037-NLR-NLR-V-37-SAMARASEKERA-v.-URBAN-DISTRICT-COUNCIL,-NEGOMBO.pdf
Samarasekera v. Urban District Council, Negombo.
169
1935Present: Akbar SJ*.J. and Poyser J.
SAMARASEKERA v. URBAN DISTRICT COUNCIL,NEGOMBO.
280—D. C. Negombo, 6,477.
Defamation—Action against Urban District Council—Alleged defamation bymembers of Council at meeting—Liability of Council—Termination ofservices—Month’s salary in lieu of notice.
An Urban.District Council is not liable in its corporate capacity fordefamatory words used by some of the members at a meeting, which wasconvened for the purpose of deciding a course of action within the ijpgr-view of the statutory powers of the Council^ and in the recorded acts ofwhich the defamatory words do not appear.
Where the plaintiff was employed as superintendent of the electricaldepartment of the Council on a salary of Rs. 1,200 a year with allowances,and the salary was to be paid monthly,—
Held, per Akbar J., that the plaintiff was not entitled to more than amonth’s notice prior to the discontinuance of his services or a month’ssalary in lieu of notice.
I
N this action the plaintiff sued the Urban District Council of Negomboto recover damages for defamation and wrongful dismissal. The
plaintiff was engaged by the defendant Council as superintendent of itselectrical department on September 7, 1931. At a meeting on January18, 1932, the Council resolved to call upon the plaintiff to resign from hispost and on the plaintiff’s refusal dismissed him on February 13, 1932.The plaintiff stated that the dismissal was wrongful, vindictive, andmalicious and also that by reason of the defamatory statements allegedto have been made at the meeting he had been damaged in reputationand in his professional capacity.
It was contended on behalf of the Council that there was no cause ofaction against the Council for defamation and that no action was main-tainable in respect of an imputation involved in a wrongful dismissal.
The learned District Judge awarded plaintiff a sum of Rs. 8,000 asdamages.
Hayley, K.C. (with him N. E. W.eerasooria and Vandergert), fordefendant appellant.—An action for defamation cannot be maintainedwithout setting forth in the plaint the words complained of—Odgers onLibel and Slander (5th ed.), ch. 23, p. 623; Wright v. Clements1. Theplaint must set out the actual words (ipsissima verba), and not thesubstance only—Roscoe on Pleadings, vol. II. (18th ed.), p. 853. Therecan be no judgment where actual words are not so set out.
The Council is not liable for remarks made by members at a meeting.The Judge admits the statements were made on a privileged occasion,but states that malice destroys it. The presence of reporters does notdestroy privilege. The presence of third persons with no right to remaindoes not destroy privilege—Pittard v. Oliver’. ■
* (1891) 80 L. J. Q. B. 219.
» 3 B. and Aid. 506.
170
Samarasekera v. Urban District Council, Negombo.
There are no by-laws made by the Council as to the employment anddismissal of its employees. The Chairman is merely the executive officerof the Council—section 16 (1). No member acted as agent of the Chair-man to malign the plaintiff.
A corporation must act by a majority—8 Halsbury 386. If theChairman had the power to dismiss and employ, and he libelled, thenclearly he would be liable. Here the Chairman had no power to do so,and hence there is no such responsibility.
There was ample justification for the dismissal of the plaintiff. Hisconduct was not consistent with diligence and ability. Further, groundsdiscovered against a servant can be alleged later when found to justifydismissal. The judgment of the District Judge is imbalanced. Hehas entered into speculations without evidence to support them.
Counsel cited Turner v. Mason1, per Pollock J.—on employee dis-obeying orders ; Harmer v. Cornelius3 on lack of skill which an employeeshould possess ; Thompson v. British Berne Motor Lorries Ltd.
The cumulative effect of the grounds of dismissal is very strong.
Re period of notice before dismissal, there are no by-laws of the Council,but the Ordinance seems to contemplate employment of servants by themonth—section 47 (a). Counsel cited La Brooy v. The Wharf LighterageCo.*; Forsyth v. Walker & Clark Spence5; Sirisena v. Karugama TeaCo.Venables v. Jarvis'.
R. L. Pereira, K.C. (with him H. V. Perera, Dassenaike, Koattegoda,and E. S. Fernando), for plaintiff, respondent.—A corporation is liablefor torts committed by its agents (Kandaswamy v. Municipal Council ofColombo). The Council is guilty of an animus injuriandi. It is notnecessary in these circumstances to prove actual malice, but malice willbe inferred by law—Spencer Bower on Actionable Defamation, p. 265.
Under our law and English law, a corporation may be sued fordefamation. If the principal executive officer is the Chairman, thenevery defamatory statement made by the Chairman in the performanceof his duties is actionable.
The charges in this case were set up against the plaintiff by a collectiveact of the Council. The Council was functioning collectively rightthrough. There is a decision to put the charges to the plaintiff, noresolution by the Council that the allegations are true, but a resolutioncalling upon the plaintiff to resign—these acts amount to defamation.The resolution pure and simple is not the defamation; the words of theindividual members do not form the defamation; but these two thingstaken together sufficiently constitute a defamation.
H, during the deliberations of a corporation, statements were made byindividual members, then the latter only would be liable. But where all .the members agreed to discuss in public, there is a defamation by thecorporation. If the discussion is authorized to be public, then defamationby a member during such discussion is deemed to be authorized by theCouncil, and the Council would be liable.
i 14 M. and W. 112 atIK.* 33 N. L. R. 211.
– 4 Jurist. N. S. Part/.,p. 1110.* 26 N. L. R. 209.
» 33 T. L. R. 187.’ 3 Mcnries Rep. 314.
* 34 N. L. R. 83.‘ 1 A. C. R. 90.
AKBAR S.P.J.—Samarasekera v. Urban District Council, Negombo. 171
There can be a collective act of the Council without any resolution.The ultimate liability rests on other factors, bona fides, &c.
The contract of employment in this case can be terminated only onreasonable notice. The letter of appointment refers to “ an annualsalary ”. The test would be “ how long would plaintiff take to secureemployment of a similar kind ”—see Forsyth v. Walker (supra).
There is no difference in this respect between English and Roman-Dutch law. Reasonable notice is decided by custom or by discretion ofCourt—vide Gringer v. The Eastern Garage Ltd.1 and Perera v. Theosophi-cal Society'. Where letter of appointment refers to an annual salary, theemployee looks to a long term of employment—Danis v. Marshall*.Where technical training is required, a long period of notice should begiven.
Hayley, K.C., in reply.—Though the letter of appointment referred to“ an annual salary ”, plaintiff was paid monthly. The method of payingthe salary is the test—see La Brooy v. The Wharf Lighterage Co. (supra).No question of reasonable notice comes into cases of monthly service.Section 47 (a) of the Ordinance No. 11 of 1920 contemplates employmenton a monthly salary.
The facts of this case are against the conclusion. that the statementswere made after a decision by the Council so to do. One cannot attributeto the Council the expectation that a member is going to libel anindividual.
Cur. adv. vult.
August 2, 1935. Akear S.P.J.—
This is an appeal by the Urban District Council of Negombo from ajudgment condemning the Council to pay the plaintiff a sum of Rs. 8,000as damages on two causes of action, viz., defamation and wrongful dis-missal. It appears that the plaintiff was engaged by the defendantcorporation (hereinafter referred to as the Council) as superintendent ofits electrical department on September 7, 1931, and at a meeting held onJanuary 18, 1932, the Council resolved to call upon the plaintiff to resignfrom his post, and when plaintiff refused to do so dismissed him onFebruary 13, 1932. On the count of defamation plaintiff alleged that atthe meeting of the Council on January 18, 1932, the Council “ in thepresence of reporters from the Ceylon press and of some members of thepublic made allegations against the honesty and efficiency of the plaintiffto the effect that he had in the course of his employment defrauded orattempted to defraud the corporation of moneys belonging to it, and hadbeen incompetent and unskilful in the discharge of his duties. Theseallegations were false and in the case of some of the members of thecorporation who were present on the said occasion were malicious aswell ”.
I have quoted verbatim from paragraph 4 of the plaint, and in paragraph5 the plaintiff narrates the circumstances of his dismissal on February 13,1932. The paragraph ends as follows:—“The plaintiff states that thesaid dismissal was without a fair inquiry and without an opportunityJ 32 N. L. R. 281.3 a c. L. Rec. 190.3 4 L. T: (N. S.) 216.
172 AKBAR S.P.J.—Samarasekera v. Urban District Council, Negombo.
given to him to meet any charges against him and was contrary to naturaljustice. The plaintiff also states that the said dismissal was wrongful,high-handed, vindictive, and malicious
In paragraph 6 the plaintiff based his action not only on the ground ofwrongful dismissal but also on the ground that by reason of the defamatorystatements alleged to have been made at the meeting of January 18, 1932,
“ he had been damaged in reputation and in his professional capacity
The Council in its answer took three objections in law, viz., (o) that aclaim on account of defamation cannot be maintained against the Council,(b) that the claim on account of defamation cannot be maintained in theabsence of averments setting out the defamatory words complained of,and (c) that no action or claim is maintainable in respect of imputationinvolved in a wrongful dismissal. In spite of these objections appearingin the answer the plaintiff took no steps to amend the plaint by statingthe exact words said to have been used at the meeting which the plaintiffalleged were defamatory and the case went to trial on 19 issues in whichthe objections in law, stated by me above, appear.
As regards the objection in law that plaintiff cannot maintain the actionon the count of defamation in the absence of averments setting out thedefamatory words complained of, appellant’s Counsel referred to severalauthorities. In Odgers on Libel and Slander (6th ed.), p. 509, it isstated that “ the very words complained of must be set out by the plaintiffin his statement of claim ‘ in order that the Court may judge whetherthey constitute a ground of action ’—per Abbott C.J., in Wright v.Clements'
The form of the plaint for actions in defamation given in the scheduleto the Civil Procedure Code contemplates the necessity of the actualdefamatory words being set forth. It is not necessary, however, to givea decision on this point in this appeal in view of the more serious objectiontaken by the plea that a claim on account of defamation cannot be main-tained against the Council. Whatever the liability of each individualmember may be for words used in the course of a meeting or debate of theCouncil, the question that has to be decided is whether the Council isliable in its corporate capacity for defamatory words used by some of themembers during a meeting, even though the meeting was convened forthe purpose of deciding a course of action which comes within the purviewof the statutory powers of the Council. . The discussion took place incommittee at the meeting of January 18, J932, and there is nothingdefamatory in the minutes of the meeting or. in the letters written by theCouncil to the plaintiff as a result of the meeting,—see P 5, P 4, P 7, andP 10. P 5 only records the fact that the House went into committee andthat a resolution was passed by all the members, except one, giving theplaintiff the option of resigning immediately, and that if he failed to do sohis services would be dispensed with. P 7 dated January 25/27, 1932,states that the plaintiff had failed in the discharge of his duties to givesatisfaction to the Council and the general public. It adds that theCouncil resolved to ask the plaintiff to resign “ as it is detrimental to the*interest of this Council to allow you to remain any longer ”. P 10 datedFebruary 13, 1932, forwarded a copy of the resolution passed on February
1 3 B. and Aid. 506.
AKBAR S-PJ.—Samarasekera v. Urban District Council, Negombo. 173
9, 1932, dispensing with plaintiffs services and a voucher for Rs. 240being January’s salary and allowance and one month’s salary andallowance in lieu of notice.
It is clear, therefore, that in the recorded acts of the Council thedefamation averred in paragraph 4 of the plaint does not appear. Theplaintiff, however, as appears from the evidence (notably that of Dr. DaBrera, a member of the Council and witness for the plaintiff) seeks to makethe Council liable for defamatory statements made by the Chairman andsome of the members, especially the Chairman, during the discussion incommittee. Assuming that such statements were made, is the Councilliable in damages to the plaintiff for such spoken words ? There can beno doubt that under our law a corporation can be held to be liable for adelict including defamation committed by its servant or agent actingwithin the scope of his employment or authority. If there was anythingdefamatory in the minutes or letters, I have no doubt the Council wouldbe liable. The Council is constituted under Ordinance No. 11 of 1920.The members elect the Chairman under section 16 (1) and he is theexecutive officer of the Council—see section 16 (3). Chapter II. regulatesthe proceedings. All acts authorized or required to be done under thatOrdinance are to be done by the majority of the members present at aduly convened meeting. It is the resolution of the majority which thelaw makes the Council responsible for. I cannot see how the Council canbe held to be responsible for all the remarks of members who may, foraught we know, form the minority. The plaintiff nowhere in his plaintmentions the person who is said to have made the defamatory statement;nor has he set out the plea that the member who made the statement wasan agent or servant of the Council and that he was acting within the scopeof his authority or employment at the time. Under section 47 of Ordi-nance No. 11 of 1920 the Council is authorized to appoint its officers andservants and to remove any officer or servant. Whatever the liability ofthe member may be for any defamatory statement made by him at adiscussion I find great difficulty in attributing liability to the Council forthe words used by a member. I do not think the liability becomes anyclearer by the contention put forward by respondent’s Counsel that as soonas the Council resolved to go into committee the Council assumed liabilityfor every defamatory statement made by any of its members, so long asthe public was allowed to be present. It is the dismissal of the plaintiffwhich Ordinance No. 11 of 1920 authorized the Council to decide on, andnot the words used by the members during the discussion in deciding onthis question of dismissal. If it were otherwise a Council would be liablein defamation for any defamatory word used by a member during a publicdiscussion on a subject authorized by the Ordinance at a meeting ofthe Council.
Respondent’s Counsel was not able to cite any case in point except thecase of Kandaswamy v. Municipal Council of Colombo I sent for theDistrict Court record of the case (D. C. Colombo, 16,535). It is true (asstated by Moncrieff J. in 2 A. C. R. 90) that the first issue which dealt
37/1511 A. C. B. (Ceylon) p. 90.
174 AKBAR—Samarasekera v. Urban District Council, Negombo.
with the question of law whether the plaintiff can maintain his claimagainst the defendants included a claim for Rs. 7,500 damages on theground that the public discussion of the charges against him had injuredhis good name, reputation, and feelings. But the appeal was from thejudgment of the trial Judge dismissing this claim for Rs. 7,500 on theground that under the Roman-Dutch law a corporation was deemedincapable of dolus and could therefore commit no injury. The SupremeCourt ruled that an action for a delict could be brought under our law.It only decided this question of law and is no authority for the propositionadvanced by the respondent’s Counsel. Mr. Justice Moncrieff said asfollows during the course of his judgment: —“ The act complained of maybe the act of those who represent a principal; but, if it is done within thescope of employment and for the principal’s benefit, I see no reason whythe principal should escape liability because it is a corporation.” Thecase was sent back for trial. I sent for the original record to find cutwhat took place after the record was returned. Unfortunately theplaintiff took no further steps in prosecuting his claim. It seems to methat on the law the claim for damages based on the count for defamationfails. But as I have come to the conclusion that it fails on the facts too,
I think I should state shortly my reasons for that view. The plaintiffwas appointed on September 12, 1931, superintendent of the electricaldepartment of this Council on a salary of Rs. 1,200 a year rising by annualincrements of Rs. 60 to Rs. 1,800 a year plus a travelling allowance ofRs. 240 a year and rent allowance. In view of the fact that the plaintiffhad to take charge of a new department which only came into being onhis appointment and that the department was concerned with the supplyof electricity to the whole town for the first time, the salary may appearto be inadequate but apparently the supply seems to have been greaterthan the demand, for there were 62 applicants for the post and a sub-committee was appointed to select a fit person. A great deal of evidencehas been led to prove that the Chairman was prejudiced against theplaintiff, which the District Judge has held to be proved. Assuming thathe was, the question I have to decide is, was the defamatory statementalleged in the plaint made at the meeting? If so, by whom was it made?and what was the statement ?
Paragraph 4 of the plaint states that at the meeting on January 18,1932, allegations were made against the honesty of the plaintiff to theeffect that he had in the course of his employment defrauded or attemptedto defraud the Council of moneys belonging to it. How useful and wisethe rule of law is which requires a plaintiff to state the very words of thealleged defamation is seen in this case, for it is only one witness,Df. Da Brera, witness for the plaintiff, who states that “ the Chairmanreferred to the plaintiff as having received Rs. 7.50 from a Chettiar. TheChairman then stopped and said ‘ I don’t want to go further Nofurther questions were put as I took it for granted that he had receivedRs. 7.50. I did not question the plaintiff. I took the Chairman’s wordfor it ”. Later the witness said: “ I did not see D 1. Chairman saidMr. Samarasekera had received Rs. 7.50 from the Chetty, and stopped
AKBAR SJJ.—Samarasekera v. Urban District Council, Negombo. 175
there. This letter if it was produced at the meeting would have mademe think differently—mine is but a recollection ”. In re-examinationDr. Da Brera said: “ Chairman said, plaintiff has taken Rs. 7.50 from theChetty, well, well I don’t want to say more ”. If this is the slandercomplained of the plaint not only omits to set forth these words; but(as the words are not per se defamatory) it fails to set forth the innuendo.
All the other witnesses deny that that there was any imputation ofdishonesty by the Chairman as regards the Chetty’s letter (see D 1 andD 2). As a matter of fact D 2 was on the agenda for the meeting (see P 18,item 34). Anyone reading D 1 and D 2 will see at once that no questionof plaintiff’s dishonesty could arise over the Chetty’s letter. BothMessrs. Quentin Fernando and Austin Fernando, members of the Council,called as witnesses for the plaintiff, deny that any allegation was made bythe Chairman as regards the Chetty’s matter. We have only the evidenceof Dr. Da Brera on the point and if his evidence is examined with somecare doubts will begin to assail any one doing so. He seems to have haddifferences with the Chairman on matters connected with the Council andit was he who came with Martin who had already sent letter D 9. Theplaintiff had brought a charge of theft of electricity against ThomasDavid, and David’s letter D 8 (see also D 7) was on the agenda (see P 18,item 13). D 9 was not on the agenda, but Dr. Da Brera came to themeeting of January 18, 1932, with Martin and it was he who said thatthere was a serious complaint by Martin and suggested that the Councilshould go into committee to consider the complaint. The plaintiff wassent for and questioned for nearly an hour and questions regardingMartin’s complaint were put by Dr. Da Brera to the plaintiff. When thehouse resumed Dr. Da Brera voted for the resolution that plaintiff shouldbe asked to resign and also on February 9 for the plaintiff’s dismissal.And yet when giving evidence for the plaintiff he confessed to the Court asfollows:—“I cannot say that the two charges which involved dishonestyare false—because they have not been proved to be false. I say that ourresolution to have the plaintiff dismissed was moved in a hurry. Quiterecently about a month or two ago I stressed this point before the membersof the committee that it was my opinion that we have been hasty in dis-missing the plaintiff. This was after this case began. I say that weshould have held a better inquiry and given the plaintiff more chanceDr. Da Brera’s evidence on this point when closely scrutinized is unsatis-factory, and in spite of the trial Judge’s finding it is doubtful if the Chair-man made use of the words complained of. As I have said all the otherwitnesses contradict him on this point and the cross-examination of thedoctor shows how reluctantly he admitted that he had met Martinaccidently and had been told about his complaint. It is not difficult tosee where the truth lies if one compares his evidence with that of Martin.As stressed by defendant’s Counsel it does not matter at all so far as thedefendant’s case is concerned whether Martin’s complaint was true orfalse, for if it were false the charge of defamation would be against Martinand not against the Council. But the fact remains that plaintiff deniedthe receipt of M. G. Perera’s quotation and Lennie de Silva’s letter when
176 AKBAR SJP.J.—Samarasekera v. Urban District Council, Negombo.
he was questioned at the meeting of January 18 and that he was contra-dicted by his own clerk Michael Perera and the Inward Register. Thefact also remains that in cross-examination during the trial he admittedthat he had read Lennie de Silva’s letter. So that it will be seen that atthe meeting the only charges which could be construed as imputingdishonesty to the plaintiff were— (a) the Chetty’s letters (D 1 and D 2) onwhich point there is only the evidence of Dr. Da Brera contradicted by theevidence of the others, (b) the charge against the plaintiff relating toM. G. Perera’s letter which was a charge made by Martin and not by theCouncil and which the Council inquired into at the request of Dr. DaBrera. These are my reasons for thinking that the defamation alleged inthe plaint so far as the imputation of dishonesty is concerned has not beenmade out, as a matter of fact, against even any member of the Council.
The defendant in paragraph 7 of his answer gives 12 instances of mis-conduct, negligence and incompetence, some of which had been consideredby the Council at the meeting of January 18, 1932, to justify the dismissalof the plaintiff. Charge 7 (d) to the effect that he had left service wiresof connections unprotected by insulating material was admitted by him.His excuse was that there was ho insulating wire in the Council stores atthe time. He had found no difficulty in getting 14 coils of insulated wireon September 25, 1931. He could easily have obtained more if he hadrequisitioned for it, but he preferred to use bare wire thus endangeringpublic safety.
Charge 7 (e) was also admitted by him. By resolution of Councilplaintiff was directed to prepare estimates for correcting the errorsindicated in charge 7 (d) but he took no trouble to do so.
Charge 7 (/) was also admitted by the plaintiff, his excuse being thathe had no porcelain tubes. If he had none he should have asked for them.Similarly charges 7 (i) and 7 (k) and 7 (I) were proved and the plaintiffhad no answer to these charges. These are some of the charges theCouncil raised in their answer to justify plaintiff’s dismissal and theywere all admitted by the plaintiff. When he was appointed he had only2 wiremen and 2 coolies and an inexperienced electrical clerk. Insteadof organizing his department and insisting on having a proper staff, heapparently took no trouble to enlighten the Council on a subject in whichhe was supposed to be the expert. Instead of taking a firm attitude hewrote letter P 2 to the Council that part of his work should be given outon contract; when this was not sanctioned by the Council and he wasasked to take in more men, he took in about a dozen workmen and foundthat he could not cope with the work, and part of the work had to begiven out on contract later.
In my opinion there was ample evidence to justify the Council’s dis-satisfaction with the manner in which the plaintiff was carrying out hisduties and the Council was justified in dismissing him. Even if theywere not so justified, the question arises whether the month’s salarywhich was paid to the plaintiff in lieu of notice was not sufficient in lawfor the termination of plaintiff’s contract.
The learned District Judge has held that plaintiff was entitled to sixmonths’ notice. His letter of appointment P 1 gives the plaintiff’s
POYSER J.—Samarasekera v. Urban District Council, Negombo.
177
salary as Rs. 1,200 a year, and the increments were Rs. 60 per year, butthe evidence shows that plaintiff was paid monthly. Many authoritieswere cited by Counsel on both sides, but I need however only refer to(Forsyth v. Walker & Clark Spence1 and Beveridge v. Boustead referred toin Labrooy v. The Wharf Lighterage Co."). In the former case Mac-donell C.J. stated that in the absence of a period of notice fixed by thecontract and evidence of any custom indicating what the period of noticeshould be, the employee was entitled to reasonable notice. Beveridge v.Boustead* is a case more or less in point as that too was the case of anengineer and a month’s notice was held to be sufficient. There is, in myopinion, an indication in section 47 of the Ordinance No. 11 of 1920 underwhich the Council employed the plaintiff that- the contract should be amonthly contract. Section 47 (o) says that the Council may appoint itsservants and assign to such service such salary as it may think fit. Butwhere the salary exceeds in value the rate of Rs. 100 per month theapproval of the Local Government Board had to be previously obtainedfor such assignment.
In all the circumstances of this case I am of opinion that the plaintiffwas not entitled to more than a month’s notice. To sum up my con-clusions my finding is that the Council is not liable on the count ofdefamation, and as regards the count of wrongful dismissal the Councilwas justified in dismissing the plaintiff on February 13, 1932. Even ifthe Council was not so justified the plaintiff was not entitled to more thana month’s notice or one month’s salary and allowance in lieu of notice.The decree appealed from is set aside and plaintiff’s action dismissed withcosts in both Courts.
Poyser J.—
There is no necessity to recapitulate the facts in this case as they arefully set out in the judgment of my brother Akbar J.
In regard to the damages awarded to the respondent the District Judge,at the conclusion of his judgment, stated he would have awarded him thewhole amount he claimed, viz., Rs. 10,000, “ were it not for the factthat it was argued that he was entitled to at least two years’ salary asdamages for wrongful dismissal, but as he has only awarded him sixmonths’ salary as damages, the claim will be reduced by Rs. 2,000 ”.
The learned trial Judge apparently therefore, as the respondentreceived from the appellant Council one month’s salary and allowancesin lieu of notice, viz., Rs. 120, has awarded the respondent Rs. 600 forwrongful dismissal, and Rs. 7,400 as damages for defamation.
There appears to be no doubt that under the Roman-Dutch law acorporation can be held liable for defamation, in fact there was no argu-ment adduced to the contrary. That being the case, the defendantCouncil would be liable for damages, if they had expressly authorized ordirected the publication of defamatory statements of the plaintiff, or, ifsuch statements were published by its servants or agents, in the course ofand within the scope of their employment, without any actual authorityexpress or implied from the Council. See .Citizen’s Life AssuranceCompany Limited v. Brown *.
33 N. L. R. »U.3 S. C. M. of 5.12.98.
34 N. L. R. 85.4 (1904) Law Rep. App. Cases p. 423.
178 POYSER J.—Samarasekera v. Urban District Council, Negombo.
I fail to see, however, how the Council can possibly be held liable forthe statements of members made during a meeting of the Council, forsuch statements cannot be said to be authorized by the Council.
A member of the Council might, under certain circumstances, be heldliable for defamatory statements he made at a meeting of the Councilat which the public were present, but that question does not arise in thiscase.
The averments in the plaint in regard to defamation were extremelyvague, but I agree with my brother that it is not necessary to give adecision on the defendant’s objection that the plaintiff cannot maintainthe action on the count of defamation as the defamatory words complainedof were not set out in the plaint.
The question whether the plaintiff can succeed in his claim fordefamation can, in' my opinion, be shortly determined by consideringwhether the evidence supported the District Judge’s findings on theissues framed in regard to this part of his claim. The following are thematerial issues in regard to this point: —
Did the defendant Council at a meeting held on January 18,1932, at the Urban District Council Office in the presence ofpress reporters and other members of the public state that—
That the plaintiff in the course of his employment defraudedand attempted to defraud the defendant Council of moniesbelonging to it?
That the plaintiff was incompetent and unskilful in thedischarge of his duties as electrical superintendent?
The District Judge has answered all the issues'in favour of the plaintiff.In my opinion, there was no evidence before him of any defamatorystatements made or authorized by the Council or its agents or servants.
There is no defamatory statement contained in the minutes of theCouncil or in its letters or resolutions. Further, even if the Chairman, inregard to the Chetty’s Rs. 7.50, did make a defamatory statement con-cerning the plaintiff, I fail to see for the reasons previously stated how theCouncil can be held liable for such statement.
There was consequently, in my opinion, no evidence to support theDistrict Judge’s findings on the issues above set out or the followingpassage in his judgment at page 356: —
“ In any event I have come to the unfortunate conclusion that themeeting did not fully and properly consider the question of theplaintiff’s dismissal and that on the other hand, they libelled himwithout any just cause, slandered him in his profession, and nippedhis career in its very bud ….”
The plaintiff consequently, in my opinion, fails in his claim fordefamation.
In regard to the damages awarded by the District Judge in respectof wrongful dismissal, the Roman-Dutch law on the subject appears tobe very similar to the English law (cf. Maasdorp, vol. III., p. 246, andHalsbury’s Laws of England, vol. XX., p. 98).
Wijewardene v. Peiris.
179
In this case, if the plaintiff habitually performed the skilled work forwhich he had been engaged so carelessly as to materially interfere withthe smooth working of the business in which he is employed, he couldrightfully be dismissed. (Maas dorp (supra).)
There was( in my view, abundant evidence of the plaintiff’s incom-petence and Habitual carelessness. Such evidence is referred to in detailin my brother’s judgment and I agree with him and for the reasons hehas stated that the Council was justified in dismissing the plaintiff.
I have some doubt in regard to what notice the plaintiff would beentitled to, but as I have formed the opinion that he was rightfullydismissed, it is unnecessary to consider this point.
I agree that the plaintiff's action should be dismissed with costs in bothCourts.
Appeal allowed.