COURT OF APPEALGUNAWARDANA, J. ANDWIJEYARATNE, J.
D.C. ANURADHAPURA NO. 10225/M '
C.A. APPEAL NO. 240/84 (F)
06 JUNE, 1992.
(Written submissions: 24 July and 12 October, 1992)
Defamation – Rule of pleading requiring that the very words upon which theallegation of defamation is founded, should be set out in the plaint – Plea ofqualified privilege – Burden of proof- Meaning of malice.
The plaintiff, who was the Principal of a school filed action claiming damages fordefaming her, by reading out an anonymous petition containing allegations abouther character, at a departmental inquiry, to the members of the staff and thecommittee members of the School Development Society. The defendant, who wasan Education Officer, who conducted the inquiry on the orders given by hissuperior officer, took up a plea of qualified privilege.
The defendant also pleaded that the plaint is defective in that the plaint did notset out the very words upon which the allegation of defamation was founded.
that the averment in the plaint substantially differed from the allegations inthe petition. Hence the right of the defendant to know exactly the case he has tomeet is violated. It is to protect this right that it is insisted in a defamation action,that the very words or words substantially the same, are required to be pleaded inthe plaint. Therefore, the plaint is defective.
that the contents of the petition were disclosed by the defendant in thedischarge of his duty, to persons who had an interest to receive it and thereforethe said communication was made on a qualified privileged occasion.
that the burden is on the plaintiff to prove affirmatively that the defendantacted with malice, in order to destroy the plea of qualified privilege.
that the term “malice” in the case of defamation means not necessarily anyactual ill-will borne by the defendant to the plaintiff, but merely the doing of awrongful act without just cause or excuse.
Cases referred to:
Bell v. Cohen and Cohen (1910/W.L.D. 112.
Wright v. Clements (1820) 3 D & A.50&,. 506.
APPEAL from judgment of the District C$urt of Anuradhapura.
D. R. R GoonetiHeke for defendant-appellant.
Anil Obeysekera for plaintiff-respondent.'
17th November, 1992GUNAWARDANA, J.
The plaintiff filed this action against the defendant in the DistrictCourt of Anuradhapura,'.claiming Rs. 10,000/- as damages, forallegedly defaming the plaintiff by> reading out an anonymous petitionat a departmental inquiry, first to the members of the staff of theschool where plaintiff was the Principal, and thereafter to theCommittee members of the School. Development Society. The saidpetition which was produced marked P2, contained allegations thatthe plaintiff had collected money amounting to about Rs. 2000/- fromthe students, on the pretext of attending to the various needs of theschool, and also to buy desks and chairs. It contained a furtherspecific allegation in the form of a query, as to whether there was noother person in Anuradhapura, fit enough to toe the Principal of thesaid school, other than the plaintiff, who had lived as a prostitute, afew years ago? The petition was unsigned, but contained the words“School Development Society". It was sent to the District Minister,Anuradhapura, who referred it to the Regional Director of Education,for necessary action. The Regional Director of Education forwarded it
to the Circuit Education Officer calling for a report. In consequence ofthat order the defendant who was the Education Officer, wrote theletter P1, to the plaintiff requesting her to summon the staff of theschool and the committee members of the School DevelopmentSociety, to a meeting, on 27 March, 1981, at the school, to investigateinto an allegation of misappropriation of funds belonging to theSchool Development Society, by the plaintiff. On the day of themeeting, the defendant had first got the staff together, and read thesaid petition to them. He had then called for written observations onthe content of the petition, to be noted on the sheets of paper givento them, by him. Thereafter, the defendant had summoned the fivemembers of the said Committee, who had come there that day, andread the petition to them. He then called upbn them to note theirwritten observations on the sheets of paper provided by thedefendant. Both, the teachers who are members of the staff, and themembers of the said Committee, submitted their written observations,to the defendant. Thereafter, the defendant had forwarded his reportto the Education Department. According to the plaintiff’s evidence,the defendant had read the whole petition twice. Once before theteachers, and thereafter to the members of the said Committee, inspite of her protest, not to read it for the second time. However, thedefendant in his evidence has taken up the position that he read onlythat part of the petition which dealt with allegations ofmisappropriation of funds. He has denied having read the allegationsabout the character of the plaintiff to the teachers or to the membersof the said Committee.
The learned District Judge has held that although the publicationwas done on an occasion of qualified privilege, the malice shown bythe defendant has destroyed that privilege. Accordingly, the plaintiffwas awarded the full sum of Rs. 10,000/-, which she claimed asdamages. This appeal is from the said Order of the learned DistrictJudge.
The learned Counsel for the defendant submitted that, a plaintiffwho brings an action for defamation must set out in the plaint the verywords upon which the allegation of defamation is founded. It is seenon an examination of paragraph 6 of the plaint, where the defamatoryallegations are set out, that the said paragraph begins by stating that,
following is a summary of facts which are defamatory of the characterof the plaintiff. Then the said paragraph goes on to state under threesub-paragraphs, the following allegations.
Misappropriation of about Rs. 1500/- by the plaintiff of themonies collected.
Convening a meeting of the School Development Association,without the teachers.
Identifying the plaintiff-respondent, as a person who had livedas a prostitute for about one year.
On a perusal of the petition produced marked P2, it is seen thatthe allegation of misappropriation is more specific and all details ofthe date of the meeting of the School Development Association, andthe procedure adopted to collect the money, and the amountsactually collected from the children are set out in the petition, in 3paragraphs. The allegation about the character of the plaintiff is alsospecifically stated. It is to be noted that unlike what is stated in theplaint, the question raised is in the form of a public interest issue; asto whether there is no other person in Anuradhapura, fit enough to bethe principal of that school, other than the plaintiff, who is alleged tohave such a bad character. Thus the allegations in the petition andthe averment in the plaint substantially differ. The resulting position isthat the right of the defendant to know exactly the case he has tomeet, is violated. It is to protect this right that it is insisted on in adefamatory action, that the very words or the words substantially thesame are required to be pleaded in the plaint.
The learned Counsel for the plaintiff conceded that there is a slightvariation in the words in the plaint. He however argued that, thatwould not have prejudiced or misled the defendant, as the petitionwas in the custody of the defendant. In this context it must be stated,and as pointed out earlier, the averment in the plaint itself says that itis a summary of the facts which are defamatory of the character ofthe plaintiff. In addition the summary given in the plaint issubstantially different to the allegations in the said petition.
In this regard it would be pertinent to refer to the Form 89 (page315) of the Civil Procedure Code, wherein the averments that arerequired to be included in a plaint in a defamatory action are given.The suggested form is as follows:-
“1. – That on the – day of – 19 at – the defendant published ina newspaper, called the – (or in a letter addressed to E.P.) thefollowing words concerning the plaintiff:—
(Set forth the words used.)
(Note – If the liber was in a language not the, language of theCourt, set out the libel verbatim in the foreign language in whichit was published, and then proceed thus: “which said wordsbeing translated into the – language, have the meaning andeffect following, and were so understood by the persons towhom they were so published; that is to say. (here set. out aliteral translation of the libel in the language of the Court.)”
In E. B. Wickramanayake on Delicts at page 74 it is stated that, “aplaintiff who brings an action for defamation must set out in his plaintthe very words about which his complaint is made. It is not sufficientto give the substance or purport of it.” The underlying principle is thatthe defendant should be given adequate notice of the allegeddefamatory words in order to prepare his defense.
Mason, J. observed in the South African Case of Betl v. Cohen &Cohenm that,
“It is true that a plaintiff will not lose his remedy if he provesthe publication of the words substantially the same as thosecharged, but that is not the same thing as words to the same‘ effect. It was argued that the plaintiff ought not to be debarredfrom bringing this action because they cannot produce thedefamatory letters in the possession of other people and thatthey might know of their existence and would be entitled toguess as their contents; but this argument seems to me tooverlook the right of the defendant to know exactly the case he
has to meet and to be protected as far as possible from anaction for what is apparently a hypothetical libel."
Thus it is seen that in South Africa too the plaint has to set out thevery words complained of, or “words substantially the same as thosecharged,” so that the right of the defendant to know exactly the casehe has to meet, is not mitigated.
Under English law where the ipsissima verba rule is more strictlyapplied, Abbott, C.J., in Wright v. Clements®503 at 506 stated asfollows:-
“I am of opinion, that in this case the objection must prevail,and that the judgment must be arrested. In actions for libel, thelaw requires that very words of the libel to be set out in thedeclaration, in order that the Court may judge whether theyconstitute a ground of action; and unless a plaintiff professes soto set them out, he does not comply with the rules of pleading.The ordinary mode of doing this, is to state, that defendantpublished, of and concerning the plaintiff, the libellous matters,to the tenor and effect following. In that case the word ‘tenor’governs the word ‘effect’, and binds the party to set out the verywords of the libel.”
In Odgers on Libel and Slander (5th Edition) at page 623 it isstated that, “An action for defamation cannot be maintained withoutsetting forth in the plaint the words complained of.”
Thus it is seen that this is a rule of pleading which is common toEnglish, South African and Sri Lankan law. Although the degree ofadherence may vary, it is based on the sound principle that, thedefendant has a right to know exactly the case he has to meet. •
Having regard to analysis of the averments of the plaint, in theinstant case, which I have done earlier on, I am of the view that thesaid averments do not comply with the requirements of the said ruleof pleading. Therefore, I hold that the plaint is defective and that theplaintiff cannot have and maintain this action as presently constituted.
The defendant has raised a plea of qualified privilege, on the basisthat, the said petition was read to the teachers and the members ofthe said Committee; in the discharge of his duties, at a departmentalinquiry, which was a qualified privileged occasion. As stated earlier, itis seen that the defendant was directed by the Regional Director ofEducation to forward a report to him regarding the contents of thesaid petition. According to the evidence of the Administrative Officerof the Education Department Office in Anuradhapura, there is aminute in the file directing the defendant to hold an inquiry. Heproduced marked V19 the report submitted by the defendant afterthe inquiry. He has stated that the procedure to be followed inholding the inquiry is at the discretion of the officer holding theinquiry and that the Regional Director has not given directionsregarding that. The written observations made by the teachers andthe members of the said Committee and the statement made by theplaintiff were produced by this witness marked V1 to V18. Thus itappears that the procedure adopted was a very formal one, where allthe evidence had been obtained in writing and a written reportsubmitted, at the conclusion of the inquiry.
It may be noted here that the learned trial Judge has held that theoccasion on which the said petition was published was a qualifiedprivileged occasion. However he has gone on to hold that because ofthe express malice on the part of the defendant, such privilege hadbeen forfeited.
Therefore, it is appropriate to consider the evidence to ascertainwhether the plaintiff has adduced sufficient evidence to prove thatthe defendant acted with malice, when he read the said petition, tothe teacher and the members of the said Committee. The learned trialJudge has arrived at the conclusion that the defendant acted withmalice for two reasons. Firstly he has pointed out that he accepts theposition that the said petition was read out fully, twice, and that theplaintiff would have invariably objected to the second reading. Hehas held, that the personal life of the plaintiff cannot be the subject ofsuch an inquiry. Since the defendant has knowingly published a factnot relevant to the inquiry twice, he has held that it is reasonable toinfer that the defendant has acted maliciously.
In this regard it is pertinent to note that it became necessary forthe defendant to read the said petition twice, not for effect. It wasbecause he had to bring to the notice the contents of the said petitionto two sets of people viz. the teachers and the members of the saidCommittee, who were really the people concerned about the saidallegation. Of course, he could have gathered both parties togetherand read the petition once. Even then the effect would be much thesame. In the Law of Delict by McKerron at page 178 it is stated asfollows:-
“A communication made in the discharge of a duty isprovisionally protected, provided the person to whom it is madehas a duty or interest to receive it. It is not necessary that thedefendant should be under a legal duty to make thecommunication; it is sufficient that he is under a moral or socialduty to make it.”
When the said criteria are applied to the facts of the instant case itis clear that the teachers and the members of the said Committeehad an interest in the welfare of the said school, and therefore, had aright to know about the allegations in the said petition. Furthermorethey were the persons who would have been knowledgeable aboutthe truth or falsity of the allegations contained in the said petition.Although according to what was stated by McKerron, it is sufficient ifthe defendant had a moral or social duty, in the instant case, thedefendant had a better right, because he was under a legal duty, todisclose the said allegations to the said persons, in order to facilitatethe inquiry that he was ordered to hold. Therefore, it would beimproper to infer malice on the basis of the mere reading of thepetition twice, because both sets of persons, viz. the teachers andthe members of the said Committee had an interest to receive thecontents of the said petition, and the defendant acted under a legalduty.
Secondly the learned trial Judge has held that the false denial bythe defendant that he read the allegation relating to the character ofthe plaintiff, is proof of his malicious intention. It is apparent from allthe circumstances of this case, that the defendant has deniedreading the allegation relating to the character of the plaintiff with aview of putting up a defence, by negativing the proof of publication,of that allegation. Therefore, the said denial'in my view is notnecessarily evidence of malice.
It is also to be seen that there is no evidence to show that thedefendant had any animosity, ill-will or prejudice against the plaintiff.The defendant had set about the holding of the inquiry by officiallywriting to the plaintiff herself, to summon a meeting of the teachersand the members of the said Committee. He had distributed sheetsof paper and invited written responses, obviously to have a writtenrecord of whatever they have to say. Thus, the procedure he hadadopted seems to show that he wanted to submit a true and accuratereport, rather than that he had an intention to defame the plaintiff.
It is appropriate at this stage to consider what is meant by theexpression “malice”. Massdorp in Institutes of South African Law,•Volume 3 at page 133 states as follows:-
“By the term “malice” in the case of defamation is meant notnecessarily any actual ill-will borne by the defendant to theplaintiff but merely the doing of a wrongful act without just causeor excuse.”
Taking all these matters into consideration it is clear that theplaintiff has failed to prove malice on the part of the defendant, whenhe read the said allegations relating to the character of the plaintiff tothe teachers and the members of the said Committee.
It has to be understood clearly that the burden is on the plaintiff toprove that the defendant acted maliciously as pointed out byMcKerron at page 164. “If, therefore, the plaintiff relies upon malice todestroy the effect of a plea of qualified privilege he must affirmativelyestablish it.” Therefore hold that the plea of qualified privilege raisedby the defendant is entitled to succeed.
Accordingly, I would allow the appeal and dismiss the plaintiff’saction with costs here and in the Court below,
WIJEYARATNE, J. – / agree.