1937   Present: Soertsz J. and Fernando A.J.

CHELLIAH v. FERNANDO.

299-D. C. Colombo, 169.
 

Defamation-Truth is no defence-Public interests-Privileged occasion Exceeding limits of privilege-Proof of malice-Roman-Dutch law.

Under the Roman-Dutch law it is no defence to an action for defamation that the words complained of were true in substance and in fact. It must be proved that it was for the public benefit that they should be published.

A statement is to be considered as made on a privileged occasion when it is fairly made by a person in the discharge of some public or private duty whether legal or moral or in the conduct of his own affairs in matters where his interest is concerned.

The plea of privilege will not protect a person who has published something beyond what is reasonably appropriate for the occasion.

Where the defendant has exceeded the limits of a privileged occasion it is not incumbent on the plaintiff to prove express malice.

THE plaintiff who was a married woman and maternity nurse by profession sued the defendant to recover a sum of one thousand rupees as damages in consequence of the defendant having defamed her by alleging in a communication to the Superintendent of Police, Colombo North, that she was the mistress of more than one person, that she was a woman of doubtful character, and that she used her certificate in midwifery as a cloak to hide her shameless conduct. The learned District . Judge held that the allegations were true and dismissed plaintiff's action.

N. E. Weerasooria, for plaintiff, appellant.-The learned trial Judge's finding on the facts is wrong, the inferences drawn by him are not justified by the evidence. As a result of a wrong inference the trial Judge approached plaintiff's case with a bias ; he himself called a witness who did not support his view. The allegations made against the plaintiff were untrue in fact; the occasion was not a privileged one ; there is evidence of ill-feeling between the parties ; the defendant was actuated by malice; even if the occasion was privileged the allegations complained of went beyond the matter in regard to which a complaint to the Police may have been made ; they were irrelevant and not for the public benefit. Counsel also cited Tissera v. Holloway [1 (1878) 1 S. C. C. 29.] and Serajudeen v. Allagappa Chetty[ 2 (1919) 21 N. L. R. 428.].

H. V. Perera (with him Chelvanayagam), for defendant, respondent.- The trial Judge is right on his findings of fact. The occasion was a privileged one; there is no evidence of malice. The intervention of the Police was properly sought and the information was given in the course of and for the purpose of the complaint which the defendant had a right to make. It was relevant and pertinent to the discharge of the duty. Counsel cited Adam v. Ward'[3 (1917) A. C. 320.].

Cur. adv. vult.

Weerasooria, in reply.

February 11, 1937. SOERTSZ J.-

The plaintiff, a married woman, and a certified maternity nurse by profession, sued the defendant to recover a sum of one thousand rupees as damages she claimed to be entitled to, in consequence of the defendant having defamed her by alleging, in the course of a written communication made by him to the Superintendent of Police, Colombo North, that " she had been kept as a mistress by more than one person "-" she is apparently a woman of doubtful character "-" she uses her certificate in midwifery as a cloak to hide her shameless conduct"-" she is often not at home and when she is, there is a constant stream1 of callers at any time of the day or night."

That these statements were made is beyond question. The letter was produced and was received in evidence, and the defendant admitted he wrote it. It was not, and indeed it cannot be denied, that these statements are defamatory. The learned trial Judge found that '' the allegations made in the petition are true," and he went on to say, "therefore plai