PERERA, Appellant, and PEIRIS et al , Respondents

022-NLR-NLR-V-47-PERERA-Appellant-and-PEIRIS-et-al-Respondents.pdf


Perera v. Petris.
49
1946Present:Howard C.J. and de Silva J.PERERA, Appellant, and PEIRIS, et al, Respondents.
84—D. C. Colombo, 15,069.
Defamation—Publication of defamatory statement in newspaper—Statement,an extract from the report of a Commission which was appointed byGovernor—Pleas of Absence of animus injuriandi, Justification andPrivilege—Ordinance No. 25 of 1942, as. 5, 6.
The plaintiff sued the first and second defendants, who are the printerand owner respectively of the Ceylon Daily News, for defamatory libelin respect of the following statement published in their newspaper :“ Dr. M. G. Perera (the plaintiff) who gave evidence was completelylacking in frankness and pretended that he knew very ranch less aboutthe transaction than he actually did.”
The statement was an extract from the report of the Commissionerwho had been appointed by the Governor in pursuance of a resolutionpassed by the State Council that a Commission should be appointedto inquire into charges of bribery and corruption made against itsmembers.
It was established (a) that the plaintiff was a stranger to the firstdefendant who authorized the publication and that there was no evidencethat the defendants in publishing the report were actuated by expressmalice, (6) that the Bribery Commissioner’s report was sent to thefirst defendant as a Sessional Paper, free of charge, by the GovernmentPrinter, (c) that the report concerned a matter of public interest eagerlyawaited by readers of the Daily News, (d) that the extracts selectedfor publication quoted the Commissioner verbatim.
Held, that the defendants had proved conclusively that the circum-stances in-which publication took place negatived the existence ofanimus injuriandi and, on that ground alone, they were entitled to succeed.
Held, further, (i.) that the truth of the statement in conjunctionwith the fact that what was published was for the public benefit estab.lished the defence of justification. The question as to whether what waspublished was a matter of public interest was not a question of purefact and the finding of the trial Judge, on that point, could be reversedby the Appellate Court if it was based on wrong inferences^drawn fromtruthful evidence ;
(ii.) that the publication was subject to a privilege which could benegatived only by proof of express malice ;
(iii.) that the provisions of section 6 and 6 of Ordinance No. 25 of1942 could not in any way affect the operation of the defence of privilegein favour of the defendants.
Per Howard C.J.—“ From the principles elaborated by me it ismanifest that the question as to whether a statement defamatory per seis true does not in Roman Dutch law assume the importance that itdoes in English law. In Roman-Dutch law the burden is on the defendant,whether the statement is true or false, to prove that he had no animusinjuriandi."
A
PPEAL from a judgment of the District Judge of Colombo. Thefacts appear from the head note.
8—XLvrr.1J . K. A 60001—554 (3/48)
60
Perera v. Petris.
N. Nadarajah, K.C. (with him C. Renganathan and O. T. Samaratvickreme), for the plaintiff, appellant.—The words published by thedefendants are clearly defamatory of the plaintiff. The trial Judge has,however, although he answered almost all the issues in plaintiff’s favour,dismissed plaintiff’s claim on the ground that the libel was published on aprivileged occasion. He has held that the proceedings of the BriberyCommissioner were those of a judicial tribunal and, therefore, thepublication of the Commissioner’s report was privileged. It is sub-mitted that the Bribery Commission constituted under the Commissionsof Inquiry Ordinance (Cap. 276) and Ordinance No. 25 of 1942 cannot beregarded as a judicial tribunal. It was nothing more than a fact-findingCommission appointed to advise the Governor. The Commissioner’sreport was not meant for the public. The case of O’Connor v. Waldron 1is directly in point. See also Queen Empress v. Tulja 2; Royal Aquarium& Summer <fe Winter Garden Society v. Parkinson 3; Fracis, Times <S> Co.v. Carr *; Dankoluwa Estates Co., Ltd. v. The Tea Controller s.
Even if the Bribery Commission can be regarded as a judicial tribunal,the privilege given to a newspaper to publish reports of the proceedingsis of a conditional nature—Nathan's Law of Defamation in S. Africa(1933 ed.) 241 ; Me Kerron’a Law of Delict (2nd ed.), 187-188.
The trial Judge has assessed the damages, on wrong principles. Theplaintiff is entitled to substantial damages.
V. Perera, K.C. (with him N. M. de Silva and C. E. L. Wickreme-singhe), for the defendants, respondents.—The sum of Rs. 5 awardedby the trial Judge as damages due, if plaintiff can succeed in law, isadequate in view of the pleadings and issues.
There is not the least doubt of the bona fides of the defendants.Absence of animus injuriandi is a complete defence, under the Roman-Duteh law, in anaetionfor defamation—Maasdorp’s InstitvtesofS. AfricanLaw, Vol. 4, p. 143 (4th ed.) ; De Villiers on Injuries, pp. 189, 193, 203.
The truth of the statement published is not disputed. The fact,therefore, that the defendants published it for the public benefit absolvesthem from all liability. The defendants are entitled to succeed on theground of justification. The defendants owed a duty to the public andthe public were much interested in the matter which was published.The trial Judge’s finding on the issue of justification does not dependon the credibility of witnesses and can, therefore, be revised—The King v.Charles 6; Montgomerie & Col., Ltd. v. Wallace-James 7.
The proceedings of the Bribery Commissioner can be regarded asjudicial proceedings—Rex v. Electricity Commissioners 8.
Nadarajah, K.C., in reply.—Sections 6 (1) and 6 (2) of OrdinanceNo. 25 of 1942 definitely prohibit the publication of the names andevidence of the witnesses who appeared before the Commissioner.
Animus injuriandi has a special meaning in the law of tort. It is notnecessary to prove any ill-will or spite on the part of the defendants
*£. R. (1935) A. C. 76.6 (1941) 42 N. L. R. 197.
» I. L. R. (1887) 12 Bombay 36 at 41.«(1907) 1 A. C. R. 125.
» L. R. (1892) 1 Q. B. 431.7 L. R. (1904) A. C. 73.
* (1900) 82 L. Times 698.• L. R. (1924) 1 K. B. 171 at 207.
HOWARD C.J.—Percra v. Peiris.
51
and it is quite immaterial what the motive was or that the object thedefendants had in view was a laudable one—De Villiers on Injuries,pp. 27-29 ; Me Kerron on Delicts (2nd ed.), pp- 56-57.
In English law proceedings in camera cannot be published, particularlywhen there is an express prohibition by enactment—Scott v. Scott1;Gatley on Libel and Slander (2nd ed.), pp. 329, 330, 333. The soope andlimits of privilege as defence are discussed in Adam v. Ward 2.
Cur. adv. wilt.
February 12, 1946. Howard C.J.—
The appellant in this appeal is the plaintiff who appeals from ajudgment of the District Court, Colombo, dismissing his aotion claimingRs. 50,000 for defamatory libel with costs. The first defendant is theprinter and publisher and the second defendant the owner of the CeylonDaily News. In their issue of May 25,1943 (P 1), the defendant publishedthe report of Mr. L. M. de Silva, K.C., the Commissioner appointed bythe Governor in pursuance of a resolution by the State Council of Ceylonthat a commission should be appointed to inquire into charges of briberyand corruption made against its members. The»appellant’s action wasfounded on the following words which are an extract from Appendix Cof the Bribery Commissioner’s report (D 2) :
“ Dr. M. G. Perera (the plaintiff) who gave evidence was com-pletely lacking in frankness and pretended that he knew very muchless about the transaction than he actually did.”
In his plaint the appellant alleged that these words imputed dishonestyto him and implied that he gave false evidence before the BriberyCommission which evidence was taken in camera and that they aretherefore "defamatory of him. He further maintained that he hassuffered in his reputation as a member of the medical professionpractising at Colombo and in his business of distilling arrack andestimates the damages suffered by him at Rs. 50,000. In their defencethe defendants state that they published the statement complained ofwhich is a true extract from Appendix C to the Report of the BriberyCommission and that the statement concerns the appellant. Thedefendants, however, deny that the words have the meaning attributedto them by the appellant. They are, therefore, not defamatory. Thedefendants also deny that, by the publication of the said words, theappellant has suffered in his reputation as a professional man or as a manof business. Further answering the appellant’s claim the defendantsstate :—
(a) That they published an accurate report of Appendix C which ispart of the finding of the Commissioner which was a judicial tribunalempowered by the Governor in August, 1941, to inquire into thequestion of whether gratifications have been promised, given or paid tomembers of the State Council and that the said publication wastherefore privileged.
L. R. (1833) A. C. 417 at 425, 451.
L. R. (1917) A. C. 309.
HWT 5^
(6) That the said report was issued by the Government of Ceylonas a Sessional Paper and was available for purchase at the GovernmentRecord Office and the said publication was therefore privileged.
(c) (1) That part of the said extract consists of comment on a matterof public interest.
That so far as the words complained of consist of statements offact, they are in their natural and ordinary meaning true in substanceand in fact and in so far as they consist of expressions of opinion theyare fair and bona fide comments on matters of public interest and thesaid statements were published bona fide for the benefit of the publicand without malice.
The case went to trial on a number of issues. Those relevant andmaterial to this appeal were answered by the learned District Judge asfollows :—
The words complained of were defamatory of the plaintiff.
(a-) The words “ Dr. M. G. Perera who gave evidence . … ”
is a statement of fact.
(6) Those words are true in substance and in fact, but it was not forthe public benefit that that fact should be published.
The words “ Dr. M. G. Perera …. was completelylacking in frankness and pretended that he knew very much less aboutthe transaction than he actually did ”, are expressions of opinion by thelearned Commissioner.
Those words are true in substance and in fact, but it was not forthe public benefit that they should be published.
(a) The defendants made no comments and the matter is not amatter of public interest.
(6) The statement was published bona fide for the benefit of thepublic and without malice.
(a) The report was issued as a Sessional Paper.
(6) Any person could purchase a copy of the Report.
(c) The report was not published on a privileged occasion.
(a) The defendants published what was a fair and accurate reportor part of a report of a judicial proceeding.
The evidence of the plaintiff before the Bribery Commission wastaken in camera.
(c) The publication was a privileged one.
Having regard to his findings in (1) the District Judge held that a plea ofjustification must fail. On the replies set out in (2) he held that thedefence of fair comment on a matter of public interest was not established.On the answers set out in 14) he held that publication did not take placeofi a privileged occasion. But on the answers to (5) he held that thealleged libel was published on a privileged occasion. He thereforeentered judgment for the defendants.
Mr. Nadarajah, on behalf of the plaintiff, has challenged the ruling ofthe learned Judge on (4) and also his assessment of the damages.Mi-. Perera, on behalf of the defendants, whilst maintaining that theDistrict Judge was correct in his assessment of the damages and inholding that the words complained of were a fair and accurate report of a
judicial proceeding has also argued that the findings of the DistrictJudge on the questions of justification and publication on a privilegedoccasion were not in accordance with the law.
I propose first of all to deal with the defence of justification. Thelearned Judge has found that the words complained of are defamatorybut are true in substance and in fact, but it was not for the public benefitthat they should be published. There can be no question that the wordsin themselves are defamatory. Mr. Nadarajah has not queried the findingof the learned Judge that the words are true in substance and ih fact.This finding is based on the Bribery Commissioner’s Report. The onlyquestion that arises is whether the learned Judge was right in holdingthat it was not for the public benefit that they should be published.He has rightly held that the law to be applied is the Roman-Dutch law ofdefamation which differs in some aspects from the English law. Thelaw of defamation is discussed in Nathan’s Common Law of South Africa(1906 Edition) in Vol. 111., p. 1588 et seq. Defamation is there classifiedas an actio injuriarum which is the generic name for the remedy whichapplied to torts in which injuria was a constituent element. It isrequisite to every injuria that the element of malice should be present,or as it is generally called, the animus injuriandi. Such malice may beexpressly shown to exist or it may be inferred from the language used.If malice is expressly shown to exist, or is inferred from the nature of thelanguage used, it lies upon the defendant to show that the act was notdone maliciously, that is, to prove that it was committed incircumstances which rebut the presumption or inference of malice. Thusin an action for libel the falsehood of the statements injurious to thecharacter of the plaintiff which have been published by the defendantis sufficient .to prove an animus injuriandi as is required to render thedefendant liable in damages, unless he shall be able to prove some specialcircumstance sufficient to negative the presumption of the existence ofsuch animus injuriandi, and to prove that in publishing injurious state-ments not consistent with truth he was actuated by some motivewhich is in law held sufficient to excuse the error into which the defendanthas fallen. In Bennett v. Morris1 De Villiers C. J. drawing attention to thedifferences from the English law says that the ground upon which theaction for defamation rests is the injuria. No action lies for suchinjury, as such, unless the defendant was actuated by the animusinjuriandi. Again it was remarked in Botha v. Brink 2“ The rule of
the Roman-Dutch law differs, if at all, from that of the English law inallowing greater latitude in disproving malice. Under both systems themere use of defamatory words affords presumptive proof of malice, butunder the Roman-Dutch law the presumption may be rebutted not onlyby the fact that the communication was a privileged one—in which caseexpress malice must be proved—but by such circumstances as satisfy theCourt that the animus injuriandi did not exist. ’ ’ If, therefore, defamatorywords are proved to have been used, whether they are true or not, thelaw presumes that they were used with an animus injuriandi or withmalice and the burden of disproving the malice is thrown on the
1 10 S. C. at p. 226.* Bitch. 1878 p. 130.
1*gJ. N. A 59991 (3/46)
*-TX_/ w Axviy v>.ux weit* x/i x evr«#.
defendant. The presumption of malice is rebutted where the truth ofthe words used is pleaded and proved, if it is proved that the publicationwas for the public benefit. In this connection see Dippenaar v. Hauman *.The same principles are formulated in other text books on Roman-Dutchlaw. Thus in the (1909) edition of Maasdorp’s Institutes of Cape Law,Vol. IV., p. 99-100, the following passage occurs :—
“ Prima facie evidence of malice being implied from the merepublication of words which are in themselves defamatory, and generaldamage being regarded as the natural consequence of such publication,it will be for the defendant, if he wishes to escape liability, to pleadcircumstances which negative the presumption of malice, or whichmay, in some few cases, justify their publication, even where therehas been actual malice present. With this object in view, he mayset up one or other of the following defences :—
That the words' complained of are privileged, or were uttered or
published on a privileged occasion.
That the words were true in substance and in fact, and that it
was for the public benefit that they should be published.
That the words were a bona fide comment upon the public acts
of a public man.
That the publication took place under other circumstances
which negatived the animus injuriandi.”
In De Villiers’ Translation of Book 47, Title 10 of Voet’s Commentary onthe Pandects with annotations the following passage is to be found inSection XX. on page 189 :—
“ Next, with regard to the person who is alleged to have occasionedan injury, the fact that he bad entertained no intention to injure(animus injuriandi) is a good ground for his not being held liablein an action of injury. The fact that such intention was absent is to begathered from the circumstances of each particular case; for anintention of this kind has its seat in the mind, and in case of doubtits existence should not be presumed ; moreover, it cannot revealitself or be proved in any other manner than by the nature of theoccurrence being taken into account, in conformity with the principlesalready laid down in the Title “ De Dolo Malo ”.
Again in Me Kerron on the Law of Delict, second edition, p. 165, it is statedas follows :—
“ Falsity is not a necessary ingredient of liability for defamationAlthough it is customary for the plaintiff to allege in his declarationthat the statement complained of was false, such allegation wouldappear to be mere surplusage, since the onus of proving the truth ofthe statement rests on the defendant, and furthermore, according tothe better view, truth in itself is not a sufficient defence.
It is commonly said that animus injuriandi is an essential element ofliability for defamation. In the Roman-Dutch law, as in the Romanlaw, it is not open to doubt that animus injuriandi was regarded as thegist of an action for defamation. Although it is true that where the'Buck. 1878 atp. 139.
nu w Anjj u.j .—jrerera v. r-giyts.
ao
words complained of were in themselves and in their ordinary meaningdefamatory of the plaintiff, the existence of animus injuriandi waspresumed, it was always open to the defendant to rebut the pre-sumption by leading evidence to show that in fact he had no intentionof injuring the plaintiff.”
From the principles elaborated by me it is manifest that the questionas to whether a statement defamatory per se is true does not in Roman-Dutch law assume the importance that it does in English law. InRoman-Dutch law the burden is on the defendant whether the statementis true or false to prove that he had no animus injuriandi. Has henegatived the animus injuriandi in the present case ? It is necessaryto consider the circumstances in which the statement was published.The Bribery Commissioner was appointed by the Governor under aCommission dated August 13, 1941, under the Commissions of InquiryOrdinance (Cap. 276) with the following terms of reference :—
(а)“ Whether gratifications by way of gift, loan, fee, reward, orotherwise, are or have been offered, promised, given or paid to membersof the existing State Council, with the object or for the purpose ofinfluencing their judgment or conduct in respect of any matter ortransaction for which they, in their capacity as members of thatCouncil or of any Executive or other Committee thereof, are, have been,may be, or may claim to be, concerned, whether as of right orotherwise; and
(б)Whether such gratifications are or have been solicited, demanded,received or accepted by members of the existing State Council as areward or recompense, for any services rendered to any person or cause,or for any action taken for the advantage or disadvantage of anyperson or cause, or in consideration of any promise or agreement torender any such services or to take any such action, whether as of rightor otherwise in their capacity as members of that Council or of anyExecutive or other Committee thereof.”
The Commission was appointed in pursuance of a resolution to thateffect passed by the State Council of Ceylon on May 15, 1941. Tosupplement the provisions of the Commissions of Inquiry Ordinancea special Ordinance intituled the Special Commission (Auxiliary Pro-visions) Ordinance, No. 25 of 1942, was enacted on July 13, 1942.Section 9 gave immunity to the Commissioner in the following terms :—
“ The Commissioner shall not, in respect of any act or thing, done oromitted to be done by him in his capacity as Commissioner, be liable toany action, prosecution or other proceeding in any civil or criminalCourt.”
For the purposes of this case sections 5 and 6 worded as-follows are theonly other material provisions :—-
5. The Commissioner may, in his discretion, hear the evidence orany part of the evidence of any witness in camera and may, for suchpurpose, exclude the public and the press from the inquiry or any partthereof.
56
HOWARD G.J.—Perera v. Petris.
6.(1) Where the evidence of any witness is heard in camera, the
name and the evidence or any part of the evidence of that witnessshall not be published by any person save with the authority of theCommissioner.
(2) A disclosure, made bona fide for the purposes of the inquiry,of the name or of the evidence or part of the evidence of any witnesswho gives evidence in camera shall not be deemed to constitutepublication of such name or evidence within the meaning of sub-section (1)-”
On April 3, 1943, the Commissioner made his report (D 2) to theGovernor. Appendix “ C ” to this report contained the statement onwhich the plaintiff’s action was based. Paragraph 2 of the Report givesthe Commissioner’s view of the task assigned to him under the terms ofreference and is worded as follows :—
“ 2. Certain members of the public, some of whom gave evidencebefore me, were under the impression that it was part of the taskassigned to me under the terms of reference not merely to find whetheror not incidents of the character described therein have taken place,but also, in the event of my finding that they have, to suggest whataction should be taken and generally to make comment. It is clearthat Your Excellency has constituted me a pure fact-finding Com-mission and that I would be travelling outside the limits of the authorityconf rred on me if I proceeded to do anything more. I have accord-ingly refrained from dwelling upon the political, legal or moral aspectsof the incidents, which in the following paragraphs I have found to haveoccurred, and refrained also from making suggestions for the preventionof similar incidents in the future.”
It is manifest that the Commissioner regarded himself merely as afact-finding Commission, and that he had no authority-to suggest whataction should be taken. In paragraph 40 of the Report the Commissioner,whilst stating that the question whether the report is to be published ornot is not a matter for him, requested that Appendices H, HH, HI, and Pbe not published because in the absence of proof it would not be fair orproper to publish the names of the Councillors involved. On May 18,1943, the Government Printer was requested by D3 from the ActingSecretary to the Governor to print the report as a Sessional Paper.
. The Government Printer was also requested to publish the SessionalPaper simultaneously with the text of a bill connected with the reportto be introduced into the State Council. This bill, which was passedby the State Council and became law on June 7, 1943, enabled the StateCouncil by resolution to expel from the Council any member found by theCommissioner to have come within the ambit of the terms of reference ofthe Commission. The Government Printer followed these instructionsand printed 472 copies of the report altogether. 222 copies, of whichone was sent to the respondents, were circulated and 250 were sold.Subsequently a further 225 copies were printed and circulated. Ingiving evidence Mr. Orion de Silva stated :—
(a) that the Sessional Paper was sent to the Daily News free ofcharge by the Government Printer on May 19, 1943 ;
HOWARTJ~C.Tr.—Perera v. Peiris.
67
(6) that the events leading up to the appointment of the Commissionwas a matter of considerable public interest and the report was eagerlyawaited by the public ;
that all portions of public interest were published in a series ofextracts from May 20 to 28 ;
that he selected the extracts for publication ;
that the Commissioner was quoted verbatim ;
(/) that the appellant was a stranger to him and he was not actuatedby personal animosity.
The appellant gave evidence and was cross-examined at very consider-able length. His evidence amounted in large measure to a vitriolicattack on the Commissioner’s bona fides and suitability for the onerousduty which had been imposed upon him. The appellant was not able toadduce any evidence of express malice on the part of the respondents.What then are the circumstances in which publication took place ?These circumstances are the fact that—
(а)the appellant was a stranger to the first respondent whoauthorised the publication and that there is no evidence that thedefendants in publishing the report were actuated by express malice ;
(б)the report was sent to him as a Sessional Paper free of chargeby the Government Printer ;
the report concerned a matter of public interest eagerly awaitedby readers of the Daily News ;
the extracts selected for publication quoted the Commissionerverbatim.
The respondents have, in my opinion, proved conclusively that thecircumstances in which publication took place negative the animusinjuriandi. On this ground alone they are entitled to succeed.
I am also of opinion that the defence prevails on other grounds. Thelearned Judge has found that the statement published by the respondentsis true in substance and in fact. This conclusion of fact has not beenqueried by Mr. Nadarajah. Moreover it would appear from page 14 ofthe Record that the question of the truth of the statement was notcontested by Mr. Amarasekere who appeared for the appellant in thelower Court. The learned Judge, however, has found that the respond-ents fail in their proof that what was published was for the public benefit.The learned Judge also states that what the public was interested in wasnot the manner in which this plaintiff gave evidence, but as to whethertheir representatives in the State Council had accepted bribes. I find ita matter of some difficulty to understand this finding of the learned Judge.It is true of course that the interest of the public was in the question as towhether their representatives had accepted bribes. But as ancillary andcomplementary to that question, the public are interested in knowingwhat evidence or proof establishes the fact that a representative hasaccepted a bribe or on what evidence he has been exonerated on such acharge. Or in other words on what evidence the Commissioner hasfounded his report. In my opinion that evidence is manifestly a matterin which the public is interested and its publication was for the public
benefit. It brought home to the public the care with which the Com-missioner had investigated each particular charge. I would also referto the case of Graham v. Ker >. In his judgment De Villiers C.J. statedthat as a general principle he took it to be for the public benefit that thetruth as to the character or conduct of individuals should be known.The public was interested in knowing on what testimony the report wasmade. In this connection I have considered whether it is open to thisCourt to disturb the finding of the learned Judge on this matter. Thelatter was sitting as a Judge and Jury. In which capacity did he decidethis question ? Light is thrown on the question by the judgments of theHouse of Lords in Adam v. Ward 2 At pp. 331—333 Lord Dunedin statesas follows :—
“ The second matter is more serious. In order to dispose of thequestion of privilege he put to the jury certain questions, of whichthree were as follows : Was the publication—that is, the documentpublished—of a public nature ? Was the subject-matter of thatpublication by defendant matter about which it was proper for thepublic to know ? Was the matter contained in the letter proper forthe public to know ? To all of which the jury returned a negativeanswer, and upon that the learned Judge said : “ Upon these findingsI hold that the publication was not a privileged publication nor apublication on a privileged occasion.” It is clear that bo far as thequestions go they assume that the foundation of the duty or rightwhich was invoked to support the privilege was that the matterdiscussed was one of public importance ; whereas the true foundationin this case was the duty of the Army Council to make publicly knowntheir vindication of General Scobell’s honour. But apart from thatand in view of what I have already stated as to the provinces of Judgeand Jury, I entirely agree with the learned Judges of the Court ofAppeal, who held that these questions were for the Judge and not forthe Jury. If there is some fact left in controversy which mustnecessarily be determined one way or the other, to allow the Judge toview the complete situation and thus enable him to decide whether theoccasion was privileged or not, it would be right for the Judge to askthe Jury to determine that fact. But to put to them questions such asthese and then on the findings to find privilege or the reverse is simplyto ask the Jury to decide for him the question which it is his duty,and not theirs, to determine.”
Again on pp. 333-334 Lord Atkinson states :—
“ The learned Judge who tried the case might possibly have ruled, onthe question of law, whether or not the occasion on which the allegedlibel was published was a privileged occasion but for the answers hehad received from the Jury in reply to questions as to certain thingsthe existence of which went to make the occasion of the publicationprivileged. He did not leave the question of privilege or no privilegeto the Jury, but he did leave to the Jury the question as to the presenceor absence of the elements which go to create privilege. For instance 1
1 9 Cape Supreme Court Reports 185.
(1917) A. C. 319.
xiu vv iiivj/i'erero v. x'etrw.
ov
the question “ Was the subject matter of the publication by thedefendant matter about which it was proper for the public to know ?”And the question “ Was the matter contained in the letter properfor the public to know ? ” It is to be regretted that the remarksof Willes J. in Henwood v. Harrison1 were not brought to Darling J’snotice. Willes J., a most learned, laborious, and accurate Judge,after stating that since the declaratory Act of 1792 (32 Geo. 3, e. 60)the Jury are the proper tribunal in civil as in criminal cases to decidethe question of libel or no libel, said : “ But it is not competent forthe Jury to find that, upon a privileged occasion, relevant remarksmade bona fide without malice are libellous.*’ He then proceeds :“ It would be abolishing the law of privileged discussion, and desertingthe duty of the Court to decide upon this as upon any other questionof law, if we were to hand over the decision of privilege or no privilegeto the Jury. A Jury, according to their individual views of religionor policy;, might hold the Church, the Army, the Navy, Parliamentitself, to be if no national or general importance, or the liberty of thePress to be of less consequence than the feelings of a thin-skinneddisputant ”.
It is clear from these judgments that the question as to whetherwhat was published was a matter of public interest was not a questionof pure fact to be decided by the trial Judge on evidence adduced bywitnesses whose credibility was a matter particularly his concern. Theright of this Court to interfere with this decision of the learned Judgeis I think manifest from the decision of the House of Lords in Montgomerie& Co., Ltd. v. Wallace-J antes2. Lord Halsbury in his judgment statesthat even with regard to questions of fact the original tribunal is in nobetter position to decide than the Judges of the Appellate Court whereno question arises as to truthfulness and where the question is as toproper inferences to be drawn from truthful evidence. This case wascited by Wood Renton J. in The King v. Charles3. In that case the learnedJudge stated that “ question of fact ” is a compendious expressioncomprising three distinct issues. In the first place, what facts are proved?In the second place, what axe the proper inferences to be drawn fromfacts, which are either proved or admitted ? And in the last place, whatwitnesses are to be believed ? It is only in the last question that anyspecial sanctity attaches to the decision of a Court of first instance.In the present case the matter under consideration cannot come underthe third issue. The decision of the learned Judge has therefore nosanctity. I hold that he was wrong and what was published was for thepublic benefit.
The learned Judge has also held that the publication was not privilegedby reason of its issue by the Government of Ceylon as a Sessional Paper.In England reports, papers, votes and proceedings published by or underthe authority of either House of Parliament are absolutely privileged byvirtue of the Parliamentary Papers Act, 1840, S. 1. Moreover by theLaw of Libel Amendment Act, 188, S.4, the publication at the requestof any Government Department of any report issued for the information
*L.R.7 C. P. 606, 628.* {1904) A. C. 73.
3 1 Appeal Court Reports 126.
of the public shall be privileged unless it shall be proved that such publi-cation or report was published maliciously. But these provisions beingstatutory enactments do not apply to Ceylon. It has, however, been heldin South Africa that the publication, of a fair report of Parliamentaryor judicial proceedings is privileged, even though it may contain imputa-tions against the character of third parties though these may not beparties to the proceedings reported, provided the reports are impartialand accurate—Pickard v. S. A. Trade Protection Society and others. 1A similar privilege has been extended to the proceedings of HarbourBoards and other public bodies—Smith ds Co. v. S. A. Newspapers Coy.2In the course of his judgment in this case Villiers C.J. at page 316states:—
“ The matter was of considerable public interest, and one whichthe newspapers would fairly be expected to report upon in due course.The question therefore arises whether a fair and impartial report ofthe proceedings is actionable by reason of its casting an aspersion onthe conduct of the plaintiff. ”
And at p. 317 as follows :—
“ In this colony the question has never before been raised, andthe Court has now to fall back upon the general principles of the Dutchlaw for a solution of the question. One of these principles is that aninjurious statement or publication is not actionable unless there isanimus injuriandi the existence of which must be gathered from thecircumstances. (See Voet, 47.10.20.) If the “circumstances attendingthe publication of an ordinary report of a judicial proceeding aresufficient to exonerate the publisher, I fail to see why a fair and impar-tial report of the proceedings at a meeting of a public body like theHarbour Board in regard to a matter of public interest should exposethe publisher to an action for libel at the suit of a person whose conducthas been unjustly condemned at such meeting. ”
The principles outlined by Villiers C.J. in this case with regard to thepublication by a newspaper of the proceedings of a Harbour Board applyin my opinion to the publication of the report of the Bribery Commissioner—a matter of considerable public interest on which the newspapers couldfairly be expected to report in due course. . In this connection also Iwould refer to Maasdorp Vol. IV., pp. 104-108. In my opinion theprinciple enacted in the cases I have cited and referred to in Maasdorpwould apply to the publication by the defendants of the report of theBribery Commissioner. Express malice has been negatived, hence thepublication was privileged.
Inasmuch as I have held that the publication of the report by thedefendants was privileged, it is not necessary to consider whether thelearned Judge was right in holding that the proceedings of the BriberyCommissioner were those of a judicial tribunal. If that finding is correct,a fortiori the publication of the report was privileged. In Allbutt v.General Council of Medical Education and Registration3 it was held that areport of the proceedings of the General Council stands, having regard
» 23 S. C. 310.
* 22 S. C. 94.
s 23 Q. B. D 400.
HOWARD C.J.ferera V. t'etris.
01
to the nature of the tribunal, the character of the report, the interestsof the public in the proceedings of the Council and the duty of the Counciltowards the public on principle in the same position as a judicial report,lopes L. J. giving the judgment of the Court stated that it would be statingthe rule too broadly to hold that to justify the publication of proceedingssuch as these the proceedings must be directly judicial or had in a Courtof Justice. The difficulties of deciding what is a “ Court ” is apparentfrom the judgments of the Court of Appeal in RoyalAquarium and Summerand Winter Garden Society v. Parkinson1. It is, however, clear from thejudgments of their lordships in that case that in England the proceedingsof the Bribery Commissioner would not be regarded as those of a Courtso as to confer upon the publication of its report by a newspaper absoluteprivilege. I am, therefore, of opinion that the decision of the learnedJudge on this aspect of the case was not correct. But, as I have alreadysaid, the matter is of small import inasmuch as the publication wassubject to a privilege only negatived by proof of express malice.
There remains for consideration the question whether the provisions ofsections 5 and 6 of Ordinance No. 25 of 1942 in any way affect the opera-tion of the defence of privilege in favour of the defendants. Mr. Nadaraj ahmaintains :
Section 6 prohibits the publication of the name and evidence
or any part of the evidence of any witness heard in camera ;
The name of the plaintiff has been published without the consent
of the Commissioner;
The law has been contravened and therefore the defendants
cannot claim the benefit of the privilege.
I am of opinion that this argument is without substance. The Com-missioner has in his report to the Governor invited the latter to publishthe report apart from the Appendices specified. Those Appendices donot include “ C ”. Hence by inference the Commissioner must be taken,to have authorised the publication of Appendix “ C ” Moreover sub-section (1) of sction 6 forbids the publication of the name and the evidenceor any part of the evidence. In my opinion publication is not prohibitedof the name, but of “ the name and the evidence or any part of theevidence ”, The name and the evidence or any part of the evidencehas not been published. In giving this interpretation I have not beenunmindful of sub-section (2) which suggests the meaning for whichMr. Nadarajah contends.
In view of the decision at which I have arrived the question as towhether the learned Judge was right in his assessment of damages doesnot call for consideration. But in view of the truth of the publicationand the absence of any animus injuriandi on the part of the respondentsI would not be prepared to say that his assessment was wrong.
Eor the reasons I have given the appeal is dismissed with costs.
de Selva J.— I agree.
1 (1892).! Q. B. 431.
Appeal dismissed.