WIJESEKERE v. EASTERN BANK

025-NLR-NLR-V-43-WIJESEKERE-v.-EASTERN-BANK.pdf


109
NIHTT.L J.—Wijesekere v. Eastern Bank.
1941Present: Wijeyewardene and Nihill JJ
WIJESEKERE v. EASTERN BANK.
37—D. C. Colombo, 11,188.
Interrogatory—Legitimate use of interrogatories—Proof of facts relevant to afact in issue—Not allowed to establish facts otherwise relevant.
The legitimate use of interrogatories is to obtain for the party-interrogating admissions of fact relevant to a fact in issue or leadingup to a matter in issue.
If the object of serving'interrogatories is to obtain facts which it is notincumbent upon the party interrogating to prove in order to establishhis case but which are otherwise relevant such interrogatories should notbe allowed.
^ PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him. E. F. N. Gratiaen), for defendant, appellant.
N.Nadarajah, for plaintiff, respondent.
Cur. adv. vult.
November 14, 1941. Nihill. J.—
This is an interlocutory appeal from an order of the District Judge ofColombo dated February 17, 1941. which under section 100 of the CivilProcedure Code directed the Manager of the Eastern Bank in Colomboto answer certain interrogatories.
43/11
110
NTHTT.T. J.—Wijesekere v. Eastern Bank.
The matter arose in this way. The respondent to this appeal, abusiness man trading in Colombo, sued the appellant—the Eastern Bank—for damages, inlfer alia, by reason of an alleged defamatory letter writtenat Baghdad by the Manager of the Bank’s Baghdad Branch to a merchantin that city. The Bank filed answer denying liability and the trial wasfixed for February 11, 1941. On January 22, 1941, interrogatories wereserved on the Bank’s Manager in Colombo. To three of these he objectedand on February 1, 1941, he filed an affidavit containing his reasons.
The interrogatories to which he took objection were as follows': —
“ (a) Did the Colombo Branch of the defendant Bank send to theBaghdad Branch on or about the 24th of July, 1939, the followingmessage : —
EAST BANK. BAGHDAD.
TXDYE. YDUDU. UFSBA. AHXAP. BROAG. THUAA. TRIUO.IPTOI
Signed illegibly.
Was this message sent in Code ?
If so, state what code was used.
State how the message would read in ordinary language when it is
decoded.
“5 (a) Did the Baghdad Branch of the defendant Bank instructor advise the Colombo Branch in or about July, 1939, to open a letterof credit to plaintiff ?
If so, what was the date on which the instructions or advice toopen the said letter of credit was received in Colombo ?
Did the Colombo Branch fail to advise the plaintiff of this letter ofcredit ?
Did the Colombo Branch telegraph to the Baghdad Branch inreply ?
Was the reply to the effect that the plaintiff was worthless and thatthe Colombo Branch was not advising plaintiff of the letter of credit ?
(j) If the answer to interrogatory No. 5 (e) is in the negative, statewhat the-answer was.
6. (a) On whose behalf in Baghdad was the letter of credit referredto in the interrogatory No. 5 opened ?
Was your reply referred to in'interrogatories No. 5 (c) and (d) andinteSgfcfcsd to be communicated -to that person ?
' vVas the reply' in fact so communicated ? ”
The learned District Judge in making his order directing the appellantto answer these interrogatories did so on the grounds that they wererelevant as being links in the chain of the plaintiff’s evidence which mayhelp him to substantiate his case and he held that they had been putbona fide for the purposes of the action. These are good reasons in Lawfor the admission of the interrogatories provided the learned DistrictJudge was justified in coming to the conclusion he did. What is really__ at issue between the parties to this appeal is whether the answers, ifsupplied, would provide in fact -material which the plaintiff must havein order to prove his case. In order to consider this issue it will be bestfirst to look at the plaint. The plaintiff has alleged three causes of
NIHIL.L J.—Wijesekere v. Eastern Bank.
Ill
action but it is with the second only that we are concerned, for it is withregard to that cause of action that the interrogatories objected to weredirected.
In paragraph 10 (a) of the plaint this cause of action was set out asfollows: —
“ 10.(a) On or about the 25th or 26th of July, 1939, and again
on a date between the 1st and 10th of August, 1939, the defendant’sagent or servant acting in the course of his employment published orcommunicated by letter to the firm of ‘ G Y KHAZZAM and MEIRSHAOUL ’ Baghdad the following statement, namely, that theplaintiff’s firm was not a bona fide one ; and that the plaintiff wasworthless.
(b) The said publication was made at Baghdad and by the Managerof the Baghdad Branch of the defendant’s bank. Plaintiff is unableto ascertain the name of the said Manager but defendant is aware ofthe same
In the two following paragraphs of the plaint the plaintiff allegedthat the said publication was false and malicious* and that what wasmeant by the words was that the plaintiff was not to be trusted in hisbusiness dealings and/or that the plaintiff’s firm was not a reliable one.
Now it is clear that what the plaintiff has to prove is the publicationof the statement in Baghdad. If he can do that and can defeat the pleathat the communication was made on a privileged occasion by showingmalice, he succeeds ; if he fails to prove publication in Baghdad he mustfail. That is all that is incumbent upon him. Can it be said thatanswers to the objected interrogatories are necessary to him to provethe publication in Baghdad ? Supposing he obtains a decode of thecablegram set out in the fourth interrogatory and it is found to containsomething defamatory of the plaintiff. This might give him anothercause of action against the Bank but it will not help him to prove publica-tion by the Bank’s servant in Baghdad. How then can it be a necessarylink in the chain of evidence which he has to prove ? If he has proof ofthe publication in Baghdad he has his chain complete and evidence thatsome communication took place between the Bank’s Manager in Colomboand their Manager in Baghdad will be an unnecessary elongation of it.Smith L. J. in the case of Kennedy v. Dodson1 put the matter thus: —
“ The legitimate use and the only legitimate use of interrogatoriesis to obtain from the party interrogated admission of fact which it isnecessary for the party interrogating to prove in order to establish hiscase ; and if the party interrogating goes further, and seeks by hisinterrogatories to get from the other party matters which it is notincumbent on him to prove, although such matters may indirectlyassist his case, the interrogatories ought not to be admitted …. ”
Mr. Nadarajah has contended that as the defendant is a corporationit is incumbent on the plaintiff to prove that its Baghdad servant whenhe published the defamatory statement was acting in the course of hisemployment -and that the answers tc these interrogatories will helphim to establish that part of his case.
I (1895) 1 Chancery, p. 341.
112
Attorney-General v. Liveris.
Now the defendant in paragraph 7 of his answer has indicated I thinksufficiently that if a defamatory statement was published it was doneon a privileged occasion. The plaintiff therefore need have no fear thatif he proves the statement he will be met by a plea that the BaghdadAgent was not acting in the course of his employment. Indeed Mr. H. V.Perera in his appeal has conceded that if a defamatory statement waspublished by the Baghdad Manager it must have been an act done by thatManager in the course of his employment.
Mr. Nadarajah has also urged that we should be slow to interferewith the decision of the learned District Judge in a matter which is verymuch a matter of discretion. I agree with that principle but if, as Ithink, that, although the learned District Judge no doubt addressedhis mind judicially to the problem, he reached a wrong conclusion as tothe relevancy of these interrogatories, then it must be the duty of anAppeal Court to step in. It may be that the answers to these interroga-tories might provide the plaintiff with evidence which would be relevantin the broad sense in which relevancy is defined in our Evidence Ordinance,but in judging an interrogatory a stricter test of relevancy is required.It must be relevant to a fact in issue or as leading up to a matter in issuein the action.
Where I think the learned District Judge has erred in this case is inassuming that details of what passed between the two Branches of theBank would lead up to any fact which it will be incumbent upon theplaintiff to prove in order to maintain his action.
It is on this ground that I would disallow these interrogatories andhaving reached this conclusion it is not necessary for me to examine anyother possible grounds of objection such as vexation or oppression orwhether they were put merely with a view to further litigation. All suchgrounds, if established, would be grounds for disallowance but havingfound that they are objectionable on one ground it would be surplusageto consider whether they may be objectionable on another.
I think this appeal should be allowed with costs and the order set aside.Wijeyewardene J.—I agree.
Appeal allowed.