. 77—D. C. Kegalle, 9,054
Appeal—Interlocutory order—Right la question its correctness at stage of appeal againstfinal judgment.
Defamation—Privilege—Should it be specially pleaded ?
Tn an appeal against a final judgment it is open to the appellant to 'juestionthe correctness of an interlocutory order even if it had not been the'subjectof an immediate Interlocutory appeal.
The defendant in a libel action is entitled to raise the issue of privilege if hehas in effect, though not in express words, set up that plea in his answer.
-^^LPPEAL from a judgment of the District Court, Kegalle.
II. IK. Jayewardene, Q.C., with A. B. Perera and P. Banastnghe, forthe plaintiff-appellant-.
J.A. L. Cooiay, for the defendant-respondent.
Cur. adv. cult.
June 7, 195G. T. S. Fernando, J.—
This is an appeal against the dismissal by the District Judge ofKegalle of an action which the plaintiff-appellant, the headmaster ofa school, instituted against the defendant-respondent, the local managerof the same school, for damages in a sum ofRs. 15,000 alleged to havebeen suffered by him as a result of a publication by the defendant-respondent of certain statements defamatory of the plaintiff-appellant-.These statements which admittedly were made in the Log Rook kept inthe school are all contained in the entry produced below—
“ S/2/52—Visited the school and held an inquiry about somecomplaints against the Head Teacher on the part of some of the staffand about a petition against the same Head Teacher on the part of
the villagers. On account of these complaints and a lack of harmonybetween the Head Teacher and at least some of the staff; on accountof some irregularities about a child, whose name appears in the [LowerKindergarten Register for the whole of last j'ear, while during theSecond and Third Term •the child was allowed to study in the UpperKindergarten, while again the marks of the first term are entered inthe L. K., those of the second term in the Upper K. and those of thethird term in the Lower Kind, and no promotion was finally grantedto the child who was examined at the end of the year at L. K. level,while he studied in Upper K. during the 2nd. and 3rd. terms ; onaccount also of the fact the I-I. T. does not reside in the school in theevenings but goes home soon after class, thereby not being in a positionto improve the school as he should—in fact the attendance is goingdown ; (on account also of a serious irregularity in collecting moneyfor the extra repairs to the school, and withholding the money, withouteven mentioning a word about it to the Manager, on account also ofsome other complaints about his conduct—as v.f. getting drunk) and alsoof some occasional lack of respect towards the Manager—he has beenadvised to ask for a transfer to another school of his choice and finding,or to tender his resignation, also notice is hereby given of discontinuanceat the end of the present term. ”
On the day fixed for the trial, when issues were being framed, counselwho a lipeared for the respondent raised an issue as to whether the entry.in the Log Book (reproduced above) was made on a privileged occasion.Counsel for the appellant objected to such issue on the ground thatprivilege was not pleaded in the answer. Respondent’s counsel pointedto paragraph 2 of the answer in which it was pleaded that ‘r the defendantadmits having made certain entries in the Log Book in the course ofhis duty as Manager based on facts and in good faith, ” and contendedthat the averments contained in the said paragraph 2 clearly indicatedthat the plea of privilege was being relied on. by the defendant. Tliolearned judge allowed the issue and, at the end of the trial, answered itin favour of the respondent.
Learned counsel appearing before us at the appeal argued that thisissue should not have been allowed as privilege had not been pleadedin the answer. Learned counsel for the respondent, while contendingthat the issue was properly allowed, submitted that if the appellantconsidered himself aggrieved by the .allowance of the issue the properprocedure for him to have followed was to prefer an interlocutor}' appealfrom the order allowing the issue. He referred us to the case, amongothers, of Don Andris v. Jameshumy, where Wood Renton J. statedthat in ordinary circumstances the disallowance (or allowance) of anissue, the determination of which depends on viva voce evidence, is anorder which ought to be made the subject of an immediate interlocutoryappeal. While, no doubt, it was open to the appellant to have preferredsuch an interlocutory appeal before the evidence commenced, I am ofopinion that it is competent to him to question the correctness of the
order allowing tho issue during the course of the appeal against thisfinal judgment-. I would refer in this connection to the observationsmade by the same learned judge, Wood Renton J. in the case ofAbubakker v. Ismail Lebbe el al.1, recognising “tho clear right of everylitigant to invite the Appeal Court to consider on a final appeal anyinterlocutory decree, even if he did not directly challenge it at the time-when it was made. ”
Counsel for the appellant has referred us (1) to Xathan’s Lmo of Defa-mation in South Africa, (1933 ed), page 306, where it is pointed out thatthe defendant in a libel action cannot plead the general issue and underit raise the defences of privilege, justification or fair comment—each ofwhich defences must be specially pleaded, and (2) to Fraser on Libeland Slander, (7th. ed). page 264, where it is stated that a defendantpleading that the occasion was privileged must give particulars of thefacts creating the privilege. In the present instance if the appellantcould reasonably have understood paragraph 2 of the answer as raising'the defence of privilege, I do not consider that the circumstances of thocase called for further particulars : if however tho appellant consideredhimself prejudiced by the lack of particulars ho could no doubt haveinvoked the relevant provisions of Chapter XVI of our Civil ProcedureCode. His principal complaint appears to be that he could nob reasonablyhave entertained tho belief that privilege was being raised as one of thedefences. He complains also that as a result he had no reason to beprepared with evidence of express malice on the part of the respondentto displace the privilege. It is relevant to point out that no attemptwas made by counsel for the appellant at the trial to apply for a post-ponement of the trial on the ground that lie was not prepared with evidenceto meet the plea of privilege. As was pointed out by Wendt J. in Dureyav. Siripina, – if a party objecting satisfies the Court that the issue allowedtakes him by surprise, the Court lias the fullest power to prevent anyprejudice to his rights by granting him an opportunity of meeting the-now points raised. I am of opinion that when the respondent pleadedin his answer that “ the entries in the Log Book were made in tho courseof his duty as Manager …. ’’ he was in effect, though not in
express words, setting up the plea of privilege. Moreover, as wassaid by Bayard C. J. in the case of Attorney-General v. Smith 3 in drawingattention to the difference between the English and the Indian systems-of pleadings, “ our Code does not allow the Court to try the case on tile-parties’ pleadings, but requires specific issues to be framed. By section146 of our Code, if the parties are agreed, the issues may be stated by them ;if not agreed, then the court must frame them. In this ease the defen-dant’s counsel expressed a wish to have a further issue settled. – There-is no necessity under our law to restrict the issue to the pleadings, aswas done in this case ; in fact it appears to me contrary to our law'. ”
As the only complaint on account of the allowance of the issue can be oneof linpreparedness by the appellant to lead evidence of express maliceon the. part of the respondent, it is pertinent to recall the answer othe appellant himself, given under cross-examination, that the respondent-
1 (I00S) II N. L. R. at 313.* (I90S} 4 A. C. R 125.
3 (1905) S JV. L. R. 220 al 2U..
“ has no grudge against me personally I am therefore of opinionthat the contention of learned counsel for the appellant that the latterwas prejudiced by the allowance of the issue raising privilege fails.
Learned counsel for the appellant next contended that (a) his clienthas been deprived of a fair trial by the disallowance by "the learned judgeof certain questions which were put to the respondent while under cross-examination, (6) the learned judge appears to have approached a con-sideration of the issues in the case as if the case was one instituted bythe appellant for his wrongful dismissal from service, and (c) the learnedjudge was wrong in considering that the statements in the Log Bookwere not defamatory per se. While the judgment delivered by the learnedjudge gives some room for criticism on the lines indicated in the con-tentions of learned counsel, it seems to me that the questions referredto at (a) above were rightly disallowed on the ground that they wereirrelevant. At the same time, in regard to the other two points (6) and(c) raised, I desire to express here the view that the conduct of■the appellant which led to the making of the entry in the Log Bookwas not such as to deserve the opprobrium of a court of law to the extentof describing the ajxpcllant, as the learned judge has done, as “ a man ofscurvy disposition ”. The evidence relating to the appellant’s connectionwith the money collected as subscription falls short of establishing mis-appi'opriation by the appellant of such money, and the evidence relatingto the allegation of drunkenness was of a flimsy and vague nature. Whilethe learned judge was in error in considering that at least two of the state-ments in the Log Book entry were not defamatory per se, such errordoes not afFect the decision that remains to be reached on this appeal,viz. tiie correctness of the learned judge’s finding on the issue of privilege.
In regard to this remaining question of privilege, the statements which-are the foundation of this claim for damages were made, as stated earlier,in the Log Book kept in the school. It is a book kept in the custody ofthe appellant himself. The nature of the entries that can legitimatelybe made in the Log Book appears in the evidence of the plaintiff's ownwitness, the Inspector of Schools. He stated that the Manager is entitledto make observations about all or any one of the members of the staff.The purpose of the Log Book, he admitted, was to record the nature ofthe work generally done in the school and any complaints regardinganjr of the members of the staff by the Manager and officers of the Edu-cation Department. In the state of this evidence as to (1) the purposeof the maintenance of a Log Book (2) tho nature of the statements thatcan legitimately find a place therein and (3) the persons who are competentto make such statements, it is not possible in my opinion to complainof the conclusion reached by the learned judge on the issue relating to theplea of privilege. As, quite apart from the absence of any evidence ofexpress malice, the position of the appellant himself was that the res-pondent has no grudge against him personalty, this action for damageswas correctly dismissed. I would therefore dismiss this appeal withcosts.
.H. N. G. Ferxaxdo, J.—I agree.
Appeal dismissed.