Malayan Law Journal Reports/1966/Volume 2/ABDUL RAHMAN TALIB v SEENIVASAGAM &

ANOR - [1966] 2 MLJ 66 - 21 March 1966

14 pages

[1966] 2 MLJ 66

ABDUL RAHMAN TALIB v SEENIVASAGAM & ANOR

FC KL

THOMSON LP, BARAKBAH CJ MALAYA AND ONG HOCK THYE FJ

FEDERAL COURT CIVIL APPEAL NO 112 OF 1964

21 March 1966

Libel and Slander -- Libel -- Defense of justification -- Views of judge on credibility of witnesses -
- Defamation Ordinance, 1958, s 8.

This was an appeal against the decision of Hepworth J. who had held that the defendants had
made out their defence of justification ( [1965] 1 MLJ 142).

The plaintiff/appellant had claimed damages for slander in respect of a verbal statement made
by the 1st defendant, and for libel in respect of written statements made by the 1st and 2nd
defendants, alleging corrupt practices by the plaintiff. The alleged slander was contained in a
statement made by the 1st defendant at a meeting at the Chinese Assembly Hall, Kuala
Lumpur, referring to and repeating what he had already said as a member of Parliament in the
House of Representatives, and the alleged libels were contained in (a) a written statement
handed over by the 2nd defendant to persons present at that meeting and (b) a written
statement handed over by the 1st defendant to a press representative at that meeting. The 1st
defendant in his defence pleaded qualified privilege, fair comment and justification. The second
defendant pleaded justification. The trial judge held that the defence of qualified privilege failed
but that the defendant's defence of justification succeeded.

Held:
 (1) the learned trial judge had drawn the proper inferences from proved facts, in
holding as he did that the plaintiff had received favours but not money and in
coming to the conclusion that although the defendants had failed to prove the truth
of the charge relating to money, the imputation in that respect did not materially
injure the plaintiff's reputation having regard to the truth of the rest of the charges;
(2) taking the evidence in the case as a whole and on the balance of probabilities, the
defence of justification must succeed.
Per Thomson L.P.: In the circumstances of this case very considerable weight must be given to
the views of the trial judge on the relative credibility of the witnesses.

Cases referred to

Belt Lawes (1882), 51 LJ QB 359

Archbolds Ltd S Spanglett Ltd [1961] 1 All ER 417 421

Adam Ward [1917] AC 309 334

FEDERAL COURT

RHV Rintoul, Eusoffe Abdoolcader and GS Hill for the appellant.

Chan Nyarn Hoi for the first respondent.

Dato' SP Seenivasagam for the second respondent.

BARAKBAH CJ (MALAYA)

The plaintiff in this case was the Minister for Health in the Government of the Federation of
Malaya. The first defendant is an advocate and solicitor and a Member of the House of
Representatives. The second defendant is a company director. The plaintiff's claim was for
damages for libel and slander alleged to have been published by the defendants at the Chinese
Assembly Hall in Kuala Lumpur on 11th September 1963.
Hepworth J. dismissed the claim and the plaintiff now appeals to this court against his decision.
The first defendant has also filed a cross-appeal but, according to him, his purpose was merely
to support the judge's grounds of judgment.

I shall endeavour to set out the facts of the case as concisely as possible. In 1958, the second
defendant had applied to the Pahang Government for a licence to extract bat guano at a place
called Kota Gelanggi, Pulau Tawar, in the District of Jerantut in the State of Pahang. The guano
was to be sold as fertiliser. In 1959 armed with a letter of introduction, he went to see the Mentri
Besar of Pahang in connection with his application. In April 1960 a licence was granted to him,
expiring on 31st December 1960.

From time to time, this licence was renewed; first, to 30th June 1961, then to 31st December
1961, and finally to 30th June 1962, all in the name of the second defendant. He stated that
sales in any large quantity were not possible as the renewals of the licence were only for short
periods each time, rendering it impossible to guarantee a steady continuous supply to
prospective purchasers.

About the end of 1961 the second defendant came to understand that the Pahang Government
was proposing to change its policy in regard to such licences by issuing them only to limited
companies rather than to individuals. Consequently he approached one Che Sabri bin Haji
Dhalan with a view to his putting up the capital to form a company. Che Sabri agreed and
contributed $4,300 on the understanding that he was to receive shares in the company for such
amount in due course. On 11th December 1961 the Sharikat Berhad Baja Asli Melayu or Malay

1966 2 MLJ 66 at 67

Natural Fertiliser Co. Ltd., (hereinafter referred to as the "old company") was registered, the
directors being the second defendant and Che Sabri. Without any delay the old company then
applied for a 15 year lease of the area at Kota Gelanggi and a licence to extract guano for that
period.

One evening in the latter part of 1961 or early 1962, the second defendant, Che Sabri and Che
Musa bin Abdul Rahman, (father of the plaintiff's wife) went to call on the Mentri Besar of
Pahang regarding the application for the 15 year lease and licence. They were told by the
Mentri Besar that the matter would be considered by the State Council.

In March 1962 the second defendant's family, consisting of his wife, a son and a daughter,
came to live in the plaintiff's house at Kia Peng Road, Kuala Lumpur. It would appear that the
second defendant himself stayed there only off and on until June 1962, when the engagement
took place between the plaintiff's youngest brother and the second defendant's daughter, after
which date the second defendant appears to have also taken up more regular residence at the
plaintiff's house. The reason for these moves would appear to be that the second defendant was
then in financial difficulties.

While awaiting a reply from the Pahang Government to the application for the 15 years lease
and licence, the second defendant contacted a Japanese gentleman by the name of Suzuki,
who was sufficiently interested to take samples of guano back to Tokyo for analysis. The
analyst's report was satisfactory, the guano having been found to contain phosphate, in some
cases up to nearly 40%. The second defendant then in May 1962, went to see a Mr. R. Hughes
in Kuala Lumpur, who introduced him to a Mr. H.G. Warren and a Mr. D.W.A. Corkett. These
gentlemen became interested in the guano business. As a result of discussions between the
second defendant and Messrs. Warren, Corkett and Hughes, an agreement was entered into on
30th May 1962 whereby the second defendant agreed to grant Messrs. Warren, Corkett and
Hughes the sole and exclusive right to remove bat guano from Kota Gelanggi in consideration of
an immediate payment of $3,000 and a further payment of $50,000 upon the issue of the 15
year lease. In addition they were to pay to the second defendant tribute at the rate of $8.40 for
every ton of guano removed. Paragraph 5 of this agreement reads as follows:

"5. Within fourteen (14) days of the issue of the said lease, the licensee (2nd defendant) shall in consideration of a further sum of
dollars fifty thousand only ($50,000), to be paid by the contractors (Messrs. Warren, Corkett and Hughes) to the licensee enter into a
formal agreement to grant to the contractors and/or their nominees the sole and exclusive right to enter and remove bat guano from
the said land for the duration of the period stated in the said lease and containing such terms and conditions as may be mutually
agreed upon by the parties hereto and subject to the rate of tribute set out in clause 6 hereunder and such agreement shall be
prepared by and executed before Messrs. Allen & Gledhill, Advocates and Solicitors, Oversea Chinese Bank Building, 23 Market
Street (Top Floor), Kuala Lumpur, Provided Always that should the contractors and/or their nominees refuse to enter into the
aforesaid agreement within the aforesaid period of 14 days then in the happening of such an event the contractors their nominees
servants and agents shall forthwith vacate the said land and the sum of dollars three thousand ($3,000) paid under clause 1 above
shall be forfeited to the licensee and this agreement shall be null and void and of no effect and neither party shall have any claim