Puri and Another v Bennett and Another (Civil Case No. 59 of 1945) [1947] EACA 86 (1 January 1947)

Full Case Text

## ORIGINAL CIVIL

# Before DE LESTANG, AG. J.

# (1) SWAMI DAS PURI, (2) DEVI DAS PURI (trading in partnership in the firm name or style of "M. D. Puri & Sons"), Plaintiffs

#### ν.

# (1) THE KENYA FARMERS' ASSOCIATION (CO-OPERATIVE), LTD, (2) G. D. BENNETT, Defendants

## Civil Case No. 59 of 1945

Defamation—Libel—Statements defamatory per se—Qualified privilege—Common interest—Malice.

The plaintiffs, a firm of produce millers, used to receive simultaneously at their mill consignments of wheat for the Maize Controller for gristing and allocation to traders as directed by him and for the District Commissioner for famine relief. Although both kinds of consignments were made on instructions from the Maize Controller, the plaintiffs were required to keep distinct accounts as the wheat from the Maize Controller was paid for by the Maize Controller to the consignor, while that for the D. C. was paid by the D. C.

Whenever wheat was required for the D. C. it was the practice for the Maize Controller to instruct the first defendants to supply the same. The first defendants would, on receipt of the Maize Controller's instructions, instruct one or more farmers to supply the wheat required direct to the plaintiffs and to consign it in a given way.

On 1st January, 1944, 275 bags of wheat were correctly consigned in this way to the plaintiffs for the D. C. Owing to a mistake in the Traffic Arrival Advice this consignment was entered into the Maize Controller's account. The first defendants repeatedly claimed payment for it and although the plaintiffs had informed the D. C. of the error the latter never passed on the information to the first defendants and refused payment on the ground that the consignment had not been received. After ascertaining that the consignment had been correctly consigned and duly received by the plaintiffs, the second defendant, as manager of the first defendants, wrote a letter to the D. C. in which this passage occurs: "It seems without doubt that the records kept by Messrs. D. D. Puri and other millers are very much wanting in correctness and reliability".

The plaintiffs sued the defendants in damages for libel, alleging by innuendos that the words imputed incompetence, gross carelessness, fraud and dishonesty on. the part of the plaintiffs and the commission of criminal offences.

The defendants denied the innuendoes and pleaded qualified privilege.

Held (19-2-47).—(1) That the plaintiffs had failed to discharge the burden which was on them of establishing the innuendoes.

(2) That as both the D. C. and the defendants had an interest in the keeping of proper accounts by the plaintiffs and as no malice express or implied was proved the occasion was privileged.

(3) That honest belief in the accuracy of a defamatory statement does not in itself negative malice but goes a long way, when based on reasonable grounds, to establish bona fides.

Suit dismissed with costs.

Cases referred to: Hunt v. Great Northern Railway Co. (1891) 2 Q. B. 191; Groom v. Crocker and Others (1938) 2 A. E. R. 394; Davidson v. Barclays Bank (1940) 1 A. E. R.<br>316; Winstanley v. Bampton (1943) 1 A. E. R. 61.

**Khanna** (Chanan Singh with him) for the Plaintiffs.

Slade for the Defendants.

JUDGMENT.—This is a suit for damages for libel arising out of a letter written by the defendants to the District Commissioner, Machakos, concerning the plaintiffs.

The facts may be briefly stated as follows: —

The plaintiffs are a firm of general merchants carrying on in particular the business of produce millers at Konza in the Machakos District. At all times material to this case the plaintiffs were receiving simultaneously at the mill distinct sets of consignments of wheat. One set of consignments was being received on behalf of the Maize Controller for gristing and allocation as directed by the Maize Controller. In respect of those consignments the plaintiffs were paid Sh. 1 per bag milled and they kept records known as "Milling Account" and made returns to the Maize Controller. The other set of consignments was on behalf of the District Commissioner, Machakos, for famine relief in the Machakos District. In respect of that set of consignments the plaintiffs were the agents of the District Commissioner and it was their duty on his behalf to receive such consignments, store them and issue them as directed by him, keep records thereof and submit weekly returns to the District Commissioner. The plaintiffs received from the District Commissioner for their services Sh. 3 per ton of wheat passing through their hands. The plaintiffs kept separate records of the second set of consignments and looked to the District Commissioner for payment of their fees. I might add in passing that the consignments of wheat received on behalf of the District Commissioner formed the bulk of the wheat received at plaintiffs' mill, being about five times the quantity received on behalf of the Maize Controller. In order to avoid confusion between the two sets of consignments it was arranged that consignments for the District Commissioner should be addressed to "District Commissioner, Machakos, c/o Puri's Mill" and consignments for the Maize Controller to "Puri Mill" simpliciter.

Whenever wheat was required by the District Commissioner it was the practice for the Maize Controller to place an order with the first defendants, which in turn instructed any given farmer or farmers to supply the same. The wheat was thus consigned by the farmer concerned to the plaintiffs' mill direct on the instructions of the first defendants.

The first defendants were aware that plaintiffs were receiving consignments of wheat both on behalf of the Maize Controller and District Commissioner simultaneously and that it was therefore necessary to distinguish between them and with that end in view every order on a farmer contained written instructions as to how to prepare the consignment notes and how to address the wheat. The first defendants were thus acting as go-between between the Maize Controller, District Commissioner and farmer. They received payment for the wheat consigned to the District Commissioner from the District Commissioner and settled with the farmer direct. The first defendants derived no profit from the transactions because the supplies of wheat for the District Commissioner were made at cost.

Acting on instructions issued to them by the Maize Controller on the 17th December, 1943, the first defendants instructed certain farmers to supply certain specified quantities of wheat to the District Commissioner, c/o Puri's Mills in accordance with the practice in force. Accordingly, on the 1st January, 1944, one farmer consigned 35 bags of wheat to Puri's Mills for the District Commissioner, Machakos, in truck No. 3082. On the same day the same farmer consigned 275 bags of wheat in another truck No. 6116 to the same address. The plaintiffs were advised by the Railway on 12th January, 1943, of the arrival of the 35 bags in truck No. 3082 by T. A. A. No. 39. This advice, however, wrongly gave the address of the consignment as being Messrs. Puri Mills, Machakos. The plaintiffs in accordance with the arrangement in force and acting blindly on the information contained in the T. A. A. assumed that the consignment was on behalf of the Maize Controller and they applied the same to his account.

The first defendants, however, knowing that the consignment was intended for the District Commissioner, billed the District Commissioner for the 35 bags notwithstanding the confusion; as it was a small quantity the plaintiffs were able to replace it from other wheat in hand and the matter was adjusted without delav.

As regards the consignment of 275 bags in truck 6116, the T. A. A. issued to plaintiffs on 16th January, 1944, by the Railway gave the address of the consignment as Puri's Mill. The plaintiffs for the same reasons as in the case of the 35 bags assumed that the consignment was for the Maize Controller and applied the same to his account.

On 3rd January, 1944, the first defendant billed the District Commissioner for several consignments including the 275 bags which I have just mentioned.

On 9th February, 1944, the District Commissioner informed the first defendants that "truck No. 6116 had not been received".

On 18th February, 1944, the first defendants replied to the District Commissioner that they had ascertained that the truck in question had been dispatched on 7th January, 1944, and that they were making further inquiries from the Railway. Meanwhile, the first defendants were submitting their invoice in respect of the 275 bags and on 14th April, 1944, the District Comimssioner wrote to the plaintiffs sending a copy of their letter to the first defendants. The relevant portion of the letter reads as follows: -

"I also enclose Invoice 74520 for 275 bags wheat which apparently have not been shown to me as having been received in truck No. 6116. I therefore refer it to you if it may concern your milling account and to let the $K. F. A.$ know its position in due course.

The plaintiffs did not communicate with the K. F. A. as requested by the District Commissioner, but on 17th April, 1944, they wrote to the Maize Controller, copy to the District Commissioner, a letter containing inter alia the following paragraph: $\rightarrow$

"With reference to para 2 of the District Commissioner's letter Truck 6116 containing 275 bags wheat was received addressed 'Puri Mills' and accounted for in the Milling Return No. 11/34 of 20th January, 1944."

This information was never communicated to defendants either by the District Commissioner or Maize Controller. The first defendants continued to submit their invoice to the District Commissioner and asking for settlement. On 16th August, 1944, the District Commissioner wrote to the first defendants, the relevant part of the letter reading as follows: -

"It is regretted that 275 bags were not received at Konza in truck 6116. In fact all consignments received during January, 1944, have now been paid up to date. I therefore return your invoice 74520."

The first defendants replied to the District Commissioner's letter on the 25th August, 1944, informing him that they had asked the Railway to investigate the matter. Having obtained the required information from the Railway on 31st August, 1944, the first defendants wrote to the District Commissioner on 2nd **September, 1944, as follows:** $\rightarrow$

District Commissioner, Machakos.

DEAR SIR.

## WHEAT ACCOUNTS—INVOICE No. 74520

We refer to your letter of the 16th ultimo, and have to-day received the following answer from the District Traffic Superintendent, Nakuru, which we quote in full: $-$

#### "Wheat in Truck 6116 ex Menangai."

With reference to your letter No. $10/F$ of the 25th instant, I find on inquiry that truck No. 6116 containing 275 bags of wheat ex Menangai Station was correctly delivered to Mr. D. D. Puri Mills on 16-1-44 at Konza Station under clear signature."

We therefore return herewith our invoices No. 74520 and would be glad to receive your early remittance. It seems without doubt that the records kept by Messrs. D. D. Puri and other millers are very much wanting in correctness and reliability, and moreover we would point out that the price you are paying does not justify an extension of credit over seven months.

## Yours faithfully, $(sd)$ for GENERAL MANAGER.

encl.

This letter is signed by second defendant as General Manager for the first defendants. This letter was passed on to plaintiffs and on 14th September, 1944, the District Commissioner communicated their reply to the first defendants in the following letter: $-$

> Ref. No. AGR/ $7/3$ /Acct. District Commissioner's Office, Machakos, 14th September, 1944.

The Manager,

Kenya Farmers' Association (Co-op.) Ltd.,

Nakuru

Sir.

## WHEAT ACCOUNT-INVOICE No. 74520

With reference to your letter $10/B$ of $2/9/1944$ I have written to Mr. D. D. Puri of Konza and he replies as follows: —

Truck No. 6116 containing 275 bags wheat ex Menangai this truck was received addressed to "Puri's Mills" (T. A. A. No. 58) and was accordingly credited in our Maize Control Milling return No. 11/34 of 16-1-44.

As this wheat was not supplied to District Commissioner, Machakos, for Famine Relief your Invoice No. 74520 is again returned to you.

I, myself, have inspected T. A. A. No. 58 and confirm that it is addressed to "Puri's Mills" Konza.

> I have the honour to be, Sirs. Your obedient servant, (sd) B. Drake.

> > for District Commissioner.

$c.c.$ The Maize Controller, Nairobi.

On 25th September, 1945, the plaintiffs wrote to the defendants as follows: $-$

M. D. PURI & SONS.

KONZA,

25th September, 1945.

The General Manager, Kenya Farmers' Association Ltd. Nakuru.

DEAR SIRS,

Ref. District Commissioner, Machakos—letter AGR/7/3 Accts. of 22nd September, Truck No. 6116—275 bags wheat is referred to.

With regard to the statement in your letter of the 2nd September. "It seems without doubt that the records kept by Messrs. D. D. Puri and other Millers are very much wanting in correctness and reliability .... "We have to state that you have no business to cast aspersions on our accounts and we therefore ask you to withdraw this statement and tender an apology for same.

Yours faithfully,

M. D. Puri & Sons

$\mathbf{Sd.}\ \ldots\ldots\ldots\ldots\ldots\ldots$

The first defendants replied on 13th October, 1944, explaining the position and stating in their last paragraph: -

"It still passes our comprehension that you should have stated, for eight months, that this consignment had never been received by you."

On 17th October, 1944, the plaintiffs reiterated their demand for an apology to which the defendants replied as follows on 20th October, $1944:$ —

20th October, 1944. •

Messrs. M. D. Puri & Sons,

P. O. Box 872,

Nairobi.

$11/d$

DEAR SIRS.

#### WHEAT SUPPLIES

In reply to your letter of the 17th instant we enclose herewith a copy of the waybill covering the consignment in truck No. 6116 clearly stating that the consignment was addressed to Puri's Mill for the District Commissioner, Machakos.

Furthermore, when we first inquired of the District Commissioner, Machakos, why we did not receive payment for the consignment, we were told that truck No. 6116 had not been received at Puri's Mill, which obviously is not in agreement with the facts.

Under the circumstances we see no reason to tender the apologies called for in your letter.

> Yours faithfully, General Manager.

The matter than came to Court after the defendants had again rejected a further demand from plaintiffs' advocate for an apology and payment of costs.

I have quoted rather fully from the more relevant letters because arguments have been based on passages appearing in some of them.

It will be recalled that in their defence the defendants pleaded justification. At the hearing, however, defendants' advocate explained that having had an opportunity of seeing in Court for the first time certain correspondence in the matter which had passed between the District Commissioner and the plaintiffs he was satisfied that the records of the plaintiffs were not wanting in correctness and reliability and he accordingly withdrew the plea of justification. He also quite frankly admitted that the offending words were defamatory in their natural meaning but denied the innuendoes.

The first point with which I wish to deal is whether the words complained of bear the meanings assigned to them by the plaintiffs. It may be convenient to repeat those words here. They are: $-$

"It seems without doubt that the records kept by Messrs. D. D. Puri and other millers are very much wanting in correctness and reliability."

The plaintiffs contend that those words mean and were understood to mean that the plaintiffs were-

- (a) conducting their business in a most incompetent, grossly careless and improper fashion; and/or - (b) not keeping proper and accurate records as required by law (and in particular the Defence Regulations), and were thus guilty of a criminal offence: and/or

(d) guilty of fraud and dishonesty, in making over to and treating the consignment as being on the instructions of the Maize Control, so as to be able to charge milling fees thereon; instead of treating the same as a consignment on account of the District Commissioner, in which case there would have been no question of milling the same and hence no question of making a charge for milling; and by treating the same as a consignment on the instructions of the Maize Control, had deliberately done the first defendants out of their price for the wheat, which they would otherwise have got from the District Commissioner.

The question for me to decide is whether reasonable people might understand those words in the extended meanings ascribed to them. Looking at the words themselves, I think that they are plain English words which in their natural and ordinary meaning mean purely and simply that the records of the plaintiffs are incorrect and unreliable. There is nothing in them to suggest any indirect or sinister motive for the allegation of inaccuracy and unreliability and there is nothing in them, in my opinion, to suggest to any reasonable person reading them that they charge the plaintiffs with the commission of criminal offences as suggested in the innuendoes. Are there special circumstances justifying the innuendoes? In my view the circumstances surrounding the writing of those words tend to confirm their natural and ordinary meaning and disprove the innuendoes. It might be advisable to very briefly recapitulate those circumstances. The defendants knew that the wheat had been correctly consigned and that it had been received by the plaintiffs. Yet twice they were informed by the District Commissioner that the plaintiffs, who were his agents, had not received the wheat. In fact it had been received and the plaintiffs had so informed the District Commissioner, but the information had not been passed on to the defendants. In these circumstances, coupled with the plaintiffs' failure to inform the defendants direct as requested by the District Commissioner, it was not unnatural for the defendants to assume that the plaintiffs were telling the District Commissioner that they had not received the goods, which in fact they had received, and from such an assumption to further infer that proper records had not been kept of the consignment. So it would be quite reasonable for the defendants to reason as follows: $\rightarrow$

The wheat has been delivered to the plaintiffs and yet they maintain that it has not been received. There must be something wrong with their records. This in my opinion is what the defendants intended to say and what the words reasonably mean. There is nothing there to suggest fraud, incompetence or the commission of criminal offences as alleged. It is in my view straining the meaning of the plain words used to read such serious allegations in them.

Two witnesses were called to support the innuendoes. Mr. Chunilal Kirparam expressed the opinion that the words suggested that the accounts were improperly kept for the purpose of fraud and that he so understood this from the words themselves without any knowledge of the circumstances in which they were used. He seemed to rely on the words "without doubt" as imputing the sinister motive. Mr. Gathani did not go so far as Mr. Kirparam, but he said something about "business morality" which I could not understand and which he could not satisfactorily explain, to me at any rate. Both witnesses could not give any convincing reasons for understanding the words as imputing "fraud" or "wrong intent" to the plaintiffs and the reason for their inability to do so is, in my opinion, to be found in the fact that the words are not capable of the more serious imputations assigned to them. Another witness who was asked his opinion about the words was Mr. Drake. He was more reasonable in his interpretation of the offending passage. Being the District Revenue Officer he was dealing with the consignments for the District Commissioner and knew all the circumstances of the case. He did not understand the passage in the meanings put on it by the plaintiffs. He said that he read it as nothing more than a grouse at having had to wait a long time for payment when the writers were not at fault.

The burden of proving the innuendoes is on the plaintiffs and in my view they have failed to discharge that burden.

Having disposed of the innuendoes I shall now deal with the defence of qualified privilege. This defence is raised in paragraph 7 of the statement of defence as follows: -

"The said words were written and published solely by the defendants to the District Commissioner, who, being concerned as principal with all wheat for famine relief consigned to plaintiffs as his agents and being liable for payment to defendants in respect of all such wheat, had a common interest with defendants in the matters therein referred to. The said words were written and published bona fide and without malice towards plaintiffs and solely to advance the common interest of defendants and the District Commissioner by prevention of future mistakes in the records of deliveries to him, and in. the honest belief that they were true. The occasion is therefore privileged."

The principle underlying this defence of qualified privilege based on common interest is clear. It has been defined by many eminent Judges in decided cases and I think the words of Lord Esher in Hunt v. Great Northern Railway Co. (1891) 2 Q. B. at p. 191 express it very well: $-$

"A privileged occasion", he said, "arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When those two things coexist, the occasion is a privileged one". In other words, to found the privilege there must be a reciprocity of interest.

It is conceded in this case that the District Commissioner had an interest in the keeping of accounts by the plaintiffs, but it is also contended that the defendants had no such interest. Whether the defendants had an interest or not in the matter is purely a question of fact. It is clear from the evidence that the defendants did not receive payment for the wheat until such time as it was accounted for by the plaintiffs to the District Commissioner. It has been proved that long delay over payments occurred in at least two cases because there had

been confusion and the District Commissioner was not satisfied that the consignments had been received on his behalf. Such confusion necessitated lengthy correspondence. It is therefore quite obvious that the defendants were greatly interested in proper records being kept by the District Commissioner and his agent of consignments received by them, because unless such records were kept properly delays were bound to occur over payments to the detriment of the defendants, who although they supplied the wheat at cost, had to wait several months for payment.

I consider, therefore, that a common interest existed in the District Commissioner and the defendants in the accounts kept by the plaintiffs in the matter.

It is contended by the plaintiffs that the defence of qualified privilege does not lie in this case because the defendants themselves created the occasion on which the privilege is founded by assuming wrongly that the plaintiffs' records were inaccurate and unreliable. In support of this contention I was referred to the decisions in:

Groom v. Crocker and others (1938) 2 A. E. R. p. 394, and

# Davidson v. Barclays Bank (1940) 1 A. E. R. p. 316.

While I entirely agree that a defendant cannot rely upon his own mistakes to create a privileged occasion, I do not think that this is the position here. The occasion was already in existence when the defamatory communication was mistakenly made and in such a case the privilege is not destroyed by the mistake. To quote the words of Hilbery, J., in *Davidson v. Barclays Bank Ltd.*, at page $322:$

"However, you cannot by making a mistake, create the occasion for making the communication"

and again at the same page:

"If, on those occasions, once that occasion has been constituted through the circumstances, there is made a communication which is mistakenly defamatory ... the occasion is one of qualified privilege ... the occasion is already there when the communication is made, and the mistake then is made in the communication truly upon an occasion which is a qualified privilege".

This is exactly what happened in this case. The mistaken assumption by the defendants that the records of the plaintiffs were inaccurate did not create the occasion. The occasion was already in existence. The occasion was created by a combination of circumstances such as the confusion which had arisen over the consignment due to the incorrect T. A. A., the failure of the District Commissioner to inform the defendants of plaintiffs' explanation, the District Commissioner's error in maintaining that the consignment had not been received at all, the relationship of the parties and so forth.

Having come to the conclusion that the occasion was privileged I must now examine the question of malice and to use the words of Viscount Caldecote, L. C. J., in *Winstanley v. Bampton* (1943) 1 A. E. R. 661 at page 63: to

"Consider whether there is material upon which I can find that the defendant was actuated by express malice, and, if there is such material, whether in my judgment he was so actuated."

Mr. Khanna has contended that there was abundant evidence of malice so as to destroy the privilege. He invited me to find evidence of malice in a number of matters. It is said, for instance, that the defendants ought to have inquired first as to the state of plaintiffs' account before making the allegation. Had they done so the letter would probably not have been written and I do not think that malice can be inferred from absence of such inquiry because the defendants made all possible inquiries from the District Commissioner regarding the missing consignments. It was also not the practice for the plaintiffs and defendants to communicate direct with one another, but always through the District Commissioner. It is said that the defendants were reckless in jumping to the conclusion that the plaintiffs were to blame. On the facts which I have stated fully earlier on I am of opinion that they came to a reasonable conclusion on the facts known to them. I can find no evidence that the defendants were aware that the accusation was untrue or that they were indifferent whether it was true or not. In fact, I am satisfied that they honestly believed it to be true. Malice cannot be inferred from the fact that the name of the plaintiffs was coupled with "other Millers" in the offending passage. On the contrary, I think that the reference to other millers, if it has any bearing at all, tends by its generalization to diminish whatever sting exists in the allegation.

The language used was not unduly strong. It would be wrong to lay too much stress on the words "without doubt" because they add nothing to the passage, and the subsequent statements of the defendants in other letters to the effect that the plaintiffs had been denying the receipt of the consignment for eight months show that the defendants honestly but erroneously believed that it was so, otherwise there would have been no point in saying so and it cannot be denied that they had reasonable grounds for such belief. There was no accusation of deliberate suppression of fact as suggested. The statement in the defendant's letter of 20th October, 1944, to the plaintiffs where the following passage occurs:

"Furthermore, when we first inquired from the District Commissioner why we did not receive payment for the consignment, we were told that truck No. 6116 had not been received at Puri's Mill, which obviously is not in agreement with the facts.",

does not support such a construction. It is a statement made by way of explanation and justification and enumerates the facts correctly. The admission in the pleadings that the defendants were annoyed at the incident was explained by the witnesses for the defence. Whatever annoyance there may have been is a matter for speculation and in any event it was not such as to arouse a state of indignation as would conclusively show that the allegation was made out of spite and ill-will and not with an honest desire to put things right for the future. I am unable also to find evidence of malice in the defendants' refusal to withdraw the allegation because on the facts known to them, as I have said before, they were not unreasonable in assuming that the fault lay with the plaintiffs' records. On the question of "honest belief" I was referred by advocate for the plaintiffs to a passage in the judgment of Viscount Caldecote, L. C. J., in *Winstanley* $v$ . *Bampton*, where at page 664 he says: $\frac{1}{2}$

"I do not regard this as an authority for the proposition that in a case of defamation of character a man who makes defamatory statements on a privileged occasion can be excused if he honestly believes the statements to be true. Counsel for the plaintiffs on the other hand referred me to a passage in the opinion of Greer, $L. J., in$ *Watt v. Longsdon* (4) at p. 154. I respectfully accept this as an authority for the view which I have formed that the evidence of the defendant's belief in the truth of his statements may afford material for consideration on the question of express malice but it is not in itself enough to absolve the defendant."

I respectfully accept this passage as laying down the law correctly and while agreeing that honest belief in itself does not negative malice I think that honest belief based on reasonable ground goes a long way to show bona fides. It seems to me that malice is more difficult to substantiate when the defendants are a Company and the Manager of a Company as in this case than when they are ordinary individuals. After all, the Company itself is incapable of malice proper and it is the malice of its servants which must be imputed to it. Generally speaking, servants of a Company do not entertain personal feelings of ill-will against

other Companies with which they have business difficulties. The position is not different here. A full explanation has been given as to how the offending letter happened to be written and it shows that it was not written with malice at all. It was prepared by a clerk who dealt with the particular matter, approved by the accountant and submitted for signature by the General Manager who examined the papers before signing it. There can be no suggestion that the clerk bore any malice towards the plaintiffs and as for the accountant and the General Manager their evidence would convince anyone that they bore no ill-will to the plaintiffs. In a business of the size of the K. F. A. difficulties of a graver nature than the loss of a small consignment of wheat must of necessity occur frequently and it would be surprising that the General Manager and accountant would get so indignant over such a comparative trifle with the plaintiffs as to go out of their way to abuse them. Surely it cannot be so. The defendants must have been aggrieved and annoyed at the delay they had to wait for settlement, and they complained to the District Commissioner, the only person interested, so that it would be put right for the future. In the result I do not find malice proved. That being so the defence of qualified privilege succeeds and it is unnecessary for me to consider the other defence of fair comment. The suit is dismissed with costs.

I should like, however, in conclusion, to express my grateful thanks to learned advocates for the assistance they have given me in this case. My task was greatly facilitated by the clear way in which they presented their arguments to me and by the full consideration given to every aspect of the case.