Kampala High Court has dismissed with costs an application by businessman Sudhir Ruparelia seeking to block popular Ugandan news website, ChimpReports.com from publishing articles about him.
This was after ChimpReports published stories under the headline: ‘MPs resolve to arrest Sudhir Ruparelia’ and ‘MPs to grill Sudhir Ruparelia over suspected dubious acquisition of 32 prime Kampala properties.’
Sudhir claimed the articles were malicious and intentionally published in a manner to demean his reputation.
The real estate mogul, who doubles as the Honorary Consul of Nepal to Uganda, said the articles by innuendo or their natural and ordinary meaning, insinuated that he is dishonest, a fraud and one who forges documents.
Sudhir, who previously owned Crane Bank which was taken over and sold by Bank of Uganda over alleged fraudulent activities, said the stories ran by ChimpReports demeaned his reputation in the eyes of reasonable members of society especially in his capacity as a Consul, a businessman, a parent and a friend to many.
Represented by lawyer Julius Galisonga, Sudhir said as a result of published articles, he had received and continued to receive communications of ridicule from his peers and many concerned members of society.
He also said he received communications of loss of confidence from business partners and mockery from business competitors; taunts from other media houses and shame to his family.
The publications complained of by Sudhir arise out of an ongoing probe by the Parliamentary Committee on Corporations, Statutory Authorities and State Enterprises (COSASE) which is investigating and inquiring into the illegal acquisition of properties formerly owned by Departed Asians.
COSASE has been summoning witnesses and other individuals to inquire from them how they acquired properties which were formerly owned by the Departed Asians to ascertain whether they acquired the properties properly and legally.
Sudhir was one of the persons invited before the COSASE because some people accused him of illegally acquiring some of the properties of the Departed Asians.
The businessman was summoned to the Parliamentary Committee several times but he refused or failed to appear.
The Committee threatened to arrest the applicant in order to compel him to comply with the summons to appear before COSASE.
In the publications, some of the petitions of the aggrieved people are quoted.
Additionally, during the Parliamentary Committee meetings, members of the Custodian Board testified that Sudhir acquired some properties illegally.
Defence
ChimpReports argued that the publications Sudhir complained about are therefore true and not false or defamatory of Sudhir or at all and ChimpReports was ready to prove that the publications were true.
The news-breaking website maintained that the law allowed it to publish the articles and the injunction sought by Sudhir was not legally tenable.
ChimpReports further said it had a video recording of the Committee proceedings which will be exhibited during the hearing.
ChimpReports’ lawyer, Max Mutabingwa stated that there are guidelines established by authorities which courts must follow before granting an injunction in defamation cases.
Mutabingwa, a season lawyer who had defended media freedom for decades, cited the English case of Bonnard vs Perryman (1891) ChD at 269 the first condition which provides that in order for the court to grant an injunction, the court must have first decided that what is before it is defamatory.
“The jurisdiction to grant an injunction to restrain libel is one that the court exercises with extreme caution, and it will not be exercised where the libel is true,” said Mutabingwa.
Precedents
In his determination, Justice Michael Elubu relied on several cases to throw out Sudhir’s petition.
“In English decision case of Herbage v Pressdram Ltd [1984] 2 All ER 769 it was held that: – “The principles which it is conceded generally apply to the grant of interim injunctions in defamation actions are helpfully summarized in counsel for the plaintiff’s skeleton argument: first, no injunction will be granted if the defendant raises the defence of justification. This is a rule so well established that no elaborate citation of authority is necessary. It can be traced back to the leading case of Bonnard v Perryman [1891] 2 Ch 269, [1891–4] All ER Rep 965. 9 Secondly, no injunction will be granted if the defence raises privilege, unless the evidence of malice is so overwhelming that the judge is driven to the conclusion that no reasonable jury could find otherwise that is, that it would be perverse to acquit the defendant of malice. Thirdly, that in the face of this long-established practice in defamation actions, the principles enunciated by the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396 relating to interim injunctions are not applicable in actions for defamation: see J Trevor & Sons v Solomon (1977) 248 EG 779. These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages,”’ said Justice Elubu.
The judge further relied on Bonnard vs Perryman [1891] 2 Ch. 269 whereby it was held that, “An interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel and the court is not satisfied that he will be able to do so.”
In the same case, it was held that “the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by an injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any rights at all have been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.”
Ruling
Justice Elubu, whom many will say has expanded the frontiers of free press, said to determine whether the publication was motivated by malice and a sinister intention to demean the reputation of the applicant, Court would be required to arrive at a finding whether the articles, in its wording and meaning, are manifestly malicious and there would be no difficulty in finding that it was ill will motivating the publication.
“To reach such a conclusion would require an in depth assessment of the evidence on record. The Court has perused the articles. It appears they recount the proceedings at the COSASE meeting. But as stated by the applicant they have had an adverse effect on his reputation. It is not be possible to make a finding whether indeed that was so from the limited deposition evidence on record at this stage. That can only be done on a proper review of evidence during the trial,” said justice Elubu.
“Conversely the respondents (ChimpReports) allege that the statements are not defamatory in nature. They deny that they are false, malicious or defamatory. They state in their reply that the articles are true in fact and substance. It is their contention that they are justified in the publication and can prove them as true. In the instant case it would be preempting the trial courts findings if this court ruled one way or the other on the defamatory nature of the articles,” he added.
“In light of the above circumstances, the Court should balance this alleged justification with the applicant’s private rights to protection from an attack on his reputation. However where no finding can properly be made as to the malicious intent of the publications, then the protection of the right to free speech enshrined in Article 29 of the Constitution comes into play. It would be premature in such circumstances to grant a restraint order where manifest malice is not yet proved. The court is also unable to make a finding on the other articles listed because they do not form part of the proceedings in the head suit. In the result, this application is dismissed with costs.”
Media freedom
ChimpReports’ managing editor, Giles Muhame, welcomed the ruling, saying a court injunction sought by Sudhir would have stifled critical and independent journalism in Uganda.
“Unreasonable court injunctions against media houses remain a huge threat to constitutionally guaranteed media freedoms,” said Muhame.
“This is a matter we decided to pursue up to the Supreme Court. Sudhir’s questionable management of the defunct Crane Bank and queries raised by the Custodian board on how he acquired the departed Asians’ properties are issues of public interest which ChimpReports will continue to scrutinize without fear.”
