027-SLLR-SLLR-1991-V-1-INDEPENDENT-NEWSPAPERS-LIMITED-v.-GUNASINGHAM.pdf
CA
Independent Newspapers Limited v. Gunasingham
285
INDEPENDENT NEWSPAPERS LIMITED
V.GUNASINGHAM
COURT OF APPEALWIJETUNGA, J &
ANANDACOOMARASWAMY, JC.A. L.A. NO. 22/90DC COLOMBO NO. 95381/MMAY 31, 1990
Civil Procedure – Interrogatories – Civil Procedure Code, Section 94 – Defamation -Pleadings
Held:
Where in a defamation case the pleading was that the defendant had "by the exerciseof improper influence committed a heinous criminal offence" no further particulars needbe pleaded.
Words may be defamatory per se or innocent per se. They are the former if in theirprimary sense they are capable of bearing a defamatory meaning while they are thelatter if in their primary sense they are not so capable of having a defamatorymeaning. As in the case of words which are prima facie defamatory, the standardused in determining whether an innuendo is objective and does not depend on theintentions of the defendant, the test is whether the words are capable of conveyingto the reasonable person of ordinary intelligence, who has knowledge of the factsset out in the declaration, the meaning assigned to them.
The trial commences with the framing of issues. Particulars could be obtained throughinterrogatories but a party should do so at any time before the hearing and if adefendant before he tenders his answer.
286
Cases referred to:
Sri Lanka Law Reports
(1991) 1 Sri L.R.
Justinahamy v. Obisappuhamy 43 NLR 213
Chatoor v. General Assurance Society Ltd. 566 NLR 56, 570
APPLICATION for leave to appeal from order of the District Judge of Colombo.
L.C Seneviratne, P.C. with Varuna Basnayake for defendant – petitionerS. Mahenthiran for plaintiff – respondent.
Cur. adv. vult
June 29, 1990
The plaintiff instituted this action on 28.8.85 claiming a sum of Rs.5,000,000/- from the defendant as damages, on the basis that twoarticles published in the 'Sun' of 28.5.85 and 'Thinapathy' of 30.5.85respectively, of which newspapers the defendant is the proprietor,publisher and printer, were defamatory of the plaintiff (and of his son).
The defendant filed answer denying the averments in the plaint andpleading inter alia that the said articles were written and publishedbona fide and without animus injuriandi and were in fact notdefamatory of the plaintiff.
The case having been set down for trial, was taken up for hearingon 5.2.90. In the proceedings of that date, it is recorded that writtenissues had already been tendered and counsel agree that the issuesare as staled therein.
The plaintiff had raised seven issues to which counsel for thedefendant had not objected. The defendant had raised twelve issuesto which counsel for the plaintiff had not objected and the plaintiffhad raised a further consequental issue. Thus, there were twentyissues which the learned District Judge had accepted.
At that stage, learned counsel for the defendant had asked forparticulars of the facts and circumstances upon which the meaningset out in paragraphs 8 and 11 of the plaint could be drawn fromthe text of the alleged libel. It is stated in those paragraphs that thesaid articles meant and were understood to mean that the plaintiffhad gone to Singapore to secure the release of his son by theexercise of improper influence and that the plaintiff and the plaintiffsson had both committed a heinous criminal offence.
287
CAIndependent Newspapers Limited v. Gunasingham
After hearing submissions of counsel on both sides, the learnedDistrict Judge made order disallowing the defendants application forparticulars of the alleged defamation pleaded in paragraphs 8 and11 of the plaint. It is from this order that the defendant-petitioner hassought leave to appeal to this Court.
Having considered the submissions of counsel in regard to thisapplication, we refused to grant leave to appeal. We now give ourreasons for the order made by us on 4.6.90.
It is relevant to note that the application for particulars had beenmade by learned counsel for the defendant after the issues had beenaccepted by Court and evidence was due to be led. Issue No. 12raised by the defendant is in these terms:
“Did the said articles mean and were they understood to mean –
That the plaintiff had gone to Singapore to secure the releaseof his son by the exercise of improper influence?
That the plaintiff had committed a heinous criminal offence.”
Learned counsel for the defendant had not objected to any of theissues including this issue and the Court had accepted the same.
The article appearing in the 'Sun' of 28.5.85 under the heading“Explosive 'waste paper1 Arms cargo was worth Rs. 54 m." statesinter alia as follows:-
“Singapore authorities launched a full investigation and arrested40 people including the son of a former Sri Lankan diplomat.'Sun' learns the ex-diplomat had visited Singapore after his son'sarrest to ascertain the possibility of securing his release".
It is these words and those of a similar article in the 'Thinapathy' of30.5.85 which, according to the plaintiff, meant and were understoodto mean that the plaintiff had gone to Singapore to secure therelease of his son by the exercise of improper influence and thatthe plaintiff and the plaintiffs son had both committed a heinouscriminal offence.
288
Sri Lanka Law Reports
(1991) 1 Sri L.R.
The learned District Judge states in his order that in an action wherestatements are per se non-defamatory, the case cannot proceedunless particulars are pleaded in the plaint, but in the instant case,the text referred to is per se defamatory. He rules that the plaintiffis entitled to show that the words, in addition to what they may bearon the face of the libel, could also be construed in an additionalsense in the manner referred to in paragraph 8, which is a matterof evidence.
Although the defendant-petitioner sought to submit that the learnedtrial judge had predetermined the questions raised in issues 3 and6 and had in effect already answered them in the plaintiffs favour,it should be noted that nowhere in the order complained of has hestated that those words are defamatory of the plaintiff. As weunderstand that part of his order, the distinction that he was drawingwas between words which are defamatory per se and those whichare not. That is a well recognised distinction.
"Words may be defamatory per se or innocent per se. They are theformer if in their primary sense they are capable of bearing adefamatory meaning, while they are the latter if in their primary sensethey are not so capable of having a defamatory meaning" – C.F.Amerasinghe: Defamation and other Aspects of the Actio Injuriarumin Roman-Dutch Law at page 30.
The author further stated at page 35 that: "As in the case of wordswhich are prima facie defamatory, the standard used in determiningwhether an innuendo is defamatory is objective and does not dependon the intentions of the defendant. The test is whether the wordsare capable of conveying to the reasonable person of ordinaryintelligence, who has knowledge of the facts set out in thedeclaration, the meaning assigned to them in the innuendo."
Nathan, in The Law of Defamation in South Africa, dealing withdefamation with an innuendo states at page 39 that "it will benecessary for the plaintiff to allege that the words of which hecomplains were published with the intent that they should beunderstood, and that they were understood, with the meaningconveyed by the innuendo. If there are special circumstancesattending the use of the words, such circumstances must be allegedand proved."
289
CAIndependent Newspapers Limited v. Gunasingham
The very circumstance that the defendant had framed issue No. 12dealing with this aspect of the matter in the terms stated above isitself indicative of the fact that the words 'by the exercise of improperinfluence' and 'committed a heinous criminal offence' required nofurther particulars to be pleaded by the plaintiff.
In any event, we see no provision in the Civil Procedure Code forthe defendant to have obtained particulars at this stage after the trialhad commenced. The trial commences with the framing of issues.The next step in the procedure is for the party having the right tobegin to state his case and produce his evidence. If the defendantdid require further particulars, the defendant could have had recourseto the provisions of Section 94 of the Code and obtained suchparticulars through interrogatories. But, as the section itself indicates,a party should do so at any time before hearing and in the case ofa defendant, after he has previously tendered his answer and suchanswer has been received and placed on record.
In Justinahamy v. Obisappuhamy, (1) where the plaintiff sued thedefendant for damages for loss of her husband whose death wascaused by the negligent driving of the defendant’s servant and thedefendant denied liability and set up contributory negligence, it washeld that the defendant was entitled to interrogate the plaintiff asto the acts and omissions constituting the alleged negligence on hispart.
But, it was held in Chatoor v. General Assurance Society Ltd., (2)that once the trial has begun, interrogatories cannot under ourprocedure be permitted.
There was thus no basis for the defendant in the instant case tohave moved to obtain particulars of the alleged libel, at that stageof the action.
The learned District Judge was, therefore, right when he disallowedthe defendant's application and made the order complained of.
For the foregoing reasons, we refused the defendant-petitioner'sapplication for leave to appeal from the said order.
290
Sri Lanka Law Reports(1991) 1 Sri L.R.
The plaintiff-respondent will be entitled to the costs of this application,which we fix at Rs. 525/-, from the defendant-petitioner.
WIJETUNGA, J.
ANANDACOOMARASWAMY, J.
Application for leave to appeal refused.