N. W. DE COSTA, Appellant, and THE TIMES OF CEYLON LTD. and another, Respondents

047-NLR-NLR-V-65-N.-W.-DE-COSTA-Appellant-and-THE-TIMES-OF-CEYLON-LTD.-and-another-Respondents.pdf


De Costa v. Times of Ceylon Ltd.
ill
[In the Privy Council]
1963 Present: Viscount Badciifle, Lord Evershed, Lord Morris ofBorth-y-Gest, Lord Devlin, and Sir Kenneth Gresson
Nrw. DE COSTA, Appellant, and THE TIMES OF CEYLON LTD.and another, RespondentsPrivy Counoil Appfal No. 45 of 1962S. C. 325—D. C. Colombo, 38683/M
Defamation—Publications in newspaper—Animus injuriandi—Burden of proof—
Innuendos—Plea of justification—Plea of fair comment—Proof.
In an action to recover damages for publishing defamatory matter in a news-paper, animus injuriandi “ has in the generality of cases to be inferred from thewords and the occasion on which and the context and the circumstancesin which they are used. If the existence of animus injuriandi is shown orcan be presumed to exist the defence may seek to negative it by raising a pleaof justification. In order to establish that plea it is not enough to show thatthe words complained of are true : it must be shown that their publicationwas in the public interest or for the public benefit. A further defence that maybe raised is that of fair comment. This necessitates establishing that the factsupon which the comment is based are true, that the comment is in realitycomment and is fair and bona fide, and that the comment is based on a matterof public interest. ”
As a first cause of action it was averred by the plaintiff that the defendantspublished (ft) that “ the people ” of Kotte were questioning why the appellant,when he was an assistant teacher at a certain Buddhist school at Kotte, carriedon a “ powerful campaign ” requesting students and their parents not to payfacilities fees, but enforced the payment of such fees when he became Principal ;there occurred also the sentence :—“ The staff is opposed to the Principal;excepting one third all the rest of the students are opposed to him ”. (6) that theappellant set the children against the then Vice-Principal and induced themto write slogans against him on the school buildings.
Held, that the passages in question could not, in the circumstances of thepresent case, be characterised as unjustifiable resurrections of past eventsno longer qualifying to attract public interest. The passages were true insubstance and the pleas of justification and fair comment were available to thedefendants.
The second cause of action related to certain publications which appearedin the same newspaper on the 8th and 11th May 1956 after the appellant hadretired from the post of Principal on ?th April 1956. The passages containedthe suggestions (a) that the appellant had retired under the provisions of Rule6c of the Teachers Pension Regulations by falsely pretending that he could notteach in Sinhalese and (b) that it was as a result of some improper means towhich he had been a party that he had bean able to retire. There was sufficientevidence, however, from which it could be reasonably inferred that the appel-lant's application to retire under the provisions of the Teachers Pension Regula-tions were based upon his claim that the imperfections in his knowledge ofSinhalese were such that he lacked a proper competence to give instructionin that language. Likewise, if the words giving rise to the second cause ofaction were regarded as containing a statement of fact that his permission toretire was the result of employing improper means, the truth of such statementwas not established.
Held, that neither the defence of justification nor that of fair comment wasestablished in regard to the second cause of action.
10—LXV
11 12S06~l,35a (10/63)
21S LORD MORRIS OF BORTH-Y-GBST—D» Qattav. Timas of
Oay lon Ltd.
3
Appeal from a judgment of the Supreme Court reported in
{1959) 62 N.L.S. 265.
Appellant appeared in person.
E. F. N. Gratiaen, Q.C., with E. E. Handoo and Mrs. Q. A. Nonis,for the respondents.
Cur. adv. vuU.
July 9, J 963. [Delivered by Lord Morris of Borth-y-Gbst]—
This is an appeal from the judgment and decree of the SupremeCourt of Ceylon, dated the 23rd October 1959 dismissing with costs theappeal of the appellant from the judgment and decree of the DistrictCourt of Colombo dated the 10th June 1957 which dismissed with costscan action for damages which the appellant brought against therespondents. At all material times the first respondents owned and thesecond respondent edited a Ceylon newspaper known as “ Lankadipa 11.The appellant alleged that on the 5th and 23rd December 1955. on the3rd January 1956 and on the 8th and 11th May 1956 the respondentspublished certain defamatory matter of and concerning him in tbe news-paper. The respondents admitted the publications and put forwardpleas of justification and fair comment.
From 1934 down to April 1955 the appellant was a teacher in the schoolcalled Ananda Sastralaya at Kotte. The appellant was an old boy ofthe school and as the learned District Judge held he was tf a person ofthe locality ”. For a period prior to July 1953 he acted as Principalduring the absence on lea-ve owing to ill-health of Mr. Wickremesinghethe Principal. In June 1953 Mr. Alagiyawanna who was then in theEducation Department was appointed Vice-Principal and after thatdate he acted as Principal. As a result certain difficulties arose. Thelearned District Judge held that although Mr. Alagiyawanna was wellqualified and well suited for the post and was a sincere and honest manthe appointment was perhaps in the circumstances an unhappy one.It was deeply resented by the appellant. Mr. Kularatne was then thegeneral manager of Buddhist Schools of the Colombo Buddhist Theoso-phical Society and it was be who invited and appointed Mr. Alagiyawannato occupy the post of Vice-Principal—a new post which Mr. Kularatnethen created. Dr. Aclikaram, who wielded influence in the sphere ofBuddhist education and who later succeeded Mr. Kularatne as Managerof tbe Buddhist Theosophical Society, felt that the appointment wasunfair to the appellant and attempted to diasuade Mr. Alagiyawannafrom accepting. Mt. Kularatne accompanied Mr. Alagiyawanna bo theschool on the 1st July 1953 in order to inatai him in his new office andinformed the appellant that Mr. Alagiyawanna would act as Principal
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from that date. The appellant indicated resolute opposition and theconflict of testimony as to the unhappj events of that occasion wasresolved by the learned District Judge against the appellant.
In the period that followed there were two circumstances in connectionwith the school which call for mention viz. [a) there appeared certainwritings on the walls of the school in the form of t: anti-Alagiyawanna ”slogans (b) there were failures in some cases to pay " facilities’ fees ”,
Before referring to the passages in the newspaper which gave rise to thelitigation it is necessary to refer to certain events of general importanceand to mention further facts in connection with the appellant’scareer.
After the achievement of Independence in 1948 the Government tooksteps to put its new educational policy into effect. It was recognisedhowever that some teachers would be unable to give instruction in eitherSinhalese or Tamil and a scheme was evolved under which teachers whowere so unable could, subject to certain conditions, exercise an optionto retire with compensation for loss of career. On the 12th September1954 the appellant, who was then on pay leave in order to study inAmerica, applied for permission to retire under one of the provisions(Rule 6b) of the Teachers Pension Regulations. He stated that he didnot consider himself competent to give instruction in Sinhalese. Headded that, because he felt that the turn over to Swabasha was not inthe interests of the country, he could not conscientiously do his bestas a teacher. He further stated that he would not in 1934 have embarkedupon the teaching profession if the new policy could then have beenforeseen. By a letter dated the 25th November 1954 he was informedthat his application was refused. That letter was signed, not personallyby, but by someone for the Director of Education. Their Lordshipsreject a submission advanced by the appellant that the letter should forthat reason be regarded as having no effect. The appellant appealedfrom the decision to the Minister of Finance who was Mr. Jayewardeue.He did so by letter dated the 14th March 1955 giving as his reason fordelay the fact that he had been on leave in America. He addressed aletter to the Minister of Education dated the 21st April 1955 askinghim to support the appeal. The Minister of Finance rejected his appeal.The appellant was so informed in June 1955. In the meantime (i.e.after the 14th March and before June) he had become Principal of theschool. In his judgment the learned District Court Judge recorded that“ in 1955 Dr. Adikaram beat Mr. Kularatne in a contest to become themanager of the Buddhist Theosophical Society. The principalship of theAnanda Sastralaya fell vacant and on 1st April 1955 the plaintiff whowas then in America was appointed principal ”. By letter dated the28th September 1955 addressed to the Director of Education the appellantagain applied for permission to retire. He did so under Rule 6c of theTeachers Pension Regulations which Rule had by then been added tothe Regulations. For present purposes it is sufficient to state thatRule 6c has reference to teaching in higher classes than those to which
220LORD MORRIfi OF BORTH-Y-GEST—de Cotta v. Times
oj Ceylon Ltd.-
Rule 6b applies. The appellant’s application was based as before uponhis feeling that he did not consider himself competent to give instructionin Sinhalese. In the course of his letter he stated :
" I have had no good background in Sinhalese as indicated by thefact that for my first public examination, E.S.L.C. 1930, I did notoffer Sinhalese.
As a second language was compulsory I had to offer Sinhalese forthe S.S.C., but I got through the examination only in my secondattempt.
Subjects for my Intermediate Examination were Mathematics.Botany and English. I studied for my degree in In do-Aryan in theUniversity of London reading and writing the subjects in the RomanScript.
I find it extremely difficult to continue in the profession under theGovernment’s Swabhasa Policy.”
By a letter dated the 29th November 1955 from the Director of Education{which was signed for him) the appellant was informed that he could notbe permitted to retire under the provisions of Rule 6c.
In January 1956 the appellant was given a medical certificate whichrecommended an absence from duty for a month and during January.February and March 1956 he was given permission by Dr. Adikaramto be away from the school. By Letter dated the 10th February 1956the appellant appealed to the Minister of Finance against thedecision of the Director of Education refusing him permission to retireunder the Teachers Pension Regulations. In the course of his letterhe stated :—
i: In the whole of my career as a teacher I have never been taldng aclass in Sinhalese.
I have no good background in the subject as indicated by the factthat for my first public examination (E.S.L.C. 1930) I have not offeredSinhalese.
My subjects for the Intermediate were English, Mathematicsand Botany and for my degree in Indo-Aryan I studied in the Univer-sity of London—under a German Professor who bad no knowledge inSinhalese—reading and writing the languages in the Roman script.
May I submit that I am convinced that the turnover to Swabashais detrimental to the progress of the country and as such I am unableto do my best in my profession.
My present position requires a very sound knowledge in Sinhalese.Other than teaching much public speaking and correspondence haa tobe done by a Principal of an Assisted School to collect funds, to putup buildings etc,”
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On the 19th February Parliament was dissolved. In the ensuingelection the appellant was a supporter of and a worker for the U.N.P.party. As members of that party Mr. Anandatissa de Alwis andMr. Jayewardene (the Minister of Finance) contested respectively theKotte and the Horana seats. The appellant issued a pamphlet in the_J5ntte division in support of the U.N.P. cause and candidate. Hehad also been seen driving a car at Horana which carried on it a posterbearing a photograph of Mr. Jayewardene.
In connection with the appellant’s appeal to the Minister of Financethe Director of Education addressed a letter dated the 7th March 1956to the Permanent Secretary to the Ministry of Education in the course-of which he stated :—
“ 2. Mr. Costa admits that he passed the S.S.C. Examinationwith Sinhalese as a subject. He also passed the B.A. Hons. Indo-Aryan Examination offering Pali and Sanskrit. He is also the authorof a Text Hook in Botany produced in Sinhalese. It is for this reasonthat he was not allowed to retire under Rule 6c.
In fairness to Mr. Costa, it must also be stated that althoughhe had passed in Sinhalese at the S.S.C. Examination he has not,in his career, taken a class of students in Sinhalese. It is correctto state that when he studied for the Indo-Aryan Hons. Examina-tion in London his Professor was a German who used the RomanScript in teaching him Pali and Sanskrit. He also maintains thatthe text book in Botany was prepared by him over a period of yearsin English but that he had obtained the assistance of Messrs. K. C.Weerasinghe and Sunil 'Wijewickrema to do the book in Sinhalese.This point is made by him in the final paragraph of the introductorynote to his book which is sent herewith for reference and return.
I should like to state that Mr. Costa has interviewed me onseveral occasions and has pointed out to me his utter inability tocope with the responsibilities, which devolve on him as the Principalof a Secondary School as a result of his imperfect knowledge of theSinhalese Language.”
On about the 5th April 1956 it became known that the election hadresulted in the defeat of the U.N.P. party with the consequence thatthere would be a change of government. There was later a new cabinet.On the 7th April the Minister of Finance (Mr. Jayewardene), who hadhimself been defeated in the election, went to his office in order to attendto outstanding matters which awaited him. He had to discharge hisduties as Minister until the 15th April. Amongst other matters therewere some 145 appeals which he had to consider before he relinquishedoffice. In dealing with these he relied entirely on the minutes madeby officials in his Ministry and in the Ministry of Education. Amongstthe appeals with which he dealt was that of the appellant. He allowedthe appeal and sanctioned the retirement of the appellant. That was
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222 LORD MORELS OF BQR'jCHMT-GEST—Da Corfov, Tint* of
Q&tjkm Lid.
*• — — — — — ___ — _
on the 7th April 1956. The learned District Judge accepted his evi-dence to the effect that he did not bring his own mind to beer on thequestion of the appellant's retirement. The learned Judge said thathe did not for a moment believe that Mr. Jayewardene’e action wasprompted by any improper motives. The learned Judge did howeverconsider that those who were responsible for advising the Minister hadat that point of time completely changed their minds or had been per-suaded to do so even though no fresh material was placed before them.
The passages in the newspaper in respect of which the appellant insti-tuted his action fall into two groups. These were referred to in theDistrict Court and in the Supreme Court as the hirst and second causesof action respectively and for that reason (even though strictly speakingeach passage, if defamatory, would ground a separate cause of action)a similar mode of reference may be adopted.
The first cause of action relates to the publication of:—
“ (1) a news item in the issue of the ‘ Lankadipa ’ dated 5thDecember, 1955, under the heading ‘ Kasu Kusu’, and
(2) two letters in the issues of the * Lankadipa 1 on 23rd December,1955, and 3rd January, 1956, respectively.
The news item in question (PI of 5th December, 1955) is as follows:—
“The people of Kotte question as to why the assistant teacherwho carried on a powerful campaign requesting the children of acertain Buddhist school in Kotte not to pay facilities fees is enforcingthe payment (of facilities fees) on becoming the Principal”.
The letter published on 23rd December, 1955, is from one Mahinda-pala Boteju (P2) but the complaint is only in respect of the followingpassages contained therein :—
(а)“ It was when the present Principal was an assistant teacher inthe same school that the children were encouraged not to pay and ledastray.
(б)The fact that black stains are sprinkled on the glory that wasof the school can be seen from the talks that go on at the (road) junc-tions here. The staff is opposed to the Principal; excepting onethird, all the rest of the students are opposed to him
The letter of 3rd January, 1956, (P3) is written by one Eartisiri Amera-tunga and the passage complained of in the letter is as follows :—-
“As a past student I know that it was the present Principal whomade the students disobedient and act as rebels. Everyone who wasat the Sastralaya during the time of the Principalahip of Mr. S. Wick-remasinghe knows that it was the present Principal who set the childrenagainst the then Vice-Principal Mr. Alagiyawanna who is now thePrincipal of Sri Sumangala Vidyalaya, Panadura.”
LORD MORRIS OF BORTH-Y-GEST—De Costa v. Tiroes of
Ceylon Ltd.
223
“ To obstruct the work of the school the present Principal who wasthen an assistant teacher induced not only the students but also theirparents not to pay facilities fees. It is not a secret as to who got thestudents to write the anti-Alagiyawanna slogans on the schoolbuildings.”
The appellant pleaded that these statements involved the followingnnuendos :—
that the appellant when an assistant teacher misused his position
as teacher by inciting the students and their parents not topay facilities fees and that in so doing he was actuated byunworthy and dishonest motives :
that the appellant secured his appointment as Principal by these
unfair and unworthy methods :
that the appellant was directly responsible for the students of the
said school becoming disobedient and rebellious:
that the appellant by these actions had forfeited the confidence
of the people of Kotte, his own staff and pupils and was, there-fore, not a fit and proper person to be either a teacher or aPrincipal; and
that the appellant by his actions has brought dishonour on the name
of the school. ”
In respect of that cause of action the appellant claimed a sum ofEs. 50,000.
The second cause of action relates to certain publications whichappeared in the same newspaper after the appellant had retired fromthe post of Principal.
>“ The first of these publications appeared in the ‘ Lankadipa ’ of
8th May, 1956, as a news item. It is as follows :—
‘ Mr. N. W. de Costa, Principal, Ananda Sastralaya, Kotte, hasretired from the post of Principal. He who has a degree in Indo-Aryanhas retired on full pension under the regulations for retirement due tohis inability to teach in Sinhalese. The Sinhalese book titled“ Udbhida Vidyawa ” is a book written by him. In a short timehe will be leaving for America to teach English, ’
“ The second publication is a letter written by one K. Jayasekera andpublished in the issue of the ‘ Lankadipa ’ of 11th May, 1956.The passages complained of are as follows :—
‘It was published in the Lankadipa that Mr. N. W. de Costa,Principal, Ananda Sastralaya, Kotte, retired on the ground of inabilityto teach in Sinhalese. He has an external degree in Indo-Aryan of
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LORD MORRIS 03? B ORJESt-Y-ORST—Bs Coda ©. Tint* of-Ooybn Ltd.
the University of London. Tire book titled ** Udbhida Yidyawa ”which is accepted by the IMmmtim Publications Board is writtenby him. But it is a wonder to the people of Kotte and Horana asto how he retired with foil pay. Though he did not go to school for-th© whole of last terra, he worked hard at Kotl e and at Horana for acertain politioal party. Further, he issued leaflets under his name.It is not difficult for the Education Minister and the Finance Ministerof the new Government to know how he could retire during thetime of the election though his previous attempts to retire wereunsuccessful ”
The innuendo in regard to those publications which was pleaded by theappellant was as follows :—
“ The Plaintiff although well qualified in Sinhalese had by falselypretending he could not teach in Sinhalese and by employing othercorrupt means obtained the permission of the Government to retirefrom the teaching service. 5!
In respect of that cause of action the appellant claimed a sum ofRs. 60,000.
The respondents pleaded justification, qualified privilege, fair commentand absence of animus injuriandi.
A large number of issues were framed at the trial. The learned DistrictJudge found numerous issues of fact in favour of the respondents anddismissed the action. The appeal in the Supreme Court was heard byBasnavake C.J., Pull© J. and Sinnetamby J. By a majority judgment(Basnayake C. J. dissenting) the appeal was dismissed and the judgmentof the learned District Judge was affirmed. The learned Chief Justiceconsidered that the appellant was entitled to succeed in his claim andwould have awarded him Rs. 5,000 damages.
The law which must be applied in approaching the issues which arise inthis appeal is the law of defamation in Roman-Dutch law as applied inCeylon. The existence of animus injuriandi is therefore an essentialbasis of the cause of action. As Basnayake C.J. pointed out in hisjudgment defamation is a species of injuria and injuria litleris is com-mitted when a person has assailed the reputation of another by publishingto a thud person matter intended to bring him into contempt ridiculeor hatred animo injuriandi: and animus injuriandi being a state ofmind has in the generality of cases to be inferred from the words and theoccasion on which and the context and the circumstances in which theyare used. If the existence of animus injuriandi is shown or can be pre-sumed to exist the defence may seek to negative it by raising a plea ofjustification. In order to establish that plea it is not enough to showthat the words complained of are true: it must be shown that theirpublication was in the public interest or for the publio benefit. A farther
LORD MORRIS OF BORTH-Y-GEST—De Coala v. Times of
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defence that may be raised is that of fair comment. This necessitatesestablishing that the facts upon which the comment is based are true, thatthe comment is in reality comment and is fair and bona fide, and that thecomment is made on a matter of public interest.
—Their Lordships think that it will be convenient to deal separately-with the two causes of action. The first cause of action relates to the-publications of the 5th December 1955, 23rd December 1955, and the.3rd January 1956. Their Lordships consider that the ordinary andnatural meaning of the language used is clear. There does not appear-to be any necessity for ascribing secondary meanings. In agreementwith the view expressed by Sinnetamby J. their Lordships considerthat there is nothing in the passages which suggests to the average reader-that the appellant secured his appointment as Principal by incitingstudents and parents not to pay facilities fees.
The decision in regard to this first cause of action will, their Lordshipsthink, mainly depend upon the question as to whether certain facts wereestablished. The passages are really founded and built upon two asser-. tions of fact. One of these concerns facilities fees. The passages firstassert that whereas when the appellant was an assistant teacher hecarried on a campaign requesting students and their parents not topay facilities fees when he became Principal he enforced the paymentof facilities fees. If there were such requests the use of the word f‘ cam-paign” lacks importance. Nor did the description of the campaign.as a powerful one add to the significance of the words. The otherassertion contained in the passages is that the appellant set the children-against the then Vice-Principal Mr. Alagiyawanna and induced themto write “ Anti-Alagiyawanna ” slogans on the school buildings..Assuming that these two serious assertions or statements of fact were;shown to have been true their Lordships consider that the affairs ofthe school were of such concern and interest that publication of thepassages was in the public interest or for the public benefit. Further-more if some words in or parts of the passages were by way of comment-on the facts set out in the passages the comments appear to their Lordships-to have been fair and bona fide and in the public interest. Their Lordships•do not consider that in the circumstances of this case the passages are to becharacterised as unjustifiable resurrections of past events no longer•qualifying to attract public interest. The vital issue as to this partof the case is whether the two statements were true. The learned DistrictCourt Judge, advantaged as he was by seeing and hearing the witnesses,has found that the statements were true. He heard four young menand he stated in his judgment that “ according to them it wasthe plaintiff who was responsible for the anti-Alagiyawanna slogansand it was he who instigated students to refrain from paying facilities•fees”. Each one of the four young men did not testify in regard toboth those matters but both those matters were established if the-testimony of the young men was acceptable. The learned District Judge
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LORD MORRIS OF ROR.TB-‘X'-©SSGE‘—Chat* it. Pumas cf
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in bis Judgment examined carefully the criticisms of their evidence whichCounsel bad advanced but held that he could not agree that the witnesseswere unworthy of credit. He expressly stated that they impressed himfavourably and that he accepted their evideo ce in preference to that of theappellant, 'JPheir Lordships observe that one of the witnesses (Dharmakirti)stated that the appellant had asked him not to pay facilities fees and in hispresence had likewise asked other- students and had asked him to go andpersuade other students and farther had given as a reason for not payingthat a part of the fees wart to Mr. Alagiyawanna.
In the passage which was published on the 23rd December 1955 thereoccurs the sentence :—“ The staff is opposed to the Principal; exceptingone third all the rest of the students are opposed to him ”, There wasevidence which suggested that there were factions on the school staff andwhich showed that the troubles concerning admission cards for the exami-nations were discussed in Kotte and caused distress among the students.Though it was not shown that all the staff were opposed to the appellantand though the stated percentage of student opposition was not provedthe sting of the passages complained of in the first cause of action didnot rest in the sentence quoted. If it was shown that when the appellantwas a teacher he carried on a campaign requesting students and theirparents not to pay facilities fees, and that when he was Principal heenforced the payment of such fees, and if it was shown that the appellanthad set the children against Mr. Alagiyawanna and had induced themto write “ Anti-Alagiyawanna ” slogans on the school buildings, theirLordships consider that the appellant could not succeed in respectof the first cause of action. There were conflicts of evidence at the trialbut there was evidence which, if accepted by the learned Judge, warrantedhim in reaching the conclusions of fact which he expressed. Their Lord-ships see no basis for disturbing them.
In regard to the publication of the 5th December 1955 their Lordshipshave noted that the opening words are :ft The people of Kotte question
as to why . . . It was urged that the evidence did not establish thatthe matters referred to were the talk of Kotte. Here is an exampleof words which on one view record a statement of fact and on anotherview express a comment. If the words are recording fact their Lordshipswould not regard the words as stating that all the people of Kotte weremaking the matters referred to their topic of conversation. If theview is held that fact was being recorded there was some evidencethat the matter of admission cards was ct the talk of Kotte ” and therewas some evidence that “ school affairs were being discussed at junctionsand on the roadTheir Lordships consider however that, more naturally
interpreted, the words do no more than express a comment ona matter which was claimed to be of public interest to the people of Kotte.The comment (if founded on facts truly stated), that someone who asan assistant teacher at a school in Kotte had requested children not to
LORD MORRIS OF BORTH-Y-GEST—De Costa v. Times of
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pay facilities fees was after becoming Principal enforcing their paymentwas in their Lordships’ view one that it was fair and legitimate to expressin Kotte.
In regard to the first cause of action their Lordships have not beenpersuaded that the conclusions reached by the learned Judge at the trialand by the majority in the Supreme Court were erroneous.
Their Lordships now pass to consider the second cause of actionwhich relates to the publications of the 8th and 11th May 1956. Thelearned Judge at the trial held that the words did bear the innuendowhich was pleaded. The view of the majority in the Supreme Courtwas that “ while the passages themselves convey to the minds of thereader the suggestion that the plaintiff retired by falsely pretending thathe could not teach in Sinhalese though well qualified in that language ”the passages did not necessarily suggest that corrupt means were employedin obtaining permission to retire. They added that the passagesdid not “ suggest corruption as such unless it be limited to the factthat the plaintiff was able to retire by working for a “ certain politicalparty Their conclusion was that the final passage of the wordspublished on the 11th May certainly suggested that the appellantwas able to retire by improper means though they thought that thewords were mainly directed against the retiring Finance Minister.
Their Lordships consider that the passages do contain the suggestions
that the appellant had retired by falsely pretending that he couldnot teach in Sinhalese and (b) that it was as a result of some impropermeans to which he had been a party that he had been able to retire.(The writer of the letter of the 11th May clearly intended so to suggest.)
In so far as the words contain statements of fact to such effects theirLordships do not consider that justification was established. In so faras the words contain comment it becomes necessary to consider whetherthere was the requisite basis for establishing the plea of fair comment.
Certain additional facts must now be mentioned. The appellant hasa degree in Indo-Aryan. It is a degree in the University of London.It was not however shown that the obtaining of such a degree involvedthe passing of an examination in Sinhalese or that the appellant offeredSinhalese as a subject for his degree. Nor was it shown that someonewho possessed a degree in Indo-Aryan was competent to give instructionthrough the medium of Sinhalese to the classes designated in paragraphs6b and 6c of the Teachers Pension Regulations. In studying for hisdegree in Indo-Aryan in the University of London he had read andwritten the subjects in the Roman Script. The appellant was the authorof a book entitled “Udbhida Vidyawa ”. The evidence showed that inso far as it could be said that the book was written by the appellant inSinhalese that was only achieved with the assistance of two friends.
22-S LORD MORRIS OF BO&X&Y-OSST-^£>• Ooeto «, 2%ws o/
Cayfcn £<*
•W — — ~ 1 ‘ — ——1,1,—. ■ — ■— ■ ——
(The appellant’s version was that he prepared the book in Englishand that it was translated into Sinhalese by the two friends.) The bookwas not accepted by the Educational Publications Board.
There was evidence which established that for many purposes theappellant had a measure of competence in Sinhalese. In his judgmentin the Supreme Court Sinnetamby J. said : <! It is also significant thatthroughout his efforts to retire on the ground that he could not teach inSinhalese the plaintiff concealed the fact that he passed the LondonMatriculation in, Sinhalese which was calculated to create the wrongimpression that he passed in Sinhalese only in the S.S.C. and that too atthe second attempt, vide E.17 ; actually, though he failed the entireexamination in his first attempt, he passed in Sinhalese It is to beobserved however that the appellant did, not assert that he had no under-standing of Sinhalese. His applications to retire under the provisionsof the Teachers Pension Begulations were not based upon any suchsuggestion : they were based upon his claim that the imperfections inhis knowledge of Sinhalese were such that he lacked a proper competenceto give instruction in that language.
If the words giving rise to the second cause of action are regarded ascontaining a statement of fact that the appellant had falsely pretendedthat he could not teach in Sinhalese their Lordships consider that theevidence fails to establish the truth of any such statement. Likewiseif the words are regarded as containing a statement of fact that hispermission to retire was the result of employing improper means thetruth of such statement was not established. The suggestion which thewords conveyed was that an application which lacked merit was accededto as the reward for political service rendered to the Minister. TheirLordships consider that the evidence did not warrant this suggestion.It was not shown that the Minister had knowledge of the political activities—such as they were—of the appellant. Quite apart from this the findingof the learned Judge at the trial was that the Minister in reaching hisdecision relied entirely on the advice of his officials. The part played bythe appellant in the election did not have any effect so far as the fateof his appeal to the Minister of Finance was concerned.
It remains for their Lordships to consider whether to the extent that thewords which are the basis of the second cause of action can be regardedas comments the defence of fair comment can avail the respondents.Some of the words may be regarded as introducing or denoting comment.By way of example it may be said that the words "But it is a wonderto the people of Kofcte and Hor&na as to ” are introductory toand indicative of comment. To the extent that the words which arethe basis of the second cause of action suggest comments—the commentsare undoubtedly adverse to the appellant. One comment, if commentit be, is that the appellant had been allowed to retire on account of in-ability to teach in Sinhalese in spite of the fact that he was really quite
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competent to teach in that language. Another is that though he was ableto teach in Sinhalese and had not been successful in his application toretire yet by working hard during the election he had secured a reversalof a previous decision. Their Lordships consider that these commentscould not in any event be justified as being fair unless they were foundedon “facts truly stated which gave adequate support for them. Someof the statements which were made were incorrect. It was stated thatthe appellant had retired “ with full pay ”. The writer of the letterwas completely misinformed as to this and he took no step to verifythe statement that he made. The appellant did not retire with full pay.That was a particularly serious mis-statement. The statement thatthe book “ Udbhida Vidyawa ” was accepted by the EducationalPublications Board was also incorrect. The statement that the bookwas written by the appellant did not convey the information which inthe context and in the circumstances was relevant and which called formention i.e. that its appearance in Sinhalese was only made possibleby reason of the assistance which the appellant had received. Aparthowever from these considerations their Lordships are of the opinionthat the material was quite inadequate as the foundation of the seriousand damaging comments (assuming that the passages can be regardedas comments) that were made. The facts do not support the seriouscritical comment to the effect that the appellant’s claim to retire onaccount of inability to teach in Sinhalese was based on false pretences.Neither do the facts give support for a comment that the permissiongiven to the appellant to retire was improperly secured as the rewardof partisan political service.
Whichever approach is followed their Lordships consider that neitherthe defence of justification nor that of fair comment was established.Their Lordships consider that the appellant was entitled to succeed inrespect of the second cause of action. In considering the amount whichshould be awarded their Lordships have paid great heed to the assess-ment made by the learned Chief Justice, while remembering that hisfigure was awarded on the basis that the appellant should succeed on thefirst as well as on the second cause of action. Having regard to thecontent of the defamation covered by the second cause of action whichinvolved what were undoubtedly the more serious allegations theirLordships consider that an award of Rs. 5,000 should be appropriate tothe case.
Their Lordships will humbly advise Her Majesty that the appealshould he allowed, that the judgments of the District Court and of theSupreme Court should be set aside and that judgment should be enteredfor the appellant for Rs. 5,000. The respondents must pay the appellantone half of his costs of the trial and such costs as he incurred in theSupreme Court and before their Lordships’ Board.
Appeal allowed.