Prasad v Lal [1979] FJSC 7; Civil Action 169 of 1979 (21 December 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 169 of 1979
BETWEEN:

CHUNMUN PRASAD

s/o Nanku
Plaintiff
AND:

HARI LAL

s/o Chunni
Defendant

Mr GP Shankar, Counsel for the Plaintiff
Mr RD Patel & Mr Raj Kumar, Counsel for the Drfendant

JUDGMENT

The plaintiff claims damages from the defendant in respect of defamatory remarks purportedly uttered by the defendant in the presence of the defendant’s brother Hari Shankar and one other person Kapil Prasad.

The words complained of in the statement of claim are the following (or the English equivalent).

"Chunmun you are a thief. You are a bastard. You stole school's money. You had the gate made out from stolen money, and had your father's name inserted on it out from stolen money."

The words allegedly uttered by the defendant according to the plaintiff’s own evidence are as follows:-

"Chunmun you are a thief. Fuck your mother. You have stolen school money and have built a gate with that money, and have written the name of your father on it."

According to the plaintiff the defendant did not speak to him but shouted out these words, presumably once only because the plaintiff has not said or inferred that the words were uttered more than once.

Hari Shankar, the defendant's brother (incidentally they, on very bad terms with a court case, or court cases pending between then) said that the defendant shouted many times,

"Chunmun, you are a thief, you bastard. You have stolen $2,000 from the school and have built a gate, and have put your father’s name on it."

According to Kapil Prasad another witness for the plaintiff the defendant said two or three times

"Chunmun Prasad, fuck your mother, you are a thief and you have stolen $2,000 from the school and have built gate, and have written your father's name on it."

What the defendant says that he said were the words-

"I have stopped you coming into my land so many times. You come at night like a thief. Aren't you ashamed.",

which he uttered once only.

What both the plaintiff and his witnesses and the defendant agree is that the plaintiff himself said nothing and that the defendant used the word "thief".

The plaintiff has not pleaded special damages so it is clear that the basis for his claim for damages is that the defendant used the words "thief" in referring to him. Just the use of the word "thief" is not per se actionable because there are circumstances where it is clear at the plaintiff is not being seriously accused of theft. The version given by the defendant himself is an example of this. The context may make it clear that theft itself is not imputed but some breach of trust. For example see Thompson v Bernard (1807) 1 Camp 47, where the words "Thompson is a dammed thief and so was his father before him, and I can prove it," and were followed by words such as "Thompson received the earnings of the ship, and ought to send the wages," and Lord Ellenborough C.J. directed the jury that it was clear from the whole conversation that the words did not impute a felony, but only a mere breach of trust.

There is a similarity with the present case since what the defendant is alleged to have said refers back to certain matters relating to a schoolboard of which the plaintiff is president and the defendant was previously a member.

A contract for certain construction work was awarded to a contractor, and there was apparently an overpayment of some $2,000. No court action was taken against the contractor but by various ways the whole of the $2,000 was recovered from him except for $200 which was covered by a dishonoured cheque. Presumably all will be recovered in time, but apparently the matter sparked off much bitterness amongst members of the board and particularly with the defendant. There is absolutely no evidence that the plaintiff or anyone else stole the money and whatever overpayment there might have been to the contractor has, and had at the time of the incident giving rise to this action been more or less fully repaid by the contractor. There was no evidence as to what the contract was for exactly or whether it included the provision of a new gate for the school, with or without the name of the plaintiff's father on it. There was in fact no evidence that a gate had been so provided. Even if such a gate had been so provided, with or without the approval of the school Board, it is hard to see how this could ever amount to theft by anyone - the most that could be said was that the plaintiff misused his position as president of the board to get his father's name inscribed, presumably as some sort of tribute, on the school gate.

Probably put at its highest what the plaintiff alleges the defendant said would not amount to more than vulgar abuse hurled at the plaintiff by an irate defendant acting more like a child than a grown up man, and hardly to be taken seriously by any normal person.

With regard to the evidence itself it is clear that there are significant differences in the accounts by the various witnesses s to what the defendant said or shouted. There might be some suspicion if their versions were word perfect of course, but all the same the differences are significant, and hardly to be explained as imperfect recollection by three different witnesses of the same utterances particularly if they were utterances repeated several if not many times. And that is not all. According to the plaintiff the defendant said or shouted the words once. But according to Kapil Prasad the defendant kept shouting the words over and over again. However, Kapil's evidence is rather suspect any way. He says he was on the main road going to the shop when he heard a noise like someone fighting (or presumably quarrelling) and he went up the side road towards the house of Hari Shankar to see what was going on. There was no very clear evidence as to how far away he was when he first heard the noise or how long he took to get near enough to the house to hear what was being said or shouted, but his presence on the scene seems just a little too fortuitous to be credible. And if he is to be believed the defendant must have repeated himself many times, which is rather an extraordinary state of affairs and if true it is rather surprising the plaintiff himself did not give evidence of it.

Hari Shankar is on very bad terms with the defendant, his brother and to that extent his evidence against his brother is to be treated with reserve. Again the story that the plaintiff drove Hari Shankar home to his house in his taxi only to find the defendant standing in his garden under a mango tree ready to hurl unprovoked abuse at him whilst a convenient witness Kapil Prasad came out of his way up the road to listen, sounds just too improbable.

Equally improbable is the defendant's own version of what happened and the words he used. Clearly his version could hardly have inspired the present action, and the words he said he used could hardly have been mistaken for the words the other witnesses claimed he used. I can only conclude that neither version of the incident, or the words used is correct and that the truth lies somewhere in between. I have no doubt that the defendant behaved childishly, perhaps irresponsibly, and directed abuse at the plaintiff, and that during that abuse the word "thief" was used. I don't doubt that the reason for the use of the word "thief" is to be found somewhere in the history of the incident involving the overpayment to the contractor by the school board. In that context, as I have pointed out there was no room for a valid accusation of theft, and I am sure that the use of the word by the defendant was only part of the childish vulgar abuse being hurled at the plaintiff rather than a serious accusation of theft. Certainly without being satisfied more precisely what the defendant said than I have been by the evidence of the plaintiff and his witnesses I would not place the defendant's actions and words in any harsher light than this.

Accordingly, even on a balance of probabilities I cannot be satisfied. that the defendant uttered actionable defamatory statements about the plaintiff and. the action is dismissed with costs to be agreed, or taxed, in favour of the defendant.

LAUTOKA,
21^st December, 1979.

G.O.L. Dyke

JUDGE