SILVA v. BALASURIYA

129-NLR-NLR-V-14-SILVA-v.-BALASURIYA.pdf


( 452 )
Sept.
Present: Lascelles C.J. and Middleton J.
SILVA v. BALASURIYA.
230 —D. C. Malara, 5,086.
Defamation—Action does not lie against witness for statements made in
Court—Dutch law when deemed- obsolete.
A witness is protected by the Jaw of Ceylon from proceedings fordefamation in respect of statements made by him as witness in thecourse of a judicial proceeding.
Lascelles C.J.—When we find that the Dutch law on a matter offrequent occurrence is inconsistent with the well-established andreasonable practice of the Colony, and that it has never beenrecognized by the Supreme Court, it is a fair inference that theDutch law on this matter has either never been introduced intothe Colony, or, if introduced, that it has been abrogated by disuse.
I 453 )
^IHE farts are set out in the judgments.
Sampayo, K.C., for the plaintiff, appellant.—Under the Roman-Dutch law a witness has only a qualified privilege ; the Roman-Dutch law does not go so far as the English law and give a witnessan absolute privilege with respect to statements made by him inthe witness box. (3 Nathan 1631 ; Norden v. Oppenheim.1) Thelaw applicable to this case is the Roman-Dutch law and not theEnglish law. See Durasamv v. FergusonAIt is open to the plaintiff to rebut the presumption arising infavour of the defendant from the fact that he is a witness. TheDistrict Judge was wrong in not permitting us to prove the animusinjuriandi of the defendant and the absence of reasonable cause forbelief in the truth of his statement. Counsel referred to De Villiers,De Injuria, p. 192 ; Marshall's Judgments, p. 402 ; Attennaikev. Don Juanis ;3 2 Thom. 471, 472 ; Nell's Court of RequestsCases, p. 87.
Bawa, for the defendant, respondent.—The Roman-Dutch law inits entirety has not been introduced into Ceylon. Large portionsof that law have not found its way into Ceylon ; the Dutch formsof apology in cases of defamation, for instance, are obsolete. See2 Pereira's Laws of Ceylon 671. There is no case so far where awitness has been held liable for statements made by him in thewitness box.
Under the English law and the law prevailing in India a witnessenjoys an Absolute privilege with respect to statements made byhim. See Amir Ali, Introduction to Chapter X., p. 722 ; Muleshvarv. Ravidat ;4 Singh v. ChowdhryA
It is against public policy that actions for defamation should bepermitted to be brought against witnesses ; witnesses would bedeterred from telling the truth by fear of an action ; actions wouldmultiply indefinitely. [Middleton J.—Is not a witness bound toanswer all questions under section 132 of the Evidence Ordinance ?]Yes, it is so under our law ; we do not know what the law ofevidence on the point in Holland was.
Counsel referred to De Villiers, pp. 189-192 ; Marshall, p. 403 ;
Pereira's Laws of Ceylon 677 and 679.
Sampayo, K.C., in reply.—The liability of a witness is not aquestion of the law of evidence ; it is part of the law of defamation.Advocates, Judges, and witnesses enjoy the same kind of privilege.
Section 132 of the Evidence Ordinance protects a witness onlywhen he is compelled to answer ; the question here is whether inevery case the privilege is absolute.
1 3 Menzies 41.3 2 Lor. 122.
3 1 Br. App. D. iv.4 (1889) 14 Born* 97.
Sept. 1, 1911
Silva v.Balaouriya
5 (1872) 17 W. B. 283.
( 454 )
Sept. 1^1911 ■ It is quite true that portions of the Roman-Dutch law may growSilva v.obsolete. For instance, law prohibiting marriage between parties
Hatasuriya living in adultery is obsolete ; but that is because adultery is nolonger a crime. Because the law of evidence is the English law, itdoes not follow that the law of defamation in the case of witnesses isalso the English law.
Cur. adv. vult.
September 1, 1911. Laschlles C.J.—
This appeal raises an important question as to the extent to whicha witness is protected by the law of Ceylon from proceedings fordefamation in respect of statements made by him as a witness inthe course of a judicial proceeding. The plaint alleges that thedefendant was sued in D' C. Matara, No. 4,805, by the plaintiff’ssons for the recovery of Rs. 6,000 entrusted by their grandmotherto the defendant to be paid to them, and that the defendant, beingexamined, falsely, maliciously, and without reasonable and probablecause spoke and published in the presence of a large gathering thefollowing words : “ Ayaneris ” (meaning thereby the plaintiff inthis case) is. a burglar, and is not admitted into our houses.”Assuming that the statement was not wholly irrelevant matter tothe inquiry, there can be no doubt but that under the rules ofEnglish law such a statement would be absolutely privileged(Seaman v. Netherdift1). But it is contended that by the Roman-Dutch law in force in Ceylon immunity of witnesses from proceedingfor defamation is of a less absolute character, and that the actioncould be maintained if the plaintiff proved the animus injuriandi onthe part of the defendant.
The Roman-Dutch law on the subject may, perhaps, be sum-marized as follows. There is no passage in the older text writerswhich deals specifically with the subject, but a passage in Voet47, 10, 20, dealing with the liability of suitors, is to some extent inpoint. The text is translated in M. de Villiefs book as follows :—
But if one of litigant parties, whether the plaintiff or the defendant,has made an imputation against- a witness produced against- himselfeither U> increase or to impugn his credibility, lie should not in such aease either bo supposed to have done this with an intent to injure, butrather with the'object of defending himself, even though lie shouldnot be able to prove such an imputation to the fullest extent, if onlyhe is able to bring forward any reasonable ground for the imputationmade, lest otherwise it should seem that a person is allowed, under thepretence of self-defence, with impunity to start and heap up slanderouscharges against his adversaries and their witnesses as if proclaimingthem from a platform.
Jt is clear from this passage that Voet did not consider thatsuitors enjoyed an absolute immunity as regards defamatory state-ments; there was merely a presumption that they were not actuatedby the animus injuriandi.
'(MG) ML. J. C.P. 12S,
( 455 )
The Roman-Dutch law on the subject as now understood in X'vi-Ui'JliSouth Africa is thus stated in Nathan, vof. III., p. 1631 :—t, ascbm.es
In the same way as wo have seon, a witness is, as a general ruleprotected with regard to any statement made by him in roply toquestions put to him in the courso of a trial or ony other judicial pro-ceeding. J3ut a witness who volunteers a dofamatorv statement notrelevant lo tho matter in issue, or who goes out of his way to mako anattack ou the character of auuthor, may be held liable if it is dearthere was an animus injur iandi ; such animus may be presumed fromthe circumstances. It is clear then tliat the privilege of a witness is uqualified one depending on the peculiar oircumstancos.
C..T.
•'iilra r.tltibixun iju
The contrast between the English rule and the rule of the Roraan-Dutcb law is commented on in Dippenenaar v. Henrnanx cited inNathan ; and from Norden v. Oppenheim- decided in 1846, whichappears to be the leading South African authority on the subject.It appears that no reported decision of the Courts of Holland or ofCape Colony, nor any doctrine of any of the authoritative textwriters, had been found which was decisive of the present question.The decision seems to have been based partly upon the generalprinciples of the Roman law, which in proceedings for defamationdid not allow any absolute privilege, but allowed the animusinjuriandi to be proved in all cases, even in petitions to the Emperor(Odgers on Libel and Slander, 4tli ed., p. 216), and partly on anopinion which was discovered in the Utrecht Consultations.
The practical question for determination is whether the privilegeof witnesses in Ceylon is governed by the principles of English law,or whether the Roman-DutchTaw as interpreted in South Africa hasbecome part of the law of Ceylon.
. The local authorities speak with no uncertain voice. They are1 believe, unanimous. With regard to text writers of repute on thelaws of Ceylon, we find Thompson, at page 472 of vol. II. of hisInstitutes of the Laws of Ceylon, stating that examinations, as awitness in the course of a judicial proceeding before a court ofcompetent jurisdiction, are privileged.
Mr. Walter Pereira, in his Laws of Ceylon, vol. II., p. 679, statesthat an action for slander will not lie for words used by a party inthe course of his examination in Court, and cites in support ofthis decision Attennaike v. Don Juanisa where the Judge adoptedthe law as stated in Borthwick's Treatise on Libel.
In Nell's Court of Requests Cases, p. 87, there is a note of a decision• of the Supreme Court in 1845 to the same effect. In Marshall'sJudgments two cases decided respectively in 1835 and 1834 arenoticed, in which it was held that an action cannot be sustained forlibellous matter contained in the pleading of a case, or for wordsmade use of in viva voce pleading, as where the defendants had saidin the Magistrate’s Court that the plaintiff was a rogue. But the
1 Buch. (HU) 140 ; 3 R. 43.
3 2 Lor. 122.
2 3 Menzies 41.
( 456 )
Sept. 1, 1911
Lascelles
C.J.
Silva v.Balasuriya
most cogent argument in support of the opinion that the Dutch lawin this respect has not been introduced into Ceylon is to be foundin the circumstance that no case can be cited where an action hasbeen maintained in Ceylon against a witness in respect of statementsmade by him during his examination in a judicial proceeding.
In a country where litigation is so freely resorted to, where liti-gants are not slow to use every weapon of defence or of offence whichthe law puts within their reach, the importance of this considerationcannot be exaggerated. If it were the law of Ceylon that anunsuccessful litigant, after exhausting his rights of appeal, couldcontinue the litigation by suing his adversary for defamation, casesof this description would not have been wanting. Fortunately theyare unknown.
Assuming that at the date of the British occupation of Ceylon thelaw of Holland was the same as it was subsequently held to be inCape Colony, the inference that this'branch of the law of Hollandwas not introduced into Ceylon is irresistible.
The whole of the Roman-Dutch law, as it prevailed in Holland atthe end of the eighteenth century, was, of course, never introducedinto this Colony. Numerous examples could be cited of branches ofRoman-Dutch law which have never become part of the law of Ceylon.
When we find that the Dutch law on a matter of frequent occur-rence is inconsistent with the well-established and reasonable practiceof the Colony, and that it has never been recognized by the SupremeCourt, it is a fair inference that the Dutch law on this matter haseither never been introduced into the Colony, or, if introduced,that it has been abrogated by disuse. Seaville v. Colly}
For the above reason I hold that the law of Ceylon, with regard tothe liability of witnesses to be sued for defamatory statements in thebox, is governed by the law of England* and not by the Roman-Dutch law as interpreted by the South African Courts. .
The appeal must be dismissed with costs.
Middleton J.—
The question raised in this appeal is whether the Roman-Dutchlaw, which apparently contemplates a right of action against awitness for a defamatory statement made in that capacity, where theplaintiff, on whom the burden is cast, may be able to prove that thestatement was untrue, and that at the time the defendant made it behad such knowledge it was untrue as to render him guilty of perjury inmaking it, is applicable in Ceylon, the animus injuriandi (De ViUiers,p. 192) being the criterion of liability. {Norden v. OppenheimJ2)
The statement made here would be actionable per se as defama-tory, either under English or Roman-Dutch law, if not made underprivileged circumstances.
5 9 Juta's Cape Reports 39, cited in Journal oj 2 3 Menzies 42.
Comp. Legislation, No. XV., N. S., 39.
( 457 )
In the judgment appealed against the District Judge has heldthat a witness in Ceylon is absolutely privileged in conformity withthe English law as laid down in Seaman v. Nelherclift.'
It was argued before us by counsel for the appellant that noinquiry had been made as to the circumstances under which thestatement was made by the witness, and that the case might go backfor this purpose ; but the plaint, while averring that the statementwas made falsely and maliciously, also adds it was made as thedefendant was being examined as a witness.
As regards the Indian cases quoted, I do not think they arematerial to a question which is really whether the Roman-Dutch lawon the point has ever been introduced and followed in Ceylonrather than the English law.
It seems to me that if the Roman-Dutch law had prevailed in theIsland, there must have been abundance of authority in reportedcases to show it. The only local case that the learned counsel couldrefer to was Attennaike v. Juanis,1 where it was held that no actionwould lie for words used by a party in the course of his examinatioras a witness. In this judgment Chief Justice Morgan would appealto hav^ thought that the privilege would not extend to the sam<extent as against third parties. In Norden v. Oppenheim (ubi suprathe majority of the Judges thought ^hat no principle of lawor justice has been or can be alleged in support of this distinctionIn the present case the words were spoken by the present defendantof the plaintiff, who was also plaintiff in the action in which th«evidence was given by the defendant.
The salutary character of the English rule seems to me to rendeiit particularly desirable that we should, if possible, adhere to it inCeylon.
The learned counsel for the appellant also' referred to some. passages in Thompson, vol. II., pp. 471, 472 ; and in Nell's Courtof Requests Cases, p. 87 ; and Marshall's Judgments, p. 40 ; but fromnone of these authorities is it deducible that any variation of theEnglish rule has been applied in Ceylon in the case of witnesses, butin the citation from Thompson rather the contrary. In respect ofthe introduction of the restricted privilege of the Roman-Dutch law,
I would draw attention to the case of Karonchihamy v. Angohamy,®where reference was made to the case of Seaville v. Colly,1 in whichLord de Villiers laid down that any Dutch law which is inconsistentwith well-established and reasonable customs, and has not, althoughreferring to a matter of frequent occurrence, been distinctly recog-nized and acted on by the Supreme Court, may fairly be held tohave been abrogated by disuse.
1 (1S76) 46 L. J. C. P. US; 2 C. P. D. 83 r 22 L. J. 784.-
a 2 Lor. 122.3 (1904) 8 N. L. R. 13.* (1891) 9 Juta 39.
2Q .
Sept. 1, 1911
Middleton
J.
Silva v.Balcutunya
( 458 )
Sept, ly mi
MlUDXJSTOK
J.
Silva v.Balasurit/a
T would not suggest here more than a general application of thedictum of that high authority on the Roman-Dutch law, as there isno question here of an ethical or customary character, but ratherof actions on the part of the Courts. See also the dictum of Dias J.in Wijekoon v, Goonewarderie1 on the subject of the introduction ofthe Roman-Dutch law into Ceylon.
Again, we have in force in Ceylon an Evidence Ordinance, whichby section 132 makes it obligatory on a witness to answer questionswhich may incriminate him or expose him to forfeiture or penalty,but protects him from prosecution where compelled to answer, andin fact, renders his answers inadmissible in any criminal proceedingagainst him, except a prosecution for prejury. The compulsion togive evidence is no doubt the ground of the privilege in both systemsof law.
In the absence of authority in support of the application of therule of the restricted privilege of a witness for defamatory state-ments made in that capacity prevailing under the Roman-Dutchlaw, 1 prefer to apply the English rule of absolute privilege, and Iwould affirm, the judgment of the District Judge and dismiss theappeal with cost.
Appeal dismissed.