ASSOCIATED NEWSPAPERS OP CEYLON LIMITEDPRINS GUNASEKERA
COURT OF APPEALEDUSSURIYA, J.
CA. 174/94 (FI
D. C. COLOMBO 3583/Spl.
19™ MARCH, 1999.
22nd MARCH, 1999.
Defamation – Article containing words defamatory – ReciprocalEnforcementqf Judgments Ordinance41 of 1921 -Ingredientsnecessary- Carrying on business – Resident abroad.
The Petitioner-Respondent instituted action In the District Court ofColombo under the provisions of the Reciprocal Enforcement ofJudgments Ordinance for the registration of the Judgment of the HighCourt of Justice of England and Wales – Queens Bench Division.
The Respondent-Appellant filed objections ^denying specifically thatthey were carrying on any business in the U. K. or ordinarily residentwithin the jurisdiction of the High Court of Justice of England & Wales,Q. B. Division. It was also averred that the Defendant was not amenableto summons from the said Court and was not subject to the jurisdictionof the said Court and that it did not appear or submit to the jurisdictionof the said Court, and further stated that it is not just and convenient thatthe Judgment should be enforced, in order to register the said Judgmentin Sri Lanka, the Respondent must establish either (i) that the Appellantwas canying on business (2) was ordinarily resident in the U. K.
It was conceded that the Appellant was not resident in the U. K.The Plaintiff-Respondent must thus satisfy court that the DefendantAppellant was canying on business in U. K. The lynch pin of the Plaintiffscase was that, the Defendant carried on business through SamcoAgencies, which was in fact the 1st Respondent.
For the purpose of registration of the Judgment the nexusbetween Associated Newspapers of Ceylon and the Samco was
Sri Lanka Law Reports
120001 2 Sri LR.
necessary. It is not enough that the Defendant was carrying onsome business in the U. K. The Plaintiff was required to satisfyCourt that the Defendant was carrying on a business which thePlaintiff alleged.
The question whether the Defendant was carrying on business wasa question of fact. Affidavit evidence shows that it is an importerand distributor of newspapers from Ceylon and that it has noconnection with the Daily News and neither imports and distributesnor stocks the said publication.
The Plaintiff has not been able to place before Court conclusiveand uncontradicted evidence that the Defendant has been carryingon business in the United Kingdom. When this fails, the entire caseof the Plaintiff fails.
Appeal from the Judgment of the District Court of Colombo.
Cases referred to :
U.G.de Silvavs. Associated Newspapers Ltd., – 1983 Vol. I Part HIBASL. L. R.
Okura&Co. Ltd., vs. ForsbackaJem verks Aktiebolag – 1914 1 KB715.
Jabbour vs. Custodian of Absentee’s Property of State of Israel -1954 1 AQ ER 145.
Adams vs. Cape Industries pic – 1991 1 AER 929 (1990 Ch).
Sfeir & Co. vs. National Insurance Co. of New Zealand – 1964 1 QB330.
Vogel vs. R. &A. Kohnstram Ltd., – 1971 2 AGER 1428.
Faiz Musthapa P. C. with S. C. Crosette – Thambiah and Ms. T. Machado
for defendant appellant.
E. D. Wickramanayake with F. Wijewickrema and Ms. Anandi Cooray
for plaintiff – respondent.
Cur. adv. vitlt.
Associated Newspapers of Ceylon Limited v. Prirvs Gunasekera 325
December 08, 1999.
JAYASINGHE, J.The Petitioner-Respondent obtained in the High Courtof England & Wales, Queens Bench Division a Judgmentex-parte against the Appellant in a sum of SterlingPounds 150,000 on 04/11/1991 for an alleged defamatorystatement published in the Daily News of 17/05/1990under the caption “Tarbrush Campaign against Sri Lanka inLondon” along with a picture of the Petitioner-Respondent. Inthe statement of claim the Petitioner-Respondent statedthat he is a lawyer by profession and a former Member ofParliament and that he has been closely identified with theHuman Rights Movement in Sri Lanka; that he has been livingin London since leaving Sri Lanka in September 1989 afterthreats on his life and the violent deaths of four of hiscolleagues.
The Respondent alleged that the Appellant is the publisherof the “Daily News” which has a substantial circulation andreadership among the members of the Sri Lankan communityand the British Press and media. It was alleged that the articleunder the Headline “Tarbrush Campaign against Sri Lanka inLondon” allegedly signed by a “True Patriot” contained wordsdefamatory of the Plaintiff in that “two organisations inthe U. K. in this Campaign of Villification are . . . and theCampaign for Democracy and Human Rights in Sri Lankaled by Prince Gunasekera and Clem Perera . . . Anothermotive is to use this activity to fool Sri Lankans in the U. K.and philanthropist organisations to donate funds whichthese scheming individuals pocket for themselves”. ThePetitioner-Respondent alleged that the natural and ordinarymeaning meant and was understood to mean that thePlaintiff has been dishonestly pocketing money donated to theCampaign for Democracy and Human Rights in Sri Lanka.
Sri Lanka Law Reports
120001 2 Sri L.R.
The Petitioner-Respondent averred that he has been gravelydefamed and seriously injured in his credit and reputationand feelings. The Plaintiff claimed damages for libel.
On 24/08/1992, the Petitioner-Respondent institutedaction in the District Court of Colombo under the provisionsof the Reciprocal Enforcement of Judgments Ordinance No. 41of 1921 for the registration of the Judgment in terms of thesaid Ordinance. Associated News Papers of Ceylon Limitedfiled objections in which they specifically denied that theDefendants were carrying on any business in the UnitedKingdom. Answering further the Defendants stated that itwas neither carrying on business or ordinarily resident in theUnited Kingdom at any time in the year 1990 or there-after andwas hence neither carrying on business nor ordinarily residentwithin the jurisdiction of the High Court of Justice of England& Wales Queens Bench Division when the Petitioner allegedlyinstituted the said action in the said Court; that it didnot appear or otherwise submit or agree to submit tothe jurisdiction of the said High Court; that the Defendant wasnot amenable to a summons from the said Court and wasnot subject to the jurisdiction of the said Court that thesaid summons had no force or effect in law and that theDefendant disregarded the said summons and took no stepspursuant thereto; that the District Court of Colombo assumedjurisdiction under the Reciprocal Enforcement of JudgmentsOrdinance registered the said Judgment of the High Courtof Justice of England & Wales, Queens Bench and/or thatit is not just and convenient that the said Judgment shouldbe enforced in Sri Lanka and moved for dismissal of thePetitioners application.
Charles Emmanuel Tissera the Circulation Manager ofAssociated Newspapers of Ceylon Limited in his affidavitstated that the averment in the statement of claim of the
Associated Newspapers of Ceylon Limited v. Prins Gwiasekera 327
petitioner that Samco Agencies Ltd., named as the lsl Defendantdistributes in the United Kingdom within the jurisdiction ofthe said High Court the Daily News published by AssociatedNewspapers of Ceylon Limited is false and that the DailyNews of 17/05/1990 has not been distributed in the UnitedKingdom either by Samco Agencies Ltd., or any one else.He denied that Associated Newspapers of Ceylon Limited iscarrying on business in the United Kingdom. He furtherstated that Samco Agencies Ltd., purchases from AssociatedNewspapers of Ceylon Limited a certain quantity of its weeklypublications the Sunday Observer, the Silumina etc. andthat the said purchases are made by the local representativeof Samco Agencies Ltd., one J. C. de Silva under a writtencontract entered into by Associated Newspapers of CeylonLimited with one D. S. Chandradasa of Samco Agencies.The said agreement was marked and produced “X2”; that thepurchase price for the said newspapers was paid in Sri Lankaand delivery thereof is made to the said J. C. de Silva atMahabage; that the newspapers were sold and delivered toSamco Agencies for the purpose of their re-sale by SamcoAgencies in London, subject to “X2”; that the Daily News of17/05/1990 was not sold to Samco Agencies; that the saidpaper was sold in Sri Lanka to four persons resident in theUnited Kingdom. The said J. C. de Silva also filed affidavit andstated that he was employed by Samco Agencies, London andfunctioned as its representative in Sri Lanka; that the saidSamco Agencies carrying on business in the United Kingdomamong other things sold, certain newspapers printed andpublished in Sri Lanka by Associated Newspapers of CeylonLimited; that he obtained the goods in Sri Lanka with moniesprovided by Samco Agencies and the goods are despatched tothe Uniteld Kingdom for their re-sale by Samco Agencies; thatthese newspapers are purchased in terms of “X2" and that theDaily News is not purchased by Samco Agencies; and that ithas never been sold or distributed in the United Kingdom by
Sri Lanka Law Reports
1200012 Sri L.R.
Samco Agencies. B. A. Jinadasa the Secretary of AssociatedNewspapers of Ceylon Limited also filed affidavit in whichhe re-stated the averments contained in the objectionsfiled by the other affirments. After inquiry the DistrictJudge of Colombo made order for the registration ofthe Judgment of the Queens Bench of 04/11/1991. Thisappeal is from the Judgment of the learned District Judgeof Colombo.
Section 3(1) of the Reciprocal Enforcement of JudgmentsOrdinance No. 41 of 1921 provides for the registration inSri Lanka of a Judgment obtained in a Superior Court inthe United Kingdom within 12 months of such Judgment.According to Section 3(2) (b) such a Judgment shall notbe registered if the Judgment-Debtor was neither carryingon business nor ordinarily resident within the jurisdiction ofthe Original Court, nor voluntarily appear/submit to thejurisdiction of that Court. Therefore, in order to register thesaid Judgment in Sri Lanka, the Respondent must establisheither that the Appellant was carrying on business or wasordinarily resident in the United Kingdom. It is agreed by bothparties that the Appellant was not resident in the UnitedKingdom and therefore, the only question that arises forconsideration here is whether the Appellant was carrying onbusiness in the United Kingdom at the relevant time, for theJudgment of the High Court of Justice Queens Bench, to beregistered here. The Petitioner claimed that the Respondentwas carrying on business in the United Kingdom and reliedon the following reasons that would support his assertion inthat the Appellant was carrying on a business in the UnitedKingdom.
The Appellant had employed Reggie Fernando as itsforeign correspondent in London.
The Appellant had nominated Reggie Fernando asits representative to the Commonwealth Press Union.
Associated Newspapers of Ceylon Limited u. Prins Gwiasekera329
Reggie Fernando in his own weekly newspaperpublished in London identified himself as theAppellant’s London correspondent.
Reggie Fernando distributed his own newspaperfree along with the Appellant’s newspapers inLondon.
The Appellant had contracted with independent agents/agencies/trading companies dealing in Sri Lankanproducts, such as Samco Agencies Ltd., for the sale ofits publications in London.
The Appellant was selling the foreign edition of itsweekly news digest directly to its readers in Londonand elsewhere who in turn pay their subscriptionsdirectly to the Appellant’s Circulation Manager inSri Lanka who in turn communicates with themwith regard to renewal of subscriptions, supply anddelivery.
The Appellant had nominated / appointed ReggieFernando as the sole agent for Lake House Newspapersin the U. K. after the former agent Samco Agencies Ltd.,ceased to trade in newspapers after 1992.
The Articles and Memorandum of Association ofthe Appellant gives it the power to carry on a widerange of activities, including the business of newspaperproprietors, publishers, press correspondents, newsagents etc. in the U. K. and in any other part of theworld.
Mr. Wickremanayake submitted that Reggie Fernando inthe United Kingdom is a foreign correspondent of the Appellantand that the Sunday Observer printed and published by theAppellant refers to Reggie Fernando as our correspondent inLondon “and that the said Reggie Fernando is also referred toas “Lord Reggie from London”. He submitted that a foreign
Sri Lanka Law Reports
120001 2 Sri L.R.
correspondent is an employee and not an independentcontractor. In U. G. de Silva vs. The Associate Newspapers?11the group correspondent for Kandy of ANCL was held to be anemployee of ANCL and not an Independent Contractor.Sharvananda J. (as he then was) held that as the companywas publishing several newspapers, it was essential for theefficient operation of its business that it should have events ofnews value reported. Hence, it was imperative for the conductand operation of its business that the company should havein its regular service a cadre of reporters or correspondentsto cover incidents and events occuring in the several parts ofSri Lanka. A correspondent is part and parcel of a newspaperorganisation, a cog in its' wheel. This work is part of the regularbusiness of the company. He is a regular unit in the complexorganisation of the company’s business and is an integralpart of the company and not a casual or temporary personengaged only for the purpose of completing a specific taskwhich is necessary to the main business”. He held furtherthat “the work done by the Appellant as a Group or districtcorrespondent was done as an integral part of the company’sbusiness. It was done for the company’s business and wasintegrated into it. The Applicant did not on his own havean independent business of news-reporting. He was, in fact,engaged in the business of reporting news not on his accountbut on account of the company”. Mr. Wickremanayakesubmitted on the basis of the reasoning of Sharvananda J.that a correspondent whether District group or foreign is partand parcel of a newspaper organisation and is an integral partof its business. He also submitted that Reggie Fernandotherefore is an essential part of the business of AssociatedNewspapers of Ceylon Limited and is therefore a cog in itswheel.
It is convenient at this point to consider the provisions of“X2" for the determination that ANCL is carrying on business
Associated Newspapers of Ceylon Limited v. Prins Gunasekera331
in the U. K. through Samco. “X2” is an agreement entered intobetween ANCL and Samco Agencies Limited. “X2” is referred toas an agreement with Samco Agencies Ltd., the News Agent ofANCL in the U. K. According to Clause (3) of the agreement theprices of Newspapers are predetermined, in that the NewsAgent shall not sell or permit to be sold, the paper over andabove the prices stipulated therein. Clause 4(c) stipulates thatthe company may stop supplies of paper without notice to theNews Agent. Clause 4(d) states that ANCL may restrain theNews Agent from selling the papers in any particular area andalso ANCL reserves the right to reduce supplies, terminate theagency and even stop unauthorised sales. Clause 4(e) ANCLreserves the right to appoint additional agents. There arecertain conditions imposed on the News Agents suggestive ofan agency relationship. Clause 3(b) of the Memorandum ofAssociation empowers ANCL to carry on in Great Britain . . .and in any other part of the world any of the following business;Newspaper proprieters, publishers, press correspondence,news agents, journalists, reporters etc. “X2” therefore couldbe pursuant to what is provided in the Memorandum ofAssociation of ANCL.
Mr. Musthapha, PC contended veiy vigorously thatANCL was not carrying on business in the U. K., he submittedthat the wording of Section 9(2) (b) of the Administration ofJustice Act 1920 of the U. K. is identical to that of the relevantsection i. e. Section 3(2) (b) of the Reciprocal Enforcementof Judgments Ordinance. He sought to explain in the lightof the case law available the involvement of Reggie Fernandoand that the existence of the application of “X2” fell outsidethe scope of carrying on business” within the meaning ofSection 3(2) (b).
Mr. Wickremanayake conceded that Section 9(2) (b) issimilar to 3(2) (b) of the Reciprocal Enforcement of ForeignJudgments Act.
Sri Lanka Law Reports
[20001 2 Sri LR.
Mr. Musthapha referred Court to a number of cases. Thatone of the strongest factors that militate against a corporationbeing held to be carrying on business in a foreign country isthe inability of the corporation’s agent in that country to enterinto contracts on behalf of the corporation. He argued thatSamco Agencies Pvt. Ltd., was clearly without authority tocontractually bind the Appellant ANCL with no fixed placeof business. Mr. Musthapha sought to import into Section3(2) (b) of the Reciprocal Enforcement of Foreign JudgmentsOrdinance, the element of residence.
In Okura & Co. Ltd., vs. Forsbacka Jemverks Aktiebolag121the Defendants were manufacturers in Sweden. Theyhad their sole agents in U. K. The Agent carried on business asgeneral agents and they also acted as agents for other Swedishfirms engaged in the steel trade. They also bought and soldsteel on their own account as principals.
The above case considered the question whether thecorporation was carrying on business in the U. K. for thepurpose of service of process upon it. Buckley, J. observed.
“The point to be considered is, do the facts show thatthis corporation is carrying on its business in thiscountry? In determining that question three mattershave to be considered. First, the acts relied on as showingthat the corporation is carrying on business in thiscountry must have continued for a sufficiently substantialperiod of time … Next it is essential that these acts shouldhave been done at some fixed place of business . . . Thethird essential, and one which it is always more difficultto satisfy, is that the corporation must be ‘here’ by aperson who carries on business for the corporation inthis country. It is not enough to show that the corporationhas an agent here; he must be an agent who doesthe corporation’s business for the corporation in thiscountry.
CAAssociated Newspapers of Ceylon Limited v. Prins Cunasekera 333
The issue for determination here is whether theDefendants were carrying on business in the U. K. so as tobe resident for the purpose of service of process upon it.Buckley L. J. held that . the question whether aforeign corporation can be served with a writ in thiscountry depends on whether it is resident within thejurisdiction and that again depends whether the corporationcarries on business here . . .”.
Mr. Wickremanayake submitted that Okura’s casehas no application in that for the purpose of carryingon business one has to be resident. Thus the two factors‘residence’ and ‘carrying on business’ are not independentof one another and has no separate exsistence. Hesubmitted that under Section 3(2) (b) the two requirementsstand independent and if either residence or carrying onbusiness is established a foreign judgment is qualified forregistration.
Okura’s Case was a common law situation where theapplication of Section 9(2) (b), of the Administration of JusticeLaw was not considered.
In the Case of Jabbour vs. Custodian of Absentee's Propertyof State of Israel131 it was held that;
“A corporation resides in a country if it carries on businessthere at a fixed place of business, and, in the case of anagency, the principal test to be applied in determiningwhether the corporation is carrying on business is toascertain whether the agent has authority to enter intocontracts on behalf of the corporation without submittingthem to the corporation for approval.”
In this case too, the Court went into the question ofresidence for the purpose of determining whether the
Sri Lanka Law Reports
1200012 Sri L.R.
corporation was carrying on business. Here again theresidence is coupled with carrying on of business. A commonlaw situation as opposed to the Administration of JusticeAct 1920.
In Adams vs. Cape Industries pld41 The Defendantswere two associated United Kingdom Companies, whichdealt with mining of asbestos. The asbestos was marketed inthe U. S. through a Unites States Company. The Plaintiffsbrought an action against the Defendants in the U. S. claimingdamages on the basis that the Defendants have beensupplying asbestos without giving proper warning of thedangers thereof. The Tyler Court awarded damages to thePlaintiffs. The Plaintiffs then brought an action against theDefendants in England in order to enforce the Judgment ofthe Tyler Court, under the common law. The English Courtdismissed the Plaintiff s claim. The Appeal, was dismissed onthe ground that, the Defendants were not resident in the UnitedKingdom. It was held that it is the residence that gives rise tothe jurisdiction of the Court. This case too falls into the Is'category of cases, under the common law which requiresresidence to be proved.
The cases cited above has no application to the presentcase, in that the Administration of Justice Act 1920 was notconsidered and the liability of parties were determined underthe Common Law requirements.
In Sfeir&Co., vs. National Insurance Co, of New Zealand,151at 330 the phrase carrying on business within the meaning ofSection 9(2) (b) of the Administration of Justice Act 1920came up for interpretation.
Sfeir & Co., (& two others) made a claim for a lossunder an Insurance Policy directly to the head office of the
CAAssociated Newspapers of Ceylon Limited v. Prins Gunasekera335
Defendants in Dunedin New Zealand. This claim however wasreturned by Glyndova (Ghana) Ltd., the Defendant’s agents inGhana. The Plaintiffs then filed action against the Defendantsin Ghana and obtained Judgment and writ against theDefendants for the loss. The order for service out of thejurisdiction was made upon the Defendants at their branchoffice in London. The Plaintiffs then made an application tohave the said Judgment registered under the Administrationof Justice Act 1920. Justice Mocatta stated that the firstquestion to be determined was whether the Defendants at anymaterial time carried on business in Ghana, if they did so, itcan only have been through Glyndova Ltd. There was evidencedefining the duties and authority of Glyndova Ltd. Mocatta J.went on to enumerate the authority of Glyndova Ltd. It waslimited in their functions to claim Settling Agents. They werealso qualified to use the wording claim Settling Agents forcompanies of London underwriter on their letter heading.However Glyndova had no authority from the Defendants toreceive proposal forms or negotitate insurance or to issue . . .on behalf of the Defendants and never did so. The mainbusiness of the company was to sell Insurance Policies.Glyndova however was not empowered to perform this duty.Sfeir’s case differed from the cases referred to on behalf ofthe Appellant Associated Newspapers of Ceylon Limited inthat it considered the words “carrying on business” inSection 9(2) (b) of the Administration of Justice Act 1920.Mocatta J. held that “the limited authority possessed byGlyndova to bind the Defendants by settlement of claimsarising in Ghana under the Defendants policies issuedelsewhere, did not amount to canying on of business bythe Defendants in Ghana.
In Vogel vs. R & A Kohnstram Ltd161 it was held thatKohnstram Ltd was carrying on business residentially
Sri Lanka Law Reports
12000] 2 Sri L.R.
within the jurisdiction but that Kohnstram Ltd was notan agent. Therefore, it is not mere carrying on businessthat was necessary but residence of Defendants throughKohnstram Ltd, in Israel which the Plaintiff failed to prove.
Section 3(1) of the Reciprocal Enforcement of JudgmentsOrdinance provides, inter alia, that the Court may only ordera foreign judgment to be registered “if in all the circumstancesof the case they think it is just and convenient that thejudgment should be enforced in Ceylon".
Mr. Musthapha argued that it has been held that a foreignJudgment would not be enforced in the United Kingdom if itoffends against English views of substantial Justice. In Adamsvs. Cape Industries (Supraj it was held that the United StatesJudgment did offend against the English Courts view ofsubstantial Justice, in that there was no proper or fairassesment of damages. He submitted that it is not just andconvenient to enforce the United Kingdom Judgment inSri Lanka. He went on to submit that upon the principalsenunciated above the United Kingdom Judgment offendsagainst our views of justice. The damages are not quantifiedin the claim unlike in a defamation action in Sri Lanka.He submits that the sum awarded by the Jury of SterlingPounds 150,000 is excessive and has no rational basis.However according to the certificate issued by the Associateof 4/11/1991 this action has been tried before the Hon.Mr. Justice Otton with a Jury in London on 4/11 /1991 andoccupied the time of Court for a total duration from 11.00 a.m.to 12.55 and 2.15 to 3.40 p.m. and that the damages wereassessed and consequently the Jury has awarded, thePlaintiff a sum of Sterling Pounds 150,000. Therefore, it isseen that is not open for Mr. Musthapha to allege that theJudgment of the Queens Bench Division is not just andconvenient.
CA Associated Newspapers of Ceylon Limited v. Prins Gunasekera 337
The Respondent instituted action in England againstAssociated Newspapers of Ceylon Limited and succeeded.The Respondent could have enforced the decree againstAssociated Newspapers of Ceylon Limited in England if,the Associated Newspapers of Ceylon Limited was ordinarilyresident in United Kingdom if there was a finding thatAssociated Newspapers of Ceylon Limited was carrying onbusiness within the jurisdiction of that Court or if AssociatedNewspapers of Ceylon Limited agreed to submit to thejurisdiction. Since there is no such finding by the awardingCourt on any of these matters the Plaintiff had to come underSection 3(2) (b) for registration in Sri Lanka for enforcement.For this purpose he has to satisfy Court that the Defendantwas carrying on business in the United Kingdom. The Plaintiffin order to establish that the Defendant was carrying onbusiness in the United Kingdom relied on two grounds.That Reggie Fernando was a Correspondent of AssociatedNewspapers of Ceylon Limited in London and “X2” anagreement Associated Newspapers of Ceylon Limited enteredinto with Samco Agencies. The lynch pin of the Plaintiffs casewas that the Defendant carried on business through SamcoAgencies which was in fact the 1st Respondent. One DissanayakeSamuel Chandradasa, a Director of Samco who was cited asthe 1st Defendant averred in an affidavit filed before theHigh Court of Justice, Queens Bench Division that hebecame aware of the existence of proceedings against Samcothe Is1 Defendant on or about 27.03.1991 when a letteraddressed to the 1st Defendant’s Registered Office was broughtto his attention. He averred that the writ was issued on14.12.1990 and posted to the Registered Office of the 1stDefendant on or about 18.12.1990 and that no notice ofintention to defend having been given by the 1sl Defendant andthat judgment was entered on 21.03.1991. He averred thatnotice of intention to defend was not given by the 1st Defendant
Sri Lanka Law Reports
1200012 Sri L.R.
and that the writ never reached the Is* Defendant. He furtheraverred that the Is* Defendant Is an importer and distributorof newspapers from Ceylon, but has no connection whatsoeverwith the Daily News and neither imports nor distributes norstocks nor sells the said publication. Consequently, GefferyBindmen, a Solicitor for the Plaintiff filed affidavit before thesame Queens Bench Division wherein he averred that theseeded copy of the writ was served by ordinary post on theSecretary of the 1st Defendant by letter dated 18.12.1990. Thatno appearance was filed and accordingly judgment wasentered against the 1st Defendant on 01.03.1991; that on09.04.1991 the 1st Defendant issued an application to setaside the judgment on the ground that writ was never receivedby the 1st Defendant and that the 1st Defendant had a gooddefence to the action. He averred that the basis of the defencewas that the 1st Defendant had no connection with the DailyNews and neither imported nor distributed nor stocked norsold the said publication. That he advised the Plaintiff that onthe face of this defence it might be difficult to prove that theDefendant had published the libel in the United Kingdom andthat notice of discontinuance was served on the Is' Defendantand the action came to an end in so far as the 1st Defendant wasconcerned.
Accordingly the liability of Sarrrco came to an end. WhenSamco was discharged from the proceedings there was left avaccum in that the vital ingredient that was necessary tosatisfy Court that Associated Newspapers of Ceylon Limitedwas carrying on business in England could not be established.As stated before the Plaintiff could have enforced the judgmentagainst the Defendant in England provided they submitted tojurisdiction. However for the purpose of Registration of thejudgment the nexus between Associated Newspapers of CeylonLimited and Samco was necessary. It is not enough that the
CAAssociated Newspapers of Ceylon Limited o. Prins Gunasekera 339
Defendant was carrying on some business in the UnitedKingdom. The Plaintiff was required to satisfy Court that theDefendant was carrying on a business which the Plaintiffalleged. In this instance it was the sale of the Daily News.Reggie Fernando being a part of Associated Newspapers ofCeylon Limited does not arise. The question whether theDefendant was carrying on business was a question of fact.The Defendant all along denied that it did. The affidavit ofDissanayake Sammuel Chandradasa is that it is an importerand distributor of newspapers from Ceylon and that it has noconnection with the Daily News and neither imports anddistributes nor stocks the said publication. The Defendants intheir answer before the District Court also denied that itcarried on business in the U. K. In the light of the denial, thePlaintiff ought to have led evidence to satisfy Court that theDefendant in fact did carry on business in the United Kingdom.The parties instead of leading evidence sought to file writtensubmissions. The resultant position was that the Court wasleft with two conflicting positions on affidavit. The Plaintifftherefore has not been able to place before Court conclusiveand uncontradicted evidence that the Defendant has beencarrying on business in the United Kingdom. When this failsthe entire case of the Plaintiff also fails. For the foregoingreasons, I set aside the order of the learned District Judge forthe registration of the Judgment obtained in England andallow the appeal with costs fixed at Rs. 10,500/-.
EDUSSURIYA, J. (P/CA) – I agreeAppeal allowed.
ASSOCIATED NEWSPAPERS OF CEYLON LIMITED v. PRINS GUNASEKERA