JUDGMENTBY: THOMSON CJ, SYED SHEH BARAKBAH J, AZMI J

THOMSON CJ (delivering oral judgment): This is an appeal from a decision of Hepworth J. whereby he gave the present respondents judgment against the present appellants for defamation.

In their Statement of Claim the plaintiffs said that the defendants spoke certain words of them which were alleged to be defamatory. These words were set out in the English language.

At the close of the plaintiffs case it was clear that if any words were spoken by the defendants of the plaintiffs these words were not spoken in the English language but were spoken in the Malay language although it is clear that the sense of the Malay words as sworn to by the plaintiffs witnesses was substantially the same as the sense of the English words that were pleaded.

I pause here to observe that at the trial, assuming no point to have been taken by the defendants earlier by way of demurrer, it would have been wise for the plaintiffs to have amended their Statement of Claim. They did not do so, however, and the trial proceeded. Here, however, it must be borne in mind that the defence as originally pleaded and persisted in and supported by the evidence of the defendants themselves and their witnesses was non facit. They did not allege they used words of the plaintiffs other than the words pleaded or other than the words spoken to in evidence by the plaintiffs witnesses. They did not plead nor did they say that any words they did use of the plaintiffs were incapable of a defamatory meaning. What they did say was that they never at any time said anything at all about the plaintiffs or either of them.

On the issue of credibility thus raised the learned trial Judge found in favour of the plaintiffs. He found that the defendants did utter the words which were sworn to by the plaintiffs witnesses. He took the view, with which we do not quarrel, that these words were clearly defamatory. He took the view that it was a case for substantial but not unduly heavy damages and he laid the damages at $ 750 and gave costs on the High Court scale.

Against that decision the defendants have now appealed and their appeal is based on the single highly technical point that the precise words of the alleged slander as proved at the trial were not set out in the Statement of Claim.

In my view this point is not only highly technical, it is devoid of merit and with great respect has implicit in it a certain confusion of thought. Moreover, it is raised for the first time before us and I have grave doubts as to the propriety of allowing it to be thus raised.

As a matter of practice when defamatory words are alleged to have been spoken in a language other than the language of the Court these words should be set out in their original form in the pleadings and in addition a translation of them into the language of the Court should be pleaded. Admittedly that was not done here but, again, admittedly the point that it was not done was never raised at any stage of the interlocutory proceedings or of the trial.

But although in my view the actual words used in the language in which they were used should have been pleaded the failure to do so cannot be held to have been fatal to the case of the respondents.

It is true that in the case of Bradlaugh v The Queen 3 QBD 607 it was held that in an indictment for publishing an obscene book it is not sufficient to describe the book as obscene but that the actual words alleged to be obscene must be set out and if they are omitted the failure to set them out will not be cured by a verdict of guilty.

There is no question that that case so far as it goes must be followed. It does not, however, follow from that case that in order to succeed the plaintiff must prove up to the hilt every word of the defamatory utterance as set out in his Statement of Claim. It is sufficient if he proves the substance of it.

Whatever may have been the case at one time there is no doubt as to the present state of

Click Here to Read the rest of this document