ILLUMINATIONS ON THE TORT OF DEFAMATION IN NIGERIA

“A good name is rather to be chosen than

great riches.”

The Book of Proverbs 22:1

“Reputation is the cornerstone of power.”

Robert Green, The 48 Laws of Power

1. Introduction

The freedom of speech is an inalienable right of every human being.Thus, a person's right to freely express himself or herself anytime and anywhere is guaranteed by the Universal Declaration for Human Rights, 1948 ,African Charter on Human and Peoples’ Rights, 1981 and Section 39 (1) of the Constitution of the Federal Republic of Nigeria which provides that:

“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

However, the right to freedom of expression, in a civilized society is subject to the right of others not to have their reputation injured. Thus, every person has a right to the protection of his good name, reputation and the estimation, which he stands in the society of his or her fellow citizens. Consequently, in Nigeria, whoever utters, publishes, broadcasts, communicates or telecasts anything injurious to the good name, or reputation of another commits both a tort and a criminal offence.

This legal illumination is focused on defamation as a civil wrong or tort in Nigerian judicial jurisprudence, though occasionally reference to defamation as a criminal offence may be made.

2. What is a Defamatory Statement ?

The tort of defamation has to do with injury to the reputation of a person resulting from words written or spoken by others against him. It is now settled from case law that, a defamatory statement or imputation consists of the publication to a third person or persons of any words or matter that has the following effects:-

i. To lower the person defamed or claimant in the estimation of right-thinking members of society generally; or

ii. To cut him off from society; or

iii. To expose him or her to hatred, contempt or ridicule; or

iv. To cause other persons to shun or avoid him or her; or

v. To discredit him or her in his office, trade or profession; or

vi. To injure his or her financial credit

See: See Sim V. Stretch (1936) 52 TLR 671; Sketch Publishing Company Ltd & Anor. v. Alhaji Azeez Ajabemokeferi (1989) 1 NWLR (Pt.100) 678 (SC); Bassey Edem & Anor. v. Orpheo Nigeria Limited & Anor. (2003) NSCQLR Vol. 15 192 at pages 206-207 per Iguh, JSC.

3. Types of Defamation:

Defamation has two arms: (a) Libel and (b) Slander.

a) Libel: Libel is a defamatory statement written or printed or in any permanent form such as a book,  computer device,electronic document,electronic storage card or device or disk, letter, notice, newspaper, documentary, photography, pictures, images, sculpture, carving, statute, caricature, cartoon, moving cinematography, film, television, radio broadcast, telecommunication text message, cyber  or  internet  communication platforms such as social media, instant messengers et cetera.

b) Slander: Slander is a defamatory statement expressed through speech or made in a transient form. Slanderous statements generally are those defamatory words that, are not recorded with some degree of permanence.

See: Chief Nya Edim Ekong v. Chief Asuquo E. Otop & Ors. (2014) LPELR-23022(SC). Chamberlain v. Boyd (1883)- Locus classicus.

Query: Is a defamatory phone conversation or communication a libel or a slander ? 

4. Distinction between Libel and Slander:

Generally, libel and slander are governed by the same principles. The area of distinction however, is that while Libel is always actionable perse that is, without the need to prove special or actual damage whereas slander is not actionable perse, except in certain cases, such as:-

i. Imputation of crime.

ii. Imputation of certain diseases such as sexually transmitted diseases.

iii. Imputation of unchastely or adultery especially of a woman.

iv. Imputation affecting professional business reputation.

Where any of the above is present slander is actionable per se and damages are presumed. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; (1987) 1 SC 1 at 20; Alahji Daudu Olaniyi v. Ajibade Elero (2006); Olaniyi v. Elero (2007) 8 NWLR (Pt.1037) 517 ; Alawiye v. Ogunsanya (2004) 4 NWLR (Pt. 864) 486.

In Guardian Newspaper Ltd. vs. Ajeh (2005) 12 NWLR (Pt.938) C.A. 205 at 229,para. B, it was held on effect of imputation of crime in a defamatory publication that, where words established impute commission of crime against a Plaintiff for which he can be made to suffer physically by way of punishment, it is actionable per se, that is without proof of damages.

5. What the Defamed Claimant must Prove to Succeed:

In any case of defamation, the Plaintiff must prove three things which include the following: (a) That the words complained of were defamatory (b) That the words referred to him (c) That the words were published to at least one person other than the Plaintiff. See: Emmanuel Bekee & Ors vs. Friday Ebom Bekee (2012) LPELR - 21270 (CA); Mr. Orji Asaa v. Mr. Frank Ojah (2015) LPELR-24278(CA).

a) The Words must be Defamatory:

Whenever a statement is placed before a court to determine whether or not it is defamatory, the court must make findings of fact whether the words complained of are capable of bearing defamatory meaning and then ask and find answer to, the question whether the plaintiff was actually defamed by those words. See: Chief Nya Edim Ekong v. Chief Asuquo E. Otop & Ors (2014) LPELR-23022(SC); Okolo v. Midwest Newspaper Corporation (1977) 1 SC 33, Okafor v. Ikeanyi (1973) 3 - 4 S.C. 99.

The court in determining whether the words are capable of a defamatory meaning has to:

i. Consider what is the natural and ordinary meaning in which these words would be understood by reasonable men to whom they were published. Omo-Osagie v. Okutubo (1969) 2 All NLR 175 at 179 Adefarasin J.

ii. Construe the words according to the fair and by reasonable persons of ordinary intelligence who are neither unusually suspicious nor unusually naive. Omo-Osagie v. Okutubo (supra).

iii. Reject that meaning which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. Sketch Publishing Company Ltd v. Ajagbemokeferi (supra)

iv. The said words must be construed as a whole and not in isolation. Chief Nya Edim Ekong v. Chief Asuquo E. Otop & Ors (supra).

It should be noted that, the test in determining whether the words complained of are defamatory is always that of a reasonable man. That is to say, given the environment and the circumstances in which the statements were made and published what would be the interpretation and understanding of a man of ordinary understanding. See Sketch Publishing Company Ltd & Anor v. Alhaji Azees A. Ajagbemokeferi (supra), Offoboche v. Ogoja Local Government (2001) FWLR (Pt.68) 1051.

b) The Words must Refer to the Defamed person:

The second element that must be proved by the defamed person to succeed in an action for defamation is that the words complained of must be shown to refer to the Defamed person. The requirement was explained by Fatayi-Williams J.S.C. in Dalumo v. The Sketch Publishing Co. Ltd. (1972) 1 All NLR 130 thus:

“It is an essential element of the cause of action for defamation that the words complained of should be published ‘of the plaintiff.’… It is not necessary that the words should refer to the plaintiff by name. Provided that the words could be understood by reasonable people to refer to him, and this is the test in every case, it is sufficient. As the law stands, the test of whether words that do not specifically name a plaintiff refer to him or not is this: are the words such as, reasonably in the circumstances, would lead persons who knew the plaintiff to believe that he was the person referred to?”

c) Words must be Published:

The law relating to proof of defamation is well settled and defamation is usually considered in the context to slander, when the defamatory words are communicated in transient form e.g. orally; or libel, when the defamatory words have been reduced into permanent form, like in writing. But one thing is common to both, that is, that the defamatory words must have been published to a 3rd party, who, by law, was not entitled or privileged to hear or receive the offending words or writing. See Daura vs. Danhauwa (2011) ALL FWLR (Pt.558) 991; Mamman vs. Salaudeen (2006) ALL FWLR (Pt.298) 469; Independent Newspapers Ltd vs. Idiong (2012) ALL FWLR (Pt 647) 677; Vanguard Media Ltd vs. Olafisoye (2012) ALL FWLR (Pt. 634) 97.

The crucial matter in a case of libel or slander is publication. Once a publication is not properly pleaded and proved the case is bound to collapse. It is publication that gives such a case its cause of action.

The reason why publication to the plaintiff alone is not actionable is that the tort of defamation protects a person from injury to his reputation among other people, and not from injury to his feelings about himself, thus, where the communication was made directly to the plaintiff and to no-one else, no action is maintainable against the writer on that account. In the case of Okotcha v. Olumese (1967) FNLR 174, Adefarasin, J. made the following illuminating pronouncement on the publication of a defamatory communication:

“In order to succeed in an action for defamation, a plaintiff must establish that the libel was communicated to some person or persons other than the plaintiff himself. In the case in hand it is quite clear that although the certificate was headed ‘To Whom It May Concern,’ and that it was made available only to the Plaintiff himself…. Regarding the communication by the plaintiff to Mr. Hayden of the character certificate, I am of the view that it was not the act of the first defendant and no action is maintainable against him on that account…. The communication was made directly to the plaintiff and to no-one else.”

6. Vulgar Statement and Insults:

It is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable, thus published words which are considered to be mere vulgar abuses, will not normally ground an action for libel or slander.

What could be regarded as vulgar abuse would however depend on the exact words published, the status of the parties and the circumstances when the publication is made. For instance, abusive words uttered by low class people or motor park drivers and workers which are usually uttered as prelude to a fight, are usually regarded as vulgar abuses as they are normally never taken very seriously and could therefore not ground an action for either slander or libel. See: V. M. Iloabachie Esq. v. Benedict N. Iloabachie (2005) Vol. 22 NSCQLR 672 at pages 711-712 per S.A. Akintan JSC.

7. Each Publication is Fresh Cause of Action and Separate Tort:

Under the law of tort of defamation, the rule is that each publication is fresh and separate tort. An author is solely liable for a publication to the publisher, where the publication is made by the author and publisher jointly and severally to the printer, the author and the publisher are jointly liable. Therefore, it is open to the defamed person to sue in respect of the separate publication set out. Ogbonnaya v. Mbalewe (2005) 1 NWLR (Pt. 907)252 CA.

8. General Character or Reputation of the Claimant:

It is worthy of note that, a defamed person’s general character or reputation need not be transparently stainless, unimpeachable and without any blemish before he can successfully maintain an action in defamation. C.R.S.N Corp v. Oni (1995) 1NWLR (PT. 371) 270.

9. Intention of the Defamer:

Liability for defamation depends, not on the intention of the defendant or defamer, but on the facts of the defamation. A defamer will be held liable for defamation based on the reasonable inferences to be drawn from the words attributed to him, and not his intention, whether he meant what his words imply or not. ACB Ltd v. Apugo (2001)FWLR (Pt.42)38 at 35.

10. Defamatory Statement must be Pleaded Verbatim:

It is of necessity in an action for defamation either in libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim for it is on the perusal of the actual words complained of as pleaded that the court will determine whether or not the words convey defamatory meaning. See Akin Olaifa v. Gabriel Adedeji Aina (1993) 4 NWLR part 286 page 192 at 200 paragraph H, Chief S.O.N Okafor v. D.O. Ikeanyi (supra), Sketch Publishing Company Ltd v. Ajagbemokeferi (1989) 1 NWLR (part 100) 678 at 695.

Whether the action is libel or slander, a plaintiff must of necessity plead in verbatim in his statement of claim the exact words uttered or written by the defendant and in the language rendered. This is important in order to give the defendant notice of the real cause of action he is coming to meet arid to give him opportunity to react to it. See Chief S.O.N Okafor v. D.O Ikeanyi & ors (1979) 3-4 S.C 99, at P.103.

In cases of libel, pleadings are of tremendous importance, and so the plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of in his pleadings. No matter how long the article is, it must be reproduced. See D.D.G.A. Pharmaceuticals Ltd. V Times Newspapers Ltd 1973 lQB p.21 relied on by this court in Okafor v Ikeanyi & Ors. 1979 12 NSCC 43.

The Plaintiff has a duty to state the language of communication of the offensive words and the translation of the same in the language of the Court which is English in Nigeria, if the original language of the defamatory words was different from the English language.In the case of Oruwari v. Osler (2012) LPELR – 19764, Chukwuma - Eneh JSC, held that:

"Where the libel or slander was published in a foreign language, it must be set out in the statement of claim and followed by a literal translation. It is not enough to set out a translation without setting out the original or vice versa. The pleader should include an allegation to the effect that the translation is a true interpretation of the foreign language used.''

11. Onu of Proof of a Defamatory Statement:

The onu of proof of a defamatory statement is on the defendant to prove the truth of a defamatory statement rather than for the claimant to prove its untruth. See: Akomolafe v. Guardian Press Ltd (2004)1 NWLR (Pt. 853) 1 CA.

The onus is on the claimant, in an action for libel, to show that the published words complained of are defamatory or that they convey a defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the claimant has no legal duty to lead any evidence to show additional defamatory meaning as understood by persons possessing some particular facts. See V. M. Iloabachie Esq. v. Benedict N. Iloabachie (2005) Vol. 22 NSCQLR 672 per S.A. Akintan JSC at pages 712- 713.

It should be appreciated that proof of libel would be easier, upon production of the published offensive document by the Plaintiff for inspection and assessment by the Court. That cannot be said of slander, which requires the pleading and capturing of the exact words or gestures complained of, and leading evidence to establish the same. And the Plaintiff must be present when the alleged slanderous words are spoken, so that he does not carry it as "hear-say" evidence. See the case of Emmanuel Bekee & Ors vs. Friday Ebom Bekee (2012) LPELR 21270 (CA)

12. Notice Must be Given of Evidence of Character:

In actions for libel and slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant is not entitled on the trial to give evidence in chief with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. Section 84, Evidence Act, 2011.

13. Number of Witnesses Sufficient to Prove Defamation:

In Yesufu v. Gbadamosi (1993) 6 NWLR (Pt.299) 363 at 373, para. D, it was held that all the persons present at the publication of defamatory words need not be called to give evidence. But if the witnesses called to prove the defamation failed to do so, and there is a witness who was present at the time and place of the publication and who could prove the facts but was not called, then such a failure would be fatal to the Claimant’s case.

14. Defamation of a Company or Business:

It is settled law that just as an individual or a human being may be defamed, a trading corporation or company, naturally, has a trading character, the defamation of which may adversely affect and may, indeed ruin it. See South Hetton Coal Co. Ltd V. North-Eastern News Association Ltd. (1894) 1 OB. 133 at 145(CA).

Accordingly, a Corporation or Company may maintain an action for libel or slander in respect of any words which are calculated to injure its reputation in the way of its trade or business. See Linotype Co. Ltd. V. British Empire Typesetting Machine Co. Ltd(1899) 81 LT 331; 15 TLR 524 (HL) Slazengers Ltd. V. Gibbs & Co. (1916) 33 TLR 35.

This, it may rightly do with or without any proof of special damage. So, where a statement is made with regard to the mode in which a trading corporation or company conducts its business such as to convey to right thinking members of society generally that it conducts its business in a dishonest, improper or in-efficient manner, the law is the same as in the case of an individual or human being, and the Company can maintain an action without proof of special damage. See: Bassey Edem & Anor. v. Orpheo Nigeria Limited & Anor. NSCQLR Vol. 15 (2003) 196 per Iguh, JSC at page 207.

15. Reading or Broadcasting of Defamatory Material to an Audience:

Under the common law, a radio broadcast of a defamatory statement which is read from a written script amounts to libel, while a radio broadcast of a defamatory statement which is broadcast without a written script or spoken extempore amounts to slander. This common law position appears to be the position in Nigeria. In Victor Mukete & Ors. v. Nigerian Broadcasting Corporation & Anor. (1961) ANLR 502 , the court held that, in the absence of any evidence that the oral broadcast made by the 2^nd Respondent was read from a script, if the defamation is actionable at all it must be so as slander, not as libel.

Where a defamatory material in writing is published by reading it to the audience and the audience perceived that, what was being said was read from a document, that would be libel as much as where a document was passed round to be read by each member of the audience. See: Dr. Mathias Oko Offoboche v. Ogoja Local Government & Anor. (2001) VOLUME 7 NSCQLR 82

“Considerations of justice should not permit a distinction to be drawn for the purpose of formulation of a cause of action between a document being passed round to be read by each and one being read to the hearing of all. If any distinction is to be drawn, it should, in my opinion, be limited to the question of damages, since a person to whom a libelous material has been given has an opportunity to read and re-read it which someone to whom it was merely read had not got. The evidence accepted by the trial judge in this case shows that the witnesses to whom the defamatory materials were read knew that they were read from what was written. Such publication was in my opinion libel and not slander.”

See: Dr. Mathias Oko Offoboche v. Ogoja Local Government & Anor. (supra) at pages 99 - 100. Per E. O. Ayoola JSC.

However, it is instructive to note that, under the Defamation Law of Lagos State, a broadcast by wireless telegraphy is libel. Section 3 of the Law provides that:

“For the purpose of law of libel and slander, the broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form”

The Law defines “broadcasting by means of wireless telegraphy” as “publication for general reception” .

16.Defamation as a Criminal Offence 

In Nigeria the publication of defamatory statement, be it libel or slander is both a tort and a criminal offence, and under Nigerian criminal jurisprudence there is no distinction between libel and slander as in tort. The publication of defamatory statement, be it libel or slander is a criminal offence by virtue of the provisions of the Criminal Code and Penal Code.

The Cyber Crimes (Prohibition,Prevention,etc.) Act,2015 signed into law on May 16, 2015 to provide the legal framework for combating prohibition, prevention, detection, response, investigation and prosecution of cybercrimes; and for other related matters makes it a criminal offence for any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that:

(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or

(b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent.

17. Conclusion:

The basis of an action in the tort of defamation is to seek for compensation for injury to your reputation as a means of vindicating your reputation or maintaining or restoring your good reputation that has been damaged.

If your name or reputation or company or business has been defamed, don’t fold your arms and watch unscrupulous person or persons ruin your hard earned reputation, contact Akintunde Esan for further illumination on the appropriate legal solution.

Akintunde Esan, Managing Partner, Ase Olodumare Chambers

ILLUMINATIONS ON THE TORT OF DEFAMATION IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

©2015

To be followed by the defences to defamation.

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