A y!w AD EL KADI, Appellant-Plaintiff v. MOHAMMED HUSSEIN BADRAN, Respondent-Defendant
Civil Procedure-Compensation in criminal action-s-Failure to claim not neces-
sarily a bar to civil action arising from same wrong
Criminal Procedure-Compensation to injured party-Injured party should apply
for compensation out of fine
Damages-Defamation-General damages-Special damages
Damages-Joint tortfeasors-Each liable for whole damage
Defamation-Damages-General damages-Special damages-General damages
are 'to vindicate plaintiffs character
Dejamation-u-Isibel=-Qualified privilege-Privileged occasion-Malice
Tort-Joint tortieasors-s-Eacb liable for whole damage
Respondent, with others, had signed a petition addressed to X which
alleged that appellant was not a suitable person to sit on the Traders Tax
*Court: Dun C.J., Davidson and Bell n.
Assessment Board, which was defamatory of appellant. As a result. criminal
proceedings were taken against the signors of the petition, who were all con-
victed and fined.
Appellant sued respondent for libel in the Khartoum High Court. Re-
spondent alleged, by way of defence, that the occasion of his publication
to X was privileged.
In the Court of first instance (HC-CS-149-1924)
Held: (ij The occasion of respondent's publication to X was not privi-
leged.
(ii) Respondent was therefore liable, but only for a share of the
damages proportional to his share in the publication.
On appeal to the Court of Appeal
Held: (i) In an action for defamation the plaintiff may claim general
damages for the 'purpose of vindicating his character, and special damages
for the purpose of compensating him for any actual pecuniary loss suffered
as a result of the defamation. , Where the plaintiff has suffered no actual
pecuniary loss, and where his character has been vindicated-In some other
manner, e.g. by the defendant being convicted of an offence and punished,
on account of the defamation, there are no damages which the plaintiff
can claim, and he therefore has no cause of action.
(ii) Where in criminal proceedings a fine is imposed on the accused, a
party injured by the crime should apply to be paid compensation out of the
fine under the appropriate section of the Code of Criminal Procedure (now
s. 311 (1) (b».
(iii) But failure to make such an application would not necessarily be
a bar to a subsequent civil action for damages by the party injured by the
crime.
(iv) The publication of defamatory material is made on an occasion
of privilege where both the maker of the communication and the receiver
of it have an interest in the subject matter of the communication.
(v) Provided the receiver of the communication has an interest in its
subject matter, the communication is privileged even though he takes a dif-
ferent view of the subject matter from that taken by the maker of the
communication.
(vi) Per Davidson J.; But the fact that the maker of the com-
munication was actuated by malice in making it will negative any privilege
which the communication might otherwise have. An admission by the de-
fendant that he did not know or care whether his statements about the
plaintiff were true or not is strong evidence of malice.
(vii) "Where a number of persons join together to commit a wrongful
act each of them is liable for the whole damage resulting from such act
no one of the wrongdoers can be heard to say that he is not re-
sponsible for all the damage caused by the wrongful act." (per Dun C.J.)
(viii) But a plaintiff can never recover more than his full damages by
suing more than one tortfeasor.
Appeal
December 31, 1925. Dun C.J.: In my opinion this appeal should
be dismissed. An action for defamation of character is instituted for
the purpose of vindicating the character of the plaintiff and obtaining
compensation for him for the damage ,he has suffered by reason of the
defamation.
In this case the plaintiff's character has been sufficiently vindi-
cated by the criminal proceedings in which this defendant and some
fifty other' persons were found guilty of defaming him and were sen-
tenced to pay fines of varying amounts.
There is no evidence in 'the proceedings before the High Court
that the plaintiff has suffered any special damage, that is to say,. any
damage which has caused him pecuniary loss: on that ground there-
fore there is nothing for which to compensate him.
General damages are given in defamation cases really for the
purpose of vindicating the plaintiff's character and to show the world
that the defamer has acted wrongfully in publishing the libel or
slander and as I have already said this plaintiff's Character has been
vindicated in the criminal proceedings. I therefore think that he is not
entitled to recover general damages in this case.
There is one other point: by section 256 of the Criminal Pro-
cedure Code- in force at the time of the criminal proceedings above
referred to the court had power to order the whole or any part of the
fine to be applied in defraying expenses properly incurred in the
prosecution and, or alternatively, in compensation for the injury . caused by the offence.
For some reason which has not been disclosed to this court no
application was made to the criminal court for an order under this
section and no' such order was made.
I think that for the purpose of avoiding unnecessary litigation
where in criminal proceedings a fine is imposed, the person who has
been wronged should make an application under this section . or the
corresponding section of the new code"; though I do not say that omis-
sion to do so should necessarily be regarded as a bar to obtaining
damages in a civil suit.
There are, however, two points in the judgement of the High
Court with which I am unable to agree. The learned judge has
assessed the damages on the basis that the defendant was liable only
, for the damage which he has caused by his share in the publication
of the libel,but I think that where a number of persons join together
1 The Code of Criminal Procedure 1899.
• The Code of Criininal Procedure 1925.
to commit a wrongful act each of them is liable for the whole damage
resulting from that act. The plaintiff cannot of course get full damages
more than once, but no one of the wrongdoers can be heard to say
that he is not responsible for all the damage caused by the 'wrongful
act.
The other point is that the judge has held that there was publica-
tion to a person on an occasion which was not privileged. ·It seems
to me, however, that if this person was, as I believe, a person liable to
traders tax, he had as much interest in the removal of an unsuitable
person from the Assessment Board as anyone of the men who signed
the defamatory petition, and a communication from one person to
another having a common interest in the subject matter of the com-
munication seems to me to be a privileged communication, and the
privilege is not destroyed because the person to whom the communica-
tion is made takes a different view of the case from that taken by the
person who makes the communication.
Davidson J.: I agree that this appeal should be dismissed. For
the reason stated by the Chief Justice there was no publication of the
libel except on a privileged occasion, but malice was clearly proved,
both by the terms of the document itself and by the admission of the
defendant that he -did not know or care whether all the statements in
the libel were true or false. On an old and well-established principle
each one of the persons who took part in the libel is responsible for
the whole damage resulting to the plaintiff therefrom.
But no special damage was proved and the damage to the
plaintiff's good name and self-esteem was sufficiently satisfied by the
result of the criminal proceedings. If the plaintiff desired pecuniary
compensation as well or costs he should have applied for it, as he was
entitled to do, in those proceedings.
No English court would award damages under such circum-
stances in a subsequent civil action, and there is an additional reason
for following such a practice here where compensation can be ob-
tained in the criminal proceedings.
Bell J.: I agree.
. Appeal dismissed
Editorial Note: The (English) Law Reform (Married Women and Tort-
feasors) Act 1935, while introducing a right to sue joint tortfeasors in conse-
cutive actions until damages are recovered in full, and a right to contribution
among joint tortfeasors, did not alter the common law rule that each tortfeasor
is liable to the plaintiff for the whole of the damage to which he contributed.