062-NLR-NLR-V-62-N.-W.-DE-COSTA-Appellant-and-THE-TIMES-OF-CEYLON-LTD-and-another-Responden.pdf

The literal English translation of the said Words is as follows :—
The people of Kotte question as to why an assistant teacher whocarried on a powerful campaign requesting the children of a certainBuddhist School in Kotte not to pay the facilities fees is enforcing thepayment (of facilities fees) on becoming the Principal.
BASNAYAKE, C.J.—-Af. W. de Costa v. The Times of Ceylon, Ltd.
267
In a letter in Sinhalese headed
(Ananda Sastralaya) purporting to be written and signed by one
(C. Mahindapala Boteju) and published in the issue of theXiahkadipa dated 23rd December 1955, the words following, that is to say :

The literal English translation of the said words is as follows :—
(а)… It was when the present Principal was an assistantteacher in the same school that the children were encouraged not topay and led astray.
(б)… The fact that black stains are sprinkled on the glory
that was of the school can be seen from the talks that go on at the (road)junctions here. The staff is opposed to the Principal ; exceptingone third all the rest of the students are opposed to him.
In a letter in Sinhalese purporting to be written by one
(Kitsiri Ameratunga) and published in the issue of theLankadipa dated 3rd January 1956 the words following, that is to say :

The literal English translation of the said words is as follows :—
As a past student I know that it was the present Principal whomade the students disobedient and act as rebels.
Everyone who was at the Sastralaya during the time of the Principal-ship of Mr. B. Wiekremasinghe knows that it was the present Principalwho set the children against the then Vice-Principal Mr. Alagiyawannawho is now the Principal of Sri Sumangala Vidyalaya, Panadura.
To obstruct the work of the school the present Principal, who wasthen an assistant teacher, induced not only the students but also theirparents not to pay facilities fees. It is not a secret as to who got thestudents to write the Anti-Alagiyawanna slogans on the schoolbuildings.

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BASNAYAKE, C. J.—,W. TV. de Costa, v. The Times of Ceylon, Ltd.
" 7.(i) In a paragraph written in Sinhalese headed
(Resigns as he is unable to do Sinhalese) in the issue of theLankadipa dated 8th May 1956, the words following, that is to say:

The literal English^translation^of the said words is as follows :—
Mr. N. W. de Costa, Principal, Ananda Sastralaya, Kotte, has retiredfrom the post of Principal. He who has a degree in Indo-Aryan hasretired on full pension under the regulation for retirement due to his .inability to teach in Sinhalese. The Sinhalese book titled‘ TJHBHIDA V1DYAWA ’ is a book written by him. In a veryshort time he will be leaving for America to teach English.
(ii) In a letter in Sinhalese headed
(The Principal, Ananda Sastralaya, Kotte) purporting to be written andsigned by one “ e$c3©e&ad ” (K. Jayasekera) and published in theissue of the Lankadipa dated 11th May 1956, the words following, that isto say :

The literal English translation of the said words is ps follows :—
It was published in the Lankadipa that Mr. N. W. de Costa, Principal,Ananda Sastralaya, Kotte, retired on the ground of inability to teachin Sinhalese. He has an external degree in Indo-Aryan of theUniversity of London. The book titled * UDBHLDA VEDYAWA *which is accepted by the Educational Publications Board is writtenby him. But it is a wonder to the people of Kotte and Horana asto how he retired with full pay. Though he did not go to school forthe whole of last term he worked hard at Kotte and at Horana fora certain political party. Further, he issued leaflets under his name.

BA&NAYAJKE, C.J.—JV. W. de Costa v. The Times of Ceylon, Ltd.
269
It is not difficult for the Education Minister and the FinanceMinister of the New Government to know hoW he could retire during'the time of the election though his previous attempts to retire wereunsuccessful. ”
The defendants pleaded justification, qualified privilege, fair comment,and absence of animus injuriandi.
The plaintiff appeared in person and argued his appeal. He explainedthat he had exhausted nisi resources at the trial and had not the meanswherewith to retain counsel for the appeal. He presented his case withmoderation and with care and did justice to his case. He urged that someof the findings of fact against him should be reversed.
It is well settled that questions relating to defamation fall to be deter-mined in this country according to the principles of Roman-Hutch law.When approaching questions of Roman-Hutch law, especially in a branchof law like defamation it is well to bear in mind the words of Hord Tomlinin the case of Pearl -Assurance Company Ltd. v. Government of the Unionof South Africa 1—
“ In the first place, the questions to be resolved are questions ofRoman Hutch law. That law is a virile living system of law,ever seeking, as every such system must, to adapt itself consistentlywith its inherent basic principles to deal effectively with the increasingcomplexities of modern organized society. That those principlesare capable of such adaptation caiinot be doubted, and, while it wouldbe idle to assert that the development of the Roman Hutch law inthe territories now constituting the Union has not been affected appre-ciably by the English law, yet in their Lordships’ judgment, approachshould be made to any question governed by Roman Hutch law with-out any fetter imposed by recollections of other systems, and throughthe principles of Roman Hutch law alone.
“ The fact that the solution of a particular problem reached by theRoman Hutch law bears a similarity to the solution provided by anothersystem does not necessarily indicate any imposition of the rules of onesystem upon the other, but. may be cogent evidence of a resemblancebetween the relevant basic principles of the two systems. ”
The existence of well-annotated standard treatises on the law ofdefamation in England and America is a great inducement for lawyersand judges almost instinctively to resort to them for the solution ofproblems which should be solved according to the principles ofRoman-Hutch law. At the same time I do not wish to be understood assaying that under no circumstances should we examine the decisions ofcourts of other jurisdictions when called upon to solve an intricate questionof law in our system. Rut the tendency to resort to English and Americantreatises and decisions without first endeavouring to solve the problems
(1934) A. C. 570.
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BASNAYAICE, C.J.—-ZV. W. de Gosta v. The Times of Ceylon, Ltd.
that arise according to Roman-Dutch, law should be resisted. Melius DeVilliers’s Treatise on the Law of Injuries and Manfred Nathan’s Treatiseon the Law of Defamation in South Africa afford considerable assistancein ascertaining the Roman-Dutch law as developed in South Africa.
Of the Roman-Dutch Law writers Voet alone discusses the law in detail.For this reason Voet has been cited and followed by the Privy Counciland the courts both here and in South Africa. I shall therefore not referexcept in passing to Van der KLeessel, Van der Linden, Groenewegen, orVan Leeuwen. As for Grotius, I think, his definition of defamation is-important and should be reproduced. (Grotius, Bk. Ill Ch. XXXVTSection II, Herbert’s translation, p. 447). It reads as follows :—
“ In tnis respect all parties are liable who either verbally or in writing,in presence or absence, secretly or openly, publish anything whereby aman’s honour is injured even were the same true ; except when thesame is notified to the authorities for the punishment of the offence. ”
The expression “ honour ” in this context is used in the sense of the goodopinion others have of us.
The kind of defamation that arises for consideration in the instant case,viz., publication by a newspaper to all and sundry, is the type of defa-mation known to Roman-Dutch law as Famosis libellis and falls into theclassification of Injuria litter is. (Voet 47. 10.10—7 Gane 226)—
“ A wrong is done by writing when a person has assailed the repu-tation of someone by handing a screed to the Emperor or to another ;or with a view to the contemning and mockery and loss of reputation ofsomeone has made up, published, noised abroad, made known to othersor printed an information, narrative, comedy, screed or jingle ; orhas -with evil intent brought about the happening of any ofthose things. ”-
Now when dealing with this type of defamation it is well to bear inmind that in this country a newspaper enjoys no greater right than theindividual citizen. The following words of Lord Shaw in the case ofArnold—The King Emperor of India 1, though expressed in a criminal casein relation to Burma, can with equal force be used in relation to Ceylon—
“ The freedom of the journalist is an ordinary part of the freedomof the subject, and to whatever lengths the subject in general may go,so also may the journalist, but apart from statute-law, his privilegeis no other and no higher. The responsibilities which attacn to hispower in the dissemination of printed matter may, and in the case of aconscientious journalist do, make him more careful ; but the range ofhis assertions, his criticisms, or his comments, is as wide as, and nowider than, that of any other subject. No privilege attaches to hisposition. ”
1 (1914) 30 T. L. R., p. 462 (Privy Council).
BASE"AYAKLE, C-J.—N. W. de Costa v. The Times of Ceylon, Ltd.
271
The learned District Judge appears to have overlooked this aspect ofthe law when he held that the 1st and 2nd defendants as proprietor andeditor of the “ Lankadipa ’* respectively had a common interest with thepublic and owed a duty to. the public—
to publish information on matters of general importance andpublic interest,
to allow the use of the columns of the “ Lankadipa ” for thebona fide discussion by members of the public of matters ofgeneral importance in the public interest.
The learned District Judge is wrong in thinking that the press has pri-vileges which the ordinary citizen has not. Defamation by the writtenword is more serious than defamation by the spoken word ; because aperson who writes matter which is defamatory has time to thinkand therefore his act is deliberate.
On account of the wide publicity that defamatory matter published ina newspaper receives and of the serious consequences of such widepublicity to the person defamed, a defamation committed by a news-paper is a more serious infringement of a person’s rights than a merepublication in writing to a third person. Defamation by a newspaperfalls within the class of savage wrongs {atrox injuria) referred to by Voetin 47.10.13 (7 Gane 231). He says that a wrong is more savage whenwreaked in the theatre or in a public meeting place.
In our law defamation is a species of injuria. Injuria is defined byVoet (Bk47.10, s. 1—7 Gane 204) as a wrong-doing committed in contemptof a free human being and by which his person or dignity or reputation isinjured with evil intent. There are four ways of inflicting injuria,viz., by act, bywords, in writing and by agreement with another (Voet47.10, s.7). Each of these divisions of injuria is discussed in detail byVoet in the title to which I have already referred. Eor the purpose ofthis judgment I shall confine myself to injuria liiteris. This injurialilleris is committed when a person has assailed the reputation of anotherby publishing to a third person matter intended to bring him intocontempt, ridicule or hatred animo injuriandi.
As the use of the word defamation in relation to injuria., by words, inwriting or by pictorial representation is now established it might be aswell to define it. Defamation is the publication of any matter with theintention (animo injuriandi) of injuring another in his fair name and re-putation, or of bringing him into hatred, contempt or ridicule or oflowering him in the esteem of others. Animus injuriandi is the intentionto produce the consequences of one’s act or the frame of mind of a personwho knows that the commission of a certain act will reflect injuriouslyon another, yet does not refrain from the commission of the act. Sucha person cannot rightly assert an absence of intention (Voet 47.10.20).
In our country animus injuriandi is an essential element of defamation(Perera v. Peiris l1. This is in keeping with the principle Nemo jacit
1 (1948) 50 N. L. B. 145 (B. C.)
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BASNAYAKLE, C.J.—N. W. de Costa, v. The Times of Ceylon, Ltd.
'injuriam nisi qui scit se injuriam fctcere. Affedus, non eventus, distin-guit maleficia. The South African decisions also show that in that countrytoo the courts regard animus injuriandi as essential. (See the casesreferred to in the judgment of Gregorowski J. in Jooste v. Claassens 1and Laloe Janoe v. Bronkhorst )2. The law presumes that a man intendsto produce the natural consequences of his own act. Animus injuriandibeing a state of mind has in the generality of cases to be inferred fromthe words and the occasion on which and the context and the circum-stances in which they are used. Voet says (Bk 47.10.20—Gane, p. 242)that if the language uttered was such as in itself and in its proper meaningto inflict an insult, the intention to do a wrong is regarded as havingbeen present, and the burden of proof that a plan to wreak a wrong waslacking lies upon him who uttered such statements. The existence ofanimus injuriandi is presumed if the natural effect of the words, whenused in their ordinary sense, brings about any of the above results (G. A.Fichardt Ltd. v. The Friend Newspapers Ltd. )3 and it is for the personwho publishes the words to establish circumstances which rebut thepresumption (Botha v. Brink) 4.
In dealing with the Roman-Dutch law of defamation it is advisable assuggested by De Villiers (48 S. A. L. J. 467) to avoid such expressionsas “ malice ”, “ express malice ”, “ legal malice ”, “ implied malice ”,and “ actual malice ”. The expression “ malice ” in English law hasgiven rise to a great deal of misunderstanding and some of the Englishjurists, notably Pollock, have adopted the formula of absence of “ goodfaith ”, which is the expression used in section 479 of our Penal Code.In Roman-Dutch law for defamation to be actionable it is not necessary■that it should have entailed special damage or actual pecuniary loss to theperson defamed (Fradd v. Jacquelin),5. It is sufficient that his feelingshave been injured and that the writer intends to do so. (Boyd Moss v.Ferguson) 6.
In our law truth by itself is not a defence to an action for defamation.On this point Grotius (Bk. Ill Ch. XXXVI Section II Herbert’s trans-lation, p. 447) ; Groenewegen (Digest, Lit. XLVII Tit. X) ; Van Leeuwen(Commentaries on Roman Dutch Law, Ch. XXXVI1, Ivotze’s translation,2nd Edn. Vol. II, p. 295 ; Censura Eorensis, Bk. V Ch. XXV) ; and Vander Linden, p. 250 Juta’s translation, all take the same view. Van derKeessel’s opinion which is different (Van der Keessel Select ThesesDCCCII & DCCCIII ; Lorensz’s translation, pp. 293 & 294) ; appears fromthe context to have been expressed in relation to the criminal law ofdefamation.
In defamation by spoken words if the defendant can prove that whathe spoke is true and that they were for the public benefit or in the publicinterest he would not be condemned (Voet 47.10, s. 9) but Voet thinks
{1916) T. T. D. 723 at 737 et seq.
{1918) T. P. JD. 165.
{1916) A. D. 1 at p. 11.
8 Buch. 118 at 123.
3 Natal Law Reports 144 at 146.
{1876) Ramanathan Reports (1872—1876) p. 165.
33ASNAYATKLE, C.J.—N. W. de Coala v. The Times oj Ceylon, Ltd.
273
that even truth expressed for the public benefit or in the public interestis no excuse in defamation published to the public in writing (Voet 47.10,s. 10). But Voet’s view that even where truth is stated for the publicgood in a written defamation it is no defence has not been followed by thecourts both here and in South Africa. We have adopted the rule thatunless the defendant proves that the defamatory words are both trueand for the public good he cannot succeed. The plea that defamatorywords are true and for the public good is known as the plea of j ustification.The law on this point is well settled both here and in South Africa. Ourdecisions are Bastian Pulle v. David JBugens, Morgan’s Digest (1833—42)p. 117 at 123 and 2 Thomas Institute, p. 464. Those of South Africa areBotha v. Brink 1 ; Duming v. Queen 1 2 ; Patterson v. Engelenburg andWaMach’s Ltd. 3 4 ; Lyon v. Steyn *.
A plea of justification is not divisible. The defendant must prove bothelements truth and for the public good or in the public interest. If heproves truth alone and fails to prove the other element he fails altogether(Queen v. Shaw and Fennell5 ; Leibenguth v. Van Straaten) 6. Evenin the matter of proving truth partial proof is insufficient. The truth ofall the offending words must be proved (Gane, Voet 47.10, s. 9, Vol. 7,p. 225). Proof of rumour is not proof of truth of defamation (1938N. P. D. 277 at 302) (Van Leeuwen Censura Porensis 1.5.25) Jooste v.Glaassens (1916) T. P. D. 723 (Gane, Vol. 7, p.225).
Though truth by itself is not a defence to an action for defamation itwould in certain circumstance be relevant in the assessment of damages(.Daniel v. Denoon 7 ; Leibanguth v. Van Straaten) 8. In this respect ourcivil and criminal law are the same. The first exception to the offenceof defamation (s. 479 Penal Code) reads—
“ It is not defamation to impute anything which is true concerningany person, if it be for the public good that the imputation should bemade or published. Whether or not it is for the public good is aquestion of fact. ”
So much for the plea of justification. It is now necessary to examinethe defence of fair comment. This plea like the plea of justification isnot the peculiar privilege of the press. A newspaper has no greater rightto comment upon a public servant or officer or a person occupying, apublic situation than has the ordinary citizen.
An essential for this defence is that the facts on which the commentsarc based should be true and in the pubic interest or for the public good.The comments based on facts truly and fully stated must not come withinthe ambit of injuria verbis. If they do, the comments do not receiveprotection. Comment is not fair if the facts on which it is based are not
18 Buch 123.6 3 E. D. C. 323 at 327.
2(1905)T. H. 39.6 1910 T. P. D. 1203 at 1207-1208.
3(1917)T. P. D.350 at350.7 18 Natal L. R. 125.
4(1931)T. P. D.247 at251.8 (1910) T. P. D. 1203.
2-J. N. U 14070 (11/60)
274:
BASNAYAjBlE, C.J.—27. W. de Costa v. The Times of Ceylon, Lid.
accurate (Patterson v. Engelenburg and Wattach’s Ltd.) 1. Besides com"ments outside the stated facts cannot be regarded as negativing animusinjuriandi as the reader cannot judge for himself on facts which are notstated whether the comment does not constitute an injuria. Where theexpression of opinion depends upon nothing but the publisher’s ownauthority then the matter so expressed stands in the same positionas an allegation of fact (Poos v. Stent da Pretoria Printing Works Ltd.) a.
Before I conclude this summary of the relevant law I should state thata person is not entitled under the guise of truth and pretence of actingin the public interest to rake up another’s past. In such a case a heavyburden lies on the defendant to show how the resurrection of the pastserves the public interest. (Stanley v. Jtobinson 3 and Lyon v. Steyn 4.—Voet 47.10.9).
As the learned Judge has held that the plea of qualified privilege doesnot lie in the instant case and there has been no appeal from that decisionit is not necessary to consider that defence.
Keeping in mind the above principles of law I shall now turn to thedefamatory publications themselves and examine them one by one.The first is the publication of 5th December 1955. It reads—

The English version in the plaint reads—•
“ The people of Kotte question as to why an assistant teacher whocarried on a powerful campaign requesting the children of a certainBuddhist school in Kotte not to pay thefacilites fees is enforcing thepayment (of facilities fees) on becoming the Principal. ”
Now there is no evidence whatsoever that “ the people of Kotte ”raised the question referred to in the publication. The only evidencethat any matter was the talk of Kotte is in the deposition of the defen-dant’s witness Heendeniya. He was asked in examination-in-chief—“ The question of those admission cards, was it the talk of Kotte ? ”,and he answered “ Yes ”. Such a vague question and an affirmativeanswer to it do not establish the truth of the fact stated. It does notprove that in December 1955 the people of Kotte were agitated over thepast conduct of the plaintiff at all. The rumour itself is not proved. Buteven if it had been, as stated earlier, rumour is not proof of fact. Thecontents of the rumour must be proved which the defendants have failedto do. There is also no evidence that the plaintiff “ carried on a powerfulcampaign” requesting the children of the Ananda Sastralaya, which is'the School referred to, not to pay facilities fees. The testimony of thewitnesses Kirthisiri Ameratunga, K. Jayasekera, Wimalaweera Perera,and Dharmakirti whose evidence on this point the learned Judge has
1 1917 T. P.D. at 362-363.8 (1913) T. P. D. 202 at 107.
* (1909) T. P. D. 988.* (1931) T. P. D. 247 at 251.
BASNAYAKE, C.J-.—.W. TV. de Costa v. The Times of Ceylon, Ltd.
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accepted only shows that the plaintiff requested only those persons andsome others unnamed not to pay facilities fees. But their evidence doesnot establish that a “ powerful campaign ” was carried on by the plaintiff.The witness Heendeniya’s evidence, which is hearsay, even if it is treatedas relevant evidence, does not prove that the plaintiff was engaged in acampaign against the payment of facilities fees. In answer to thefollowing question : “ With regard to facilities fees you say you stoppedpaying because you were informed by your daughter that children hadbeen asked not to pay facilities fees ? ” he said “Yes ”, and added thatmost of the children were not paying. Again in answer to the question—“ It was in the middle of 1953 that you were told not to pay fees ? ” hesaid ‘*1 cannot remember. My children came and .told me not to pay,that others were not paying, that is all, and then I stopped paying thefacilities fees. ” On the other hand Bharmakirti’s evidence shows thatif there was a campaign against the payment of facilities fees it was heand not the plaintiff who carried it on. He says “ In 1953 I did not payfacilities fees. Mr. Costa asked me not to pay. I know he spoke to otherstudents also in my presence and asked us not to pay the fees. ”
“ Q : Hid he give any reason for you not to pay the fees ?
“ A : He told us that a part of the fees went to Mr. Alagiyawannaas an allowance and that we should not pay. I paid heed to his requestand stopped paying the facilties fees. Not only did I not pay, but Iwent to the other students and asked them also not to pay. Plaintiffasked me to go and convince others also not to pay. **
But strangely enough he says more than once that when the SeniorSchool Certificate candidates were not given cards they went acrossto him and threatened to beat him up saying that he was responsiblefor their not getting the cards because he had asked them not to pay thefacilities fees. Then, he says, “ I asked them not to assault me. Thenthey suggested that I should help them and I joined them and went to theRankadipa office first and from there to the Education Bepartment. ”In examining the truth of the allegation that the plaintiff carried on apowerful campaign against facilities fees it is relevant to look at theregister of collections which has been produced in evidence by the -witnessRatnaike, the Registrar of the School. He says that in 1952 the Schoolbudgeted for Rs. 25,000 and collected Rs. 24,000 in facilities fees. In1953 the year of the alleged “ powerful campaign ” they budgeted forRs. 19,000 and collected a little over Rs 19,000. The witness ICirthisiriAmeratunga who said that he did not pay the facilities fees in 1953because the plaintiff asked him not to do so has in fact paid Rs. 50 inSeptember and Rs. 50 in November 1953, while in the same yearK. Jayasekera has paid Rs. 120 in October, November and Becember,Wimalaweera Perera Rs. 120, and Heendeniya’s daughter Rs. 60. Thesefigures show that these witnesses were not speaking the truth when theysaid that they and others did not pay facilities fees after July 1953 because. .of the campaign carried on by the plaintiff. In Ameratunga’s case it wouldappear that in 1952, when it is not alleged that the plaintiff carried on a
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Tt A R~NT AY A TCP?, C.J.—N. W. de Costa v. The Times of Ceylon, Ltd.
campaign, he had. paid no facilities fees at all. The facts that the wit-nesses themselves paid their facilities fees and that the estimate of faci-lities fees for 1953'was exceeded, negative the statement that a powerfulcampaign was being carried on against the payment of facilities fees.The evidence of Weerasinghe the head master of the lower school showsthat there was resentment on the part of the staff and the pupilsbecause a special monthly allowance of Rs. 150 was paid to Alagiyawannaout of those fees.
Now it is common ground that the refusal by the plaintiff to give cardswas in November and December 1955. If his action was contrary toregulations or unwarranted or intended to harass the students, complaintto a competent authority such as the Director of Education or the Per-manent Secretary to the Ministry of Education in order bo obtain redressis a course which is justifiable ; but why publish in the newspaper anarticle raking up the past, even if it were true, that the plaintiff carried ona powerful campaign against facilities fees two years before the publicationand say that he is now enforcing the payment of those very fees. I amunable to escape the conclusion that the writer intended to injure theplaintiff by doing so.
The publisher has not only failed to prove the truth of his defamatorystatements ; but he nas failed to establish that they were made inthe public interest or for the public good. How is the public interestserved by raking up the past ? The plaintiff’s action in enforcing thepayment of the facilities fee by those who could afford to pay it was notopen to objection and he was entitled to do so. I am unable to escape theconclusion that the writer’s intention was to injure the plaintiff. Tomy mind this publication is defamatory and the learned Judge is wrongin holding, that it is not.
The next publication is on 23rd December 1955. It reads—

The English version in the plaint reads as follows —
“ It was when the present Principal was an assistant teacher in
the same school that the children were encouraged not to payand led astray.
“ The fact that black stains are sprinkled on the glory that was of
the school can be seen from the talks that go on at the (road)junctions here. The staff is opposed to the Principal ; exceptingone-third all the rest of the students are opposed to him.”
The first of the above statements is clearly a reference to the allegedcampaign against facilities fees in 1953. I have already dealt with it.As stated above even if it be true that he encouraged students not to pay
BASNAYAKJE, C.J.-—iV. IK. dr. CJosta v. 2Vie lines of Ceylon. L,trl.
277
facilities fees in that year how is the public good served by publishing itto the world in December 1955 ?
The author of this publication, the witness Mahindapala Boteju, wasa pupil of the school till 1950 in which year he left the school. His state-ments are admittedly based on hearsay. This is what he says aboutthem in his evidence.
ct Q. Except one statement in which you say the principal threatenedsomebody the rest of the whole of that letter is what variouspeople told you ?
A. Yes.
Q.And you have accepted the correctness of what others have toldyou ?
A. Yes.”
It is clear that the writer did not know his facts and wrote to the Presswhat he had heard from others and that the defendants published hiscommunication without verifying its accuracy. The defendants havenot proved the truth of those facts. The writer himself is unable to helpbecause they are not facts within his own knowledge.
I am unable to hold that the evidence supports the finding of thelearned Judge that this publication is true. Besides there is no proofthat it is either in the public interest or for the public good that the pastactions of the plaintiff in this respect should be raked up.
Now in regard to (6) there is no evidence “ that black stains are sprink-led on the glory that was of the school.” The writer’s explanation ofthis statement is “ The black stains referred to was that during my timethere were no such troubles in the school. At the time I was attendingschool things were not like that but today everyone has something tosay against the school.” If it is a matter of comment the matter onwhich the comment is based is not placed before the reader in orderthat he may judge whether it is fair and is without animus injuriandi.The talks that go on at the road junctions turn out when examined to betalks near witness Boteju’s boutique. There is also no evidence to showthat the staff, which must be taken to mean the entire staff, was opposedto the plaintiff as Principal nor is there evidence that two-thirds of thestudents were opposed to him. As stated above the plea of justificationcannot succeed without proof that the statements are true and in thepublic interest. (7 Gane 225). That has not been done in this case.
I now come to the third publication. It was on 3rd January 1956.It reads—
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BASEST AY ABLE, C.J.—N. W. de Costa v. The Times of Ceylon, Ltd.

The English version in the plaint reads—
“ As a past student I know that it was the present Principal whomade the students disobedient and act as rebels.
“ Everyone who was at the Sastralaya during the time of the Princi-palship of Mr. B. Wickremasinghe knows that it was the presentPrincipal who set the children against the then Vice-Principal Mr Ala-giyawanna who is now the Principal of Sri Sumangala Vidyalaya,Panadura. To obstruct the work of the school, the present Principal,who was then an assistant teacher, induced not only the students butalso their parents not to pay facilities fees. It is not a secret as towho got the students to write the anti-Alagiyawanna slogans on theschool buildings.”
The author of this publication is the witness Kirthisri Ameratunga.In January 1956 he is referring to alleged happenings in 1953. Nowis there evidence that the plaintiff made the students disobedientand act as rebels ? There is no evidence whatsoever of this. Amera-tunga’s explanation of his statement is :“ He told us not to pay the
facilities fees. He told us that a part of it is being given to Mr Alagiya-wanna as an allowance and that the fees are not properly used to maintainthe school.” As stated above the writer has paid his facilities fees for1953, the year in which he says the plaintiff asked him not to pay. In1953 the year in which he says the plaintiff made the students disobe-dient and act as rebels the collection of facilities fees exceeded the bud-geted amount. The evidence of Weerasinghe the head master of thelower school shows that the opposition to Alagiyawanna was not oneengineered by the plaintiff but one that arose out of the pa3anent of aspecial monthly allowance to him out of the facilities fees. The statementrelating to the slogans is also raking up the past in order to expose theplaintiff to ridicule. Alagiyawanna himself did not know that sloganswere written on the walls against him. But there is evidence that theywere. Except the witnesses Ameratunga and Dharmakirti no onesays that the plaintiff instigated their writing. The learned DistrictJudge has accepted their evidence. However it is defamation to referto events of the past even if true for in the instant case there appearsto be no other object in doing so except to harm the plaintiff.
B ASX AY ABLE, C.J.—N. TV. de Costa v. The Times of Ceylon, hid.
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The fourth publication is that of 8th May 1956. It reads —

The English version in the plaint reads—
Mr. N. W. de Costa, Principal, Ananda Sastralaya, Kotte.has retiredfrom the post of Principal. He who has a degree in Indo-Aryan hasretired on full pension under the regulation for retirement due to hisinability to teach in Sinhalese. The Sinhalese book entitled ‘ UdbhidaVidyawa ’ is a book written by him. In a very short time he willbe leaving for America to teach English.”
It is correct that the plaintiff had at that date retired from his postof Principal. That he retired on full pension is untrue. It is not correctthat he retired owing to his inability to teach at all in Sinhalese. Thesuggestion that a person who has a degree in Indo-Aryan is by reasonof that fact alone competent to teach through the medium of Sinhaleseis not proved, nor is it proved that the plaintiff obtained his degree withSinhalese as a subject. The writer confessed that he thought that anHonours degree in Indo-Aryan necessarily implied a knowledge of Sin-halese and that he did not check up his facts ; but that he assumedthat because the plaintiff had an Honours degree in Indo-Aryan he wascompetent to teach in Sinhalese.
The plaintiff was allowed to retire under the rule which permitted thosewho were not able to teach Standards VI, VII and VIII in Sinhalese incertain approved subjects to retire. It is also not correct that the book“ Udbhida Vidyawa ” was written by the plaintiff. The author of thebook on the face of it does not claim that he wrote it in Sinhalese byhimself. In the Preface the plaintiff thanks those who helped him towrite the book in Sinhalese—K. C. Weerasinghe and Sunil Wijayawick-rema. The witness Weerasinghe who assisted the plaintiff to -write itsays :—
” He gave me the facts and I wrote them down in Sinhalese. …
The facts are his, the sentences are mineSometimes the
sentences were drafted in consultation with himThe words
he gave me but not the sentences.”
The last sentence that the plaintiff will be leaving for America toteach English is sarcastic and appears to be designed to hold up theplaintiff to ridicule.
280BASNAYABLE, C.J.—N. W. de Coata v. The Times of Ceylon, Ltd.
The last defamatory statement pleaded by the plaintiff is in the“ Lankadipa ” of 11th May 1956 and is as follows :—

The English rendering reads—
“ It was published in the Lankadipa that Mr N. W. de Costa,Principal, Ananda Sastralaya, Kotte, retired on the ground of inabilityto teach in Sinhalese. He has an external degree in Indo-Aryan of theUniversity of London. The book titled ‘UDBHIDA VIDYAWA’which is accepted by the Educational Publications Board is writtenby him. But it is a wonder to the people of Kotte and Horana as tohow he retired with full pay. Though he did not go to school forthe whole of last term he worked hard ■ at> Kotte and at Horana for acertain political party. Further, he issued leaflets under his name.It is not difficult for the Education Minister and the Finance Ministerof the New Government to know how he could retire during the timeof the election though hisprevious attempts to retire were unsuccessful.”
I have already dealt with the suggestion that the plaintiff was able toteach through the medium of Sinhalese just because he had a degreein Indo-Aryan. It has not been shown by the defendants that a degreein Indo-Aryan in the University of London involves the passing of anexamination in Sinhalese or that the plaintiff offered Sinhalese as asubject for his degree. In fact it is not proved that it necessarily followsthat a person who has a degree in Indo-Aryan is competent to teachStandards VI, VII and VIII through the medium of Sinhalese. Theevidence does not prove that—
(а)the book entitled £f Udbhida Vidyawa ” was written by the plaintiff
in Sinhalese,
(б)it was accepted by the Educational Publications Board,
he retired with full pay,
he worked hard at Kotte and Horana for a certain political party.
I have already pointed out that (a) and (h) are untrue. So is (c). Heretired on- a pension payable to him according to the School Teachers*
SIXNETAMBY, J.—JV. IV. <fe Costa v. The Times of Ceylon, Ltd.
281
Pension Rules and definitely not on “full pay.** The evidence in supportof the truth of (d) is that of the witness Jayasekere. He says—
“ I have seen Mr. de Costa driving a wagon belonging to the TJ. N. P.at Nugegoda near the office of the U. N. P. There he had issued pam-phlets supporting Mr. Anandatissa de Alwis.
“ I have seen the plaintiff’s car at Panadura coming along theHorana Road near the Junction when I was passing that place in acar. That car bore a poster bearing the picture of Mr M. D. Jaya-wardene.”
This material does not justify the statement that the plaintiff workedhard for a political party at Kotte and Horana. Rut a statement thata person worked for a political party is not by itself defamatory. Thedefamation lies in the suggestion contained in the last sentence. Thatby working for the political party to which the then Minister of Financebelonged he was able to retire though his previous attempts to retirewere unsuccessful. The U. N. P. candidate for Horana who was theMinister of Finance at the relevant date has given evidence. His evidencehas been accepted by the learned trial Judge. He says that the plaintiffdid not work for him and that he did not even see him in his electorate.He also says that if the plaintiff was anxious to obtain his favour byworking for him the plaintiff would have made himself prominent or evenmade it a point to be seen by him in his electorate. The witness Jaya-wardene’s evidence that in deciding to allow the plaintiff to retire he wasuninfluenced by any considerations other than the merits of the casehas been accepted, and I think rightly, by the learned trial Judge. Thereis no proof that the plaintiff resorted to any corrupt means as suggestedby the writer in order to obtain permission to retire. The publicationis clearly defamatory.
Now as to the question of damages—the plaintiff has not shown howhe arrives at the figures of Rs. 50,000/- and Rs. 60,000/- maltingRs. 110,000/- in all claimed by him. In the absence of such proof I canonly award the plaintiff a sum I consider reasonable for the harm doneto him. I think he is entitled to the actual expenses incurred by him inthese legal proceedings which he had to institute in order to vindicatehis reputation and name. I also award him a sum of Rs. 5,000/- forthe injury done to him.
SlXXETAMBY, J.
This is the judgment of my brother Pulle and of myself.
The plaintiff Mr. N. W. de Costa was a teacher in the school calledAnanda Sastralava at KLotte from 1934 up to April, 1955. He wasappointed Principal in April, 1955, and retired in May, 1950, on the groundthat he was unable to teach in Sinhalese. The first defendant companyis the proprietor of a Sinhalese newspaper called the “ Rankadipa ”and the second defendant is its editor/
282
SIN1>TETAMBY, J.—27. ~W. de Costa v. The Times oj Ceylon, Ltd.
The plaintiff instituted the present action for defamation on twocauses of action. The first cause of action relates to the publication of—
a news item in the issue of the “ Lankadipa ” dated 5th December,
1955, under the heading " Kasu KLusu ”, and
two letters in the issues of the “ Lankadipa ” on 23rd December,
1955, and 3rd January, 1956, respectively.
The news item in question (PI of 5th December, 1955) is as follows :—
“ The people of Kotte question as to why the assistant teacher whocarried on a powerful campaign requesting the children of a certainBuddhist school in Kotte not to pay facilities fees is enforcing thepayment (of facilities fees) on becoming the Principal.”
The letter published on 23rd December, 1955, is from one MahindapalaBoteju (P2) but the complaint is only in respect of the following passagescontained therein :—
(а)“ It was when the present principal was an assistant teacher in
the same school that the children were encouraged not to payand led astray.”
(б)“ The fact that black stains are sprinkled on the glory that was
of the school can be seen from the talks that go on at the (road)junctions here. The staff' is opposed to the Principal ; exceptingone third, all the rest of the students are opposed to him.”
The letter of 3rd January, 1956, (P3) is written by one KLirtisiri Amera-tunga and the passage complained of in the letter is as follows :—
“ As a past student I know that it was the present Principal whomade the students disobedient and act as rebels. Everyone whowas at the Sastralaya during the time of the Principalship ofMr. S. Wickremasinghe knows that it was the present Principal whoset the children against the then Vice-Principal, Mr. Alagiyawanna,who is now the Principal of Sri Sumangala Vxdyalaya, Panadura.”
“ To obstruct the work of the school the present Principal who wasthen an assistant teacher induced not only the students but also theirparents not to pay facilities fees. It is not a secret as to who got thestudents to write the anti-Alagiyawanna slogans on the schoolbuildings.”
The plaintiff pleaded that these statements involved the followinginnuendos :—
that the plaintiff when an assistant teacher misused his position
as teacner by inciting the students and then parents not to payfacilities fees and that in so doing he was actuated bj' unworthyand dishonest motives ;
that the plaintiff secured his appointment as Principal by these
unfair and unworthy methods ;
that the plaintiff was directly responsible for the students of the
said school becoming disobedient. and rebellious ;
SINNETAMBY, J.—N. W. de Costa v. The Times of Ceylon., Ltd.
283
that the plaintiff by these actions had forfeited the confidence
of the people of Kotte, his own staff and pupils, and was, there-fore, not a fit and proper person to be either a teacher or aPrincipal ; and
that the plaintiff by his actions has brought dishonour on the name
of tne school.
On this cause of action the plaintiff claimed a sum of Its 50,000/ .
The second cause of action refers to certain publications appearingin the same newspaper after the plaintiff had retired from the post ofPrincipal.
The first of these publications appeared in the “ Lankadipa ” of 8thMay, 1956, as a news item. It is as follows :—
“ Mr. K. W. de Costa, Principal, Ananda Sastralaya, Kotte, hasretired from the post of Principal. He who has a degree in Indo-Aryan has retired on full pension under the regulations for retirementdue to his inability to teach in Sinhalese. The Sinhalese book titled“ Udbhida Vidyawa ” is a book written by him. In a short timehe will be leaving for America to teach English. ”
The second publication is a letter written by one K. Jayasekera andpublished in the issue of the ** Lankadipa ” of 11th May, 1956. Thepassages complained of are as follows :—
“ It was published in the Lankadipa that Mr. N. W. de Costa,Principal, Ananda Sastralaya, Kotte, retired on the ground of inabilityto teach in Sinhalese. He has an external degree in Indo-Aryan ofthe University of London. The book titled “ Udbhida Vidyawa ”which is accepted by the Education Publications Hoard is writtenby him. But it is a wonder to the people of Kotte and Horana as tohow he retired with full pay. Though he did not go to school for thewhole of last term, he worked hard at Kotte and at Horana for a certainpolitical party. Further, he issued leaflets under his name. It isnot difficult for the Education Minister and tne Finance Minister ofthe new Government to know how he could retire during the timeof the election though his previous attempts to retire wereunsuccessful
The innuendo pleaded in respect of these publications is as follows :—
“ The plaintiff although well qualified in Sinhalese had by falselypretending he could not teach in Sinhalese and by employing othercorrupt means obtained the permission of the Government to retirefrom the teacliing service. ”
On the second cause of action the plaintiff claimed a sum of Hs. 60,000/-.
The defendants in their answer admitted the publications but statedthat the facts referred to in the publications were substantially trueand that the comments were fair and that their publication was in thepublic interest. The parties went to -trial on the issues of justification
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SUsnSTETAMBY, J.—JV. W. de Costa v. The Times of Ceylon, Ltd.
and fair comment. At the conclusion, of the case the learned Judgeheld with the defendants in regard to their pleas and dismissed theplaintiff’s action with costs. Against this finding the plaintiff hasappealed.
In regard to factual matters in controversy between the parties thelearned trial Judge has come to very strong findings against the plaintiffand we do not see how we can in any way disturb them by holding thatthey were either unreasonable or not supported by the evidence. Theplaintiff, however, contended that some of the findings were Wrong andthat in law the Judge had misdirected himself. No satisfactory grounds,in our opinion, exist for reversing the findings of the Judge on the facts.
In his judgment the trial Judge found that the passages complained ofcarried the innuendos attributed to them. This is a matter of inferencefrom established facts and in regard to that we as a Court of Appeal arein as good a position as the Trial Court to come to a conclusion. Theplaintiff in support of his case first called only one witness, Dr. Adikaram,presumably to prove the innuendos in the publications. His counsel thenclosed his case leaving it to the defendant, as he well might, the burdenof establishing the pleas set out in the answer. The plaintiff himself, itmay be noted, was not called into the witness box until after the defen-dant’s case had been closed and evidence in rebuttal permitted to be led,and even then only after all his other witnesses bar one had given evidence.This is a circumstance which reduces the value to be placed on his evidenceto a considerable extent having regard to the fact that he heard what hiswitnesses said thus enabling him to adjust his own evidence to bring itinto line with what he had heard.
The learned Judge held that all the innuendos pleaded by the plaintiffhad been established. We find ourselves in agreement with him exceptin regard to the second innuendo pleaded under the first cause of actionand the innuendo which is the basis of the second cause of action.
In regard to the first cause of action, there is nothing in the passageswhich suggests to the average reader that the plaintiff secured his appoint-ment as Principal by inducing students not to pay facilities fees. Inthe second cause of action, while the passages themselves convey to theminds of the reader the suggestion that the plaintiff retired by falselypretending that he could not teach in Sinhalese though well qualified inthat language, it does not necessarily suggest that corrupt means wereemployed in obtaining permission to retire. Indeed, these passageswere put by the plaintiff to Dr. Adikaram, the plaintiff’s chief witness,who was then the Manager of.the School and fully conversant with therelevant facts and circumstances—much more than the average reader—and Dr. Adikaram was asked what impression they created on him.Referring to the publications relating to the facilities fees, Dr. Adikaramstated that to him these passages conveyed the impression “ that whenhe (plaintiff) was an assistant teacher he was against the Principal andasked the boys not to pay facilities fees and that now he is doing thevery same thing he asked them not to do Dr. Adikaram is not quite
SIN74ETAMIBY, T.—27. TV. de Costa v. The Times oj Ceylon, Thtd.
285
correct when he says “ against the Principal presumably he meant“ Vice-Principal ”•—The letter P3 refers to animosity to the Vice-Principal.We agree with Dr. Adikaram. There is nothing in PI, P2 or P3 to sug-gest that plaintiff secured his appointment by “ these unfair and unworthymethods ’ ’.
In regard to the innuendos pleaded in respect of the second cause ofaction, Dr. Adikaram stated that the impression created on him by thesepublications was that Mr. Costa though good in his Sinhalese yet wantedto retire on the ground that he could not teach in Sinhalese and that byworking for some political candidate he obtained permission to retire.These publicatons do not suggest corruption as such unless it be limitedto the fact that plaintiff was able to retire by working for a “ certainpolitical party ”.
In order to constitute defamation under the Homan Dutch Law itmust be established that there existed in the mind of the defendantwhat Roman-Dutch jurists call the animus injuriandi ; but where thewords are either per se defamatory or shown to have the defamatorymeaning attributed to them in the innuendo, the animus injuriandiis presumed and it is for the defendant in such a case to exonerate him-self by establishing circumstances which rebut the presumption.
Nathan in his work ce The Law of Defamation in South Africa ” statesat page 87 :—
“ A classic passage on the subject is contained in Voet’s Com men -taries. ‘With regard to the person alleged to have committed aninjuria (here defamation), the fact that he had entertained no animusinjuriandi is a good ground for his not being held liable in actio inju-riamm. The fact that such intention was absent is to be gatheredfrom the circumstance of each particular case ; for an intention of thiskind has its seat in the mind, and in case of doubt its existence shouldnot be presumed ; moreover, it cannot reveal itself or be proved other-wise than by taking into account the nature of the occurrence.
On this ground, if certain words which have been uttered are ambiguousand susceptible of a twofold meaning, then, in case of doubt, theyshould be interpreted in the more favourable sense ; since one shouldnot presume a delict to exist as long as it is possible to suppose thecontrary. But if a person uses expressions of such a nature that inthemselves and in their proper significance they convey a defamatorymeaning (insult) the intention to injure (animus injuriandi) is con-sidered to have been present, and the burden of proving that no suchintention existed lies upon the person who has used such expressions. ”
In the case of Associated Netvspapers of Ceylon, Ltd. v. C. H. Gunasehera?-acting Chief Justice Nagalingam after referring to certain extracts fromDe Villiers’ commentary on Voet, Book 47 Title -10 section 1 page 27,and to Maasdorp stated :—
“ The authorities, therefore, establish that where a man publisheswords concerning another, not necessarily with an express intent to
1 {1052) 53 N. L. JR. 4.81.
280
SINTSTETAJvIBY, J.—N. W. de Costa v. The Times of Ceylon, Ltd.
cause hurt or injury to him but without knowledge of the truth of thestatements, and reckless whether they be true or false, if the conse-quence of the publication be in fact to injure the person defamed inhis person, dignity or reputation, “ animus injuriandi ” is made out. **
It will thus be seen that the mere absence of an express intention toinjure is per se no defence and is not sufficient to displace the presumptionof malice. Tothill v. Foster1 and Associated Newspapers of Ceylon, Ltd.,v. C. H. Qunasehera {supra). The same view is expressed by Nathan inthe work already cited, at page 97.
It is, however, recognised that certain defences well known to theEnglish Common Law will, if established, have the effect of negativingthe existence of animus injuriandi, for instance, pleas of justification,privilege and fair comment.
The Privy Council in Perera v. Peiris2 laid down the taw applicable toCeylon in the following terms :—
“ In Roman-Dutch Law animus injuriandi is an essential element inproceedings for defamation. When words used are defamatory of thecomplainant the burden of negativing animus injuriandi rests upon thedefendant. The course of development of the Roman-Dutch Lawin Ceylon has particularly been to recognise as defences those matterswhich under the inapt name of privilege and the apt name of faircomment have in the course of the history of the common law come to berecognised as affording defences to proceedings for defamation. Butit must be emphasized that those defences, or more accurately theprinciples which underlie them, find their technical setting in Roman-. Dutch law as matters relevant to negativing animus injuriandi. Inthat setting they are perhaps capable of a wider scope than thataccorded by the common law. Decisions under the common law are. indeed of the greatest value in exemplifying the principles but donot necessarily mark out rules under the Roman-Dutch law. ”
Perera v. Peiris (supra) was an action brought by Dr. M. G. Pereraagainst the proprietors and publishers of “ The Ceylon Daily News ”claiming damages on the ground that the defendants had published intheir paper extracts from a report containing statements defamatory ofthe plaintiff issued by a Bribery Commissioner who had been empoweredby statute to investigate bribery among members of the State Council.The Commissioner had in due course made his report to the Governorwho had caused the report to be published in a Sessional Paper.
In the course of argument it was contended that the publication wasmerely a fair report of judicial proceedings or of proceedings in thenature of judicial proceedings. Lord Uthwatt who delivered theopinion of the Privy Council stated :—
“ …. much time might be spent in an inquiry whether the
proceedings before the Commissioner fell within one or the other ofthese categories. Their Lordships do not propose to enter upon1 1925 T. P. D. 863.* (1948) 50 N. L. M. 145 at p. 158.
SINNETAMBY, J.—N. TV. de Costa v. The Times of Ceylon, Ltd.
287
that inquiry. They prefer to relate their conclusions to the widegeneral principle which underlies the defence of privilege in all itsaspects rather than to debate the question whether the case fallswithin some specific category. ”
** The wide general principle was stated by their Lordships inMackintosh v. Dun1 to be the ‘common convenience and welfare ofsociety’ or ‘the general interest of society’ …. ”
“ In the case of reports of judicial and parliamentary proceedingsthe basis of privilege is not the circumstance that the proceedingsreported are judicial or parliamentary—viewed as isolated facts—butthat it is in the public interest that all such proceedings should befairly reported. ”
Dealing with reports of proceedings of other bodies their Lordshipscontinued :—
“ If it appears that it is in the public interest that a particular reportshould be published privilege will attach. If malice in the publicationis not present and public interest is served by the publication thepublication must be taken for the purpose of Roman-Dutch Law asbeing in truth directed to serve that interest. Animus injuriandiis negatived. ”
Their Lordships, assuming that the statements of the appellant’sconduct as a witness which formed the basis of the plaintiff’s claimdid not accord with the facts, nevertheless, proceeded to hold that itwas in the public interest to publish the report, and that, therefore, therewas no animus injuriandi. In the circumstances they advised HisMajesty that the appellant’s appeal should be dismissed. Referring tothis case, acting Chief Justice Nagalingam in Associated N ewspapers ofCeylon, Ltd., v. C. 3. GunaseJcera {supra) observed :—
“ It is true that the judgment is very much in advance of the viewsheld previously but, nevertheless, though not necessarily one of theexpress forms of qualified privileges as understood prior thereto had tobe made out
The effect of the Privy Council decision, therefore, is that under theRoman Dutch Law as it exists in Ceylon today it is necessary for a plain-tiff to establish animus injuriandi on the part of the defendant and incases where it is shown or presumed to exist it is open to the defendantto negative it by showing that one of the clearly established defences toan action for defamation under the English Common Law is availableto the defendant or that the occasion was a privileged occasion by reasonof the fact that the publication was for ' common convenience and welfareof the society ”.
Justification as such was recognised even by the earlier Roman-Dutchjurists as a defence which negatived animus injuriandi, provided also thatthe publication was in the public interest. This was first laid down
1 1908 A. C. 390.
288
JSrtSTNTETAMBY, J.—.W. W. de Costa v. The Times of Ceylon, Ltd.
in South. Africa in the case of Botha, v. Brink x. In his appendix toChapter 14 of his book on the Law of Defamation Nathan collects theauthorities in support of the principle. He refers to passages from allthe leading Roman-Dutch jurists. It is not necessary to repeat themhere though many of them were cited in the course of the argument. Thedefence of fair and bona fide comment was unknown to the early Roman-Dutch jurists and is something which developed with the passage of time.It has, however, been fully debated in South Africa and in Ceylonand is now accepted as a defence on the ground that it negatives theexistence of animus injuriandi—Van Cuyleriberg v. Chapper2. Tosucceed in a defence of fair and bona fide comment it is necessary for th edefendant in the first instance to establish the truth of the facts on whichthe comment is based and then to show that the comment based upon•those facts is fair and bona fide ; it must also be shown that the commentwas on a 'matter of public interest. These are the principles governingthe defence of fair comment which have been fully developed under theEnglish Law and have been adopted by the Courts in Ceylon and SouthAfrica.
We propose now to analyse the libellous publications and to separatethe statements of fact from statements which are merely comment. Itmay here be mentioned that the plaintiff who argued his own appealsubmitted that from his point of view it was of the utmost importancethat findings of fact by the trial Judge which involved the rejection ofhis evidence should be reversed.
In regard to the first cause of action, the facts which the defendant mustestablish are :—
that the plaintiff carried on a powerful campaign requesting
students and their parents not to pay facilities fees ;
that at that time he was an assistant teacher ;
that on becoming Principal, he enforced the payment of facilities
fees ;
that the plaintiff set up the children against the Vice-Principal
Mr. Alagiyawanna ; and
that the plaintiff got students to write anti-Alagiyawanna slogans
on the school buildings.
The other statements contained in PI, P2 and P3, it seems to us, arecomments which are unobjectable.
In regard to the second cause of action, the facts which the defendantmust establish are :—
that Mr. Costa retired from the post of Principal due to his alleged
inability to teach in Sinhalese ;
that he had a degree in Indo-Aryan ;
that he wrote the Sinhalese book entitled “ Udbhida Vidyawa
1 1878 Buchanan's Repts. 118."* (1909) 12 N. L. R. 225.
SOsTNETAMBY, J.—N. TV. de Coala v. The Times of Ceylon, Ltd.
280
that the plaintiff did not go to school for the whole of the previous
term, namely, January, February and March, 1956 ;
that instead he worked hard at Kotte and Horana for a certain
political party ;
that ho issued leaflets in connection with his political work under
his name ;
that he retired under the regulations with full pension during
the time of the election, and
8- that previous attempts at retirement failed.
The other statements appear to be mere comment and also unobjectable.
At the stage of framing issues, learned Counsel for the defendant didnot seek to separate the facts from comment and to have issues framedon that basis ; instead he framed issues on many matters winch reallywere matters of evidence, and then framed composite issues 31, 32 and33 to cover all his defences. This procedure is unsatisfactory but noobjection was taken to it at that time by learned Counsel for the plaintiffand the trial Judge proceeded to deal with the issues on the basis thatthe questions for determination were whether the statements of factcontained in the several publications were true and if so, whether thecomments thereon were fair.
In regard to the facts relevant to the first cause of action which wehave earlier set out the learned trial Judge has found in favour of thedefendants. There is no dispute in regard to items 2 and 3 which areadmitted by the plaintiff. In regard to (1), (4) and (5) plaintiff deniedthat he carried on any campaign to prevent students from paying faci-lities fees and that he was in any way responsible for the anti-Alagiy a wannaslogans which undoubtedly did appear on the school buildings.
The Alagiyawanna incident arose as a result of the appointment ofMr. K. !L. V. Alagiyawanna on 30th June, 1953, as Vice-Principal of theAnanda Sastralaya by letter D4 with effect from 1st July, 1953, a postwhich the then Manager of the B. T. S. Schools, Mr. P. de S. Kularatne,created for the first time. Mr. Alagiyawanna was requested to actfor the Principal, Mr. Wickremasinghe, who was ill and on 1st July, 1953,Mr. P. de S. Kularatne went with Mr. Alagiyawanna to instal him in hisnew office. The plaintiff, who was vehemently opposed to the appoint-ment and had earlier seen Mr. Alagiyawanna and tried to dissuade himfrom accepting this post, adopted an attitude which no Manager of aschool would tolerate from an acting Principal—plaintiff was then acting—and virtually turned Mr. Kularatne and Mr. Alagiyawanna out of hisoffice. The learned trial Judge has accepted the evidence of Mr. Ku-laratne and Mr. Alagiyawanna on the details of this incident and hasrecorded his impressions and opinion of Mr. Alagiyawanna as a “ sincere
200
SINNETAMBY, J.—N. W. de Costa v. The Times of Ceylon, Ltd.
and honest man”. The plaintiff’s explanation of this incident which thelearned Judge did not accept was that he merely closed the doors of hisoffice after Messrs. Kularatne and Alagiyawanna came in with the objectof preventing those outside from seeing what was happening and touchedMr. Kularatne’s arm to show him by which door he should go as Mr.Kularatne was making his way to the door at the back of the office.Mr. Kularatne and Mr. Alagiyawanna have both stated that plaintiff inthe course of that interview pulled out a ruler from his drawer and actedin a way which created in their minds the impression that even violencemight be used. The plaintiff does not remember this. The sequel tothis was that the plaintiff had to apologize to Mr. Kularatne and to signa written apology which the B. T. S. directed him to circulate to thestaff. He says he did not do so, but the Principal Mi*. Wickremasinghecirculated it. Nevertheless, plaintiff did not think these steps taken bythe B. T. S. as amounting to punishment though he admits that punish-ment of a much more severe nature would have been imposed had Mr.Kularatne not been willing to accept the apology.
Now much of the difficulty that arose in consequence of Mr. Alagi-yawanna’s appointment can be traced to the fact that he was a nomineeof Mr. Kularatne while plaintiff received the support of Hr. Adikaramwho succeeded Mr. Kularatne as Manager of Buddhist Schools in 1954and who was at all times opposed not only to the principles and policiesof Mr. Kularatne but also to the man himself. Dr. Adikaram admitathat he had tried to persuade Mr. Alagiyawanna not to take the postbut without success. Shortly after Mr. Alagiyawanna took up duties—an event which occurred only after the permanent Principal resumed,duties—there appeared on the walls of the school anti-Alagiyawanna.slogans. The evidence shows that for about two days these slogans,were painted but subsequently they were written with chalk and charcoahOn this point there is the positive evidence of Kirtisiri Ameratungeand Dharmakirti, both senior students of the school, according to whomthe plaintiff gave Dharmakirti the tins of paint wdth w*hich to paintthe slogans in pursuance of which Dharmakirti himself painted some.The learned Judge has accepted their evidence as well as the evidenceof two other students, namely, Wimalaweera Perera and K. Jayasekeravin preference to that of the plaintiff. One has only to j)eruse the record-ed evidence of the plaintiff and observe the way in which he answeredquestions to appreciate the reason for the Judge’s preference. In regardto the question of facilities fees and the part played bjr plaintiff in per-suading students not to pay, the evidence of the four students men-tioned has been accepted by the learned District Judge. It will thusbe seen that the defendants have satisfactorily established the truth of-the allegations contained in the news item PI, and the letters P2 and P3..In regard to PI, it was contended that no evidence was led to show thatthe “people of Kotte ” were interested in the question of facilities fees,and that even if a “ campaign ” was being carried on it was not a “ power-ful ” campaign. In regard to the first of these arguments there is the.
ST3STNETAMBY, J.—N. W. de Costa v. The. Times of Ceylon, Ltd.
291
positive evidence of Don Edwin Heendeniya, a parent of a girl attendingthe school and a resident of Kotte whose daughter Sita had been refusedan “ admission card ” by plaintiff to sit for her S. S. C. examinationbecause she had failed to pay facilities fees, to the effect that the ques-tion of these admission cards was the “ talk of Kotte With regardto the word “ powerful ” that itself is a relative term and even if therewas an element of exaggeration in it one cannot say that the use of theword in any way added to the “ sting ” of the libel. As Wessels J. A.observed in Johnson v. Rand Daily Mails Limited,J
“ The fact that there is some exaggeration in the language used doesnot deprive a plea of justification of its effect. The test is whetherthe exaggeration leaves a wrong impression on the reader’s mindto the detriment of the plaintiff”.
In the same case Stratford A. J. observed :—
“ It is difficult to measure degree when expressed by epithets ”.
With reference to the letter P2, we agree -with the learned Judge thatthe sentence ** the fact that black stains are sprinkled on the glory thatwas of the school can be seen from the talks that go on at the road junc-tions here ” is merely a comment and must not be taken too literally.Comment is often to be recognised and distinguished from allegations offact by the use of a metaphor. Referring to the words “ the staff isopposed to the Principal; except one third all the rest of the studentsare opposed to him ” contained in the letter P2 the learned Judge heldthat the facts are true though the mathematical proportion is incorrect.Re that as it may, it seems to us that even if the facts in the passagequoted are incorrect the words are not defamatory and in any event it isnot necessary to justify every word of the libel. In Edwards v. Bell2the defendants alleged in their Newspaper that a serious misunderstandinghad taken place amongst the independent dissenters of Great Marlowand their pastor in consequence of some personal invectives uttered fromthe pulpit against a young lady and that “ the matter was to be taken upseriously ”. It was held that proof of the fact that personal invectiveswere thrown out from the pulpit was sufficient to establish justification :Park, J. observed the statement that the matter was to be takenup seriously, though part of the publication complained of, can scarcelybe termed libellous ”.
The facts referred to in TCirtisiri Ameratunge’s letter P3 have beenjustified in full and as the learned Judge observed the last sentence ismore in the nature of a comment based on a reasonable inference from thesurrounding circumstances and has actually been also established bypositive evidence.
1 192S A. D. 190 at 20G. Referred to in Nathan, Page 202.
– (1S24) 1 Ding. 403 ;.130 E. R. 162.
292
SINNETAMBY, J.—JV. W. de Costa v. The Times of Ceylon, Ltd.
We shall now deal with the second cause of action. In regard to thefacts which we have enumerated and which the defendants had to prove tosucceed on the plea of justification, 1, 2, 4 and 8 were practically admittedby the plaintiff in the course of his evidence. In regard to the honoursdegree in Indo-Aryan it was suggested on behalf of the plaintiff thatthe average reader would assume that he offered Sinhalese also as a subjectin order to obtain that qualification. In spite of what the writer ofthe letter, Jayasekera, had to say, we do not think so ; but we do agreethat the average reader would assume that the possession of such adegree would considerably assist the holder in teaching Sinhalese. EvenDr. Adikaram, whose sympathies were undoubtedly with the plaintiff,did not say in his examination by plaintiff's counsel that the possessionof a degree in Indo-Aryan connotes that the holder had obtained itby offering Sinhalese also as a subject. Referring to the letter P4 theexamination of Dr. Adikaram proceeded as follows :—
Q. Does it refer to his degree in Indo-Aryan language ?
A. Yes.
Q. What is the suggestion there ?
A. That one who has a degree in Indo-Aryan should be able to teachSinhalese but he is deceiving someone.
Dr. Adikaram admits that Sanskrit and Pali which plaintiff offered forhis Indo-Aryan degree are the root languages of Sinhalese. That beingso, knowledge of these languages would be a great asset to a teacher inSinhalese. In any event the publications complained of do not statethat the plaintiff offered Sinhalese as a subject for his Indo-Aryan degreeand the truth of the statement that plaintiff possesses an Indo-Aryandegree is admitted by him. Plaintiff himself was not prepared to saythat obtaining the degree would in no way be helpful in teachingSinhalese. Despite a leading question bis examination in chief proceededas follows :—
Q. The Indo-Aryan degree does not help you to teach Sinhalese toanybody at all ?
A. I do not know whether it has.
Counsel was not satisfied with his client’s answer and the question wasrepeated :
Q. Does an honours degree in Indo-Aryan help j7ou in any way toteach pupils in Sinhalese ?
A. I do not think.
Even then the answer was not a categorical “ no ”.
SlNNETAJiIBY, J".—$f. W. <£e Costa v. The Times of Ceylon, Ltd.
293
In support of the contention that plaintiff is able to teach in Sinhalesereference is made in these articles to a text book in Botany entitled“ Udbhida Vidyawa ” written in Sinhalese. Plaintiff while admittingthat he was the author of the book denies that he wrote it in Sinhalese.Indeed in his examination in chief all he said was that the preface whichhe read in Sinhalese was by him and that the two persons to whom hegave thanks helped him to write it. He added that he was competentto write a book on Botany but not in Sinhalese. Weerasinghe whohelped him to write the book stated that the rough manuscript wastaken down by him at plaintiff's dictation almost verbatim and thentouched up. According to Weerasinghe the rough notes were substan-tially in plaintiff’s words but he denies this. P17 is the second copythat was made. Weerasinghe passed only his Senior in Sinhalese whilethe plaintiff qualified in Sinhalese in the Matriculation which accordingto both Dr. Adikaram and Mr. Kularatne is of a higher standard. Ifone were to accept the representations plaintiff made to the Director ofEducation in regard to this book it would appear from the documentP9 that he told the Director that he prepared the book in English and itwas translated into Sinhalese by Weerasinghe and Wijewickrema. Plain-tiff denies that he made any such representation and that he was probablymisunderstood. It is difficult to. reconcile these different versions witheach other and one can only conclude that the book was in fact writtenin Sinhalese by plaintiff with the help of the two gentlemen mentionedin the preface. In any event any person who sees the book and readsits preface would be justified in drawing the inference that it was writtenby plaintiff. The learned Judge though he does not expressly hold thatthe book was written in Sinhalese by plaintiff finds that the statementin letter P5 to that effect is substantially true and that the only erroneousstatement is the reference to the fact that it was approved by the Edu-cation Publications Board. Jayasekera who wrote Po states that theadvertisements by Gunasena & Co. offering the book for sale stated thatit was approved by the Publications Board. Plaintiff denies it butDr. Adikaram in his evidence states that the book (D32) is used as atext book in several schools and that only books approved by thePublications Board can be so used. It seems to us, therefore, that thisstatement too is not erroneous ; but even if it were, it does not affectthe plea of justification as it is an innocuous statement which does notaffect the main question as to who wrote the book in the language in whichit was presented to the public.
In support of the statement that plaintiff could teach in Sinhalesethere were produced an election pamphlet P14 admittedly written byhim and D40 a book entitled “ Pada Lam ay a ” which is a translationin Sinhalese verse of a Pali text and was published- by plaintiff accordingto Samarakoon, a co-teacher. Plaintiff denied this, although he admittedthat the author’s address as given in the book is the same as his. Thereis, furthermore, the oral evidence of Samarakoon that plaintiff usedto compose Sinhalese verses which he-recited over the Badio, and trained
294
SIN1TETAMBY, J.—W. de Costa v. The Times of Ceylon, Ltd.
three girls to sing on the occasion of his sister’s wedding verses in Sin-halese which he composed. It is also significant that throughout hisefforts to retire on the ground that he could not teach in Sinhalese theplaintiff concealed the fact that he passed the London Matriculationin Sinhalese which was calculated to create the wrong impression thathe passed in Sinhalese only in the S. S. C., and that too at the secondattempt, vide 1)17 ; actually, though he failed the entire examinationin his first attempt, he passed in Sinhalese.
With regard to items 5 and 6 the learned trial Judge has accepted theevidence of Jayasekera that just prior to the elections Costa was seenat Nugegoda driving a vehicle “ belonging ” to the U. N. P. and atPanadura, on the Horana Road driving a car carrying the poster ofMr. M. L>. H. Jayawardene, the U. N. P. Candidate. At about thistime was distributed the pamphlet P14 the authorship of which is ad-mitted by defendant and 1)24 which the learned Judge erroneouslythought had not been proved. ' D24 is an election pamphlet addressedto the people of Kotte to vote for the ‘ ‘ Elephant ”, which was the U. N. P.symbol, and not for the “ Key ” which was the symbol of the L. S. S. P.The impression formed in the Judge’s mind in regard to this documentD24 was probably due to the fact that when 1)24 was put to Dr. Adikaramin cross-examination Mr. Wickremanayake who appeared for the plain-tiff objected, unless it was proved and Mr. Thiagalingam who appearedfor the defendants said he would prove it by calling the plaintiff. Mr.Wickremanayake then denied the authorship of 1)24 and stated thathe had in his possession another pamphlet which was the correct one.What the learned Judge apparently lost sight of was that when plaintiffwas in the box, 1)24 was put to him and he admitted authorship. Itwas the last question put to him when he was under cross-examinationon the 1st April, 1957. At one stage in the course of the argument beforeus it was suggested that this admission may have been a mistake inrecording, but one has to accept the ac.curacy of the record especiallyas it is customary for mistakes in the recorded evidence to be correctedon a subsequent date, as has happened in this case itself in respect of othermatters. This item of evidence was never sought to be corrected and,so far as the Appeal Court is concerned, it must be taken that theplaintiff admitted the authorship of 1)24 in his evidence.
In regard to items 7 & 8 the learned Judge has dealt with the questionof plaintiff’s retirement in detail and it is unnecessary to go over thesame ground. The established facts are that the plaintiff, who hadgone to America to study School administration on a Smith MundtScholarship, was opposed to the Swabasha policy of the Governmentand sought unsuccessfully twice to retire under the rules framed to giveteachers who were unable to teach in Sinhalese an opportunity to retirewith pension. Under the regulations a teacher has in the first instanceto apply to the Director of Education for permission to retire and, if theDirector refuses, he is given the right of appeal to the Minister of Finance.
SESnSTETAM33Y, J—N. TV. de Costa v. The Times of Ceylon, Ltd.
2 9&
This right has to be exercised within one month of the Director’s refusal.The plaintiff had on both occasions also appealed to the Minister un-successfully. Then occurred the unexpected dissolution of Parliamentfollowed by new elections. The plaintiff was seen working for theTJ. N. P. at KLotte and supporting the Finance Minister of the U. N. P.Government, Mr. M. D. H. Jayawardene, at Horana. The U. N. P.was defeated at the polls and Mr. Jayawardene lost his seat but till thenew Government was formed he continued under the provisions of theConstitution to exercise Ministerial functions. It was during this period,although the time within which under the regulations appeals shouldbe forwarded had elapsed, that the plaintiff successfully appealed to theoutgoing Finance Minister and secured permission to retire. It was inthese circumstances as found by the learned Judge that P4 and P5 cameto be published.
It was contended that there were misstatements of facts in both P4and P5 which would render the pleas of justification and fair commentuntenable. It was pointed out that P4 refers to retirement on “ fullpension ” and P5 to retirement on “ full pay ” neither of which is correct.We do not think it can be seriously urged that any reader would infertherefrom that the plaintiff was allowed to retire with the full pay whichhe drew at the time, as opposed to pension which he was entitled todraw on retirement, nor can it be urged that the plaintiff was permittedto retire on the basis that he had by service earned the right to draw themaximum pension a public officer could draw under the pension regula-tions. As the Judge himself observes, what any reader would infer isthat under the regulations the plaintiff was permitted to retire drawingthe maximum amount of pension his period of service would have en-titled him to draw and not the maximum he might have qualified forhad he served the full period of 35 years.
In any event these inaccuracies do not add to the sting of the allegedlibel. The statement in P4 that plaintiff would shortly bo going toAmerica to teach English though incorrect is not altogether unwarranted—there is evidence that at the time plaintiff was endeavouring to go toAmerica with the assistance of the American Embassy -and he himselfsays that his visit to America on the Smith Mundt Scholarship was witha view to eventually working in the Education Department in the UnitedStates. These misstatements are harmless by themselves and do notdirectly or by innuendo bring discredit on the plaintiff. In this connec-tion it must be borne in mind that when a passage is capable of twomeanings and is ambiguous that meaning which favours the defendantshould be adopted. The presumption is in favour of the innocent use ofwords, so that words which are not in themselves defamatory will boregarded as uttered in a non-defamatory sense. De Villiers Voet p. 1S9—quoted by Nathan at p.87—see also Voet, Vol. 7 Title IV Section 20(Gane’s translation p. 241).
-296. SININT3TAMBY, T.—JST. W. de Costa v. The Times of Ceylon, Ltd.
In the letter P5 Jayasekera makes the following statement :—-
“ It is not difficult for the Education Minister and Finance Ministerof the new Government to inquire how he could retire during the timeof the elections though his previous endeavours to retire were unsuc-cessful
This passage it was contended carried with it the imputation thatplaintiff by corrupt means obtained permission to retire. As statedbefore, it certainly suggests that by improper means he was able toretire but the allegation, obviously, is mainly directed against the re-tiring Finance Minister. This passage in P5 is undoubtedly a comment,And what are the facts on which it is based ? First there are the factswhich are intended to show that plaintiff was sufficiently learned inSinhalese to teach in that language, secondly, that all his previous ap-plications to retire on the ground of inability to teach in Sinhalese wererefused, thirdly, that he worked during the elections for the U. 1ST. P.and issued leaflets in support of that party and, fourthly, that duringthe time of elections he was allowed to retire by the outgoing Ministerfor whom he had worked and who had previously refused all his appeals.These must be considered also in the light of the facts then well known-to every newspaper reader, namely, that many U. N. P. candidates weredefeated at the polls and a new Government was being formed with a newFinance Minister. In these circumstances is it not a reasonable inferencefor any fair minded person to suspect that something improper had takenplace which resulted in the same Minister allowing an application whichpreviously he had refused more than once ? The learned Judge hasheld that the outgoing Minister was not guilty of any mala fides andthat he was guided in this instance solely by the recommendation of hisadvisers whose action the Minister admits was wrong. The fact thatthe Minister had been erroneously advised was, however, not knownto the writer or the general public. The law as it stands today is thatwhere the facts truly stated warrant an inference of evil motive, eventhough in fact no evil motive exists, the defence of fair comment isavailable. In our opinion, the facts of this case as stated in P5 are trueand the inference, therefore, having regard to the context in whichthe letter was written, perfectly reasonable and fair-
In Merivale v. Carson1 Lord Esher, Master of the Rolls, so far back as1887 laid down the law in the following terms :—
“ It is possible, however, to conceive of cases in which the knownfacts may be so strong that any reasonable man would infer therefromthe existence of improper motives, and yet in which those facts maybe explained by others neither known nor accessible to the critic. Insuch cases it is desirable that the sanctuary of fair comment should beavailable. … So that I think the defence of fair comment will
cover imputations as to motive if such imputations are reasonableinferences from the facts truly stated .”
» (1887) 20 Q. B. D. 275.
SINJTETAMBY, J-—JV. W. de Costa v. The Times of Ceylon, Ltd.
29T
A similar view was taken by the South African Courts in the case ofUpington v. Saul Solomon & Co.x In this case the Attorney-General ofthe Cape of Good Hope sued the proprietors of a newspaper called the“ Cape Argus ” for publishing defamatory statements which imputed tothe Attorney-General improper motives in the conduct of certain prose-cutions, condemned him as unfit to hold his office and charged him withtaking an active hand in bringing about the failure of Justice. These-statements in the newspaper were made in connection with the mannerin which certain prosecutions were conducted and which included certainpreliminary steps taken by the Attorney-General and were to some extentbased on observations of the trial Judge. De VillierS C. J. who deliveredthe main judgment said :—
“ It is not necessary for the Court to hold that the plaintiff wasunfit to hold his office before they can hold that the comments werefair and bona fide …. I could hardly imagine a fitter man intel-lectually for the office of Attorney-General than the plaintiff in thiscase but the question is not the actual fact of his fitness for office but-whether the defendants might not reasonably, from what they hadseen of the whole case come to the conclusion that he was not fit for the
officeNo doubt the article of 7th October is severe but
taking the whole of the article, taking every statement in that article*if I asked myself, as a juror, whether I believed that that article ex-ceeded fair and bona fide comment …. I should be bound to-answer the question in the negative ”.
Fair comment does not mean that it is comment which is impartial,well balanced, or commends itself to the Court, Crawford v. Albu Theonly requirement is that it must be honest. The Courts should not adopta narrow view in deciding whether comment is fair. In Lyon cfc Lyon v.Daily Telegraph 3 Scott I#. J. expressed the view of the Court of Appealin the following terms :—
“ It is one of the fundamental rights of free speech and writing whichis so dear to the British Nation and it is of vital importance to the ruleof law upon which we depend for our personal freedom that the Courtsshould preserve the right of fair comment undiminished and unimpaired. Some people seem to think …. that what the defendantwrote or said was within his right of fair comment means that theCourt accepts and endorses his opinion. The Court may as privateindividuals agree or disagree with the opinions expressed ; indeedit may disagree very much and yet hold that there is nothing in thelanguage used which exceeds the limits of public criticism so as tobecome personal defamation.” 1
1 1879 Bzichanan's Reports p. 240.
* 1917 A. D. 102 at 114.'3 {1943) 2 A. E. R. 317.
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SrtvTNTETAMBY, J.—N. W. de Costa v. The Times of Ceylon, Ltd.
Saving regard to the above principles it cannot be said on the facts
found that the comment was neither fair nor bona fide.
•
In order to succeed in establishing the plea of j ustification it is necessaryzander the Roman-Dutch Law to prove in addition to the truth of the facts•contained in the defamatory statement, that its publication was in thepublic interest. The defence of fair comment, likewise, is not availableunless it is made in the public interest. There now remains only to•consider whether in this case the publications complained of weremade in the public interest. The plaintiff who appeared in personrightly conceded, indeed claimed, that he as Principal of a school was
public figure and that the matters referred to in the defamatory articlesrelated to questions of public interest. Nevertheless, as he was notrepresented by a lawyer it is necessary to refer to this aspect of the•case briefly.
Apart from the news item PI the other letters P2 and P3 relating toiihe question of facilities fees were written after the plaintiff himself hadinvited public discussion in a letter to the Press P26 of 9th December,1955. When a person invites criticism on any subject it becomes a matterof public interest (Gatley 3rd d. p. 401). Apart from that, facilities fees■are recovered under the provisions of the Education Amendment Act,No. 5 of 1951, read with Section 41A (2) of Ordinance No. 26 of 1947which permits the recovery of such fees in Assisted Schools. The term■“Assisted Schools” is defined in Section 50 of Ordinance No. 31 of1939 to mean “ a school to which aid is contributed from state funds ”.Ananda Sastralaya was an Assisted School recovering facilities fees andsupported by State funds. The manner in which the fees were recoveredis thus a matter of public interest. It had given rise to questions inParliament and involved the question of whether students should beallowed to sit for public examinations. . When we come to consider theright of a teacher paid from public funds to retire under rules framed by■the Government that too undoubtedly is a matter which concerns thepublic. The head of a school is a public figure and his conduct can be■the subject of public criticism. Sturrock v. Birt1 referred to by Nathanis a case in which defamatory words were used of plaintiff hi her capacity-as head of a school. A plea of justification was sufficient to exonerate-the defendant.
In our opinion, the pleas of justification and fair comment are entitled-to succeed. We would accordingly affirm the judgment of the learnedDistrict Judge and dismiss the appeal with costs.
Appeal dismissed. 1
1 (1891) 8 S. O. 119.