046-SLLR-SLLR-1995-2-INDEPENDENT-NEWSPAPERS-LTD.-V.-NISSANKA-PARAKRAMA-WIJERATNE.pdf
CA
Independent Newspapers Ltd. v. Nissanka Parakrama Wijeratne
253
INDEPENDENT NEWSPAPERS LTD.
v.
NISSANKA PARAKRAMA WIJERATNE
COURT OF APPEALANANDA COOMARASWAMY, J.
EDUSSURIYA, J.
A. 312/85(F)
C. COLOMBO 83551/MFEBRUARY 2, MAY 17, JUNE 2,13, 1995.
Defamation – Photographs – Newspapers – Malicious Publication – Innuendo -Per-se defamatory Statements – Fair comment.
Plaintiff-Respondent sued the Defendant-Appellant for publishing twophotographs side by side, one of which was the Plaintiff carrying the casketcontaining the sacred relics and the other of Schoolgirls – Hewisi band, with theheadlines covering the two photographs. “Don't turn a hallowed ceremony into aschool boy joke", and also with the words, “perhaps there will be film starsoccupying Yakada Doliyas next year” immediately below the photographs of thePlaintiff.
It was the position of the Plaintiff-Respondent, that the Defendant published theaforesaid photographs in the manner aforesaid wrongly and maliciously andbrought the Plaintiff into hatred, contempt and ridicule and caused the Plaintiffpain of mind – the publication been grossly defamatory of the Plaintiff. TheLearned District Judge granted the reliefs prayed for by the Plaintiff.
Held:
Per Edussuriya, J.
“There are no such things as Yakada Doliyas, hence the words below thephotographs of the Plaintiff make no sense and therefore cannot bedefamatory.”
Where a Plaintiff pleads per se defamation then the passage complained of orthe photographs and the sub-titles as in this case must be by themselvesdefamatory and the Plaintiff cannot contend that they convey such and such ameaning.
The words and the photographs are meant to deter the Plaintiff/Respondentfrom taking any steps to turn the perahera into a joke (“Don't turn a hallowedceremony into a school boy joke.")
254
Sri Lanka Law Reports
[1995] 2 Sri LR.
The Respondent in order to succeed on the innuendo pleaded must establishto the satisfaction of court firstly, that the Publication of the two photographs andthe Sub-Titles was capable of leading a reasonable reader of ordinary intelligenceinto the belief that both photographs were taken at one and the same time duringthe Kandy Perahera season, secondly, that the said photographs were capableof conveying to a reasonable reader of ordinary intelligence that the Respondentwhilst performing his religious functions and duties was secretly enjoying or wasdelighted at the presence of the young Schoolgirl Hewisi drummers in the KandyPerahera and the Respondent was at the sametime privately entertaining the ideaof seeing film stars participating in the Perahera in the following year, and thirdlythat the photographs and the sub-titles did in fact convey such a meaning or wascapable of conveying such a meaning.
A Judge ought – not to take into account any mere conjectures which aperson reading the document might possibly though unreasonably form.
“It is unreasonable that where there are a number of good interpretations the onlybad one should be seized upon to give a defamatory sense to the document".
In deciding whether words are capable of conveying a defamatory meaningthe Court will reject those meanings which can only emerge as the product ofsome strained or forced or utterly unreasonable interpretation.
AN APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Capital and Counties Bank v. Henty – 1882 7 Appeal cases 744.
Jones v. Skelton (1963) 1 W.L.R. 1370.
H. L. de Silva RC., with S. C. Crosette Thambiah for the Defendant-Appellant.Romesh de Silva, P.C., with Palitha Kumarasinghe for Plaintiff Respondent.
Cur. adv. vult.
October 21,1994.
EDUSSURIYA, J.
The plaintiff-respondent hereinafter referred to as the Respondentsued the Defendant-Appellant hereinafter referred to as the Appellantfor the recovery of a sum of Rs. 1000,000/- as damages and pleadedas follows in paragraphs 5, 6 and 7 of the plaint.
5. The Defendant published or caused to be published in theissue of the Weekend News paper on Sunday 29th July, 1979 twophotographs which were taken on different occasions. One of the
Independent Newspapers Ltd. v. Nissanka Parakrama Wijeratne
CA(Edussuriya, J.)255
photographs was of the Plaintiff carrying the casket containing thesacred relics and the other photograph of Schoolgirls – Hewisi band.The said two photographs were placed side by side with theheadlines covering the two photographs “Don’t turn a hallowedceremony into a school boy joke" and also with the words – “perhapsthere will be film stars occupying Yakada Doliyas next year",immediately below the photographs of the Plaintiff. The photographswere published in the manner aforesaid and with the sub-titlereferred to above with deliberate intent that the readers of thenewspaper would necessarily be led into the belief:
that both photographs were taken at one and the same time;
the said photographs were taken during the Kandy Peraheraseason;
that the Plaintiff whilst carrying the casket containing thesacred relics was deliberately turning his glance towards the school-girls and thinking to himself that perhaps there will be film starsoccupying the Yakada Dodiyas next year.
The Plaintiff states that the Defendant published the aforesaidphotographs in the manner aforesaid and the sub-title aforesaidwrongly and maliciously, in that the said publication was calculated toconvey to the readers of the said issue of the said newspaper anddid convey the idea of the message:
that the Plaintiff even while performing his religious dutiesand functions was secretly enjoying and/or was delighted at thepresence of the young Schoolgirls Hewisi drummers in the KandyPerahera, and
that the Plaintiff was at the same time privately entertainingthe idea or thought of seeing film stars participating in the KandyPerahera, the following year.
The Plaintiff states that the publication of the aforesaidphotographs and the sub-title aforesaid by the Defendant waswrongful, malicious and brought the Plaintiff into hatred, contempt
256
Sri Lanka Law Reports
[1995] 2 Sri L.R.
and ridicule and caused the Plaintiff pain of mind. The publication ofthe photographs in the manner aforesaid and with the sub-title isgrossly defamatory of the Plaintiff.
Counsel for the Respondent contended at the hearing of thisappeal that the Respondent had pleaded an innuendo in paragraph5 and 6 of the plaint and perse defamation in paragraph 7.
It is common ground that the Respondent had pleaded aninnuendo in paragraphs 5 and 6 but Counsel for the Appellantcontended that the Respondent had not pleaded per se defamationand that the trial proceeded only on the innuendo and that inparagraph 7 of the plaint the Respondent pleads animus injuriandi.
Counsel for the Respondent submitted that the Respondent’s casemust be understood in the manner it was presented in the DistrictCourt.
The written submissions of the Respondent in the District Courtshow quite clearly, that the Respondent did not rely on per sedefamation. Submissions had been made only on the basis of theinnuendo pleaded in paragraphs 5 and 6 of the plaint. Further, theLearned District Judge has in his judgment dealt only with theinnuendo. The Learned District Judge having considered what is setout in issues 2 and 3 raised with reference to paragraphs 5 and 6 ofthe plaint, then finds (at p. 376 of the Brief) that the Respondent hasbeen brought into hatred, contempt and ridicule as pleaded inparagraph 7 of the plaint in respect of which issue 1 has been raised.
Paragraph 7 of the plaint does not in our view deal with per sedefamation. It is clear from the judgment that the Learned DistrictJudge himself was of the same view and therefore the LearnedDistrict Judge has nowhere in his judgment dealt with the question ofper se defamation and quite rightly so, since per se defamation wasnot in issue before him. In fact the Learned District Judge has firstconsidered the innuendo pleaded, second, whether the photographsand sub-title complained of were published maliciously, third, thequestion of privilege and fourth the question of damages.
Independent Newspapers Ltd. v. Nissanka Parakrama Wijeratne
CA(Edussuriya, J.) 257
Paragraph 7 of the plaint in our view pleads animus injuriandi andis a follow up on the averments in paragraphs 5 and 6 in which theinnuendo was pleaded, as contended by the counsel for theAppellant.
The Counsel for the Respondent stated in the course of hissubmissions that he was “relying mainly on per se defamation”. Thus,it appears that the Counsel for the respondent realising the weaknessof his case based on the innuendo attempted to make out at thehearing of this appeal that the Respondent presented a case basedon per se defamation as well in the District Court.
Although, we are of the view that it was not the position of theRespondent at the trial that the photograph and sub-title were per sedefamatory, we propose to deal with the submission of per sedefamation as well.
Counsel for the Respondent submitted that the words “Don't turn ahallowed ceremony into a school boy joke”, “perhaps there will befilm stars in Yakada Doliyas next year” and the two photographsconvey the meaning that the Plaintiff was responsible for the“deterioration of the perahera and has deviated from tradition”.
At the outset it must be mentioned that there are no such things asYakada Doliyas as the Plaintiff/Respondent himself has said inevidence. Further, the word used is Doliyas and needless to say thereis no such word called Doliyas. Hence the words below thephotograph of the Plaintiff make no sense and therefore cannot bedefamatory.
Where a statement complained of is defamatory per se and thePlaintiff does not wish to state that the words complained of bear asecondary meaning but nevertheless sets out an innuendo, thepurpose of the innuendo will be only to emphasise the sting in thewords complained of. It is a paraphrase of the words used or astatement of what these words are in their ordinary sense(Dr. Amerasinghe on Defamation).
258
Sri Lanka Law Reports
[1995] 2 Sri L.R.
In this case the innuendo pleaded in paragraphs 5 and 6 cannotbe said to be a paraphrase of the photographs and sub-titlecomplained of, nor is that the position of the Respondent since theRespondent’s position is that the sub-title and the photographsconvey the meaning that the Plaintiff/Respondent was responsible forthe “deterioration of the Perahera”.
It is obvious to any reader that the photographs have been takenon two different occasions.
Where a Plaintiff pleads per se defamation then the passagecomplained of or the photographs and the sub-titles as in this casemust by themselves be defamatory and the Plaintiff cannot contendthat they convey such and such a meaning. Here, thePlaintiff/Respondent's submissions that the words and photographscomplained of convey the meaning that the Plaintiff is responsible forthe deterioration of the Perahera means that the Plaintiff/Respondentis relying on an innuendo which has not been pleaded, since thephotographs and sub-titles do not by themselves convey thatmeaning. The words and the photographs are meant to deter thePlaintiff/Respondent from taking any steps to turn the Perahera into ajoke (“Don’t turn a hallowed ceremony into a school boy joke"). Theheading does not say “Hallowed ceremony turned into a school boyjoke”.
Even if we accept the contention that the Respondent was proneto allow a deterioration, yet, as a newspaper, they are entitled to a faircomment, since it is in evidence that the Respondent was attemptingto bring in schoolboy cultural groups to participate in the peraheraand had issued a directive to that effect.
We are therefore of the view that the headline and the sub-titlecomplained of along with the photographs are not per se defamatory.
We will next consider the innuendo pleaded in paragraphs 5 and 6of the Plaint.
The Respondent in order to succeed on the innuendo pleaded,must establish to the satisfaction of Court firstly, that the publication
Independent Newspapers Ltd. v. Nissanka Parakrama Wijeratne
CA(Edussuriya, J.)259
of the two photographs side by side under the head lines “Don’t turna hallowed ceremony into a school boy joke" together with the sub-title “Perhaps there will be film stars in Yakada Doliyas next year"immediately below the Respondent’s photograph was capable ofleading a reasonable reader of ordinary intelligence into the beliefthat both photographs were taken at one and the same time duringthe Kandy Perahera season and that the Respondent whilst carryingthe sacred relics was deliberately turning his glance towards theschoolgirls and thinking to himself that perhaps there will be film starsoccupying Yakada Doliya next year, secondly, that the saidphotographs published in the manner aforesaid together with thesub-title immediately below the Respondent’s photograph werecapable of conveying to a reasonable reader of ordinary intelligencethat (a) the Respondent even while performing his religious dutiesand functions was secretly enjoying and/or was delighted at thepresence of the young schoolgirl “Hewisi” drummers in the KandyPerahera and that the Respondent was at the same time privatelyentertaining the idea or thought of seeing film stars participating inthe Kandy Perahera in the following year and thirdly, that thephotographs and the sub-title did in fact convey such a meaning orwas capable of conveying such a meaning.
In this endeavour the Respondent has led the evidence of one,Wittachchi and one Panibaratha as is usually done in this type ofcase. Wittachchi, being a retired Government Servant engaged inprivate enterprise and Panibaratha being a dancer who had followedcourses in dancing both here and in India and at the date of thepublication complained of, the Principal of the Department ofIndigenous Dancing at the Vidyalankara University. So that it is safeto conclude that their evidence was led because the Respondentbelieved that they fell into the category of “reasonable readers ofordinary intelligence”, and their evidence was presented to Court assuch.
However, after analysing the evidence of the two witnessesLearned District Judge has stated that “Both these witnesses areLearned persons. Although, some displeasure was created in their(witnesses) minds immediately on seeing the pictures, they(witnesses) have changed their idea later. The reason for that is
260
Sri Lanka Law Reports
[1995] 2 Sri L.R.
because they specially understood matters relating to the Peraheraand these photographs. But, can it not be concluded that an ordinaryreader will feel prima facie as mentioned above, without knowing orrealising the facts about the Perahera or the photographs?Accordingly, I conclude that the Plaintiff has been subject todefamation, contempt and ridicule by publishing that he is person oflow level".
In arriving at this conclusion Learned District Judge hascompletely misdirected himself on the evidence, in that, firstly,Wittachchi’s evidence was solely with regard to the article publishedbelow the photographs and the sub-title and he has also statedcategorically that on seeing the photographs he did not draw anyadverse inference regarding the Respondent, and secondly,Panibaratha’s evidence was that he changed his mind on the sub-titlebeing explained to him since he could not read English. Therefore,quite clearly, both witnesses whose evidence had been led had failedto support the position taken up in paragraph 6 of the plaint. Thisfinding of the District Judge cannot therefore stand in view of thereasons given above.
Learned District Judge’s statement that Panibaratha changed hismind because he understood the facts relating to the Perahera isincorrect since Panibaratha has stated that the initial displeasure thatarose in his mind on seeing the photographs disappeared after thesub-title which he could not understand was explained to him.
It is important to bear in mind that the Respondent’s position is thatthe photographs, the headline and the sub-title immediately belowthe Respondent’s photograph convey or are capable of conveyingthe meaning set out in paragraph 6 of the plaint.
Therefore, when, quite clearly both witnesses whose evidence wasled had failed to support the position taken up by the Respondent inparagraph 6 of the plaint, Learned District Judge had proceeded tohold that these witnesses were Learned persons but that ordinarypersons would have understood the photographs and the sub-titlesas set out in paragraph 6 of the plaint. We do not see how theLearned District Judge could have arrived at this conclusion bycalling Panibaratha, a mere dancer, and in our view a man of mere
Independent Newspapers Ltd. v. Nissanka Parakrama Wijeratne
CA(Edussuriya, J.)261
ordinary intelligence who had himself changed his mind after thesub-title was explained to him, a Learned man, even though, onreading the evidence given by Panibaratha a question arises as towhether he is a reasonable reader of ordinary intelligence, becausehe could not read English and therefore did not fall into the categoryof readers of English Newspapers.
I may also add that Panibaratha, according to his own evidencehas seen things in the photographs which no other person wouldever claim to have seen, namely that he saw a group of Schoolgirlsdancing. It is clear to the naked eye that the schoolgirl drummers aremarching to step and no one in his wildest dreams can say they aredancing. Any adverse inference he may have drawn of theRespondent on seeing the photographs disappeared the moment thesub-title he was unable to read was explained to him within aboutthree minutes of his seeing the photographs. It also appears from hisevidence that during that period of three minutes, in spite of the factthat he knew the Respondent well, he had formed the impression thatthe Respondent whilst carrying the sacred relict casket, had the lookof a lecher who was entertaining unhealthy thoughts about schoolgirldrummers, who were clad from shoulder to ankle and marchingimmaculately.
We cannot accept the evidence that Panibaratha entertained anyof the thoughts he claimed arose ir his mind. On the other hand weare of the view that he was merely repeating what was expected ofhim in an attempt to further the Respondent’s case. In this connectionthe evidence of Wittachchi bears repetition, namely, that he did not*draw any inference adverse to the Respondent on seeing thesephotographs and the sub-title complained of.
Quite apart from the evidence led in this case, it is clear to anyreasonable reader of ordinary intelligence that these twophotographs had been taken at two different occasions since thebackground has been removed from the Respondent's photograph. Itis also seen from photograph D6 that if the background of thatphotograph had not been removed a reader may perhaps haveformed an impression that both photographs were taken on the sameoccasion.
262
Sri Lanka Law Reports
[1995] 2 Sri L.R.
In our view, to conclude that the photographs were taken at thesame occasion and that the photographs together with the sub-titlepublished immediately below the photographs are capable ofconveying the meaning set out in paragraph 6 of the plaint is mereconjecture and utterly unreasonable and strained.
It was held in Capital and Counties Bank v. Henty(1), that "thejudge ought not to take into account any mere conjectures which aperson reading the document might possibly (though unreasonably)form”.
Even if the two photographs were taken at the same time by twodifferent photographers and the Respondent was looking at the girls,can it not be that the Respondent had a look of appreciation sincethe girls were immaculately marching to step, and at the same timethought that Schoolgirl drummers in the Perahera would be an itemwhich would attract larger crowds and when taken together with thesub-title can it not be said that the Respondent thought that film starswould attract still larger crowds.
Then again can it not be said that the Respondent’s eyes werefollowing the marching Schoolgirl'drummers because he as theMinister of Education was thoroughly pleased with the manner inwhich the students of a school under his Ministry were marching. Henot only had reason to be pleased with the performance of theSchoolgirl teachers under his Ministry, who had done a perfect job oftraining the Schoolgirl drummers. Then again, can it be said thatwhere a middle aged gentleman turns his head and looks at agroup of Schoolgirls (clad from shoulder to ankle) marching perfectlythat he is secretly enjoying and/or entertaining unhealthy thoughts ofthe girls..
In Jones v. Skelton(2) it was held that “In deciding whether wordsare capable of conveying a defamatory meaning the court will rejectthose meanings which can only emerge as the product of somestrained or forced or utterly unreasonable interpretation". It was alsoheld in Capital and Counties Bank v. Henty (supra) that “it isunreasonable that, where there are a number of good interpretationsthe only bad one should be seized upon to give a defamatory senseto the document”. Further, that “the defamer is he who, of manyinferences chooses a defamatory one” (Lord Bramwell).
Independent Newspapers Ltd. v. Nissanka Parakrama Wijeratne
CA(Edussuriya, J.)263
For these reasons we are of the view that the judgment of theLearned District Judge cannot stand.
The Respondent whilst giving evidence has attempted to convinceCourt that on seeing the two photographs in the newspaper, that atfirst he thought that they were taken on the same occasion and laterhas even gone to the extent of saying that he thought that bothphotographs constituted one photograph. It is impossible for theRespondent to have thought so, since he would have known at oncethat he never appeared in the presence of Schoolgirl hewisidrummers garbed in the official attire of the Diyawadana Nilame andcarrying the Sacred Relic Casket.
The Appellant has marked as D1(b) a letter written by theRespondent to the Appellant immediately after the publicationcomplained of, and published by the Appellant. However, in thatletter the Respondent has not complained that he has been defamedas a result of the two photographs and the sub-title. Further,this action has been filed six months after the publication complainedof.
We also see from the judgment, that the Learned District Judgeappears to have misdirected himself in upholding the Respondent’sversion and in doing so, he has even referred to hearsay evidencenamely, what the Respondent’s mother is alleged to have said onseeing the photographs complained of. He has even gone on to saythat he had examined the photographs of the Schoolgirl drummersand found them to be girls who had attained puberty and therebyarrived at certain conclusions. Learned District Judge appears tohave examined the photographs very closely. We do not think that areasonable reader of ordinary intelligence would have gone to thatextent.
For the above mentioned reasons we are of the view that theRespondent has strained himself to unimaginable limits when hecomplained that the photographs and sub-title in question werecapable of being understood by a reasonable reader of ordinary
264
Sri Lanka Law Reports
[1995] 2 Sri L.R.
intelligence in the manner set out in his plaint. This therefore appearsto be a speculative action and the quotation set out above from thejudgment in Capital and Counties Bank v. Henty (supra) bearsrepetition, namely, that the defamer is he who, of many inferenceschooses the defamatory one.
It is our considered view, that, at the most photographs and sub-title are capable of conveying to the reasonable reader of ordinaryintelligence the idea that the Respondent was entertaining thethought that film stars participating at the Perahera would attracteven a larger crowd than Schoolgirl drummers and would make thePerahera more colourful.
For the reasons hereinbefore mentioned we set aside the judgmentof the Learned District Judge and dismiss the Plaintiff/Respondent’saction with costs. This appeal is therefore allowed with costs fixed atRs. 3150/-.
ANANDA COOMARASWAMY, J. -1 agree.
Appeal allowed.