ILLUMINATION ON RAPE AND OTHER SEXUAL OFFENCES IN NIGERIA

1. Introduction

 

Sexual aggression constitutes a violation of the victim's fundamental human rights, as it often involves detaining, restraining of the movement and physical assault of the victim.

It is a form of assault on the dignity of the victim/survivor by a sociopath who sees women most especially as a sexual territory to be brutally subdued and looted. 

Rape is a sexual aggression and the effect on the victim is very deep. Most of the victims suffer the pain in grave silence, in order not to subject their dignities to further assault by those who in most cases see them as accomplices rather than victims of sexual aggression or violence. 

This edition of Akintunde Esan’s Legal Illuminations focuses on providing illuminations on Nigerian jurisprudence on rape and some relevant provisions of the law on sexual offences, in order to provide a first aid legal assistance to the victims/survivors and prosecutors of rape and sexual violence in Nigeria. 

2. Definition and the Nature of the Offence of Rape[1]

 

"The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim's personality. 

Several definitions given to rape are all characterized by an absence of consent as a common feature. The Nigerian Supreme Court has defined rape in a number of cases as:

''An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent."

"an unlawful carnal knowledge of a woman or girl without her consent or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind or by fear or harm, or by means of false and Fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband."

In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non-consensual sex; that is, penetration without consent. 

3. The Facts which must be proved to Establish the Offence of Rape[2]

 

"The law is settled and well-grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape: 

a) that the accused had sexual intercourse with the victim; 

b) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; 

c) that the victim was not the wife of the accused; 

d) that the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not. 

e) that there was penetration. 

4. The Most Essential Ingredient in the Proof of Rape

 

The most essential ingredient of the offence of rape is penetration, the extent no matter how slight will serve sufficient proof. It is well accepted and settled that penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse[3].Hymen is defined as: "the piece of skin partly covering the vagina of a woman who had never has sex[4]". 

5. What amounts to Sufficient Penetration in Proof of Rape

 

Nigerian Case law is replete with authorities that even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, even where penetration was proved but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape[5]. 

Thus, it is settled that, the offence of rape is deemed complete, upon proof of penetration of the penis into the vagina. In the English case of R. U. Marsden[6] it was held that emission is not a necessary requirement to prove penetration. 

It should be noted that, the discharge of "whitish", "greenish", "reddish" or whatever colour of fluid in a rape offence, is not considered credible evidence for establishing the offence of rape[7]. 

6. Does the Law Requires Witnesses to Prove Rape

 

On whether the proof required to establish the offence of rape must be based on an independent credible corroborative evidence. It should be noted that no law in Nigeria, as of now that says that corroboration is necessary. It is however, desirable to get the evidence of the prosecution strengthened by other implicating evidence against the accused.[8]However, whether a particular evidence can be corroborated, is for the trial Judge to decide[9]. 

7. Whether the Sworn Evidence of a Minor requires Corroboration

 

The law is trite and well settled that a minor needed no corroboration of her evidence which was sworn on oath. In the Supreme Court case of Ogunbayo v. the State (supra) it was held that a sworn evidence of a minor requires no corroboration[10]. Thus, it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. 

In Upahar & Anor v. State (2002) LPELR-5937(CA) ;  (2003) 6 NWLR (Pt. 816) 230 that in Nigeria, a person cannot be convicted of rape of a girl under 14 years of age upon the uncorroborated testimony of one witness[11].

 

8. Relevant Statutory Provisions on Rape and Sexual Offences

 

a) The Crime of Rape under the Criminal Code Act

 

The Criminal Code Act applies in the Southern States of Nigeria. Section 357 of the Code defines rape thus:

“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of false threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, or in case of a married woman, by impersonating her husband is guilty of an offence called rape”.

b) Carnal knowledge

 

When the term "carnal knowledge" or the term "carnal connection" is used in defining an offence, it is implied that the offence. so far as regards that element of it, is complete upon penetration. "unlawful carnal knowledge" means carnal connection which takes place otherwise than between husband and wife[12]. 

 

c) Immature Age

Under Section 30 of the Criminal Code a person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act, omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.    

A male person under the age of twelve years is presumed to be incapable of having carnal knowledge, though he may, be convicted of indecent assault[13]. 

d) The Crime of Rape under the Penal Code Act 

 

The Penal Code Act applies in the Northern States of Nigeria. Section 282 and 283 of the Penal Code. No. 18 of 1959, designated as Cap 89 in the Laws of Northern Nigeria, 1963, relate to the offence of rape and its punishment. The Sections provide as follows: 

282 (1) A man is said to commit rape who, save in the case referred to in Sub-Section (2) has sexual intercourse with a woman in any of the following circumstances: 

(a) against her will: 

(b) without her consent; 

(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; 

(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; 

(e) with or without her consent, when she is under fourteen years of age or of unsound mind; 

282 (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty. 

From the above provisions of the Criminal and Penal Codes, it is glaring that under Nigerian law:

• only a man is capable of committing the crime of rape.
• although a woman cannot commit the offence of rape under the Penal Code Act, she may however be charged by the prosecution with abetting rape under section 83 of the Code.
• the use of the term “carnal knowledge” under the Criminal Code Act suggests that penetration of the vagina could be done by penetration with a foreign object, while the use of the term “sexual intercourse” under the Penal Code Act suggests that only a penis can penetrate a vagina.
• Whereas a male person under 12 years old is presumed incapable of having carnal knowledge under the Criminal Code Act, there is no such provision the Penal Code Act. 
• There is, therefore, nothing to stop the prosecution from charging a child over 7 years of age, for example, for rape if it can be shown that he has attained a sufficient maturity of understanding to judge the nature and consequence of his act.
• Consent is an act of reason and involves a presumption that the person giving a consent has weighed up the pros and cons of the matter which she has consented.

9. Attempt to Commit Rape

Under section 218 of the Criminal Procedure Code Law of Northern Nigeria, it was held that, the learned trial Judge, had power to convict the 1st appellant for attempted rape, in so far as the ingredients of the full offence of rape are not satisfactorily established.[14]

 

10. Punishment of Rape

 

Any person who commits the offence of rape is liable to imprisonment for life, with or without caning. S. 358.Criminal Code Act

 

Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine. S. 283 Penal Code Act.

 

Any attempt to commit the offence of rape or sexual assault by penetration commits a felony and is liable on conviction to imprisonment for fourteen (14) years 

Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning. S. 359. Criminal Code Act.

In Lagos State under S.260 of the Lagos State, Criminal Law, 2011 (Laws of Lagos State, 2015) any man who has unlawful sexual intercourse with a woman or girl without her consent,commits the offence of rape and is liable on conviction to imprisonment for life.

Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life. S.137 of the Lagos State, Criminal Law ,2011.

11. Marital Rape

 

There is no provision for marital rape in Nigerian law in as long as the wife has attained to puberty.

In R. v. Miller[15], it was held that until that valid subsisting marriage is dissolved; the husband cannot be convicted of rape.

12. Whether only a Woman can be Raped

 

The wordings two major criminal codes in Nigeria, the criminal and penal Codes seem to suggest that only a woman or girl may be raped and S.360 of the Criminal Code also suggest that only the female gender can suffer indecent assault from its wordings that: 

“Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour and is liable to imprisonment for two years.” 

 

However, under the Lagos State Criminal Law, 2011 the offences of sexual penetration without consent, sexual assault and harassment are not limited to the male gender alone but include both genders by the use of the phrase “any person” which is unisex. Section 265 criminalised the engagement in sexual activity without the consent of the other person:

“any person who causes another to engage in a sexual activity without that other person’s consent commits a felony and is liable on conviction to imprisonment for five (5) years ” and “where the sexual activity caused involved sexual penetration, the offender commits a felony and is liable on conviction to imprisonment for life”

13. Sexual Assault by Penetration other than Vaginal Penetration

 

It should be noted that while the Criminal and Penal Codes do not recognise the penetration other than vaginal penetration as one of the elements which may constitute the offence of rape, it is a crime under Section 261 of the Criminal Law of Lagos State to sexually penetrate any opening in the body of another without the consent of the person:

“Any person who penetrates sexually, the anus, vaginal, mouth or any in the opening in the body of another person with a part of his body or anything else, without the consent of the person commits a felony and is liable on conviction to imprisonment for life.”

This section seems to include female-male rape, male-male rape, female-female rape.

 

14. Sexual Assault  without Penetration

 

Any person who sexually touches another person with any part of his body or with any object without his consent commits felony and is liable on conviction to imprisonment for three (3) years. S.263

 

15. Sexually Assault by Persons in Positions of Authority

 

Any consent to sexual intercourse purportedly given by a girl under the age of 16 to her teacher, guardian or any person entrusted with her care or education is not valid consent[16]. 

16. Sexually Harassment

 

Sexual harassment is unwelcome sexual advances, request for sexual favours, and other visual, verbal or physical conduct of sexual nature which when submitted to or rejected- 

a) Implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interfere with the person’s work or educational performance; 

b) Implicitly or explicitly suggests that submission to or rejection of conduct will be a factor in academic or employment decisions; or 

c) Creates an intimidating hostile or offence learning or working environment.

Any person who sexually harass another commits a felony and is liable on conviction to imprisonment for three (3) years. 

17. CONCLUSION

 

Obviously, there is the need to review the laws on rape and sexual violence in Nigeria to reflect modern day sexual realities, where either of the genders can be the sex aggressor using the penis, breast, fingers, mouth or any other body parts as well as sex objects such as sex toys. 

Have you been raped or falsely accused of raping and thus confused or feeling humiliated and you need to pour out your mind to an understanding legal mind for guidance in seeking for redress, you may contact Akintunde Esan or Ase Olodumare Chambers for further illumination on your predicament. 

Akintunde Esan is a top-rated leading online legal consultant in Nigeria. He is the Managing Partner, at Ase Olodumare Chambers, a Lagos based  Law Firm.

ILLUMINATION ON  RAPE AND OTHER SEXUAL OFFENCES 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)

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[1] See Per Ogunbiyi, J.S.C. ISA v. Kano State (2016) LPELR-40011(SC), Pp. 10-11, Paras. D-D.

[2] See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar v. State (2003) 6 NWLR (pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V. State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V. State (2001) 14 NWLR (Pt.732) 221.

[3] See Iko V. State, Ogunbayo V. State and State V. Ojo (supra) ; Jegede V. State (2001) 14 NWLR (Pt.733) 264.; Per Ogunbiyi, J.S.C. ISA v. KANO STATE (supra) P. 12, Paras. D-F

[4] See Oxford Advanced Leamer's Dictionary, Special Edition at page 585." Per OBADINA, J.C.A. Upahar & Anor v. the State (2002) LPELR-5937(CA) P. 27, Paras. B-C

[5] See: The State v. Ojo (1980) 2 NCR 391 at 395; Jegede V The State (2001) 7 SCNJ 135 at 141.

[6] (1891) 2 QB 149 at 150, per Lord Coleridge, C.J.

[7] Per Muhammad, J.S.C. Isa v. Kano STATE (2016) LPELR-40011(SC), P. 30, Paras. B-E

[8] See: Reekie V. The Queen (1954) 14 COACA 501 at 502; State V. Ojo (1980) 2 NCR 391; Ogunbayo V. State (2007) 8 NWLR (Pt.1035) 157; Per Muhammad, J.S.C. Isa v. Kano State (supra), P. 30-31, Paras. F-A

[9] per Ogbuagu, J.S.C. Ogunbayo V. The State (2007) LPELR-2323(SC) P. 20, paras. B-C.

[10] Per OGUNBIYI, J.S.C. Isa v. Kano State (supra) (P. 16, Paras. C-D)

[11] See section 218 of the Criminal Code

[12] Section 6

[13] See section 176 of the Criminal Procedure

[14] Upahar & Anor v. the State (supra) Per Obadina, J.C.A.(P. 37, Paras. A-B)

[15] (1954) 2 282

[16] Section 283 Penal Code Act

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GROUNDS FOR GRANTING DIVORCE IN NIGERIA  

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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