Gytrg.docx

Malayan Law Journal Reports/1966/Volume 2/ABDUL RAHMAN TALIB v SEENIVASAGAM & ANOR - [1966] 2 MLJ 66 - 21 March 1966

14 pages

[1966] 2 MLJ 66

ABDUL RAHMAN TALIB v SEENIVASAGAM & ANOR

FC KL THOMSON LP, BARAKBAH CJ MALAYA AND ONG HOCK THYE FJ FEDERAL COURT CIVIL APPEAL NO 112 OF 1964 21 March 1966

Libel and Slander -- Libel -- Defense of justification -- Views of judge on credibility of witnesses - Defamation Ordinance, 1958, s 8.

This was an appeal against the decision of Hepworth J. who had held that the defendants had made out their defence of justification ( [1965] 1 MLJ 142). The plaintiff/appellant had claimed damages for slander in respect of a verbal statement made by the 1st defendant, and for libel in respect of written statements made by the 1st and 2nd defendants, alleging corrupt practices by the plaintiff. The alleged slander was contained in a statement made by the 1st defendant at a meeting at the Chinese Assembly Hall, Kuala Lumpur, referring to and repeating what he had already said as a member of Parliament in the House of Representatives, and the alleged libels were contained in (a) a written statement handed over by the 2nd defendant to persons present at that meeting and (b) a written statement handed over by the 1st defendant to a press representative at that meeting. The 1st defendant in his defence pleaded qualified privilege, fair comment and justification. The second defendant pleaded justification. The trial judge held that the defence of qualified privilege failed but that the defendant's defence of justification succeeded.

Held:

(1)

(2)

the learned trial judge had drawn the proper inferences from proved facts, in holding as he did that the plaintiff had received favours but not money and in coming to the conclusion that although the defendants had failed to prove the truth of the charge relating to money, the imputation in that respect did not materially injure the plaintiff's reputation having regard to the truth of the rest of the charges; taking the evidence in the case as a whole and on the balance of probabilities, the defence of justification must succeed.

Per Thomson L.P.: In the circumstances of this case very considerable weight must be given to the views of the trial judge on the relative credibility of the witnesses.

Cases referred to Belt Lawes (1882), 51 LJ QB 359 Archbolds Ltd S Spanglett Ltd [1961] 1 All ER 417 421 Adam Ward [1917] AC 309 334

FEDERAL COURT

RHV Rintoul, Eusoffe Abdoolcader and GS Hill for the appellant.

Chan Nyarn Hoi for the first respondent.

Dato' SP Seenivasagam for the second respondent.

BARAKBAH CJ (MALAYA)

The plaintiff in this case was the Minister for Health in the Government of the Federation of Malaya. The first defendant is an advocate and solicitor and a Member of the House of Representatives. The second defendant is a company director. The plaintiff's claim was for damages for libel and slander alleged to have been published by the defendants at the Chinese Assembly Hall in Kuala Lumpur on 11th September 1963.

Hepworth J. dismissed the claim and the plaintiff now appeals to this court against his decision. The first defendant has also filed a cross-appeal but, according to him, his purpose was merely to support the judge's grounds of judgment. I shall endeavour to set out the facts of the case as concisely as possible. In 1958, the second defendant had applied to the Pahang Government for a licence to extract bat guano at a place called Kota Gelanggi, Pulau Tawar, in the District of Jerantut in the State of Pahang. The guano was to be sold as fertiliser. In 1959 armed with a letter of introduction, he went to see the Mentri Besar of Pahang in connection with his application. In April 1960 a licence was granted to him, expiring on 31st December 1960. From time to time, this licence was renewed; first, to 30th June 1961, then to 31st December 1961, and finally to 30th June 1962, all in the name of the second defendant. He stated that sales in any large quantity were not possible as the renewals of the licence were only for short periods each time, rendering it impossible to guarantee a steady continuous supply to prospective purchasers. About the end of 1961 the second defendant came to understand that the Pahang Government was proposing to change its policy in regard to such licences by issuing them only to limited companies rather than to individuals. Consequently he approached one Che Sabri bin Haji Dhalan with a view to his putting up the capital to form a company. Che Sabri agreed and contributed $4,300 on the understanding that he was to receive shares in the company for such amount in due course. On 11th December 1961 the Sharikat Berhad Baja Asli Melayu or Malay 1966 2 MLJ 66 at 67 Natural Fertiliser Co. Ltd., (hereinafter referred to as the "old company") was registered, the directors being the second defendant and Che Sabri. Without any delay the old company then applied for a 15 year lease of the area at Kota Gelanggi and a licence to extract guano for that period. One evening in the latter part of 1961 or early 1962, the second defendant, Che Sabri and Che Musa bin Abdul Rahman, (father of the plaintiff's wife) went to call on the Mentri Besar of Pahang regarding the application for the 15 year lease and licence. They were told by the Mentri Besar that the matter would be considered by the State Council. In March 1962 the second defendant's family, consisting of his wife, a son and a daughter, came to live in the plaintiff's house at Kia Peng Road, Kuala Lumpur. It would appear that the second defendant himself stayed there only off and on until June 1962, when the engagement took place between the plaintiff's youngest brother and the second defendant's daughter, after which date the second defendant appears to have also taken up more regular residence at the plaintiff's house. The reason for these moves would appear to be that the second defendant was then in financial difficulties. While awaiting a reply from the Pahang Government to the application for the 15 years lease and licence, the second defendant contacted a Japanese gentleman by the name of Suzuki, who was sufficiently interested to take samples of guano back to Tokyo for analysis. The analyst's report was satisfactory, the guano having been found to contain phosphate, in some cases up to nearly 40%. The second defendant then in May 1962, went to see a Mr. R. Hughes

in Kuala Lumpur, who introduced him to a Mr. H.G. Warren and a Mr. D.W.A. Corkett. These gentlemen became interested in the guano business. As a result of discussions between the second defendant and Messrs. Warren, Corkett and Hughes, an agreement was entered into on 30th May 1962 whereby the second defendant agreed to grant Messrs. Warren, Corkett and Hughes the sole and exclusive right to remove bat guano from Kota Gelanggi in consideration of an immediate payment of $3,000 and a further payment of $50,000 upon the issue of the 15 year lease. In addition they were to pay to the second defendant tribute at the rate of $8.40 for every ton of guano removed. Paragraph 5 of this agreement reads as follows:

"5. Within fourteen (14) days of the issue of the said lease, the licensee (2nd defendant) shall in consideration of a further sum of dollars fifty thousand only ($50,000), to be paid by the contractors (Messrs. Warren, Corkett and Hughes) to the licensee enter into a formal agreement to grant to the contractors and/or their nominees the sole and exclusive right to enter and remove bat guano from the said land for the duration of the period stated in the said lease and containing such terms and conditions as may be mutually agreed upon by the parties hereto and subject to the rate of tribute set out in clause 6 hereunder and such agreement shall be prepared by and executed before Messrs. Allen & Gledhill, Advocates and Solicitors, Oversea Chinese Bank Building, 23 Market Street (Top Floor), Kuala Lumpur, Provided Always that should the contractors and/or their nominees refuse to enter into the aforesaid agreement within the aforesaid period of 14 days then in the happening of such an event the contractors their nominees servants and agents shall forthwith vacate the said land and the sum of dollars three thousand ($3,000) paid under clause 1 above shall be forfeited to the licensee and this agreement shall be null and void and of no effect and neither party shall have any claim