068-NLR-NLR-V-01-SILVA-v.-RAMEN-CHETTY.pdf
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SILVA v. RAMEN CHETTY.D. (7., Kandy, 8,343 (Criminal).
1895.October 8.
Defamation—Words per ee contumelious—Presumption of evil intent—Re-butting evidence as to absence of animus et affectus injuriandi.
Defendant having presented a petition to the Secretary of the Muni-cipal Council of Kandy, containing the statement that certain persons,“ including the plaintiff, are selling opium and bhang secretly with the“ intention of making money fraudulently against the Government ”—Held, that the above words were per se contumelious, and theirpublication should be presumed to have been made with a contumaciousintent, in the absence of proof that the defendant wrote the wordscomplained of tine injuriandi animo et affectu.
T
HIS was an appeal by the defendant from the judgment of theDistrict Court of Kandy which condemned him in damages
for defaming plaintiff in a petition addressed to the Secretary ofthe Municipal Council of Kandy, wherein occurred the followingwords: “the following persons [meaning plaintiff and certain“ others] are selling opium and bhang secretly with the intention“ of making money fraudulently against the Government.” Thedefendant denied the defamation complained of, and pleaded thatthe petition in question was a privileged communication in respectof a matter which it was to the interest of the Municipal Councilto know, and which he believed to be true. The District Judgeheld these pleas insufficient, and gave judgment for plaintiff.Domhont appeared for defendant appellant.
Van Langenberg, for plaintiff respondent.
Our. adv. vult.
»2 G
1895.
October 8.WlTHXBS, J
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8th October, 1895. Withers, J.—
It cannot be argued that the words nsed in the petitionaddressed by the defendant to the Secretary of the MunicipalCouncil, Kandy, and informing him “ that the following persons" are selling opium and bhang secretly with the intention of“ making money fraudulently against the Government ” are notcontumelious in themselves. Then what follows, according toVoet ? Sin tales fuerint prolati sermones, qui per se et propriasignifications contumeliam inferunt, injuriandi animus adfuissecreditor, etque, qui ilia (sic) protulit, probatio incumbit injuriafaciendce consilium defuisse (Voet, XLVII. 10, 20). It was forthe defendant then to satisfy the Court that his motive andintention (the affectus et animus injuriandi of Yan Leeuwen)were innocent.
It may be that an occasion had arisen in which the petitionercould have honestly represented to the Council that he hadreceived information, which he had reason to believe, of illicit saleof opinm going on in the plaintiff’s premises. And even had thisfaot not been true, he might possibly have repelled the presump-tion of animus injuriandi by disclosing a state of circumstances,including his own prudence of conduct and honesty of purpose,from which the Court might have properly inferred that, thoughthe language was contumelious, it was not written with injuriandianimo et affectu.
It was clearly incumbent on the defendant in this case todispel the presumption of a contumacious intention which hislanguage created, because the plaintiff, not content to prove thepublication of the libel, went into the box and deposed on oaththat he had not sold any opium in his shop after his own licensehad expired.
The decree must be affirmed with costs.
Browne, A.P.J.—
To the claim of the plaintiff for defamation contained inthe petition by the defendant, the latter answered with (1) denialof the defamation and (2) with a plea that the said petition wasa privileged communication addressed to the Secretary of theMunicipal Council of Kandy in reference to a complaint, thetruth of which he believed.
I agree with the learned District Judge that this plea waswholly insufficient as a plea of privileged occasion. It wasneedful that the defendant should have set out in detail plainlyand concisely the matters of fact and law which would have
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established that his communication was made bond fide and not 1896.maliciously, and on an occasion which gave the privilege. The October 8.plea of the conclusion at which the Coart should, after such detail, Baowxa,
ip r
be asked to arrive is one on which no issues could be raised,and so was bad.
But somehow or other the issue of this conclusion was framed,to be pending between the parties, and when the Court below hasrefused to rule it in defendant’s favour, this Conrt in appeal isasked to do so. Has the defendant, to sustain it, shown either thenecessary absolute bond fide or protective occasion ? In the lowerCourt is offered no proof of either. In his appeal petition hesubmits he should be protected when he appealed for redress orprotection to the legal machinery which created for him a certainright, or to a functionary who has partial control thereof. I thinkthe simple answer thereto—the defect in the plea—is that he hasnot shown his appeal could per se avail him aright. There wasno coercive power in the Municipal Council to restrain his rivaland protect him. That could be ensured only by application tothe proper tribunal, and his appeal to any power save to itsavours not of bond fidee or proper occasion, but rather of anattempt to affect, and that not for his benefit, i.e., to injure hissupposed rival through the hands and at the risk not of himself,but of the presumably disinterested Municipal Council or courtsergeant.
The devise is very transparent, especially when no attempt ismade to prove either requisite of the plea, and it to my minddeserves as little protection as the truth itself afforded to thedeliberate famosus libellus, for the reason that the writerinfamare malicio quam accusare ( Voet, XL VII. 10,10). I agreethat the decree should be affirmed with costs.
In view of Sergeant Simanpulle’s evidence, it seems verypossible to me that, had the learned District Judge held that theact of the defendant in regard to the second and third causesof action—whatever were their appropriate names—of “ trespass,”
“ malicious prosecution ”—were truly of the description quicquidalterius infamandi gratia (ibid, section 8), I would have agreed inaffirming such decision also.