014-SLLR-SLLR-1982-2-INDEPENDENT-NEWSPAPERS-OF-CEYLON-LTD-v.-WICKREMASINGHE.pdf
Collettes Ltd. v. Bank of Ceylon (Sharvananda. J.)
51?
.VC
INDEPENDENT NEWSPAPERS OF CEYLON I.TD.
v.
WICKREMASINGHE
COURT OF APPEAI.
ABDUL CADER, J.. AND L. H. DE ALWIS. J.
A. S.C. 252/73.
C. COLOMBO 67718/M.
MAY 6 AND 10, 1982.
Delict – Defamation – Publication of report of biased committee – Privilege -Public interest
The defendant who was the owner of a national daily published a report of aSub-Committee appointed by the Weudawila M.P.C.S. Union to probe intoirregularities of their predecessors. Wickremasinghc filed action against thenewspaper alleging that the report was defamatory of him. It was found at thetrial that the report was made by a biased body and that the Chairman wasignorant of the fundamentals of a proper inquiry and the rules governing theadministration of the Union. It was also found that the alleged offenders wereeither not invited to participate or to give •vidence at the inquiry and that itwas this Committee which charged the plaintiff with corruption and malpractice.The plaintiff filed action for defamation. 1 he District Judge held in favour ofthe plaintiff and awarded damages. The defendant appealed to the Court of Appeal.
Held –
That the report prepared by the Sub-Committee was not a matter of publicinterest to afford its publication the plea of privilege.
That the defendant acted recklessly and failed to satisfy itself that the variousrequisites of a fair inquiry had been followed and that the inquiry had beenheld by a competent impartial body on whose judgement reliance could.be$!• '-ed.
520
Sri Lanka Law Reports
(m2) 2 Ji.L.R.
Cases referred to:
M.G. Perera v. A.V. Petris (1948) SO N.L.R. 145.
David v. Bell et at (1913) 16 N.L.R. 318.
APPEAL from judgment of the District Court of Colombo.
H.L. de Silva, S.A., with Ben Eliyathamby and S.L. Gunasekera for thedefendant-appellant.
Nimal Senanayake, S.A., with Miss. S.M. Senaratne and Arunatilake de Silva forplaintiff-respondent.
Cur.adv.vult.
June 29. 1982ABDUL CADER, J.
The plaintiff was the President of the Executive Committee of theWeudawila Multi-Purpose Co-operative Society Union, Kurunegala,from 17th February, 1964 till 2nd March, 1965 (Plaint). This Committeewas voted out of office and a.new Committee took over whichbelonged to a rival political group and the Committee appointed aSub-Committee “to probe into the irregularities committed by theExecutive Committee which held office during the period 27.2.64 to22.5.65” (D2). This Sub-Committee inquired into the allegedirregularities jand produced , its report. To this inquiry, the plaintiffwas not invited to participate or to give evidence. The defendantpublished the report of the Sub-Committee. The plaintiff filed actionfor defamation against the defendant and the defendant put forwardseveral defences:
Defendant denied that the plaintiff was the person referredto in the publication;
Defendant denied the accuracy of the'translation of the newsarticle set out in the plaint;
The words in the said article were statements of fact andtrue in substance and that they were a .fair comment uponmatters of public interest;
It was published on a privileged occasion.
Issues were framed on all these aspects after the defendant admittedthe publication of the said article. The newspaper itself which containedthe article was produced marked “PI” without objection. The learnedDistrict Judge after trial held in favour of the plaintiff and awardeddamages in a sum of Rs. 15,000/-.’
CA Independent Newspapers of Ceylon l.td. r. Wiekratnusinphe (AhJul < ader, J.)521
Before us, Counsel for the appellant made the following submissions:
If the publication was privileged, it would be a sufficientdefence if the defendant ^reproduced the report accurately;
The plaintiff pleaded in the plaint the translation in Englishand not the Sinhala publication complained against;
The translation was not proved, though it was challenged;
Though the plaintiff stated that various friends questionedhim as regards the article, he did not call any witness tosupport his contention that he was the person referred to inthis article, especially Ekanayake and Abeyratne whom theplaintiff referred to as his witnesses;
Counsel conceded that the learned District Judge was right whenhe held that the defendant was not entitled to the defence of faircomment, but submitted that the Judge was wrong in deciding,because the defendant failed to prove the truth, that a privilege didnot exist. He agreed that if public interest is not proved, the pleaof privilege fails, but contended that since this Co-operative servedthe public, the Union owed a duty to the public to be abovecorruption and nepotism and, therefore, the publication of the reportreferring to corruption and nepotism was a matter of public interest.While Counsel for appellant conceded that the answer to issue No.7is correct, he submitted that the answer to issue No.8 was wronginasmuch as the plea of privilege should prevail. I
I shall now consider the various submissions made by Counsel forthe appellant. As regards 2. it was a translation that was filed andnot the original publication itself, but no issue was raised in respectof this contention, the only issue raised being issue No.6 in respectof the correctness of the translation. There is issue No.5 which readsas follows:
“Does the said article refer to the plaint?”which has been answered by the learned District Judge in theaffirmative which I take it to mean “Does the said article refer tothe plaintiff?” Counsel for the plaintiff contended that if this objectionhad been raised at the trial, he would have had an opportunity toamend the plaint. As I have stated earlier, before the issues wereframed, the newspaper in which the offending article appears hasbeen produced marked “PI” without protest.
There was no evidence that the Hon. Minister of Justice haddirected that Sinhala shall be used for pleadings filed of record in
522
Sri iMnka Law Reports
<m2) 2 S L R.
this'Court. (Language of the Courts Act, No.3 of 1961). 1 do notthink that the appellant can raise this issue at this stage.
As regards the unsatisfactory translation, no prejudice has beencaused to the appellant as the learned District Judge himself, havingcommented on the unsatisfactory nature of the translation, followedthe original Sinhala text to make his order.
As regards the question whether the plaintiff has been properlyidentified as the person referred to in this article, there is theplaintiffs evidence that he was the President of this particularM.P.C.S.Union from February, 1964 to March, 1965; that it had itsheadquarters at Kurunegala; that he ceased to be the President inMarch, 1965, after the new elections; that the article in questionreferred to him; that the article referred to a Committee headed bythe former Member of Parliament of the former Coalition Government;that there were 3 members for this area, of them the M.P. forDodangaslanda and M.P. for Kurunegala were not members of thisUnion and that he was the only Member of Parliament who was amember of this Committee from 1964 to 1965.. He has submitted,therefore, that all these details were sufficient to identify him as thehead of this Committee which was subject to corruption and nepotism.
Counsel for the appellant particularly referred to the fact that thereis no evidence of any other person to identify the plaintiff as theperson referred to in this article, but 1 am of the view that suchfurther corroborative evidence would not be necessary when on thematerial contained in the article the learned District Judge had nodifficulty in identifying the plaintiff as the person referred to. In anyevent, if it was the defendant's contention that the person referredto therein is someone other than the plaintiff, it was open to thedefendant to have led evidence of that fact. On the other hand, itwas not even put to the plaintiff that that reference could well applyto someone else. I should not be misunderstood to mean that I amcasting by these remarks a burden on the defendant. All that I wishto say is that when there was ample evidence for the identificationof the plaintiff as the person concerned, the learned District Judgewas justified in holding in favour of the plaintiff.
' Getting on to the publication itself, paragraph 2 of “PI” is to theeffect’that the previous committee had acted in contravention of therules, regulations and conditions of the society, went on private tripswith' the funds of the society, recruited non-essential persons asemployees and took away goods from sales establishments without
( A Independent Newspapers of l evlon l.nl r. Wiekrtinnisinphe I Al'ilttl ( ai/er, J.)523
paying for them. (I am quoting from a translation supplied to meby Counsel for the defendant at my request.) The. report concludesas follows:
“The new Committee has provided facts about those responsiblefor all losses, damages, irregular payments and acts of corruptionthat hiivc occurred to date."
1 do not need to state that if these statements are not true, theyare obviously defamatory unless they arc privileged.
Counsel has admitted that the plea of fair comment has failed astruth has not been proved. He has only depended on the plea ofprivilege. 1'he question when the plea of privilege would lie has beendiscussed,in the case of M.G. Percra v. A.V. Peiris. (1) Lord LIthwatt,at page 158, states as follows:
"Where the words used are defamatory of the complainant,the burden of negativing animus inj.uriandi ■ rests upon thedefendant. Their Lordships' attention has not been drawn toany case under the Roman Dutch Law or the common lawwhieh exactly covers the point at issue. Both systems accordprivilege to fair reports of judicial proceedings and of proceedingsin the nature of judicial proceedings and to fair reports ofparliamentary proceedings,"
He stated that their Lordships did not wish to consider whetherproceedings before the Commissioner fell within one or other ofthese categories, but that they would relate their conclusions to thewide general principle which underlies the defence of privilege. Hewent on to state that in the case of reports of Judicial and Parliamentaryproceedings, the basis of the privilege is that it is in the publicinterest that all such proceedings should be fairly reported. He wenton to hold that the reports of some bodies which were neither judicialnor parliamentary in character stand in a class apart by reason thatthe nature of their activities is treated as conclusively establishingthat the public interest is forwarded by publication of reports of theirproceedings. As regards reports of other bodies, the status of thosetaken alone is not conclusive and it is necessary to consider thesubject matter dealt with which the Court is concerned. If it appearsthat it was to the public interest that the particular report shouldbe published privilege will attach.
Adopting these principles, I am not in a position to hold (hat thepublication would fall within the ambit of these principles so as
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(1982) 2 S.L.R
to attach to it a privilege. The sub-committee which held the inquiryand made the report in this case was obviously a biased body. Atthe trial, it was disclosed that the Chairman did not even know thefundamentals of a proper inquiry and the rules governing theadministration of a union. There are statutory provisions for co-operativeofficials to hold such inquiries to which recourse was not had, butinstead some unofficial members of a committee held an'inquiry towhich the alleged offenders were not invited either to participate orto give evidence or to examine the witnesses who made allegationsagainst them. Jt,was such a committee which came to such far-reachingconclusions,, charging the plaintiff and others with various acts ofcorruption and malpractices referred to above by me.
In the case of Davidv.Bell etal (2), Pereira, J. stated as follows:-
“Now. malice, in modern English law, signifies practically nomore than the absence of a just cause or excuse; and, asobserved by Morice in his work on English and Roman-DutchLaw, just as malice, in the English law of defamation, haslost its definite meaning, so animus injuriandi seems, in itspractical application, to be reduced to something far short ofthe intention or desire to injure. It has been found to beimpossible to make the mental state of the defendant thepractical test in a case of defamation; and in such a casereckless or careless statements are therefore taken as proof ofthe animus injuriandi.”
He went on to hold that. malice can only be refuted by showingthat the occasion was privileged, or that the words used are no morethan honest and fair expressions of opinion on matters of publicinterest and general concern.
1 am of the view that a report prepared by a sub-committee ofthis nature 1 have referred to is not a matter of public interest toafford that publication the plea of privilege.. I also take the viewthat when the defendant published the document, the defendant actedrecklessly and failed to satisfy itself that the various requisites of afair inquiry had been followed and that the inquiry had been held-by a competent, impartial. body on whose judgment reliance couldbe placed. I have, therefore, come to the conclusion that the learnedDistrict Judge was justified in awarding damages to the plaintiff.
As regards the quantum of damages, the plaintiff has stated thatthe defendant’s paper “Dawasav is widely read in the Mawathagamaarea which has not been challenged or contradicted. Under t,he
CA
hulependvnt Newspapers of Ceylon Ltd. r. H it kruinustn>hr {Ahdui Cadcr. J J 525
circumstances, damages ordered by the learned District Judge arenot, in my opinion, excessive.
I dismiss the appeal with costs.
H. DE ALWIS, J. — I agree.
Appeal dismissed.