E.S. MANGAT v. B. SHARMA (1968) HCD 167

Civ. Case 83-D-67, 20/3/68

Georges C. J.

Defendant had engaged plaintiff, an advocate, for the sale of certain land. After a rather careless handling of defendant’s affairs, characterized by the High Court as “offhand” and “indifferent”, plaintiff secured the signature of a purchaser on a transfer deed. Defendant also executed this deed. The property had been pledged with the National Bank of Commerce in Dodoma, by notice of deposit of title deeds This bank handed over the deed to plaintiff, who sent it for registration to the Commissioner of Lands. Defendant, however, feeling that the value of the transaction had been seriously impaired by plaintiff’s handling of it, sent two letters to the Commissioner of Lands; one was marked as copied to both the bank and purchaser, and one marked as copied to the bank only. These letters accused the plaintiff of “grave breach of trust”, and requested that the Commissioner withhold his approval of the transaction. There was no dispute as to whether the letters were defamatory; the High Court rejected the defence of justification, finding insufficient evidence of “breach of trust.” The remaining issues were “qualified privilege” and “malice.”

HELD:

(1) “The authorities are clear .. that a privileged occasion arises where the defendant has an interest in making the communication to the third person, and the third person has a corresponding interest in receiving,, it ….. (T)his reciprocity is of the essence of the matter …. Here, defendant’s interest is clear. The Commissioner is sufficiently “interested”, since the transaction depends upon his consent. The bank is “interested”, since the property had been pledged with it, and since it had had to surrender the deed for registration. The purchaser was “interested” as a party to the transaction which the defendant was seeking to avoid, and because plaintiff had been acting for both the defendant and the purchaser in seeking to have the transaction registered. 

(2) Since all of the defendant’s communications were made under “qualified privilege”, malice must be proved. 

(3) Malice in such cases is not established merely by showing that the words used were not “reasonably necessary to protect the interest .. which is the foundation f (the) privilege; (the defendant) will be protected, even though his language should be violent or excessively strong if ……he might honestly and on reasonable grounds have believe that what he wrote … was true and necessary for the purpose of his vindication, though in fact it was not so.” [Quoting Adam v. Ward (1917) A. C. 309] Also, “the question is whether (defendant) is using the occasion honestly or abusing it ……But there is a state of mind, short of deliberate falsehood, by reason of which a person may properly be held .. to  have abused the occasion. It has been said that anger would be such a state of mind.” [Quoting Royal Aquarium and Summer & Winter Garden Society v. Parkinson (1892) 1Q.B. 431, 443]. If, through anger, defendant were “reckless” with the truth, he may be said to have abused an occasion of qualified privilege. 

(4) On the facts, the defendant here did abuse the occasion, and so loses his qualified privilege. 

(5) The plaintiff himself provoked the state of anger which led to the defamatory outburst. The “area of publication “ was very narrow, and No specific financial or other detriment to plaintiff has been shown. The defendant’s allegations were serious, but this it not a case for substantial damages. Shs. 1,000/- awarded to plaintiff, plus taxed costs.