[1952] EACA 117

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MAYERS, J. (Kenya)

SARWAN SINGH s/o AIMAR SINGH, Appellant (Original Applicant)

## $\boldsymbol{v}$

## MICHAEL NOTKIN; Respondent (Orginal Respondent) Civil Appeal No. 2 of 1952

## (Appeal from the decision of H. M. Supreme Court of Kenya-R. Campbell, Ag. J.)

Defamation—Motion to strike out frivolous or vexatious pleadings—Discretion of Court—How exercised.

A defendant applied by motion under Order 6, rule 29, Kenya Civil Procedure Rules, to strike out certain paragraphs of a plaint claiming damages against him for defamation and assault.

Upon the learned Judge refusing an application to stay the action, made on the ground that no reasonable cause of action had been disclosed by the words complained of, the defendant appealed.

*Held* $(25-7-52)$ .—(1) The powers to strike out under Order 6, rule 29, is discretionary and not to be used save in plain and obvious cases.

(2) The Court would not interfere with the Judge's discretion in holding that the trial Court should decide whether words which if defamatory, were actionable *per se.*

(3) The prayer for a public apology should have been struck out firstly because it (3) the player that a point approach a point a point a point and the constituted of the player that no Court that had awarded damages to a plaintiff in a defamation action would order and secondly on the hypothesis that th out prayer for public apology.

Case referred to: Moore v. Lawson and another, 31 T. L. R. 418.

D. N. Khanna for appellant.

Kean for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is an appeal from an interlocutory ruling by Campbell, Acting J., in the Supreme Court of Kenya on a motion to strike out certain paragraphs of a plaint filed by the respondent in which *inter alia* he prayed for damages for defamation and damages for assault.

A good deal of our time has been taken up in discussing whether the motion was one laid under Order 6, rule 29, or Order 6, rule 17, or under both. The terms of the motion itself did not disclose under what rule of procedure it purported to be brought, as it should have done, but counsel for the appellant who supported the motion in Supreme Court stated that it was brought under Order 6. rule 29, and the learned Judge so held. I see nothing wrong with that ruling, because in so far as the plaint was based on an action for defamation, the objections taken, if upheld, would have resulted in the plaintiff-respondent being nonsuited on that issue.

This brings me then to the substantial issue in this appeal, which is, whether the learned Judge was right or wrong in refusing to stay the action on the issue of defamation on the ground that the words complained of disclosed no reasonable cause of action. In the plaint, the respondent described himself as a building

contractor carrying on business in Nairobi. In paragraph 3 it is alleged that on 16th October, 1951, on the premises of the Marfak Petrol Station, Hardinge Street, Nairobi, the defendant falsely and maliciously spoke and published of the plaintiff in the way of his business the following words. Then follow 14 words of obscene abuse which it is not necessary to repeat. They are introductory only to the crucial sentence which was as follows: -

"This man does not pay his debts, he owes me Sh. 25,000 and does not pay it."

The plaintiff further alleged that these words were spoken to two Indian employees of the petrol station whose names were known to him and to others whose names are unknown.

The first point that arises is to determine the nature of the Judge's duty on the motion before him. In view of the decision in *Moore v. Lawson and another* 31 T. L. R. 418, I think Mr. Khanna has overstated the matter in his submission that the learned Judge should have decided whether the words set out above are capable of a defamatory meaning or not. In the case cited, the Court of Appeal in England reversed Ridley, J., who had allowed an application to strike out a pleading under Supreme Court Order 25, rule 4, on the ground that the words complained of in a written article were not capable of a defamatory meaning.

Order 25, rule 4, is similar in terms to Order 6, rule 29, of the Kenya Civil Procedure Rules.

Lord Justice Swinfen Eady in the leading judgment said this:—

"The Court was asked to support the Order made by Mr. Justice Ridley upon the ground that the language used was incapable of that or any other defamatory meaning. Mr. Salter has contended that it was the duty of the Court on an application such as the present to answer the question, 'Are the words capable of a defamatory meaning?' In his opinion that was not the function of the Court. Rule 4 of Order 25, under which the statement of claim had been struck out, provided that a pleading might be struck out, not on the ground that it disclosed no cause of action, but on the ground that it disclosed no reasonable cause of action. It had been said more than once that the rule was only to be acted upon in plain and obvious cases and, in his opinion, the jurisdiction should be exercised with extreme caution."

I am of the opinion that in construing a Judge's function under Order 6, rule 29, we should follow the same broad principle which establishes that the power to strike out under the rule is a discretionary one, and one that should not be used except in plain and obvious cases. I concede of course that where a Judge can see at a glance that the plaint discloses no reasonable cause of action, even if everything is proved that the plaintiff alleges, it would be his duty to strike out and so prevent at an early stage the pursuit of pointless and vexatious litigation. In the instant case then the problem resolves itself into deciding whether the words, if proved, to have been spoken of the defendant, are (a) clearly incapable of being defamatory and therefore cannot disclose any reasonable cause of action; $(b)$ if the answer to that is in the negative, are the words actionable *per se*; because the defendant has not averred any special damage. It is perhaps best to take $(b)$ first, for a statement may be defamatory and yet not actionable per se. In the case of a trader or business man a defamatory statement will be actionable per se if it concerns him in the way of his trade or business and is calculated to convey an imputation on him disparaging or injurious to him therein (20 Hailsham, paragraph 460). Here the plaintiff has alleged that he is carrying on business as a building contractor and that the

defendant in coram publico at another place of business, namely, a petrol filling station, had declared to all and sundry that the plaintiff does not pay his debts. I certainly consider that the plaint would have been better drawn had it contained a drafted innuendo, but I am not prepared to hold that the Judge in the Court below was wrong in thinking that the trial court might hold that the words used were defamatory of the plaintiff in the way of his trade or business on the face of it without the support of a pleaded innuendo. Mr. Kean for the respondent has argued that if a trader or business man known to be such is declared to be a person who does not pay his debts the implication is so obvious, namely, that as a trader he is a person to whom no credit should be given. that it would be superfluous to add an innuendo for this would be mere repetition. At all events I am quite persuaded that the matter is not so plain and obvious that this Court can properly say that the learned Judge should have held on the motion before him that without proof of special damage the action could not be maintained.

I am of the same opinion on the question as to whether the words are defamatory or not in a general sense. It is well settled that a mere statement that a man owes money is not per se defamatory. There must be something added injurious to reputation. An honest man may owe money, many do, but a statement for example, that a man habitually evades payment of his just debts, is different because it implies lack of honesty or fidelity. In the present instance if the defendant had confined himself to the bare fact that the plaintiff owed him Sh. 25,000 the Judge must have held that the words disclosed no reasonable cause of action; but he did not, he said: "This man does not pay his debts", which might be held to mean that in general and to all the world he is a bad payer. Certainly I agree the matter is not clear-cut or free from doubt but for that very reason in my opinion it is precisely the kind of case which falls within the principle enunciated in *Moore v. Lawson*. I consider therefore that no good reason has been shown by the appellant for any interference by this Court in the discretion exercised by the Judge in the Court below and that the issue of defamation should be allowed to proceed to trial. It will, of course, still be open to the appellant to raise a point of law in his pleading which can be dealt with by the Court in accordance with the provision of Order 6, rule 27.

Neither do I think that this Court is entitled to say that the Judge was demonstrably wrong in refusing to strike out the 14 obscene words in paragraph 3 of the plaint or the prayer for an injuction. As regards the obscene part of the alleged slander, the words taken by themselves may be mere vulgar abuse, but the judge thought, and I consider that he was probably right, that they formed part and parcel of the alleged slander and had not therefore been improperly pleaded. If the case proceeds to trial and the plaintiff succeeds in proving the whole statement alleged to have been made by the defendant, and that statement is held to be defamatory of the plaintiff in the way of his trade or business, the obscene and violent nature of the defendant's utterances may well be material factor in the assessment of damages.

As regards the prayer for an injunction the learned Judge thought that on the whole transaction as alleged by the plaintiff an injunction might conceivably be a remedy the Court of trial might be disposed to order in the event of the plaintiff succeeding. Again I think he was right for the plaint alleges not only slander but a physical assault as well.

In one respect only do I think the learned Judge should have accepted a part of the motion. I refer to the prayer for a public apology. This in my view should have been struck out, firstly, because it is a prayer that no Court that had awarded damages to a plaintiff in a defamation action would order, and secondly on the hypothesis that the plaintiff wins his action and gets damages. it is something to which he is not entitled. Damages for defamation in an action where special damage is not alleged, are a solatium for injured feeling, a plaintiff who receives this solatium cannot impose other conditions on the defendant. This, I think, from the judgment was probably the view of the learned Judge. He should therefore have struck out the prayer as being frivolous or vexatious.

Before concluding I would say this, if the plaintiff-respondent sets store on a public apology, his advisers should invite the defendant-appellant to give it with an intimation that if this is promised a settlement on terms would be considered. Assuming the defendant-appellant did utter the words complained of, whether they can be held to be defamatory or not, as to which I express no decided opinion, nevertheless a settlement would reflect credit on both parties and their advisers for on the alleged facts so far as they are revealed in the plaint, I have no hesitation in saying that this is the kind of action which could easily be settled out of Court by the application of a little goodwill and a little common sense by the parties concerned.

On the main issue the respondent has succeeded. In one particular only would I vary the order appealed against. I consider therefore that a fair order to make as regards costs will be to declare that the appellant do pay four-fifths of the costs of this appeal and the same proportion of the costs of the motion in the Court below.

SIR NEWNHAM WORLEY (Vice-President).--I concur and do not desire to add. anything.

MAYERS, J. (Kenya).—I concur and have nothing to add.