The Civil Division of the High Court in Kampala, has thrown out a defamation case filed by tycoon Sudhir Ruparelia against online media house Chimpreports.

Last year, Sudhir sued the media house arguing that they had defamed him when they published two articles on their websites www.chimpreports.com. 

The suit was against five of the employees; Bob Muheebwa, Asiimwe Leonard, Muhame Giles, Okello Dickens  Hanstray and Kim Aine listed as the respondents in the case.

They were dragged to court on allegations that on the 19^th day of March 2020, they published two articles against the Sudhir. That the first article had the screaming and eye-catching title ‘MPS resolve to arrest Sudhir Ruparelia’. The second piece was titled ‘MPS to grill Sudhir Ruparelia over suspected dubious acquisition of 32 prime Kampala properties’. 

However, a court judgement delivered by Justice Michael Elubu, the case has been dismissed with costs.

“Therefore the basis for this Court’s action is to determine whether the publication was motivated by malice and a sinister intention to demean the reputation of the applicant. The 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,” reads part of his judgment.

READ THE FULL JUDGEMENT BELOW

THE REPUBLIC OF UGANDA 

IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

MISC. APPLICATION NO. 207 OF 2020

(Arising From Civil Suit No. 121 of 2020)

DR SUDHIR RUPARELIA         :::::::::::::::::::         APPLICANT

VERSUS

1.                  M/S CHIMP MEDIA LTD  2. BOB MUHEEBWA 3. ASIIMWE LEONARD             4. MUHAME GILES                    :::::::::::::::     RESPONDENTS 5. OKELLO DICKENS  HANSTRAY 6. KIM AINE

BEFORE: THE HON MR. JUSTICE MICHAEL ELUBU

RULING

This Application is commenced under Section 98 of the Civil Procedure Act Cap 71 andOrder 41 Rules 1 (a), (2) & 9of the Civil Procedure Rules S.I. 71-1. 

The Applicant seeks Orders that: 

1. A temporary injunction be issued against the Respondents and/or their agents and servants restraining them from any further publications and circulation of malicious, slanderous and libelous material against the Plaintiff until the determination of the main suit now pending before Court

• The Costs of this Application be borne by the Respondents. 

The Grounds of this Application are stated in the Chamber Summons and particularized in the affidavit of one Dr Sudhir Ruparelia, the Applicant. He states that: 

1. The Respondents jointly operate and manage the website www.chimpreports.com (herein referred to as the website) where they publish articles about diverse topics but with specific focus on matters happening in the Republic of Uganda. Their target readership and viewership is the people of the Republic of Uganda and internet users across the world.

• On the 19^th day of March 2020, the Respondents, through their website, published a false article about the Applicant with the screaming headline: MPS resolve to arrest Sudhir Ruparelia.

• On the same day, the 19^th March 2020, the Respondents through their website published another false Article about the Applicant with an equally screaming headline, MPs to grill Sudhir Ruparelia over suspected dubious acquisition of 32 prime Kampala properties”.

• The Articles were maliciously and intentionally published in a manner intent on demeaning the reputation of the Applicant, as the Respondents at the time of publication specifically accentuated the Titles of the Applicant while demeaning his reputation. In one of the articles the respondents wrote that, “Businessman Sudhir Ruparelia, who was recently appointed Honorary Consul of Nepal to Uganda…” a statement that shows that malice was manifest and intended.

• The articles by innuendo or their natural and ordinary meaning, insinuated that the Applicant is dishonest, a fraud and one who forges documents. They demean the reputation of the Applicant in the eyes of reasonable members of society especially in his capacity as a Consul, a businessman, a parent and a friend to many. 

• When they published them, the Respondents were aware of the demeaning effect and falsehoods in these articles. Because of the ill will toward him, they declined to verify the truth of the content or to contact the Applicant before publication. Their only intention was to portray the Applicant as a fraud.

• It has been the habit of the Respondents to put up several other sensational and false stories about the Applicant. They do so as a matter of practice. Indeed following the above publications, the Respondents published another article on the 24^th of March 2020, in which the Respondents made more false, scandalous, malicious, libelous and defamatory allegations against the Applicant. As such, there is a serious threat and intention to periodically and systematically repeat publication of the offensive publications.

• Following the publication of the falsehoods in the articles on the website, the Applicant has received and continues to receive communications of ridicule from his peers and many concerned members of society. He also received communications of loss of confidence from business partners and mockery from business competitors; taunts from other media houses and shame to his family. That this was the obvious effect that the Defendants anticipated when they characterized the plaintiff as a businessman and a consul.

• As a result, the articles published against the Applicant were defamatory, slanderous, libelous and above all intended to malice. That compelled him to file the head suit No. 121 of 2020 which is now pending before this court.

1. This Application is for a Temporary Injunction pending the determination of the main suit, and seeks to restrain the Respondent from further offensive publications against the Applicant.

1. If the Temporary injunction is not issued, the Respondents shall continue publishing defamatory and slanderous material against the Applicant, thereby perpetuating the defamation and causing anguish and mental torture against the Applicant. That all these cannot be adequately compensated for by an award of damages which would render the suit nugatory.

1. That it is fair, just and equitable that an Injunction be issued.

1. That the balance of convenience tilts in favour of the Applicant, who on the facts stands to lose if the Order is not issued as prayed. 

The respondents oppose this application and the 4^th Respondent, MUHAME GILES, swore an affidavit in reply. He states that: 

1. The publications complained of by the Plaintiff 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.

• COSASEhas 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.

• The Applicant 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 Applicant 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.

• The publications made by the 1^st Respondent and complained of by the Applicant are about the proceedings of the Parliamentary Committee and the failure or refusal by the Applicant to appear before COSASE.

• That in the publications, some of the petitions of the aggrieved people are quoted and one of them was annexed to the affidavit in reply.

• During the Parliamentary Committee meetings, members of the Custodian Board testified that the Applicant acquired some properties illegally.

• The publications the Applicant complained about are therefore true and is not false or defamatory of the Plaintiff or at all and the Respondent are ready to prove that the publications are true.

• The Publications complained of were published on 19^th March 2020 and since then the Respondent has never made any other publication about the Applicant. 

• The respondents states that the law allows the 1^st Respondent to publish the articles and the injunction sought by the Applicant is not legally tenable. 

1. The Respondents have never published any defamatory or slanderous material against the Applicant or at all and what was published about the Applicant is true.

1. The publication and affidavit in support do not therefore disclose any justification for an injunction.

1. The 1^st Respondent has a video recording of the Committee proceedings which will be exhibited during the hearing.  

In rejoinder to the affidavit in reply, the applicant deposed that: 

1. On the 30^th day of October 2020, the Respondents published an article against him under the headline “long read: Kamya Sues Equity Bank, Sudhir’s Meera Investment’s over “Fraudulent” sale of $12m Simbamanyo House” 

• On the 30^th day of June, 2020, the Respondents published another article against the applicant under yet another screaming headline “Just in: Bank of Uganda Drags Sudhir to Supreme Court”;

• The Respondents published another article against the applicant under the title

“EXCLUSIVE” Sudhir Ruparelia summoned again, as Parliament queries ownership of Crane Chambers, 10 other properties”.

• On the 11^th day of June 2020, the Respondent yet again published another article under the title “Sacked Sanyu FM Staff Move to sue Sudhir Ruparelia”.

• The Respondent on the 19^th day of June 2020, yet again published an article against the applicant under the headline “7 injured in Sudhir Ruparelia’s Entebbe Hotel Construction site collapse”.

• From the tone and regularity of their publications, and in using screaming headlines, the Respondents intended to stir or inspire anger, contempt and ridicule against the applicant.

• The articles, in as far as they refer to the applicant are false and by insisting on publishing the same, the Respondents are mischievously hurting his reputation and business relationships. The basis of both the main suit and this application is to seek to protect him from defamation and to restrain the Respondents from their impugned conduct. 

Background 

The Applicant sued the Respondents jointly and severally. His claim is for defamation arising from two articles published by the defendants on their website www.chimpreports.com. 

That on the 19^th day of March 2020 the Respondents published two articles against the applicant. That the first article had the screaming and eye-catching title ‘MPS resolve to arrest Sudhir Ruparelia’. The second piece was titled ‘MPS to grill Sudhir Ruparelia over suspected dubious acquisition of 32 prime Kampala properties’. 

The Applicant states in his Plaint that both articles were false and libelous.

Issue  

Whether the Applicant is entitled to the remedy sought

Resolution

It was the submission of Counsel for the Applicant that when determining an Application of this nature, the court considers whether there is a threat and intention to repeat the defamatory remarks. That since the filing of this application, the respondent has continued to publish the impugned articles.

It is argued farther, that the matters the respondents wrote about have to do with companies and are of a corporate nature but the respondents chose to write about the applicant disregarding the principle of corporate personality. 

That when considering an application for an injunction, the court does not have to make a finding on the merits of the main suit but they can be examined without the court pronouncing itself on the efficacy to ascertain whether there is a clear case. The following decisions were cited to support the argument: Humphrey Nzeyi vs Attorney General Constitutional Application No. 01 of 2013, Sam Kuteesa & Others Vs Attorney General Constitutional Petition No. 46 of 2011 & Constitutional Reference No. 54 of 2011 and Godfrey Kirumira Kalule Vs the New Vision.

In Humprey Nzeyi (Supra) it was held that court cannot allow a party to infringe on the basic constitutional rights of another simply because that other party claims to have capacity to pay damages to the victim for the violation. 

It is the contention that a person’s reputation is his property so Court cannot fail to act when somebody’s property which is guaranteed by the constitutional right to property is being infringed upon. 

As stated the respondents oppose this application and submitted that there is no justification for granting an injunction in this suit. That an application for an injunction in defamation suits is governed by different principles from other injunctions in other branches of the law. It was the contention of Counsel for the Respondent that an application for an injunction touches on the freedom of the press which is jealously guarded by the Constitution of the Republic of Uganda. Additionally, that Section 2of the Press and Journalist Act Cap 105 prohibits any person or authority from taking any action which is not authorized under the Act or any other law to prevent the printing, publication or circulation of a newspaper among the public. However Section 3 requires compliance with other laws, and nothing contained in Section 2 absolves any person from compliance with any law prohibiting any publication which infringes on the privacy of an Individual or which contains false information. 

Counsel for the Respondent then stated that there are guidelines established by authorities which courts must follow before granting an injunction in defamation cases. That in the English case of Bonnard vs Perryman (1891) ChD at 269 the first condition is that in order for the court to grant an injunction, the court must have first decided that what is before it is defamatory. That 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. 

Determination

It is alleged by the applicant that on the 19^th of March 2020 the respondents run two articles about him on their website: www.chimpreports.com. He states the articles were malicious and intentionally published in a manner to demean his reputation. That they were produced under the following heads: “MPS resolve to arrest Sudhir Ruparelia” and ‘MPS to grill Sudhir Ruparelia over suspected dubious acquisition of 32 prime Kampala properties’. 

The applicant also asserted that it is the respondents who manage the website. For that reason he filed this claim in defamation against them.

The respondents admit the publication of the articles but deny that they are false, malicious or defamatory and state they were true in fact and substance. That they are ready to prove the articles are true. In sum therefore, no liability is admitted.

As a provisional measure, the applicant now seeks an order of temporary injunction to restrain the respondents from any farther publication of slanderous and libelous material against him. The submission for the applicant also stated that the question whether the respondent intends to repeat the acts of defamation must be answered.

Typically, the principles regulating the grant of interlocutory injunctions in ordinary suits are:

1. That there is a serious issue to be tried or investigated.   
2. That there would be irreparable damage or injury which cannot be adequately compensated by damages to the applicant if the relief is not granted.
3. The Court would have to weigh where the balance of convenience lies.
4. That where the other factors are balanced the Court would order that the status quo is preserved (See the case of Kiyimba Kaggwa vs Hajji Abdul Naser Katende (1985) HCB 43) 

The position is different when a Court is considering an application stemming from a defamation suit. The Kenyan Courts have examined the matter and in Cheserem v Immediate Media Services [2000] 2 EA 371 held that, 

 though the conditions applicable in granting an injunction as set out in the case of Giella v Cassman Brown and Co Ltd [1973] EA 358 generally apply, in defamation cases those conditions operate in special circumstances. Those conditions have to be applied together with the special law relating to the grant of injunctions in defamation cases where the court’s jurisdiction to grant an injunction is exercised with the greatest caution so that an injunction is granted only in the clearest possible cases. The court must be satisfied that the words or matter complained of

are libellous. It must be satisfied that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse.

The Conditions referred to in the case of Giella are similar to the ones set out in Kiyimba (supra).

This court has also made reference to the English cases cited by the respondent and others that deal extensively with interlocutory injunctions in defamation cases. In Bonnard vs Perryman [1891] 2 Ch. 269 it was held that: 

“The Court has jurisdiction to restrain by injunction and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary and an interlocutory injunction ought not to be granted except in the clearest cases-in cases in which, if a jury did not find the matter complained of to be libellous, the court would set aside the verdict as unreasonable. 

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.

The Court added as follows,

“It is obvious 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

In another 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.

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”.

The underlying principle from the above is that the Courts have the discretion to grant a temporary injunction in a matter of this nature. The rider however is that the courts will proceed with extreme caution and based on considerations different from those in Kiyimba (supra). 

In this instant case the publications were run on a website. The applicant prays that the Court order for a stop to the publications. My understanding of this prayer is that the respondent be compelled to take down the articles as posted on the website. Typically in a paper publication, the subject can be compelled not to re-run the article that had previously been published. It is different with electronic media however, by its very nature an article is always available to be viewed whenever a reader visits the website – this makes it similar to a repeated tort, for each visit, as long as the article is still up.

The applicant has claimed the articles are defamatory.

Defamation is defined in the 9^th Edition of Black’s Law Dictionary as,

The act of harming the reputation of another by making a false statement to a third person. 2. A false written or oral statement that damages another’s reputation.

The definition defamation in The Oxford Dictionary of Law is,

The publication of a statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community or to make them shun or avoid him.

Therefore the basis for this Court’s action is to determine whether the publication was motivated by malice and a sinister intention to demean the reputation of the applicant. The 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. 

Conversely the respondents 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.

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.

The decision in Kirumira (supra) where an injunction was granted can be distinguished. There the grant was based on the sub judice rule. The Court also determined that the statements were false and malicious. And lastly those respondents who did not respond/reply to the application were condemned accordingly. Those circumstances are absent here.

In the result, this application is dismissed with costs.

………………………………….

Michael Elubu

Judge

9.2.2021