Silva V. Balasuriya

Sept.1,1911    Present: Lascelles C.J. and Middleton J.

SILVA v. BALASURIYA.

230 -D. C. Matara, 5,086.

Defamation-Action does not lie against witness for statements made in Court-Dutch law when deemed obsolete.

A witness is protected by the law of Ceylon from proceedings for defamation in respect of statements made by him as witness in the course of a judicial proceeding.

Lascelles C.J.-When we find that the Dutch law on a matter of frequent occurrence is inconsistent with the well-established and reasonable practice of the Colony, and that it has never been recognized by the Supreme Court, it is a fair inference that the Dutch law on this matter has either never been introduced into the Colony, or, if introduced, that it has been abrogated by disuse.

THE facts are set out in the judgments.

Sampayo, K.C., for the plaintiff, appellant.-Under the Roman-Dutch law a witness has only a qualified privilege; the Roman-Dutch law does not go so far as the English law and give a witness an absolute privilege with respect to statements made by him in the witness box. (3 Nathan 1631; Norden v. Oppenheim.1) The law applicable to this case is the Roman-Dutch law and not the English law. See Durasamy v. Ferguson.2

It is open to the plaintiff to rebut the presumption arising in favour of the defendant from the fact that he is a witness. The District Judge was wrong in not permitting us to prove the animus injuriandi of the defendant and the absence of reasonable cause for belief in the truth of his statement. Counsel referred to De Villiers, De lnjuria, p. 192; Marshall's Judgments, p. 402; Attennaike v. Don Juanis; 3 2 Thorn. 471, 472; Nell's Court of Requests Cases, p. 87.

Bawa, for the defendant, respondent.-The Roman-Dutch law in its entirety has not been introduced into Ceylon. Large portions of that law have not found its way into Ceylon; the Dutch forms of apology in cases of defamation, for instance, are obsolete. See 2 Pereira's Laws of Ceylon 671. There is no case so far where a witness has been held liable for statements made by him in the witness box.

Under the English law and the law prevailing in India a witness enjoys an Absolute privilege with respect to statements made by him. See Amir Ali, Introduction to Chapter X., p. 722; Muleshvar v. Ravidat; 4 Singh v. Chowdhry.5

It is against public policy that actions for defamation should be permitted to be brought against witnesses; witnesses would be deterred from telling the truth by fear of an action; actions would multiply indefinitely. [Middleton J.-Is not a witness bound to answer all questions under section 132 of the Evidence Ordinance ?] Yes, it is so under our law; we do not know what the law of evidence on the point in Holland was.

Counsel referred to De Villiers, pp. 189-192; Marshall, p. 403; 2 Pereira's Laws of Ceylon 677 and 679.

Sampayo, K.C., in reply.-The liability of a witness is not a question of the law of evidence; it is part of the law of defamation. Advocates, Judges, and witnesses enjoy the same kind of privilege.

Section 132 of the Evidence Ordinance protects a witness only when he is compelled to answer; the question here is whether in every case the privilege is absolute.

1 3 Menzies 41.                                                     3 2 Lor. 122.

2 1 Br. App. D. iv.                                                                 4 (1889) 14 Bom. 97.

                                                                            5 (1872) 17 W. R. 283.

It is quite true that portions of the Roman-Dutch law may grow obsolete. For instance, law prohibiting marriage between parties living in adultery is obsolete; but that is because adultery is no longer a crime. Because the law of evidence is the English law, it does not follow that the law of defamation in the case of witnesses is also the English law.

Cur. adv. vult.

September 1, 1911. Lascelles C.J.-

This appeal raises an important ques

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