042-SLLR-SLLR-1999-V-3-MENDIS-v.-CHULAINE.pdf
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MENDIS
v.CHULANIE
COURT OF APPEALYAPA, J.,
GUNAWARDANA, J.
A. NO. 27/96 (F).
C. MT. LAVINIA NO. 128/91 (M).
AUGUST 29, 1997.
DECEMBER 14, 1998.
Defamation – Assault – Proof required – What is corroboration – Falsus in uno,falsus in omnibus – Demeanour and deportment of witness.
Held:
Wrong of defamation consists in the publication of defamatory matterconcerning another without lawful justification or excuse.
Wrong may be committed not only by words, written or spoken but alsoby acts, for example by the exhibition of a picture or effigy holding upanother to ridicule or contempt.
Per Yapa, J.
■Defamation may be described as that species of injuries in which thecharacter of a person is assailed or hurt, ie defamed, brought into ill reputeby the use of language, ie words, written, or spoken and with the intent ofso defaming him.”
It is a well-established proposition of law that a plaintiff in an action fordefamation must set out in his plaint the exact words alleged to have beenused or uttered by the defendant, in order to entitle him for damages.
Per Gunawardana, J.
'an assault or unlawful personal attack would not tantamount to defamationbecause the tort of defamation consists in the publication of defamatory wordsconcerning another without lawful justification."
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APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to :
Director of Public Prosecutions v. Hester – 1972 vol. 3 WLR 910 at 919.
Queen v. Julis – 65 NLR 505.
Francis Appuhamy v. The Queen – 68 NLR 437 at 443.
Ranjan Suwandaratne for plaintiff-appellant.
S. C. Gunasekera for defendant-respondent.
Cur. adv. vult.
November 1, 1999.
HECTOR YAPA, J.
The plaintiff-appellant (hereinafter referred to as the appellant)instituted an action in the District Court of Mount Lavinia suing thedefendant-respondent (hereinafter referred to as the respondent) fordamages – the cause of. action pleaded being that the latter haddefamed the former. In the said action filed against the respondent,the appellant stated, inter-alia, that on or about the 16th March, 1990,the respondent defamed the appellant in public, by alleging that theappellant is a "famous writer of fraudulent deeds” and on the sameday at the Sri Saranankara road junction, respondent abused theappellant in obscene language and slapped him without any reason-able cause. Therefore, the appellant in the said action claimed a sumof Rs. 500,000 against the respondent as damages, for the saidinjurious acts on the part of the respondent. After the trial, the learnedDistrict Judge by her judgment dated 22.02.1996, dismissed theappellant's action with costs. The present appeal is against the saiddismissal of the action.
At the trial the appellant gave evidence stating that he was defamedin the manner referred to above by the respondent. Further, in supportof his case the appellant also led the evidence of one Peter, Anverdeenand the Assistant Government Agent Kulatunga. After the appellant's
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case was closed reading in evidence P1 to P7, the respondent gaveevidence denying the allegation that he defamed the appellant.
At the hearing of this appeal the main complaint of the learnedcounsel for the appellant was that the learned trial Judge had failedto consider and determine the evidence led in the case as in a civilaction, by applying the balance of probability test. On the contrarycounsel contended that the learned Judge had sought to view theappellant's case as a criminal trial and thereby placing a higher burdenof proof on the appellant. In other words, the submission of the learnedcounsel for the appellant was that, there was sufficient evidence forthe Court to hold that the appellant was defamed by the respondent,since the appellant had discharged the burden of establishing his caseon a balance of probability. It would be necessary, therefore, toexamine the nature of the evidence led before the learned DistrictJudge, in order to appreciate the justification or otherwise of thiscontention advanced by learned counsel for the appellant.
Before a close evaluation of the evidence led at the trial is made,it would be necessary to make the following observations. Accordingto the plaint, one of the allegations made by the appellant againstthe respondent and his wife had been that on 07.03.1990, in the courseof the inquiry conducted by the Assistant Government Agent Kulatungarelating to the supply of electricity to the respondent, both the respond-ent and his wife had made serious allegations against the appellant.However, it would appear that the appellant had later abandoned anyclaim for damages against the respondent in respect of the saidallegation by omitting to frame any issues at the trial. In addition, itis observed that the appellant had even failed to mention the wordsalleged to have been used by the respondent and his wife on thatoccasion, ie on 07.03.1990. It should be mentioned here, that, it isa well-established proposition of law that a plaintiff in an action fordefamation must set out in his plaint the exact words alleged to havebeen used or uttered by the defendant, in order to entitle him fordamages. Perhaps, it was due to this reason that no issues wereframed in regard to the said allegation. Further, it must be rememberedthat the same principle of law would apply .with regard to the allegationmade by the appellant in his plaint, that on 16.03.1990 both the
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respondent and his wife made allegations defamatory in nature, againstthe appellant, but had failed to mention the words spoken or usedon that occasion by them (vide para 5 (A) of the plaint). Therefore,it would be seen that, even though an issue was framed by counselfor the appellant pertaining to the said allegation at the trial, nodamages could have been claimed by him in respect of the unspecifiedwords spoken to or uttered by the respondent. In these circumstancesthe only material that should be considered in this appeal arises fromthe two main issues raised on the pleading referred to in paragraph5 (B) and 6 of the plaint. Two issues that were raised on the saidpleadings are as follows :
Did the respondent defame the appellant in public, by allegingthat the appellant is a famous writer of fraudulent deeds.
Did the respondent defame the appellant by abusing theappellant in obscene language and slapping him without anyreasonable cause.
It is worth mentioning here that the respondent in his answer haddenied the allegations made by the appellant against him and hadprayed for the dismissal of the appellant's action in the District Courtwith costs.
With regard to the first allegation, that the respondent had accusedthe appellant alleging that he is a famous writer of fraudulent deeds,the appellant, Peter, Anverdeen and the Assistant Government AgentKulatunga, had given evidence. According to the appellant on16.03.1990, the AGA Kulatunga had conducted an inquiry into adispute between the respondent and the appellant's clients Peter andAnverdeen. The dispute arose over the refusal by Anverdeen andPeter to allow electricity supply line being taken over their lands tothe house that was being constructed by the respondent. The appellanthad stated in the course of the said inquiry, that both the respondentand his wife had made various allegations against him, and one suchallegation was that the appellant is a person who writes fraudulentdeeds. In respect to this allegation, it is significant to note that inthe statement made to the Kohuwala police by the appellant soon
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after the incident, he had not mentioned anywhere in the policestatement that the respondent on that occasion had accused theappellant as a person who writes fraudulent deeds. The policestatement was produced marked P1. The appellant was cross-exam-ined in detail with regard to this omission in his police statement tomention the allegation made by the respondent against the appellant.This is a vital omission which required a plausible and reasonableexplanation. The appellant while admitting the fact that he had notmentioned it to the police, sought to explain the said omission onvarious grounds. At first appellant stated that he did not mention itin his police statement as he was of the view that what was importantthen, was the slap that was given to him by the respondent. However,later the appellant tried to explain this omission in his police statement,by saying that since the police wanted him to make his statementin brief, he did not mention it in his police statement. Finally, in thecourse of his evidence, the appellant sought to resile from the earlierpositions taken by him on this matter by saying that he did mentionto the police that the respondent accused him as a person who writesfraudulent deeds but the police had failed to record it in his statement.Therefore, when one considers these excuses given by the appellantfor his failure to mention to the police the fact that the respondentaccused him as a person who writes fraudulent deeds, it is manifestlyclear that none of these excuses could be accepted as true for severalreasons. It is common knowledge that the appellant being a lawyerwas in a better position to know whether this material which he hadomitted to mention in his police statement was important or not.Besides, what is strange in the conduct of the appellant is the troublehe had taken to refer in his police statement to the fact that therespondent's wife had scolded him saying that the deed the appellanthad written in respect of the particular land was a fraudulent deedand further that the appellant had done number of acts unbecomingof a lawyer. As stated by the appellant, according to him if it wasthe slap that was important, what was the need for him to refer tothe allegation of making a fraudulent deed that was made by therespondent's wife against him. Further, it would be difficult to believethe appellant when he says that the police had told him, who is alawyer, to be brief when making his statement or even the fact thatthe police had omitted to record any material which the appellant had
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stated when making his statement to the police. It should also beremembered that all these excuses given by the appellant for hisomission to refer to the accusation of a fraudulent deed writer mustbe considered in the light of the admission made by the appellantthat his statement to the police was read over to him and thereafterit was signed by him.
On the other hand the evidence of the Assistant Government AgentKulatunga was entirely different. According to him,'he could rememberhaving gone for an inquiry on 16.03.1990 relating to the drawing ofelectricity wires to the house of the respondent. At the said inquiryrespondent and his wife had been present and the appellant hadappeared for Peter and Anverdeen. When Kulatunga was questionedwith regard to the incident that arose between the appellant and therespondent and his wife, his response was that other than the re-spondent and his wife eagerly urging matters in support of their case,there had been no other incident. In cross-examination witness Kulatungahad stated that in inquiries of this nature, it is usual for both partiesto present their case with interest and that there was nothing unusualabout it. However, he stated that the use of obscene abuse or personalinsults at such inquiries were uncommon and on that occasion, if sucha thing had happened he would well remember. Therefore, it mustbe stressed here that, if such an incident as stated by the appellanttook place, the only independent witness who could have corroboratedor supported that fact was AGA Kulatunga. Furthermore, if an incidentof this nature, where a lawyer appearing at such inquiry was accusedof being a writer of fraudulent deeds, along with other abuse, thatwould have been something that an officer conducting such an inquirycould not have forgotten or would have failed to observe. Besides,if any such incident took place, under normal circumstances, an inquiryofficer would have intervened to prevent or stop such an incident takingplace. In the circumstances the evidence of AGA Kulatunga who saysthat such an incident as referred to by the appellant did not take placeat that inquiry, amounts to a contradiction, inter se, of the evidencegiven by the appellant on this matter. This would necessarily affectthe credibility of the appellant on this point.
It is also necessary to consider the evidence of Peter and Anverdeenwho were the supporting witnesses of the appellant's case. It must
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not be forgotten that they were the appellant’s clients on whose behalfthe appellant had appeared at the inquiry before the AssistantGovernment Agent. Even though their evidence was led to supportthe evidence given by the appellant, it would be seen that these twowitnesses do not lend any support to the evidence given by theappellant. The appellant's evidence was that in the course of theinquiry before AGA Kulatunga, the respondent had stated that theappellant is a writer of fraudulent deeds. Both Peter and Anverdeengave evidence in Court supporting the position that the respondenthad stated that the appellant is a writer of fraudulent deeds. However,in the two statements made to the police on 16.03.1990 by Peterand Anverdeen soon after the incident, there is no reference to therespondent making such a general allegation that the appellant is aperson who writes fraudulent deeds. What these two witnesses hadstated to the police in their statements had been that the respondentand his wife while scolding the appellant using obscene language,had stated that the appellant had written a false deed relating to theparticular land in question. These two police statements were producedmarked P4 and P5 at the trial. Therefore, it is seen that quite contraryto what had been stated in their police statements, Peter and Anverdeenhad stated in Court that the respondent had stated at the inquiry beforethe AGA that the appellant is a writer of fraudulent deeds. In thecircumstances there appears to be a serious contradiction in theevidence given by Peter and Anverdeen, when their evidence isexamined in the light of their police statements. Besides, accordingto the police statements of Peter and Anverdeen, it is not clear whetherthe allegation that appellant had written a false deed relating to theland in question was uttered by the respondent or his wife. In viewof this serious contradiction and the lack of consistency observed inthe evidence given by Peter and Anverdeen, it is not safe to act ontheir evidence. Further, these infirmities observed in their evidence,goes to show that Peter and Anverdeen had given false evidencein Court, quite contrary to what they had told the police, in order tofall in line with the evidence given by the appellant that the respondentaccused the appellant alleging that he is a writer of fraudulent deeds.
In the light of the observations referred to above in relation to theevidence given by Peter and Anverdeen, the submission of learned
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counsel for the appellant, that- the appellant's evidence had beencorroborated by witnesses Peter and Anverdeen cannot be accepted.It must be mentioned here, that, as observed above, even the evidencegiven by the appellant that the respondent had stated in the inquirybefore AGA Kulatunga, that the appellant is a writer of fraudulentdeeds, cannot be accepted or acted upon, as true. Therefore, in asituation where the evidence of a witness appears to be untrue andunacceptable, any corroborative evidence on that item of evidencecannot make it credit worthy. On this matter learned counsel for therespondent referred us to the case of Director of Public Prosecutionsv. Hester*" at 919 where Lord Morris in the course of his judgmentstated as follows :
"The essence of corroborative evidence is that one creditworthywitness confirms what another creditworthy witness has said. . .The purpose of corroboration is not to give validity or credenceto evidence which is deficient or suspect or incredible but only toconfirm and support that which as evidence is sufficient andsatisfactory and credible : and corroborative evidence will only fillits role if it itself is completely credible evidence."
It is worth pointing out that, even if, the evidence of Peter andAnverdeen is accepted as true, yet their evidence could not havecorroborated the evidence of the appellant on this matter, for thereason that appellant's evidence is so unsatisfactory and untrustworthyto be acted upon by Court. Besides, it must be remembered herethat the evidence of Peter and Anverdeen on this matter as referredto above is equally unsatisfactory. Therefore, considering all theseinfirmities in the appellant's case, one cannot blame the learned DistrictJudge for deciding not to accept and act upon the evidence givenby the appellant and his supporting witnesses on this vital questionwhich had to be decided, namely did the respondent allege at theinquiry before AGA Kulatunga that the appellant is a famous writerof fraudulent deeds. It must be mentioned here that the learned DistrictJudge with reasonable clarity has set out the reasons why she wasnot acting on the evidence given by the appellant and his supportingwitnesses. In the circumstances there appears to be no merit in thesubmission of the learned counsel for the appellant that the learned
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District Judge had failed to consider the evidence led in the case asin a civil action, applying the balance of probability test. If the evidencewas not trustworthy, there was nothing that the Court could have doneexcept to hold that the appellant had failed to establish his case. Itis worth mentioning here that when proving a case applying thebalance of probability test, it has to be done on evidence which istrustworthy and not on false or shaky evidence.
The next matter to be considered is whether the respondent haddefamed the appellant by abusing him in obscene language andslapping him. This involves the consideration of the question whetherthe respondent had in fact given a slap to the appellant and whetherthe alleged conduct of the respondent resulted in defaming the appellant.It is to be noted that the respondent had denied this allegation. Evenwith regard to the use of obscene language and the slap given tothe appellant by the respondent, the available evidence comes fromthe appellant and his two supporting witnesses Peter and Anverdeen.The only additional material being the medical evidence. It is to beobserved that the learned District Judge would have been very cautiousor even reluctant to act on the evidence of the appellant and his twosupporting witnesses, after having disbelieved their evidence withregard to the 1st incident where the respondent had accused theappellant as a writer of fraudulent deeds. On this matter learnedcounsel for the respondent also submitted that the learned trial Judgecould not have accepted the evidence of the appellant and his witnessesunless their evidence was corroborated in some material particularsby independent testimony on the principle "falsus in uno, falsus inomnibus" meaning he who speaks falsely on one point will speakfalsely upon all. In the case of Queen v. Julis/® it was held, amongother things, that when such evidence is given by witnesses, thequestion whether other portions of their evidence can be acceptedas true should not be resolved in their favour unless there is somecompelling reason for doing so. In the case of Francis Appuhamy v.The Queers at 443 it was stated as follows : . . . "In that situationthe Judge or Jurors have to decide for themselves whether that partof the testimony which is found to be false taints the whole or whetherthe false can safely be separated from the true".
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According to the appellant the respondent had abused him inobscene language and slapped him when several people who werethere had chased after the respondent in order to arrest him or attackhim. This position was supported by Peter and Anverdeen when theygave evidence in Court. However, in the police statements made bythe appellant, Peter and Anverdeen there is no reference at all tothe persons chasing after the respondent when the appellant wasslapped. Similarly, in the police statements of the appellant and Peterthere is no reference at all with regard to the use of obscene languageprior to the slap. In the police statement of Anverdeen he merely statesthat the respondent scolded the appellant and then gave him a slap,but he does not refer to any obscene material. It is also strange thatif the incident happened in that manner, why the persons who chasedafter the respondent failed to arrest him, till he ran a distance of about100 yards to reach the respondent's house. Furthermore, accordingto the evidence of the appellant the impression is created that thepeople who chased after the respondent were people who were loyalto the appellant and in this situation one may ask the question why,there was a failure on the part of the appellant to lead the evidenceof anyone of those persons who were equally eyewitnesses to thisincident, and who could have been treated as independent witness.It is obviously clear from the reasoning of the trial Judge that shehad not accepted the story of the appellant that the respondent hadreturned from his house, given a slap to the appellant and thereaftermanaged to escape from the crowd who had chased after him. Inthis case having regard to the conclusions arrived at by the learnedtrial Judge, it would appear that this was a case of deliberate falsityon the part of the appellant and his supporting witnesses. In thissituation it is to be remarked that in cases of this nature this Courtshould not underestimate the priceless advantage the learned DistrictJudge had only to observe the demeanour and deportment of thewitnesses, but also the facility she had to form a general impressionwith regard to the veracity of witnesses who had testified at the trial.
Therefore, in view of the infirmities as referred to above it is difficultto believe the evidence given by the appellant and his supportingwitnesses with regard to the incident of the respondent abusing theappellant in obscene language and slapping him. Due to the absence
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of any reference in the statements made to the police by the appellant,Peter and Anverdeen to the use of obscene language by the respond-ent prior to the slap, the evidence given by them in Court for thefirst time five years later, saying that obscene language was usedcannot be accepted as true. Further, in the light of all these infirmities,as referred to above, the question would arise – whether their evidencecould be accepted in respect to the slap which they claim the re-spondent gave the appellant. The mere fact that a Hospital Ticketand Medical Legal Report were produced marked P2 and P3 will notclearly establish the fact that the mild swelling in the left cheek isonly due to the slap. Also, the fact that on following day the appellanthad given a history of having being slapped by the respondent tothe doctor does not strengthen the appellant's case, since his evidenceon other matters has not been accepted as trustworthy. As submittedby learned counsel for the respondent the mere fact that a personhad a mild swelling on the cheek does not necessarily mean thatit is the result of a slap. Such a swelling could have been causedin so many ways. Therefore, presence of a swelling on the cheekof the appellant does not give rise to the inference that the accountgiven by the appellant to the doctor as to how he got that swellingis true. Such a conclusion appears to be reasonable having regardto the fact that the evidence of the appellant and his supportingwitnesses has been disbelieved by Court in this case.
However, even for the sake of argument, if one were to acceptthe evidence of the appellant and his two supporting witnesses thatthe respondent in fact gave a slap to the appellant in public, thereis also the other question to be decided namely, whether a mere slapgiven to a person in public would constitute defamation. It was soughtto be argued by learned counsel for the appellant that an assault incertain circumstances can constitute defamation. Learned counsel'scontention was that when a professional is assaulted in public andin the presence of his clients and the members of the general publicfor something done by him in his professional capacity, it shouldconstitute defamation. Counsel, however, failed to assist Court withany authority to support this submission. Besides, it must be statedhere that, there was no material before Court that the assault wasin respect of something done by the appellant in his professional
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capacity. Regard to this submission of counsel, it is to be noted thatdefamation is essentially limited to the case where words, or whatthe law regards as equivalent to words, are used concerning theinjured party, the use of such words constituting the injury. Mckerronin the Law of Delict, 6th edition, page 160, refers to defamation inthe following terms: "The wrong of defamation consists in the pub-lication of defamatory matter concerning another without lawful jus-tification or excuse. The wrong may be committed not only by words,written or spoken, but also by acts; for example, by the exhibitionof a picture or effigy holding up another to ridicule or contempt. Inpractice, however, defamatory imputations are usually made throughthe medium of language, …" Therefore, it may be observed thataccording to most writers, defamation may be described briefly as thatspecies of injuria in which the character of a person is assailed orhurt, ie defamed, and brought into ill-repute, by the use of language,ie words, written or spoken, and with the intent of so defaming him.In the circumstances it would appear that a mere assault will notconstitute defamation.
Therefore, having carefully considered all these matters as referredto above, I see no reason to interfere with the decision of the learnedDistrict Judge. Accordingly, this appeal is dismissed with costs.
GUNAWARDANA, J.
I agree with the judgment proposed by my brother. I only wishto add this, that is, that an assault or unlawful personal attack wouldnot be tantamount to defamation because the tort of defamationconsists in the publication of defamatory words concerning anotherwithout lawful justification. However, one cannot be oblivious to thefact, which is well-known, that a man may defame another by hisacts no less than by his words. It has been said thafone may “conveya libel in a frown. And wink a reputation dowrf'.
Appeal dismissed.