063-NLR-NLR-V-58-DAWITH-APPUHAMY-Appellant-and-1-THE-ASSOCIATED-NEWSPAPERS-OF-CEYLON-LTD.-.pdf
1956Present: Basnayake, C.J., and Gunasekara, J.DA WITH APPUHAMY, Appellant, and (I) THE ASSOCIATEDNEWSPAPERS OP CEYLON, LTD., (2) G. J. PADMANABHA(Editor, “ Ceylon Daily News Respondents
S. O. ISr—D. G. Colombo, 26,617/J/
Defamation—Newspaper report—Privilege—Animus injurtnmli.
In. nn action for defamation against a newspaper in respect of a report ofcertain remarks m.aclo by a Magistrate concerning tho plaintiff in tho courseof nn inquiry into a petition for n mandate in tho nature of a writ of habeascorpus that had been presented to tho Supremo Court, it was shown that thoreport was fair and substantially accurate ami that it was published shortlyafter tho remarks were mado in open court.
Held, that tho circumstances negatived anintus injuriandi and that tho reportwas privileged.
A.PPEAL from a judgment of tlio District Court, Colombo.
Sir Lttlila Ittijapaksc, Q.G., with F. R. Dins, for the plaintiff-appellant.
II. V. Perera, Q.C., with G. T. Samerawickrc.me, for the defendant-respondents.
Cur. adv. vult.
May 11, 1056. Gunasr:Kara, J.—
This is an appeal from a judgment and decree of the District Court ofColombo dismissing an action for damages for defamation. At tho closeof tho argument we dismissed the appeal and said that we would give ourreasons later.'
The action arose out of tho publication in a Colombo newspapersthe Ceylon Daily News, of which the respondents were the proprietor andthe editor respectively, of an account ofan inquiry held in the Magistrate’sCourt of Kandy into a petition for a mandate in the nature of a unit ofhabea-s corjms that had been presented to the Supremo Court by oneKeen Banda on the 5th November 1951. Heon Banda alleged in hispetition that a young woman named Ram Menika, who ho claimed wasIiis sister, was being improperly detained in the custody of MuhandiramDawith Appuhamy, tho appellant. The petition was referred by a judgeof this court to tho magistrate for inquiry and report, under the provi-sions of section 45 of the Courts Ordinance (Cap. 6), and the magistratemade his report on the 24th March 1952. Tho action was brought inrespect of an account, of the proceedings before t-lie magistrate that wagpublished in the Daily News of the 31st March.
11LVIII
2J. X. B 63917-1,593 (2/57)
Q U.YASJS itAR A, JDairith AppuJwmy v. Associated Newspapers oj
Ceyl-m Ltd..
Tho cause of action is set out in the 6th and 7th paragraphs of theplaint in the following terms :
"6. On the 31st March 1052 the Defendants published in tireCoylon Daily News a report headed ; ' Child slavery says Magistrate * :
‘ Shameful behaviour of Muhandiram deplored Tlicy further re-ported under the said heading as follows :
It is disgraceful and shameful behaviour oil the part of one whoconsiders himself a social worker and it amounts to nothing lessthan child slavery to adopt such an attitude to a girl who had servedhim for seven years’ said the Kandy Magistrate Mr. T. QuentinFernando to Muhandiram A. W. Dawith Appuhamy at- an inquiryinto a Habeas Corpus application.
. A copy of the said 'Ceylon Daily News ’ dated 31st March 1032 isannexed hereto marked ‘ A ’ and pleaded as part- and parcel of thisplaint.
7. The Plaintiff states that the said report which refers to thePlaintiff is false and malicious and defamatory of the Plaintiff andthat the statements alleged to have been made by the Magistrateof Kandy as set out in paragraph 6 above were at no time made bythe said Magistrate. The said report has caused serious damage to thoPlaintiff’s reputation which the Plaintiff assesses at Its. 100.000 but ,the Plaintiff restricts his claim in this action to Its. 50,000 ”.
The respondents admitted the averments in paragraph G of the plaintand denied these contained in paragraph 7. They also pleaded that thepublication was made without- animus injnriandi and was a fair andaccurate report of the remarks made by the magistrate, and that it wasprivileged.
Ram Menika was about 24 years of .age at tho time of the inquirybefore the magistrate. The evidence that has been accepted by the-district judge proves that- she was at that time a domestic servant inthe employ of the appellant’s mother-in-law, Mrs. Charles Appuhamy,'that from the age of seven she had been with that lady, and that- she hadat no time been in the appellant’s custody or in his employ. Theappellant, who was named as the 1st resjmndcnt in Hccn Banda’s petition,and Ram Monika, who was named as the 2nd respondent, appearedbefore the magistrate on the 3rd December 1951 in obedience to noticesrequiring their attendance at an inquiry into the petition : but thepetitioner himself had not been served with a notice and was absent,and the magistrate directed re-issue of a notice on the petitioner and alsodirected that- the appellant should appear on the date of inquiry. Kven-tually all three parties appeared before tho magistrate on the ISthFebruary 1952. The magistrate’s record of that day’s proceedingsshows that. Ram Menika said that she was staying with Mrs. CharlesAppuhamy, that she did not- know the petitioner to bo her brother, asshe had left home when she was about- 7 years old and she was now 24,and that she was not willing to go with him but was willing to go with
her maternal uncle if lio wished to take her. The magistrate directedthat the case should be called on flic 10th March 1952. On the 10thMarch he niado tin’s order :
“ 1st respondent will appear on 24—3—52. 2nd respondent is willingto go with her uncle Pi nil a my and both will appear in court on 24-3-52.Mrs. Charles .Appuhamy will also appear on 24—3—52 ”.
The record of the proceedings on the 24th March reads as follows :
24-3-52
Petitioner. W. Hccn Panda
Respondents. 1. Muhandiram A. XV. Dawith Appuhamy
IT. Pam Meniko
Sgd.
Mag.
1st respondent denies that he had the custody of llie child.
Report
The 2nd respondent left with her uncle Pinhamy on 10—3—52. Iasked the parties to appear in Court on 24-3-52 with a view of gettingthe 1st respondent or his mother-in-law Mrs. Charles Appuhamj'- tomey in the girl’s name or to transfer a property inthe services tendered by the girl for a period of 7ved under them. They were not prepared to do that.
1 S. 0.
(Signed)
Magistrate ”
It is in ait account of tho proceedings held before the magistrate on the24th March that the words quoted in the plaint appear.
Tho main question of fact that arose for the district judge’s decisionwas whether the magistrate. Mr. Fernando, did utter these words.Mr. Fernando himself, who was called as a witness for the defendants,said that, he did, and his evidence was accepted by the learned judge.It was contended for the appellant- that this evidence should not havebeen accepted.
One of the grounds upon which this contention was based was that tholearned judge had found that there were other matters in regard to whichhe could not rely upon Mr. Fernando’s recollection. But it is clear fromthe judgment that this was a circumstance that- tho learned judge hadconsidered. before he accepted Mr. Fernando’s evidence on this point-.He states in his judgmc.nt :'' ’ .
.“ Mr. Quentin Fernando himself says that lie dicl make the remarks.
I would have hesitated to act upon that statement if the only occasion
thereafter on which ho had any reason to recall to mind tho remarks' he made was the day on which ho gave ovidcnco in the witness box.He, however, says that lie had good reason to remember his remarksbecause he read tho newspaper roporb which appeared on tho 31stMarch 1952 in tho Daily News on that day itself. Any judgo who didnot make remarks of this nature is not likely to forget tho fact thata newspaper report attributed to him words he never uttered
It appears that Mr. Fernando’s attention was again drawn to this news-paper report within a couple of months, when ho was interviewed by arepresentative of the pajier to ascertain from him if the report wasaccurate. In a letter of demand written to the respondents on the 19thMay the appellant’s proctor had said :
'■ The statements attributed to the Magistrate in the said reportarc false and incorrect and I am instructed that such statements areat no time made by the Magistrate. Tho report in question has causedserious damage to my client ’s reput ation ”.
A representative of the Daily News inter viewed Mr. Fernando on tho 24thMay 1952 and told him of this allegation and showed him a cutting of thenewspaper report, and Mr. Fernando told him that the report was subs-tantially correct and that lie was prepared to give evidence to that effect-.Referring to the evidence about this interview tho learned districtjudge says :
"Apart, therefore, from- the fact that the learned Magistrate wasable to recall wiiat he said when ho read the Press report on the 31stMarch 1952, ho was further able to fix his mind upon that questionby reason of the fact that the representatives of the Daily News inMay 1952 saw him again with the same.report and informed him thatthere was a possibility of action being filed. Tho learned magistratehad then, waiving such privileges as he had, said be was prepared t-ogivo evidence. Though, therefore, there is no minute of what thelearned magistrate actually said in tho record of the Court proceedings,the fact that his mind and his attention were dr aval to the matter so" soon thereafter would, without doubt, have enabled him to rememberthe actual words he used
The. learned counsel for the appellant also urged that Mr. Fernandocould not have made the remarks in question becauso the-ro was noevidence before him that Ram Menika had ever been employed by theappellant. It appears, however, from Mr. Fernando’s record of the pro-ceedings held before him on the 2-ltli Marc-li 1952 that he bad, howevererroneously, come to tire conclusion that- Ram Menika had been in theservice of.both tho appellant and Mrs. Charles Appuhamy and that liethought that one of them should remunerato her for her services.
Another circumstance that was relied upon in support of the argumentthat Mr. Fernando's evidence should not have been accepted was thattho reporter who is said to have taken down his remarks was not calledas a witness though he had been summoned and was present at the trial.
Although the reporter may have been able to confirm or contradict^Ir. Fernando’s account of what he said on tho occasion in question Xdo not agree that the fact that he was not called to give evidence is asufficient ground for holding that the district judge should not havebelieved the magistrate's evidence.
The learned district judge has accepted 3[r. Fernando’s evidence on tjioquestion of the accuracy of the newspaper report after a very carefulconsideration of all tho evidence in the case and there appears to bo nosufficient ground for disturbing this finding of fact.
There is also no ground for disturbing the district judge’s finding thatthe newspaper report was a fair and accurate report of tho remarksmade by tho magistrate. They were remarks mado in a judicial pro-ceeding, for they were made in the course of tho inquiry that was beingheld by the magistrate into Heen Banda's petition, the proceeding was-one held in open court, and the report was one published shortly after-wards. These circumstances must be taken to negative animus in-juriandi ; for reports of proceedings of courts of law “ stand in a classapart by reason that the naturo of their activities is treated as conclu-sively establishing that t he public interest is forwarded by publication ofreports of their proceedings ” h Xathan observes that (in authoritativeworks on Roman-Dutch Daw) the principle appears to have been ap-proved of that a certain measure of protection should be accorded to fair-reports of proceedings in the Courts of Justice, on the ground ilia t as-such proceedings, by the authority of the State, are open to the publicat large, it is desirable that they should receive as much publicity aspossible, in order that the citizens should have the opportunity of formingan opinion for themselves regarding what takes place in tho Courts,and should become accustomed to the manner in which justice isadministered There is no evidence of malice in tho publicationand the plea of privilege ” has been established.
For these reasons the appeal was dismissed with costs.
Basnayaick, C.J.—
I agree with the Judgment- of my brother Gunasckara.
I wish to add that the learned trial Judge has made a careful examina-tion of the evidence and I am in entire agreement with his finding offact that the publication is a fair and substantially accurate report of theproceedings before the Magistrate.-
The only question for decision is whether the report is privileged.It is well established that newspapers and newspaper reporters enjoy a.qualified privilege in respect of fair reports of proceedings of Courts ofJustice. By “ proceedings ” is meant such of tho judicial business asis conducted in open Court. The privilege docs not attach to reports ofanything that has not transpired in open Court.
1 Perera v. Peiris (JOJS) 50 N. L. J?. 115 at 159.
– The Law of Defamation (19-33) pp. 241-212.
The principle governing the privilege is thus stated by Barry J.P. inWebb v. Sheffield1'‘
" Though the publication of injurious words was taken to be evidence■of an intention to injure, inferred from publication, even though■such intention was really absent, still it was of public importancethat cases heard in Court should bo reported by newspapers, and thepublishers held blameless for any injurious sta tements made, if reportedwith fairness and substantially accurate, because the necessity forpublicity of legal proceedings took precedence over private interests. ”
In the same case Shippard J. stated :—
“ There is no proposition of law more (irmly established than tliis,that a fair report of a trial in a Court of law is privileged, nor canwc allow it to bo questioned. In order to be privileged, the report-must be substantially correct and impartial ”.
Learned counsel for the appellant challenged the accuracy and fairnessof the report. He stated that the speeches and addresses of the pleaderswho took part in the case and the other matters that were stated by theMagistrate should have been reproduced in the newspaper.
There is no obligation on a newspaper to publish the entire proceedingsof a case in order to come within the ambit of the privilege, nor need thereport be verbatim so long as it fairly reflects tho proceedings and issubstantially correct. Tho report should bo a fair account of whathappened and should not be coloured by the personal views of the reporteror by his partiality or hostility to any of the parties. A report may becondensed if the above requirements arc observed.
Appeal dismissed.