012-SLLR-SLLR-2000-V-3-PRINS-GUNASEKERA-v.-THE-ASSOCIATED-NEWSPAPERS-OF-CEYLON-LTD.pdf
PRINS GUNASEKERA
v.THE ASSOCIATED NEWSPAPERS OF CEYLON LTD
SUPREME COURTS. N. SILVA C. J..
BAN D ARAN A YAKE J. ANDISMAIL J.
SC (SPL) L. A. NO. 11/2000CA NO.174/94DC COLOMBO NO. 3583/SPI21st MARCH. 2000
Enforcement of judgement – Reciprocal Enforcement of JudgmentsOrdinance – Judgment of a Superior Court in the United Kingdom -Objection to jurisdiction.
The petitioner obtained an ex-parte judgment against the respondentCompany (the respondent) from the High Court of England for damagesfor the publication of an alleged defamatory statement published in anewspaper printed by the respondent and distributed in England by anEnglish Company. The respondent did not appear or subscribe to thejurisdiction of the High Court of England. The respondent was notordinarily resident in United Kingdom. Thereafter, the petitioner soughtto enforce the judgment in Sri Lanka under the Reciprocal EnforcementOf Judgments Ordinance by registering it under Section 3(1) of theOrdinance on an Order of the District Court of Colombo. The respondentobjected to the jurisdiction of the Court to register the judgment on theground that Section 3(2) (b) of the Ordinance prohibits registration interalia, if the judgment – debtor was neither carrying on business norordinarily resident within the jurisdiction of the orginal Court.
Held :
In view of the denial by the respondent the petitioner should have ledevidence to satisfy the Court that the respondent was carrying onbusiness in the United Kingdom. The petitioner had failed to dischargethat burden.
Cases referred to :
Sfeir & Co. v. National Insurance Co. of New Zealand (1964) 1QB330.
Vogel v. R. &A Kohnstram Ltd. (1971) 2 All ER 1428.
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Prins Gunasekera v. The Associated Newspapers of Ceylon Ltd.123
(S. N. Silva. C. J.)
APPEAL from the judgment of the Court of Appeal.
R. K. W. Goonesekera with Mrs. Shiranthi Jayatilleke for petitioner.Faisz Musthapa. P. C„ with Saryeewa Jayawardena for respondent.
Cur. adv. vidt.
April 28, 2000.
S. N. SILVA, C. J.
This is an application for Special Leave to appeal fromthe judgment dated 8.12.1999 of the Court of Appeal.
The Petitioner Appellant being a Sri Lankan resident inthe United Kingdom instituted proceedings against theRespondent (as the 2nd Defendant) and another party in theHigh Court of England and Wales, claiming damages in a sumof 150,000 sterling pounds in respect of an alleged defamatorystatement published in the Daily News on 17.05.1990. Itappears that the other party viz: Samco Agencies Ltd., ofLondon, was sued as the 1st Defendant on the basis that thecompany was the distributor of the Respondents newspapersin that country. Samco Agencies Ltd, was discharged on theapplication of the Petitioner who elected to proceed ex-parteagainst the Respondent. The Respondent did not appear orsubscribe to the jurisdiction of the High Court of Englandwhich entered judgment against the Respondent in the fullsum of 150,000 sterling pounds claimed by the Petitioner.Thereupon the Petitioner moved for enforcement of thejudgment in Sri Lanka by instituting the proceedings in theDistrict Court of Colombo under the Reciprocal Enforcementof Judgments Ordinance No. 41 of 1921. The District Courtmade order in favour of the Petitioner which would haveresulted in the enforcement of the Judgment against theRespondent. The Court of Appeal by the judgment referred toabove reversed that order.
Section 3(1) of the said Ordinance provides for theregistration in Sri Lanka of a judgment obtained in a SuperiorCourt in the United Kingdom within 12 months of such
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judgment. According to section 3(2){b) such a judgmentshall not be registered inter alia if the judgment-debtorwas neither carrying on business nor ordinarily residentwithin jurisdiction of the Original Court. Therefore, in order tosurmount the bar in this provision to register the saidjudgment in Sri Lanka for enforcement, the Petitioner mustestablish either that the Respondent was carrying on businessor was ordinarily resident in the United Kingdom. It was agreedby both parties that the Respondent was not resident inthe United Kingdom and the only question that arose forconsideration was whether the Respondent was carrying onbusiness in the United Kingdom at the relevant time.
The Respondent in his application made by way ofsummary procedure to set aside the registration that wasordered initially by the District Court clearly objected to thejurisdiction of the court to register the judgment on thegrounds set out in Section 3(2)(b) of the Ordinance. Theprovision is similar with regard to the matter at issue toSection 9(2)(b) of the Administration of Justice Act 1920 ofEngland.
The Court of Appeal has come to a finding on the lawwith reference to two cases decided in England SJeir & Co. u.National Insurance Co, of New Zealand111 and Vogel u. R & AKohnstram Ltd.,121 that the burden of proving that theRespondent carried on business within the jurisdiction of theHigh Court of England was on the Petitioner. Learned Counselfor the Petitioner did not seek to challenge this finding whichis a correct statement of the applicable law.
Learned Counsel for the Petitioner however contendedthat the Court of Appeal applied the law incorrectly whenit observed that it was “not enough’ to establish that theRespondent was carrying on “some business in the UnitedKingdom,” and that, Petitioner had to establish that theRespondent carried on the business which the Petitioneralleged, which was the sale of the newspaper, “Daily News". In
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Prins Gunasekera v. The Associated Newspapers of Ceylon Ltd.J 25
(S. N. Silva. C. J.)
this instance the Court of Appeal appears to have pitched theproposition too high. There is no requirement in Section 3(2)(b)that Petitioner should prove the precise form of the businesscarried on to the extent of showing that it coincides with thecause of action. But, except for the single statement referredto above, in the rest of the judgment which runs into severalpages, the Court has stated the proposition correctly. In thefinal paragraph of the Judgment the Court has observed thatin the light of the denial by the Respondent, the Petitionershould have led evidence to satisfy the court that theRespondent carried on “business in the United Kingdom”.And, concluded that the Petitioner has not been able to placebefore Court evidence that the Respondent has been carryingon business in the United Kingdom. Thus in the light of thefinding that there is no evidence of any business being carriedon by the Respondent in the United Kingdom, the statementin the judgment, referred to by learned Counsel for thePetitioner, is devoid of significance.
Learned Counsel for the Petitioner further submittedthat the finding as to the absence of evidence on this issue isuntenable. He relied on three matters to establish a finding inhis favour –
The objects clause 3(b) of the Memorandum ofAssociation of the Respondent Company which statesas one of its objects “to carry on in Great Britain andin the Island of Ceylon and in any part of the worldthe business of Newspaper . . . Publishers . . .”
The Agreement with Samco Agencies Ltd., (X2)
Certain newspapers that refer to one Reggie Fernandoas the correspondent in London for the Respondent.
As regards the matter referred to in (i) above, it has to benoted that the objects clause in the Memorandum is only anempowerment of the Company to do business in Great Britainor in any part of the world. What is in issue is not a question
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of empowerment but whether in fact the Respondent carriedon business within the jurisdiction of the High Court ofEngland.
Item (ii) is an item of evidence adduced by the Respondentto negative the claim of the Petitioner that Samco AgenciesLtd., carried qn business of the Respondent in London.The Agreement refers only to purchase of the Respondent'snewspapers in Sri Lanka by an agent of Samco Agencies Ltd.,and makes no mention of their sale in England. LearnedCounsel seeks to construe this agreement in the light of anaffidavit said to have been produced in the High Court ofEngland. Section 91 of the Evidence Ordinance clearlyprecludes such an exercise. In any event the affidavit hasnot been properly adduced as evidence before the DistrictCourt.
Item (ill) relates to certain publications that are said toform part of the proceedings in the High Court of England. Itis noted that when these documents were sought to beproduced in the District Court, Counsel for the Respondentobjected to it on the basis that it would be hearsay and Counselfor the Petitioner has not pursued the matter thereafter (videproceedings of 26.10.93).
It is thus seen that the finding of the Court of Appeal as tothe absence of evidence to establish that the Respondent wascarrying on business within the jurisdiction of the High Courtof England, is correct.
The application for Special Leave to Appeal is accordinglydismissed. No costs.
BANDARANAYAKE, J. I agree.
ISMAIL, J.- 1 agree.
Special Leave to Appral refused.