Badri Nauth v Alexander
| Jurisdiction | Guyana |
| Judge | Bollers, J.,Bray, J. |
| Judgment Date | 30 September 1960 |
| Neutral Citation | GY 1960 HC 33 |
| Court | High Court (Guyana) |
| Date | 30 September 1960 |
High Court
Bollers, J. (Ag.)
B. Prasad for the plaintiff.
S. D. S. Hardyal for the defendant.
Defamation - Slander — Imputation of crime not punishable by imprisonment — Whether actionable in absence of proof of special damage.
Criminal law - Fence supported by wallaba posts — Part of realty — Not larcenable.
Bollers, J. (Ag.): In this case the plaintiff, a councillor of the local authority of Whim Village District, has brought an action for damages for slander against the defendant, a proprietor in the district, alleged to have been uttered by him on the 20th day of December, 1957, in the presence of bystanders one of whom was also a councillor of the same local authority.
In paragraph 2 of the statement of claim the plaintiff alleges that on the date in question the defendant falsely and maliciously spoke and published of him in the presence and hearing of certain persons the following words:-
“You Permaul, you and Badrinauth ah councillor and Badrinauth thief local authority posts from the cross dam wire fence and get them in his yard: you know and you nah say nothing and he dig the local authority street and carry the dirt in the yard.”
In paragraph 3 there is the allegation that the defendant later on the same date repeated the alleged slanderous words to the village overseer at the village office in the presence and hearing of two other persons, the village overseer then entered a report in the report book of the village district.
The evidence led by the plaintiff did not support and sustain the allegation set out in paragraph 3 of the statement of claim, so that aspect of the matter need not concern us here.
In paragraph 6 the, (innuendo pleaded is that the aforesaid words spoken and published by the defendant of the plaintiff meant and were intended and were understood to mean that the plaintiff was a thief and a dishonest person and that the plaintiff was stealing wallaba posts belonging to the Whim Local Authority) It must be noted at this stage: that the plaintiff in the innuendo pleaded does not allege that the words meant and were intended to mean that the plaintiff had committed a crime of such a nature for which he could be punished by imprisonment, or made to suffer corporally.
After a consideration of the whole of the evidence I accepted the evidence led by the witnesses for the plaintiff, Permaul Narine and Shiuram; as to the incident that took place on the 20th of December, 1957, on the Whim Public Road, and I was convinced that the defendant used the words complained of by the plaintiff in paragraph (2) of the statement of claim.
Counsel for the defendant has submitted however that (the plaintiff has failed to prove special damage and in the absence of proof of special damage, the words would only be actionable if they impute the commission of a criminal offence which is punishable with imprisonment.) He has submitted with confidence that the alleged words if found by the court to have been used by the defendant did not impute a crime punishable with imprisonment. In support of his contention he cited Jackson v. Adams (1835), 2 Bing N.C. 402, where it was held not actionable without proof of special damage to say of a church warden that he stole the bell ropes of the parish church inasmuch as he had possession o the bell ropes and could not be guilty of stealing them.
I do not agree that this case has any application to the instant case, as the basis of that decision was that the bells were legally the property of the church warden and in law he could not be guilty of stealing. No such position exists here as it has not been suggested that the plaintiff in his capacity as councillor had the possession and property of the wallaba posts and earth, which could not be made the subject matter of the offence of larceny by him.
Counsel for the defendant has however submitted further that (at common law a fence and earth were all part of the reality and could not be made the subject matter of the offence of larceny and it is only by statute in this colony that a fence or any part of a fence could be the subject matter of a larceny.)
In RUSSELL ON CRIME, 11th Edition, at page 1010, it is stated that the realty and things which “savour of the realty” were not larcenable and such are things which, immediately before they are taken, are part of the freehold whether they are (1) part of the substance of the land; (2) produce of the land (3) affixed to the land; it follows that earth is clearly part of the realty. At page 1014 in RUSSELL. it is stated:-
“At common law the things must be completely disconnected from the land so as to be no longer part of it, if it were to be larcenable. But after severance from the realty, things in certain circumstances could become the subject of larceny: thus stones, when dug out of a quarry, wood when cut, fruit when gathered, or grass when cut, can be stolen not only when they have been severed by the owner, but also if they have been severed by the thief himself, if there be an interval between his severing and taking them away, so that the severing and taking cannot be considered as one continued act:”
No interval of time between the severing and taking away arises in this case in the use of the alleged words. In Billing v. Pill, [1954] 1 Q.B. 70, where the appellant had been convicted of stealing an army nut, constructed of sections, which rested upon a concrete foundation, the floor of the but being secured to that foundation by bolts let into the concrete, the Divisional court applied the principle enunciated by BLACKBURN, J., in Holland v. Hodgson (1872), L.R. 7 C.P. 328, at page 335, and held that the but was erected for a temporary purpose and could be removed without...
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