JUDGMENT OF GOPAL SRI RAM, JCA

1. There are two appeals before us. They are by the defendants in the court below. The defendants are husband and wife. They were sued by the plaintiff (respondent before us) in the tort of defamation. In respect of the husband, the precise charge is that on 5 January 1998 he told PW2 (the school senior assistant) that someone is attempting to kidnap his (the husband's) son. In respect of the wife, the substance of the case is that she told PW3 (a policeman) that the plaintiff is the elder brother of one of four men who attempted to kidnap her son. At the close of the plaintiff's case the defendants elected not to call evidence and to rest on their submissions. The learned judge found for the plaintiff against both defendants not only in the tort of defamation but in the tort of conspiracy as well. Damages in the sum of RM800,000 were awarded as against the husband. These were made up of RM300,000 as general damages, RM300,000 as aggravated damages and RM200,000 as exemplary damages. A further RM1 million was awarded as against the wife, made up of RM300,000 as general damages, RM300,000 as aggravated damages and RM400,000 as exemplary damages.

2. Before us it was argued for the husband that the alleged slanderous words pleaded by the plaintiff in his statement of claim and relied on by him as constituting a cause of action in defamation do not contain any reference to the plaintiff. In short, an essential ingredient of the tort was absent from the plaintiff's own pleaded case. In my judgment there is merit in this argument. The leading case upon the subject is Knupffer v. London Express [1944] A. C. 116 where (at page 121) it was held by the House of Lords that in an action for defamation two questions were involved on the issue of identification. The first question is one of law. It is whether the defamatory words can be regarded as being capable of referring to the plaintiff. The second is a question of fact. It is whether reasonable persons who know the plaintiff would conclude that the defamatory words refer to him or her. If the first question is resolved in the defendant's favour, then the second does not arise.

3. In the present instance the pleaded words - and the plaintiff is bound by his pleaded case - are not capable, as a matter of law, of being regarded as making any reference to the plaintiff. The second question - the factual question - therefore does not arise. It follows that a vital ingredient of the tort is absent. The judge should therefore have ruled in the husband's favour on his submission of no case. On this rather short and simple ground I would allow the husband's appeal.

4. I now turn to the wife's case. The complaint here is that the pleaded words were not proved. The words attributed to the wife and pleaded in the statement of claim are that the plaintiff and his younger brother attempted to kidnap the son of the defendant wife. However, the words proved through the evidence of PW3 were wholly different. According to PW3, the defendant wife told him that the plaintiff is the elder brother to one of four men who attempted to kidnap her son. Unfortunately, the judge in the court below appears to have completely disregarded the plaintiffs pleaded case and proceeded to find for him on the proved case. This, in my respectful view, is a serious misdirection.

5. In Janagi v. Ong Boon Kiat ; [1971] 2 MLJ 196. the learned magistrate dismissed plaintiffs claim on a promissory note on a ground that was not raised in the defence. On revision, Sharma J said:

"A statement of claim and the defence (together with the reply, if any) constitute the pleadings in a civil action. It is on the examination of the pleadings that the court notices the differences which exist between the contentions of the parties to the action. In other words the matters on which the parties are at issue are determinable by an examination of the pleadings. An issue arises when a material proposition of law o

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