FELIX DIAS BANDARANAYAKE v. THE STATE FILM CORPORATION AND ANOTHER

023-SLLR-SLLR-1981-2-FELIX-DIAS-BANDARANAYAKE-v.-THE-STATE-FILM-CORPORATION-AND-ANOTHER.pdf


CA Felix Dias Bandaranayake v. The State Film Corporation and Another 287
FELIX DIAS BANDARANAYAKE
v.THE STATE FILM CORPORATION AND ANOTHER
COURT OF APPEAL,
SOZA, J. AND RODRIGO, J.
CA NO.163/81
D. C. COLOMBO NO. 83984/M
FEBRUARY 25,27. 1981, MARCH 5,6,9, 10, 11, 12 and 13,1981.
Interim injunction— material on which Court should decide ? Is oral evidence permissi-ble ? — Regular and summary procedure ■ burden of proof – defamation suit – section 54of the Judicature Act No. 2 of 1978 – tests to be applied in granting an interim injunc-tion — si. 662. 664.666 C.P.C.
In deciding whether or not to grant an interim injunction the following sequentialtests should be applied
Has the plaintiff made out a strong prima facie case of infringement or immi-nent infringement of a legal right to which he has title, that is, that thereis a serious question to be tried in relation to his legal rights and that theprobabilities are that he will win.
In whose favour is the balance of convenience— the main factor being theuncompensatable disadvantage or irreparable damage to either party 7
As the injunction is an equitable relief granted in the discretion of the Courtdo the conduct and dealings of the parties justify grant of the injunction.The material on which the Court should act as the affidavits supplied by ■plaintiff and defendant. Oral evidence can be ted only of consent or uponacquiescence.
In a defamation suit the plaintiff must in addition establish
li) That the matter complained of is defamatory,
No defence such as truth or public benefit can be set up.
(iiil Nothing has happened to deprive the applicant of his remedy such as thegiving of consent.
The burden of proof is on the plaintiff. In a defamation suit where the plaintiffseeks an interim injunction he must prove also that no defences such as justification andfair comment can be set up though at the main trial the burden of proving these defenceswould be on the defendant.
Cases referred to:
III Subramaniam Chetty v. Soysa {1923125 NLR 344
(21 Jinadasa v. Weerasinghe (1929) 31 NLR 33.34
(31 Dissanayake v. Agricultural and Industrial Credit Corporation (1962) 64 _NLR 283. 285
(4) Preston v. Luck (1884) 27 Ch.D497. 506. S08(C.A.)
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(51 American Cyanamid Co. v. Ethicon Ltd. [ 19751 1 All ER 504(6) Hubbard v. Vosper [197211 All ER 1023. 1029(71 Richard Perera v. Albert Perera (19631 67 NLR 445.
(81 Gamage v. The Minister of Agriculture and Lands (1973) 76 NLR 25. 43. 44.
Yakkaduwa Sri Pragnarama Thero v. Minister of Education (1969) 71 NLR506, 511.
Ceylon Hotels Corporation v. Jayatunga (1969) 74 NLR 443. 446.
Duchess of Argyll v. Duke of Argyll [19671 1 Ch. 302.331,332.
Monson v. Tussauds Limited (1894) 1 QB671 (C.A.)
Fletcher v. Besley (1885) 28 Ch. D.688.
Roberts v. The Critic Ltd. and others [ 1919] WLD 26.
Norris r. Menty (19301 WLD 160
Heilbron v. Blignant (1931] WLD 167.
toetzee v. Central News Agency SALR 1953 (1) 449.
Bonnard v. Perryman (1891) 2 Ch.D.269.
Fraser v. Evans [1969} 108 349 (C.A.)
De Costa v. The Times of Ceylon (1963) 65 NLR 217, 224.
Rhodesian Printing & Publishing Co. Ltd. v. Howman N.O. SALR 1967(4)1. 14.
Fraser v. Evans [ 1969] 1 All ER 8.
Crawford v. Albu [1917] AD 102, 105
Woodward v. Hitchinsl 1977] 2 All ER 751
Collins v. Jones [196$] 2 All ER 145. 146.
Application in Revision from Order of District Judge, Colombo.
H. L. de Silva with E. D. Wickremanayake,
K. C. F. Wijeyawickrema and P. Samaratne for petitioner.
Mark Fernando for the 1st respondent.
K. N. Choksy with Lakshman de Alwis and Ronald Perera for the 2nd Respondent.
Cur adv vult
SOZA, J.
April 10, 1981
SOZA J.
This is an application for revision of the order of the DistrictJudge of Colombo dated 27th January 1981 entered in Case No.D. C. Colombo 83984/M. An application for leave to appeal hasalso been filed from the same order and these proceedings arenumbered as C.A. — LA 12/81. The reasons for the order I will bemaking in this application for revision will serve to dispose of theapplication for leave to appeal too.
The facts leading up to the application before us may be stated
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as follows: The plaintiff is a former Minister of Justice. He held,apart from the portfolio of Justice, a number of other portfoliosincluding Finance and Public Administration. He has been inactive politics for several years and since the year 1960 was aMember of the House of Representatives and, after the Constitu-tion of 1972 was promulgated, of the National State Assembly.Throughout his political career he has been a member of the SriLanka Freedom Party and a Cabinet Minister when Mrs. SirimavoDias Bandaranaike was the Prime Minister. At the GeneralElections of 1977 however he suffered his first setback in politicswhen he failed to secure election.
When-he was Minister of Justice the Bribery Department andthe Department of Public Prosecutions were under him. TheSecretary to the Ministry of Justice during the relevant period wasMr. Nihal Jayawickrema. The Bribery Commissioner was Mr. IanWickremanayake but at one time Mr. Kenneth Seneviratne heldthe posts of Director of Public Prosecutions and Acting BriberyCommissioner.
The plaintiff complains in paragraph 5 of his plaint filed on
that in or about March 1980 he became aware that thedefendant State Film Corporation was intending to release forpublic exhibition a film entitled "Sagarayak Meda" whichwas defamatory of him in that —
The Minister of Justice portrayed as a character in thefilm was intended to refer to and represent him and waslikely to be identified with him by members of the publicwho saw the film.
%
The person playing the role of the Minister in the filmwas portrayed as a dishonourable person given to abusingand misusing his official position and authority forpersonal ends and as an untrustworthy and contemptiblecharacter.
The particular incidents and episodes in the film and the filmas a whole were calculated to bring him to contempt and hatredand to cause serious injury and damage to his reputation. Inparagraph 8 the plaintiff avers that the Minister of Justice in thefilm was shown in various episodes as one who used his officialposition and authority for private ends by directing the BriberyCommissioner in an unlawful manner in respect of a pendingprosecution for bribery and as one who was deceitful and un-trustworthy and as one who interfered with the work of theBribery Commissioner to such an extent that that official was
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driven to resign in protest. In paragraph 10 the plaintiff pleadsthat the alleged incidents and episodes concerning him in the filmare both false and defamatory and were calculated to expose himto odium and obloquy and cause irreparable damage to his reputa-tion and political future. The plaintiff therefore prays in hisplaint for a permanent injunction restraining the defendant, itsservants and agents and all persons acting under its authorityfrom —
releasing the film "Sagarayak Meda" for exhibition orshowing to the public at any cinema, theatre or otherpublic place, or to any persons in private, and
exhibiting, showing, screening or otherwise publishingthe said film at any public or private performance other-wise than under any statutory power or authority.
He also pravs for an interim injunction in the same terms.
The plaint and application for interim injunction weresupported before the District Judge of Colombo on 27.5.1980.The District Judge entertained the plaintiff's action and enteredand issued an enjoining order restraining the defendant in theterms set out in the prayer for the permanent injunction validtill 13.6.1980. The Court also issued notice of the application foran interim injunction returnable 13.6.1980. The defendant filedits appearance on 13.6.1980 and was granted time till 11.7.1980to file its answer and pbjections. On 11.7.1980 the defendantalong with an affidavit filed petition objecting to the applicationfor an interim injunction and moving to have the enjoining orderdissolved. The defendant also obtained leave to file its answerlater. In the meantime on 13.6.1980 Chalana Films Limited whowere the producers of the film moved to intervene in the caseunder Section 18 of the Civil Procedure Code.
Notice of this application had been issued returnable
and on this day, the application to intervene not beingopposed, Chalana Films Limited were added as the 2nd defendant.The added 2nd defendant was allowed time till 25.7.1980 to fileobjections to the application for an interim injunction. It maybe mentioned that the 2nd defendant came into the case becausethe enjoining order issued against the 1st defendant in effectbarred the film ''Sagarayak Meda" produced by the 2nd defendantat great cost not only from being exhibited but also from beingput into shape for exhibition. On 29,8.1980 the 2nd defendantfiled its objections accompanied by an affidavit and the matter
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was fixed for inquiry. On 7.10.1980 the 2nd defendant moved tofile amended objections and affidavit. On 16.10.1980 this applica-tion was allowed and the plaintiff took time to consider whatsteps he should take in view of the amended objections that hadbeen filed by the 2nd defendant. On 30.10.1980 the plaintifffiled amended plaint along with an affidavit. He filed no counteraffidavit. In the amended plaint and affidavit however he metsome of the objections that had been advanced especially by the2nd defendant.
The matter of the application for an interim injunction cameup for inquiry before the learned District Judge on 27.1.1981until which date the operation of the enjoining order had, fromtime to time, been extended. After hearing the parties the learnedDistrict Judge refused the application for interim injunction anddissolved the enjoining order.
The course which the proceedings of 27.1.1981 whichpreceded the order of the learned District Judge which is beingsought to be canvassed before us, took should here be set out.Mr. Navaratnarajah who appeared for the 1 st defendant Corpora-tion submitted that he relied on the plea of justification andfair comment. He referred to the proceedings before the Presiden-tial Commission reported in the Hansard dated 16th October 1980where the Commissioners of the Presidential Commission hadexpressed their findings regarding the allegations made against theplaintiff. The plaintiff had been held to be guilty of some of thecharges of corruption, abuse and misuse of power levelled againsthim: On this basis Counsel said the application for an interiminjunction should fail. For the purpose of the inquiry Mr. Navara-tnarajah added that he accepted paragraph 5(2) of the amendedplaint. Learned Counsel for the petitioner submitted from theBar that Mr. Navaratnarajah admitted paragraph 5(1) also.Mr. Navaratnarajah also submitted that once a plea of justifica-tion and fair comment is raised the interim injunction cannot beissued. Mr. Choksy who appeared for the 2nd defendant supportedthe position taken up by Mr. Navaratnarajah. For the purposes ofthe inquiry Mr. Choksy was prepared to admit the avermentscontained in paragraphs 2,3,4,511), 5(2) and 6 of the plaint,and yet satisfy the Court that in law no injunction could begranted. Mr. H. L. de Silva in reply submitted that the submissionsadvanced were rooted in fallacy. The plaintiff was not complain-ing of a statement made or comment concerning him. His actionwas based on the fact that a film had been produced containingscenes and sequences, episodes and incidents concerning theplaintiff which were totally false and malicious. The pleas of
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justification and fair comment were being advanced mala fide.The first matter the Court would have to be certain about is thenature and content of the scenes and episodes the plaintiff wascomplaining about. In order to do that he would have to call theplaintiff and supporting witnesses. Then the defendants could givetheir explanations. At that stage the Court questioned Mr. Choksyas to whether he was calling any evidence. Mr. Choksy theninvited the Court to rule on the question whether oral evidencewas legally admissible and moved to be heard on that point.Mr. de Silva then said he was moving for an order nisi.Mr. Navaratnarajah referring to the sections of the Judicature Actand Civil Procedure Code dealing with procedure and injunctionssubmitted that no oral evidence could be led. The Court should andmake its order on the documents, pleadings and affidavits beforeit. Mr. de Silva then reiterated his application to call witnesses andmoved to be allowed to call the plaintiff to give evidence. TheCourt ruled that the evidence of the plaintiff was not necessary ashe had filed an affidavit. Mr. de Silva at that stage made hissubmissions as to why the interim injunction should issue. Hemoved the Court to peruse the script relating to the film or atleast to view the film so that the Court would be able to have avisual impression of what the film contained. Mr. de Silva statedthat he had summoned the 2nd defendant to produce the film.The Court then mentioned that it had already indicated to Mr. deSilva that no oral evidence could be called. Further submissionswere made by learned counsel for the plaintiff on the avermentsin the affidavits and objections of the defendants.
It is important at this stage to settle the question of the proce-dure that a party who applies for an interim injunction shouldfollow. The provisions of law concerning the issue of an interiminjunction are found in section 54 of the Judicature Act No. 2 of1978 and sections 662, 664 and 666 of the Civil Procedure Code.
Generally speaking section 54 of the Judicature Act No. 2 of1978 is the jurisdictional section while sections 662, 664 and 666of the Civil Procedure Code set out procedure. Section 54 of theJudicature Act is with minor differences identical with sections86 and 87 of the Courts Ordinance and with section 42 of theAdministration of Justice Law No. 44 of 1973 which repealed theCourts Ordinance.
The Courts Ordinance (Ordinance No. 1 of 1889) and the CivilProcedure Code (Ordinance No. 2 of 1889) were proclaimed on2nd August 1890 and 1st August 1890 respectively. An exami-nation of the comparative provisions relating to injunctions in
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 293
these two statutes shows a remarkable consistency and harmony.Sections 86 and 87 of the Courts Ordinance carried the jurisdic-tional provisions. Section 86 set out three circumstances whenthe Court can issue an interim injunction and the form which theorder should take. It is lawful for the District Court or the Courtof Requests to issue an injunction:
where it appears from the plaint that the plaintiffdemands and is entitled to a judgment against thedefendant restraining the commission or continuance ofan act or nuisance which would produce injury to theplaintiff, or
where it appears that the defendant during the pen-dency of the action is doing or continuing or procuringor suffering to be done or commited or threatens oris about to do or procure or suffer to be done or com-mitted an act or nuisance in violation of the plaintiff'srights respecting the subject-matter of the action andtending to render the judgment ineffectual, or
where it appears that the defendant during the pen-dency of the action threatens or is about to removeor dispose of his property with intent to defraud theplaintiff.
It will be seen therefore that the Court is empowered to issuean interim injunction at the time the plaint is filed, or during thependency of the action. For the Court to issue an interim injunc-tion at the time the plaint is filed it must appear from the plaint:
that the'plaintiff demands and is entitled to a judgmentagainst the defendant restraining the commission of anact or nuisance, and
that such act or nuisance would produce injury to theplaintiff.
The form which the order will take is also set out. It willrestrain the defendant from committing or continuing any suchact or nuisance.
Where the injunction is sought during the pendency of anaction sub-paragraphs (b) and (c) of section 86 of the CourtsOrdinance apply. For the Court to issue an interim injunctionduring the pendency of the action:
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it should appear that the defendant is doing or commit-ting or procuring or suffering to be done or commit-ted or threatens or is about tp do or procure or sufferto be done or committed an act or nuisance
in violation of the plaintiff's rights respectingthe subject-matter of the action and
tending to render the judgment ineffecual; or,
it should appear that the defendant threatens or is aboutto remove or dispose of his property with intent todefraud the plaintiff.
If the circumstances are as set in paragraph (1) above thenthe Court will make order restraining the defendant from doing orcommitting or procuring or suffering to be done or committed anysuch act or nuisance and if the circumstances are as set out inparagraph (2) the Court will make order-restraining the defendantfrom removing or disposing of such property. Section 87 says thatthe injunction may be granted to accompany the summons.Obviously this is an injunction under section 86(a) moved for atthe time the plaint is filed and it will generally be without notice.After the action has commenced, that is, after the plaint is filed,and before final judgment, the injunction which the Court issueswould be with or without notide in the discretion of the Courtacting under section 86(b) or 86(c). But if the defendant hasalready answered then the injunction will be granted only uponnotice or an order to show pause. Notice or an order to showcause is then imperative. Where the Court decides to issue noticeor an order to show cause the Court may grant an injunction res-training the defendant until the hearing and decision of theapplication. This last power is obviously available at any stagewhen an injunction is being sought and is commonly referred to asan enjoining order.
Upon what material should the Court act in issuing such aninjunction? The answer to that too is found in section 86. Itmust appear from the affidavit of the plaintiff or any other personthat sufficient grounds to grant an injunction exist. It is signifi-cant that there is no reference here to viva voce examination.In all cases an application for an injunction should be supportedby an affidavit of the applicant or some other person havingknowledge of the facts containing a statement of the facts onwhich the application is based. A petition praying for the injunc-tion should normally be filed but where the injunction is prayed
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 295
for in the plaint itself no petition is necessary. Section 664 of theCivil Procedure Code provides that in all cases except when itappears that the object of granting the injunction will be defeatedby the delay, the Court must cause the petition for the injunctiontogether with the accompanying affidavit to be served on theopposite party before granting the injunction. If the application ismade after the defendant has answered the injunction shall in nocase be granted before such service. Yet, the Court may in itsdiscretion enjoin the defendant until the hearing and decision ofthe application. Section 666 of the Civil Procedure Code statesthat where an injunction has been issued, it may be discharged,varied or set aside by the Court on application made thereto onpetition by way of summary procedure by any party dissatisfiedwith such order. For the purposes of deciding the matter before ussection 666 does not come in for consideration.
It will be seen that there is complete harmony not to mentionelegance in the provisions found in the Courts Ordinance and inthe Civil Procedure Code on interim injunctions. It is of impor-tance to remember that the Court will not grant an interim injunc-tion where the defendant has answered except upon notice or anorder to show cause. The stage contemplated is where the defen-dant has answered and not where he has merely appeared. Theseprovisions stood until the passing of the Administration of J jsticeLaw No. 44 of 1973. In section 42 of this Law, sections 86 a!*a 87of the Courts Ordinance reappear with some inconsequentialchanges of language. Of course in the new Judicature that wasbrought in by the Administration of Justice Law the Courts ofRequests were abolished and instead the Magistrates' Courts werevested with limited civil jurisdiction similar to that which had beenearlier exercised by the Courts of Requests. By the Civil CourtsProcedure (Special Provisions) Law No. 19 of 1977 and the CivilProcedure (Amendment) Law No. 20 of 1977 the Civil ProcedureCode was brought back with certain amendments. The JudicatureAct. No. 2 of 1978 was passed on 2nd November 1978. This Actre-enacted substantially sections 86 and 87 of the Court Ordinanceand Section 42 of the Administration of Justice Law No. 44 of1973 which had replaced them. But on the question of issuingnotice it stipulated that an injunction shall not be issued exceptupon notice or an order to show cause if the defendant had appea-red. The use of the word 'appeared' in subsection 3 of section 54introduces a discordant element in the provisions relating to theissue of injunctions in view of the fact that the Civil ProcedureCode even after amendment continued to stipulate that notice isimperative only after the defendant has answered. However thatmay be, the substantial provisions remain the same. The materialon which the Court should act still remains the same. The Court
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grants interim injunctions on its appearing by the affidavit of theplaintiff or any other person that sufficient grounds exist therefor.
Is oral evidence then permissible ? On this point I would liketo refer initially to the fact that the provisions relating to injunc-tions which appear in chapter 48 of the Civil Procedure Code arein Part V entitled "Provisional Remedies." This Part deals withother types of provisional remedies also — Arrest and Sequestra-tion before Judgment (Chapter 47), Interim Orders (Chapter 49)and the Appointment of Receivers (Chapter 50). The injunction istreated in the Code as a provisional remedy, indeed so it is. Arrestand sequestration before judgment are provisional remedieswhich the Court may grant on a petition of the plaintiff supportedby his own affidavit and, should the judge consider it desirable,viva voce examination – see section 650 and section 653. Chapter49 deals with interim orders which the Court can make for thesale of perishable property and for the detention, preservation,inspection or survey of property which is the subject-matter of theadtion. The procedure to be followed is stipulated to be summaryprocedure. Chapter 50 deals with the appointment of reeeivers.The procedure to obtain the appointment of a receiver is byapplication of the party who shall establish a prima facie right orinterest in the property sought to be committed to the possessionor custody or management of the receiver. Notice of the applica-tion for the appointment of a receiver must be served on theadverse party. Accordingly the appointment of a receiver is doneby a form of regular procedure. It is significant that the CivilProcedure Code in dealing with certain types of provisional reme-dies specially provides for viva voce examination but not forothers.
Under the Civil Procedure Code only two types of procedureare contemplated for actions in Court — regular procedure andsummary procedure. The Code defines an action as a proceedingfor the prevention or redress of a wrong. Every application madeto the Court for relief or remedy obtainable- through the exerciseof the Court's power or authority or otherwise to invite its inter-ference constitutes an action. There can even be an action withinan action as Bertram C. J. held in the case of Subramaniam Chettyv. Soysa.’ Hence the application for an injunction is an action.
The procedure of an action, as I said before, must be eitherregular or summary. In regular procedure the person against whomthe application is made is called upon to formally state his answerto the case which is alleged against him in the application before 1
1. (19?3) 25 NLR 344.
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the Court entertains any question of fact or exercise- ::s discretion(thereon in any manner. In summary procedure the applicantsimultaneously with preferring his application supports withproper evidence the statement of facts made therein. If the Courtin its discretion considers that a prima facie case has been madeout, it will make the order sought against the defendant without,affording him an opportunity of opposing it but conditioned totake effect only in the event of his not showing good cause againstit on the day appointed for the purpose, that is, the Court willenter and issue an order nisi, or it will appoint a day for enter-taining th'fe matter of the application on the evidence furnishedand notice the defendant that he will be heard in opposition to iton that day, that is, enter and issue an interlocutory order. Exceptwhere the Code or any other law stipulates that proceedings shallbe taken by way of summary procedure, regular procedure mustbe adopted but there could be such variations of the regularprocedure as the Code may prescribe — see in this connectionsections 5, 6, 7 and 8 of the Civil Procedure Code. Summaryprocedure can be followed only where the Code stipulates it.
While summary procedure when taken must follow the stepsin procedure laid down in Chapter 24 of the Code, regularprocedure when applicable must be followed in accordance withthe steps prescribed for the particular application. Applications foran injunction under Chapter 48 of the Civil Procedure Code mustbe made by way of regular procedure in the manner prescribed bythe Code, that is, plaint and affidavit or petition and affidavit andgenerally with notice to the other side barring the occasion whenthe Code dispenses with notice. When notice is given the proce-dure being regular the defendant must be "called upon to formallystate his answer to the case which is alleged against him in theapplication before any question of fact is entertained by theCourt, or its discretion thereon is in any degree exercised" — seethe first illustration to section 7 of the Civil Procedure Code.
In an application for an injunction therefore when the defen-dant appears on notice he must be allowed to formally state hisanswer to the allegations against him before the Court decides onthe facts or exercises its discretion against him. How is the defen-dant "to formally state his answer" ? By affidavits. This is whatsection 54 of the Judicature Act says in effect.
It was submitted that the language of section 54 correctlyinterpreted should be taken to mean that the Court is free toconsider only the affidavit of the plaintiff and the affidavits of anyother persons submitted and relied on by the plaintiff. It was
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argued that sufficient grounds for the issue of an injunction cannotpossibly appear except from the affidavits of the paintiff andthose on whom he relies. But such an interpretation cannot bearrived at except by putting an unwarranted restriction on thelanguage of the section. The affidavits of the defendant and thoseon whom he relies can help to correct the picture presented by theplaintiff and those who support him. To ascertain whether suffi-cient grounds exist for the issue of an injunction the Court mustlook for assistance to the affidavits submitted by the defendantsno less than to the affidavits submitted by the plaintiff. Thesection is couched in language which is clear and needs no gloss.The words "any other person" are wide enough to include thedefendant and those on whom he relies.
Further the interpretation contended for by the petitionerwould seem in the first place to be wrong in principle and a viola-tion of the audi alteram partem rule of natural justice. It offendsthe principles of natural justice to notice a defendant in a judi-cial proceeding, permit him to file his affidavit in opposition tothe relief claimed against him and then ignore both him and hisaffidavit when it comes to making the decision — see de SmithJudicial Review of Administration Action 4th Ed. (1980) pp. 158et seqq.
Further, to restrict the language of the section would bringabout the absurd result that the defendant though he appears onnotice should remain silent and be a passive spectator of his owndownfall. The defendant who appears on notice surely must notbe condemned unheard — see Jackson on Natural Justice 2nd Ed.p. 104. The statute and the dictates of natural justice no less makeit imperative that the Court do consider the affidavits submittedby the defendant also.
Therefore the material on which the Court should act is theaffidavit of the plaintiff as well as the affidavits of any person(including the defendant) conversant with the facts.
It is apposite to mention here that section 181 of the CivilProcedure Code provides that in the matter of interlocutory appli-cations, affidavits can be filed embodying not only statements offact which are within the declarant's own knowledge and observa-tion but also statements of his belief provided that reasonablegrounds for such belief are set forth in the affidavit. Such beliefcan no doubt be on the basis of information gathered frompersons who owing to their official position or other circums-tances, though willing to testify in Court are yet riot willing or
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able to swear atfidavits. Hence in our Civil Procedure Code thereare adequate provisions to enable a party to place before Court allthe necessary material without calling witnesses.
No doubt in the matter of deciding applications for interiminjunctions the Court often receives and hears the oral testimonyof witnesses. Where only private rights are involved procedure,except where it goes to jurisdiction or affects public policy canalways be varied, or waived by acquiescence or consent of theparties. In the cases where oral evidence was led, objection was nottaken to such procedure. But where objection is taken, as wasdone in the instant case, then the Court is obliged to follow theprocedure laid down in the statute. In the absence of consent oracquiescence the Court should act only on the affidavits placedbefore it. The learned District Judge quite rightly, in my view,turned down the application of learned Counsel for the petitionerto call oral evidence.
The Court however considered only the affidavit filed by theplaintiff. This, as I have pointed out, is not correct. The Courtshould have also considered the affidavits filed by the defendants.It must be added that when one speaks of affidavits filed byparties one must remember that this includes the documentsmarked and verified in the affidavits. It is on this material that theCourt should have acted.
Learned Counsel for the petitioner, not without justification,described the learned District Judge's order as all recital and noreasons. One searches the order in vain for any critical assessmentor evaluation. Learned Counsel complained he was at a loss toascertain the reasoning process adopted by the Judge or the parti-cular factors that weighed with him. When the Court makes a deci-sion on a hotly debated controversial issue, the parties are entitledto know the reasons which impel the Court to decide the matter ina particular way. An appellate tribunal called upon to review anorder made without reasons being adduced for it is handicapped. I
I might advert here to the fact that learned Counsel for thepetitioner at first made an application to lead the evidence of theplaintiff and of witnesses and stated to Court that the defendantscan be heard thereafter. This procedure was not acquiesced in onbehalf of the respondents and there was much argument. Even-tually learned counsel for the plaintiff settled for an order nisi.In other words he moved the Court to treat the matter as onsummary procedure and on an ex parte basis. From my discussionof the relevant provisions earlier on it is clear that summary
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procedure should not be followed when an application for aninterim injunction is made. The Code does not provide for it and,as far as I know, it is not the practice of the Court either. In factif summary procedure is followed in the matter of issuing interiminjunctions it will result in delay. If an order nisi is entered it willhave to be conditioned to take effect on a future date. An interlo-cutory order will delay the matter even more. This would meanthat the mischief sought to be averted will not be stopped untilsuch future date. Such delay may defeat the entire object ofgranting an interim injunction. I might add that even before uslearned Counsel for the petitioner took up the position that theprocedure should be summary. But before the argument advancedfar he abandoned that stance. As summary procedure has not beenstipulated regular procedure such as the statute prescribes shouldbe followed.
The learned District Judge did not follow summary procedure.Vet he apparently thought the matter should be dealt with exparte and that is perhaps why he gave no reasons for his order. Heconsidered the submissions and authorities cited, the plaint andaffidavit (no doubt the amended plaint and affidavit filed on30.10.1980) and perused the documents filed with the plaint —the document 'A' (the Third Interim Report of the Special Presi-dential Commission of Inquiry) as well as the document G (theHansard of 16th October 1980). The Third Interim Report of theSpecial Presidential Commission of Inquiry, was filed with theamended objections and affidavit of the 2nd defendant admittedof record on 16.10.1980. The plaintiff filed with his amendedplaint and affidavit the.document marked "I" which is a copy ofhis application to the Supreme Court for a writ of certiorari toquash the findings of the Special Presidential Commission. Thethird Interim Report of the Special Presidential Commission is anannexe of this application 'I'. Hence the learned District Judge wasentitled to treat this Report as a document brought in, thoughof course not relied on, by the plaintiff also. But, as I haye alreadyexplained, he was in error in ignoring the affidavits filed by thedefendants and the documents verified. a> d lodged with them.
Learned Counsel for the petitioner was wrong when hecontended in the District Court that the procedure should besummary and the learned District Judge was wrong in dealing withthe matter as if on an ex parte application. Yet it is the duty ofthis Court to consider whether the order of the learned DistrictJudge dismissing the application for an interim injunction issustainable.
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 30
One of the principal difficulties in dealing with this case is thatwe do not know what the film when finally exhibited will contain.We do not know exactly what particular scenes and sequences,episodes and incidents will be portrayed nor how much of it willbe fact and how much comment; nor indeed the nature of suchfact and comment. Despite this ignorance, we have to deal withthe plaintiff's application for an interim injunction as best we can.The application is, it is well to remember, for an injunction quiatimet.
It is necessary first of all to have a clear picture of the legalprinciples that are applicable to the question before us. The juris-dictional provisions have already been noted. This is an actioninstituted in the District Court and the application for an interiminjunction was made at the time the plaint was filed. So section54(1)(a) and (i)^bf the Judicature Act No. 2 of 1978 and sections662 and 664 of the Civil Procedure Code apply. If it appears fromthe plaint that the plaintiff demands and is entitled to a judg-ment against the defendants, restraining the commission of an actor nuisance, which would produce injury to him the Court may,on its appearing by the affidavit of the plaintiff or any otherperson (and that would include the defendants as I hav£ alreadypointed out) that sufficient grounds exist therefor, grant aninterim injunction restraining the defendants from committing anysuch act or nuisance. The plaintiff must therefore have a clear legalright which is being infringed or about to be infringed. The injunc-tion could be granted to accompany the summons or at anytime after the commencement of the action and before final judg-ment and with or without notice in the discretion of the Court. Inthe instant case the matter came up after notice was issued on thefirst defendant. The 2nd defendant had taken notice. The burdenis on the plaintiff to show that there is a serious question to betried in relation to his legal rights — see Jinadasa v Weerasinghe2and Oissanayake v Agricultural and Industrial Credit Corporation.3 4The requirement that there should be a serious question to betried in relation to the legal rights which the plaintiff claims withthe probability of his winning has always been understood tomean that the plaintiff must show the existence of a prima faciecase — see for instance Banerjee: Law of Specific.Relief (1978 —6th Edition) p. 585, also Nathan: The Law of Defamation inSouth Africa (1933) pp. 183, 184, Preston v. Luck4 and Jinadasav. Weerasinghe (supra). This is the law of Sri Lanka and it is thelaw of India and South Africa. It was the law of England too for
2.(1929) 31 NLR 33.34.
3.(1962)64 NLR 283.285.
4.(18841 27 Ch.D:497, 506,508 (C.A.I.
302
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[1981J2 S.L.R.
upwards of a century until Lord Diplock in 19/5 threw it over-board in his speech in the House of Lords case of AmericanCyanamid Co. v. Ethicon Ltd.b Lord Diplock regarded the require-ment of a serious question to be tried as meaning that the plain-tiff's case must not be frivolous ot vexatious. The doctrine LordDiplock propounded may be set out in three sequential questions:
Is the plaintiff's case frivolous or vexatious ? In otherwords, is there a serious question to be tried ? (p. 510).
In whose favour does the balance of convenience lie ? Asto this to what extent will the disadvantages to each partybe incapable of being compensated in damages in the eventof his succeeding at the trial ? (pp. 510, 511).
If there is no wide disparity in the balance of conveniencewhat is the relative strength of the cases of the twoparties ? If the case of one party is much stronger thanthat of the other, then that will' tip the balance in favourof the party with the stronger case (p. 511).
After enunciating his new doctrine Lord Diplock added thewarning that the Court is not justified in embarking on anythingresembling a trial on material that is necessarily incomplete,conflicting and untested by cross-examination – see pages 510,511.
In Sri Lanka we start off with a prima facie case. That is, theapplicant for an interim injunction must show that there is aserious matter in relation to his legal rights, to be tried at thehearing and that he has a good chance of winning. It is notnecessary that the plaintiff should be certain to win. It is suffi-cient if the probabilities are he will win. Where however the plain-tiff has established a strong prima facie case that he has title to thelegal right claimed by him but only an arguable case that thedefendant has infringed it or is about to infringe it, the injunctionshould not be granted (Hubbard v Vosper).b If the probability isthat no right of the plaintiff will be violated or that he will sufferno wrong such as the law recognises then tne injunction will notiSsue — see for instance the cases of Richard Perera v AlbertPerera1 and Gamage v The Minister of Agriculture and Lands*
1197511 All EH 504.
[1972] 1 All £R 1023.1029.
(1963) 67 NLR 445.
(1973) 76 NLR 25.43,44.
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 303
The case as a whole should be taken into account and the relativestrength of the cases of the plaintiff and the defendant assessed(Hubbard v Vosper (supra) at p. 1029).
If aprima facie case has been made out, we go on and considerwhere the balance of convenience lies— Yakkaduwe Sri Pragna•rama Thero v The Minister of Education.9 This is tested out byweighing the injury which the defendant will suffer if the injunc-tion is%granted and he should ultimately turn out to be the victoragainst the injury which the plaintiff will sustain if the injunctionwere refused and he should ultimately turn out to be the victor.The main factor here is the extent of the uncompensatabledisadvantage or irreparable damage to either party. As the objectof issuing an interim injunction is to preserve the property indispute in statu quo'the injunction should not be refused if it willresult in the plaintiff being cheated of his lawful rights or practi-cally decide the case in the defendant's favour and thus make theplaintiff's eventual success in the suit if he achieves it a barrenand worthless victory— see Bannerjee (ibid) pp. 578, 579.
Lastly as the injunction is an equitable relief granted in thediscretion of the Court, the conduct and dealings of the parties(Ceylon Hotels Corporation v Jayatunga)10 11 12 13 and the circumstancesof the case are relevant. Has the applicant come into Court withclean hands ? – see Duchess of Argyll v Duke of Argyll.'1 Has hisconduct been such as to constitute acquiescence in the violation ofinfringement of his rights as the Court of Appeal in Englandfound in Monson v Tussauds Limited12 or waiver of his rights tothe injunction ? Is it proper or necessary to issue an injunction as,for example, when there is very little prospect of the film beingexhibited in the near future ? (Bannerjee (ibid) p. 586), Row'sTreatise on the Law of Injunctions 3rd Ed. Vol. 1 p. 166 andHalsbury's Law of England 4th Ed. Vol. 24 p. 552 paragraph984. These are germane questions when the Court is called uponto exercise its discretion to grant an equitable remedy such asinjunction. In Fletcher v Bealey'3 tjhe guidelines that should befollowed by a Court when dealing with an application for aninjunction quia timet when infringement of the plaintiff's rightsis only apprehended were succinctly laid down by Pearson, J. whosaid as follows at page 698:
9.(1969) 71 NLR 506,511.
10.(1969) 74 NLR 443.446.
11.[1967) 1 Ch. 302,331,332.
12.[1894] 1 QB 671 (C.A.).
13.[1885128 01.0.688.
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"I do not think, therefore, that I shall be very far wrong ifI lay it down that there are at least two necessary ingredientsfor a quia timet action. There must, if no actual damage isproved, be proof of imminent danger, and there must also beproof that the apprehended damage will, if it comes, be verysubstantial. I should almost say it must be proved that it willbe irreparable, because, if the danger is not proved to be soimminent that no one can doubt that, if the remedy is dela-yed, the damage will be suffered, I think it must be shownthat, if the damage does occur at any time, it will come in sucha way and under such circumstances that it will be impossiblefor the plaintiff to protect himself against it if relief is deniedto him in a quia timet action."
These then are the general principles which the Court shouldfollow when called upon to issue an interim injunction. When theinjunction is sought in a defamation case the same principlesremain applicable but with reference to the first requirement thatthe plaintiff must make out a prime facie case that a clear right ofhis is being infringed or about to be infringed the following formu-lation is regarded as authoritative: The plaintiff must establish —
that the matter complained of is defamatory,
that no defence such as that the statement is true and forthe public benefit can be set up, and
that nothing has occurred ro deprive the applicant of hisremedy, such as the giving of consent.
In the event of any doubt on these points the injunction should berefused and the case is one to be decided at the trial. The aboveformulation was made by Ward J. in the South African case ofRoberts v The Critic Ltd. and others™ and has been consistentlyfollowed ever since — see Norris v Mentz,1 5 Heilbron v Blignaut1 6and Coetzee v Central News Agency.17 Textwriters like Nathan(ibid) pp. 183, 184 and C. F. Amerasinghe: Defamation and otherInjuries (1968) pp. 170, 171 have also accepted the law as statedby Ward, J. in Roberts' case (supra).
Defences like justification and fair comment afford a completeanswer to an allegation of defamation. When a plaintiff seeks an 14 15 16 17
14.(1919) WLD 26.
15.(1930) WLD 160.
16.(1931) WLD 167.
17.SALR 1953 (11,449
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 305
interim injunction to restrain the publication of admittedly defa-matory matter pleas like justification and fair comment will effec-tively muzzle his capacity to make out a prima facie case of a legalright being infringed or about to be infringed. This is the rationalewhich informs the proposition that the plaintiff who seeks aninterim injunction must show not only that the publicationcomplained of is defamatory but also that no defence such asjustification or fair comment can be set up. Section 54 of the Judi-cature Act casts the burden on the plaintiff who seeks to restraina defendant by an interim injunction from publishing admittedlydefamatory matter to show that no defence like justification orfair comment is available. For otherwise he cannot be said to havemade out a prima facie case. On the other hand at the trial theburden of proving the defence will be on the defendant.
In England too before the turn of the century Lord ColeridgeC. J. in the case of Bonnard v Perryman' 8 laid down the principlethat an interlocutory injunction (as an interim injunction is calledin that country) will not be granted when the defendant swearshe will be able to justify the libel and the Court is not satisfiedthat he may not be able to do so. The same principle applies withrespect to fair comment and privilege. The decision in Bonnard vPerryman (supra), has been followed in England up to date – seeMonson v Tussauds Limited (supra), Fraser v Evans,'9 Halsbury(ibid) p. 552 paragraph 984, Salmond on Torts 16th Ed. p. 608and Gatley on Libel and Slander 7th Ed. (1974) pp. 606, 607paragraphs 1482,1484.
But will the plea of justification make the gratification ofpublic curiosity in regard to a person's private life legitimate ? Canan adventurous producer with impunity display in print andpicture every incident dramatized peradventure of a person'sprivate life which actually happened ? It cannot be done unless itis in the assertion of a legal right, in fulfilment of a legal duty orfor the public benefit. In our law the ingredients of truth andpublic benefit are essential to sustain a plea of justification — seeAmerasinghe (ibid) pp. 83, 84 Nathan (ibid) p. 199 and De Costa vThe Times of Ceylon Ltd.18 19 20 21
So far as fair comment goes the constituents of the defenceare, as Fieldsend J. explained in the case of Rhodesian Printing &Publishing Co. Ltd. v Howman, N.0.21 that the comment must be
18.(1891)2 01.0.269.
19.(1969)1 QB 349 (C.A.).
20.(1963) 65 NLR 217,224.
21.SALR 1967 (4) 1,14.
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11981] 2 S.L R.
recognisable as such and be based on facts which are true and ofpublic interest. It must be a genuine expression of opinion, that is,fair and bona fide, and relevant to the facts commented on eventhough it may be extravagant, exaggerated or prejudiced — seealso Amerasinghe (ibid) p. 146 Nathan (ibid) p. 275 and De Costav The Times of Ceylon Ltd. (supra) at p. 225.
The pleas of justification and fair comment spring from theright of freedom of speech which can be always exercised withinsuch limits as the law prescribes. In Sri Lanka the right of freedomof speech is a fundamental right entrenched in our Constitution of1978 – see Articles 14(1)(a) and 15(2).
As Lord Coleridge said in Bonnard v Perryman (supra) atp. 284:
“The right of free speech is one which it is for the publicinterest that individuals should possess, and, indeed, that theyshould exercise without impediment, so long as no wrongfulact is done; and, unless an alleged libel is untrue, there is nowrong committed; but, on the contrary, often a very whole-some act is performed in the publication and repetition of analleged libel. Until it is clear that an alleged libel is untrue, itis not clear that any right at all has been infringed; and theimportance of leaving free speech unfettered is a strong reasonin cases of libel for dealing most cautiously and warily withthe granting of interim injunctions."
Lord Denning in the case of Frazer v. Evans22 where an inter-locutory injunction was sought against the Sunday Times torestrain them from publishing certain articles, expressed similarsentiments at page 12:
"There are some things which are of such public concern thatthe newspapers, the Press and indeed, everyone is entitled tomake known the truth and to make fair comment on it. This isan integral part of the right of free speech and expression. Itmust not be whittled away. The Sunday Times assert that, inthis case, there is matter of public concern. They admit thatthey are going to injure the plaintiff's reputation, but they saythat they can justify it; that they are only making fair com-ment on a matter of public interest; and, therefore, that they
ought not to be restrainedThe Sunday Times should
be allowed to publish the article at their risk. If they are guilty
22. (196911 All ER 8.
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 307
of libel or breach of confidence or breach of copyright, thatcan be determined by an action hereafter and damages awar-ded against them. But we should not grant an interim injunc-tion in advance of an article when we do not know in the leastwhat it will contain."
Earlier in his judgment Lord Denning set out the legal prin-ciple thus at p. 10.
"The court will not restrain the publication of an article, eventhough it is defamatory, when the defendant says that heintends to justify it or to make fair comment on a matter of
public interestThe reason sometimes given is that the
defences of justification and fair comment are for t^e jury,which is the constitutional tribunal, and not for a judge; but abetter reason is the importance in the public interest that the
truth should be outThere is no wrong done if it is
true, of if it is fair comment on a matter of public interest."
Incidentally this passage answers the criticism commonlyadvanced that the English law has grown from the fact that ipEngland the defences of justification and fair comment are for thejury.
The right to make "fair and bona fide comment on a matter ofpublic interest" to put the defence of fair comment at full lengthalso arises from the fundamental right of freedom of speech. It isthe right of every person to comment upon and criticise publicinstitutions, public legislation and persons occupying publicpositions provided such criticism and comment are bona fide andfair and based on true facts. Bristowe J. in Crawford v Albu23 hadthe following observation to make on the question of criticism:
"Criticism is not required to conform to the Court's standardof fairness or impartiality. People who occupy a publicposition or for any other reason have been so unfortunate asto focus upon themselves the light of public opinion mustexpect to be criticised."
In the instant case learned Counsel for the petitioner contend-ed that the plea of justification should be considered on the basisthat the defendants admit the plaintiff's averments in paragraph5(1) and (2) of the amended plaint. Whatever the position takenup in the objections, for the purpose of the inquiry Counsel forthe defendants had during the argument admitted paragraphs 5(1)
23. [1917) AD 102.105.
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[1981] 2 S.L.R.
and 5(2). I am quite prepared to consider the case bn the footingthat the defendants admit they are going to injure the plaintiff'sreputation in the manner stated in paragraphs 5(1) and 5(2) of theplaint. But they say that they can justify it and that they are onlymaking fair comment on a matter of public interest.
This is an appropriate stage to deal with the contention oflearned Counsel for the petitioner that the findings of the SpecialPresidential Commission are irrelevant and cannot be utilised tosupport the pleas of justification and fair comment in the instantcase. Learned Counsel referred to Lord Denning's 1980 RichardDimbleby Lecture on the Misuse of Power and Prof. H. W. R.Wade's Hamlyn Lecture on Constitutional Fundamentals wheresome illuminating comments have been made on the possibili-ties of misuse of power and abuse of power by Parliament andeven by the Judiciary. Learned Counsel submitted that though thefindings of the Special Presidential Commission have been used todeprive the petitioner of his civic rights they cannot and shouldnot be used for any other purpose. The petitioner still challengesboth the validity and correctness of the findings of the Commiss-ion. This Court has no jurisdiction to go into the question whetherthe findings of the Commission are supportable or not. I am notprepared to say that anyone who makes allegations against thepetitioner identical with or similar to those of which the Commi-ssion found him guilty is not acting bona fide or has no groundson which he could possibly prove the truth of the allegations.Therefore I cannot agree that the findings of the Special Presiden-tial Commission of Inquiry are irrelevant. They are relevant toestablish the bona fides of the defendants, to give credence totheir stand, to give substance to their claims that they are in aposition to prove the truth of whatever they have portrayed inthe film of the plaintiff's actions and conduct and to counter thecontention that the pleas of justification and fair comment havebeen advanced mala fide and as a mere legal ploy.
To come back to paragraph 5 of the plaint. The question is,Are the defendants in no position to prove that the Minister ofJustice though identifiable with the plaintiff is truly characterisedin the film as a dishonourable person, given to abusing and mis-using his official position and authority for personal ends and anuntrustworthy and contemptible character ?
The defendants say they can justify these allegations. Thejustification no doubt must be of the precise allegations set out inthe plaint. For example the defendant is not entitled to set out hisown version of the matter complained of and then plead that thatis true. Paragraph 5 however is couched in general language and
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 309
could cover a broad spectrum of conduct. The findings of theSpecial Presidential Commission in my view can be resorted to inorder not only to prove the bona tides of the defendants' plea ofjustification but also to support their claim that they can provethe truth of the allegations. At this preliminary stage the Court isbound to accept the bona tides of a defendant who says that thedefamation complained of in paragraph 5 is true and he will proveit and backs his statement with the findings of the Commissionthat the plaintiff is guilty of certain specified allegations of abuseand misuse of power. These remarks apply equally to the defama-tion complained of in paragraphs 9 and 10 of the plaint thoughthere is no express admission of them. The allegations here too aregeneral.
I will now deal with paragraph 8 of the amended plaint. Thisparagraph reads as follows:
"8. The plaintiff states that the Minister of Justice in the filmis shown in various episodes as one who uses his official posi-tion and authority for private ends by directing the BriberyCommissioner in an unlawful manner in respect of a pendingprosecution for bribery, and as one who is deceitful anduntrustworthy, and as one who interfered with the work ofthe Bribery Commissioner to such an extent that this officialis driven to resign in protest.”
It is contended on behalf of the petitioner that this allegationis totally untrue. He was not found guilty of such an allegation bythe Special Presidential Commission. The truth of the defamatoryscenes and episodes in the film must be proved. The defendantsare in no position to do so. On the other hand Counsel for thedefendants argued that what need be proved is the sting of theallegations. They are entitled to exhibit in dramatized form themain charge or gist of the allegations of which the plaintiff wasfound guilty by the Special Presidential Commission. Thedefendants need not justify immaterial details or mere expressionsof abuse which will not produce an effect on the mind of theviewer different from that produced by the substantial partjustified. It is sufficient if the substance of the libellous scenes andepisodes is justified. As much must be justified as meets the stingof the charge, and if anything be contained in a charge which doesnot add to the sting of it, that need not be justified (Gatley ibidpp. 431, 432 — paragraph 1043) and Rhodesian Printing and Pub-lishing Co. v. Howman N. 0.). If for example a person has beenfound guilty in a Court of law of stealing the donation box of aRoman Catholic Church in Colombo and a film is made depicting
310
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[ 1981 j 2 S.L.R.
him as a person who has stolen the donation box of a Buddhisttemple in Kandy, surely the plea of justification will still succeed.The sting of the charge is the stealing of the donation box of areligious institution and that is what has to be justified. In thecase before us the Special Presidential Commission found that theMinister of Justice identifiable with the petitioner has in factused his official position and authority for private ends by unlaw-fully directing the Director of Public Prosecutions in respect ofpresenting an indictment for murder. Hence the defendantsclaim that they are justified in portraying the plaintiff in themanner described in paragraph 8 of the plaint. They submit thatthe gravamen of the charge and the substance of the allegation isthat the Minister of Justice using his official position andauthority interfered with the head of a department under him inan Unlawful manner for his private ends in respect of a prosecu-tion for a serious offence. This is the allegation they have tojustify and pointing to the findings of the Special PresidentialCommission they say they can do it. If the allegation is true thereference to deceitfulness and untrustworthiness can easily passmuster as fair comment. The additional episode of the BriberyCommissioner resigning in protest would be legitimate dramatist'scomment and a permissible artistic flourish meant to point themoral of the story.
A person who is a public figure, and who has been a charis-matic political leader wielding wide-ranging powers, and who stilllooks forward to a political future cannot complain if the truthabout him is told and his actions and conduct are made the subjectof fair dramatic comment. Take the case of Woodward vHutchins?* Here a group of pop stars going by the professionalnames of Tom Jones, Engelbert Humperdinck, Gilbert O' Sullivanand Gordon Mills, all leading lights in the show business, hademployed a press agent whose main assignment was to presenttha group to the public in a favourable light. Differences arosebetween the press agent and the group and the press agent wrotea series of articles to the Daily Mirror in which he revealed someunsavoury secrets and scandals about the private lives of somemembers of the group. Three articles appeared and then TomJones and others of the group sought an injunction tc restrainfurther publication of the series. The Daily Mirror and the pressagent intimated they were going to plead justification. LordDenning who wrote the leading judgment in the case said asfollows at p. 754:
"They are going to say that the words in the article are true in
24. [1977! 2 All E.H. 751.
CA Felix Dias Bandaranaya^e v. The State Film Corporation and Another 311
substance and in fact. In these circumstances it is clear that noinjunction would be granted to restrain the publication. Thesecourts rarely, if ever, grant an injunction when a defendantsays he is going to justify. The reason is because the interestof the public in knowing the truth outweighs the interestsof a plaintiff in maintaining his reputation" (Emphasis mine).
If the image which a public figure has fostered is not the trueimage, it is in the public interest it should be corrected.
Learned Counsel for the petitioner, apart from contendingthat there was no factual basis for the pleas of justification andfair comment, submitted that it is not open to a defendant toadvance the pleas of justification and fair comment when he haspleaded that he is unaware of the scenes and episodes complainedof. He relied on the case of Heilbron v Blignaut (supra). This caseconcerned the apprehended publication of a defamatory articlein a newspaper. The defendant had averred in his affidavit that thearticle in question was not defamatory but nevertheless he wouldbe able to avail himself of both the defences of fair comment andtruth and public benefit. Greenberg, J. who decided the case citedheld that the defendant was not entitled in an affidavit to set upfacts in the alternative, in one breath to say that there was nodefamation and in the other to say that the defamatory matteris true. The learned Judge proceeded on the basis that you cannothave alternative facts in an affidavit. But why cannot a defendantsay by way of defence that the words complained of are notdefamatory but, even if they are, they,are true? If A accuses B ofmaking a defamatory statement about him, B can well say "Icannot recall having said this. But if I said it, it is true and I willprove it" or, "what I said is not defamatory but even if it is, it istrue." I am of the view therefore that the decision in Heilbron vBlignaut (supra) so far as it relates to alternative averments in anaffidavit is wrong. In fact C. F. Amerasinghe in his book "Defama-tion and other Injuries" has expressed his doubts as to the correct-ness of Greenberg,-J.'s ruling on this point. I am of the opiniontherefore that there is no legal bar to the pleas of justification andfair comment raised by the defendant. The plaintiff has failed todischarge the burden that lay upon him to show that the pleasof justification and fair comment cannot be set up.
At the trial it will be the task of the defendants to prove thetruth of the defamatory scenes and episodes concerning theplaintiff depicted in the film. If they fail they expose themselvesto be cast in aggravated damages. At the present stage once thepleas of justification and fair comment are taken and it does not
3:2
Sri Lankd l.,a> Reports
[198112 S. I 77.
appear to the Court that the defendants are not in a position toprove it, an interim injunction cannot be issued.
I will turn to two further matters (though they were referredto earlier) because of their practical significance…Firstly, whereall the other material is sufficient for the issue of an interiminjunction, stiil it must be shown when an interim injunctionquia timet is sought that danger is imminent. If the danger is notimminent the court may^ rjot give such assistance for the simplereason that such assistance is not required. In the instant case thedocument entitled "Crime, Punishment and Society" by GaminiFonseka produced marked A1C shows that the film is not yetready for exhibition. It is still with the Censors. There had beena show before the Censors on 28th January 1980 and again on14th February and another screening had been fixed for 28thFebruary. Gamini Fonseka explains that this is a colour film andwhat is submitted for censorship is the "cutting copy," in otherwords a whole series of shots stuck together with cellotape. Eachtime the film runs through the projector there is damage to thefilm. If the damage is extensive then the producer is compelled toreprint, re-edit and sometimes even re-mix the sound-tract. Thiscan happen. Already the print of the film is fairly badly damaged.
A further viewing has been deemed necessary by the CensorBoard. This was because the entire Board had not seen the picture.Further, the film had to be processed outside the country inHong Kong. The entire process of cutting the negative, grading andprinting had to be done outside Sri Lanka and for this technicianshad to be sent from here to the laboratory abroad and maintainedthere at the expense of the producer until the work was comple-ted. It will be seen therefore that the film will be subjected to _many more processes before it is ready for exhibition. Secondly,in this case there is no affidavit from anyone who has seen thefilm. The first defendant has given the assurance that he will notrelease for exhibition anything that is defamatory which cannotajso be justified. If we leave out the admissions that were made forthe purpose of the argument, there is no firsthand account of whatthe film really contains. The plaintiff himself has not seen it. Atone stage he sought the co-operation of the first defendant toarrange for a screening. The first defendant does not have the filmin its possession and its officers do not know what exactly the fiimcontains. There is authority for the proposition that the petitioneris not entitled to get the 1st defendant to arrange for a screeningfor his benefit so that he could identify exactly what scenes andepisodes he was complaining of. On a somewhat similar point
CA Felix Dias Bandaranayake v. The State Film Corporation and Another 313
which arose in the case of Collins v Jones15 Lord Denning hadthe following trenchant observations to make:
“A plaintiff is not entitled to bring a libel action on a letterwhich he has never seen and of whose contents he is unaware.He must in his pleading set out the words with reasonablecertainty; and to do this he must have the letter before him,or at least have sufficient material from which to state theactual words in it. A suspicion that it is defamatory is notsufficient. He cannot overcome this objection by guessing atthe words and putting them in his pleading. The court willrequire him to give particulars so as to ensure that he has aproper case to put before the court and is not merely fishingfor one. If he cannot give the particulars he will not be allowedto go on with the charge."
In the instant case the plaintiff is complaining about scenesand episodes in a film he has not seen. Apparently he is going onwhat others have told him. He is anxious to see the film himself topick out what is defamatory of him. There are no affidavits beforethe Court of what the film contains from persons who have seenit screened. In any event the exhibition of the film is a long wayoff. In these circumstances too an interim injunction cannot- issue.
The order of the learned District Judge is therefore affirmed.The application for revision is dimissed with costs. Let the caserecord be sent back for the trial to proceed after an opportunityis given to the defendants to file their answer.
Rodrigo, J. I agree.
Application dismissed.
25. I1965) 2 All ER 145.146.