THE TORT OF DEFAMATION IN NIGERIA

The tort of defamation is concerned with the damage to reputation caused by injurious publications.

The purpose of the law of defamation is to protect the good reputation of a person from being damaged by another person. Thus, defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society generally; or which tends to make them shun or avoid that person. Generally, defamation consists of words, expression or any act which exposes the plaintiff to hatred, ridicule or contempt. The test to determine whether words are defamatory is objective and not subjective.

The right question then is, would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? If the words do, the words or expression is defamatory. The tort of defamation is actionable per se, that is; the plaintiff need not prove or suffer special damages; this is because the law presumes general damages in his favor. The tort of defamation may be libel or slander.

A libelous defamation is a statement made in a visible or permanent form, such as written or printed statements or video and audio messages printed on social media platforms. Slander on the other hand is a statement made in the transitory form and not in permanent form without publication. For the purpose of this article, the analysis will be narrowed down to libel.

There are basic elements by which a plaintiff must prove to succeed or establish the tort of defamation, failure of which the action for defamation will fail. The key elements will be briefly discussed below:

In an action for defamation, the plaintiff must establish that the words or statements he complains about were defamatory of him. He may also have to establish that since the publication, he has been avoided, shunned or his status has been lowered in the estimation of right-thinking members of his community or he has been exposed to hatred, contempt or ridicule. Simply put, the plaintiff must establish that it is a false statement to his discredit. Therefore, in order to amount to the tort of defamation, the statement or act must be false and bear a defamatory meaning.

The judge must first decide whether the words complained of are reasonably capable of being defamatory: secondary, the judge must also decide whether the words in fact defamed the plaintiff. Words may be defamatory in their literal, natural or ordinary meaning or because they contain an innuendo, that is, a hidden or secondary meaning known to the community.

The words must be interpreted in their natural, literal and ordinary meaning as being capable of defaming the plaintiff without applying any external meaning or help, otherwise, the claim of defamation will fail except defamation by an innuendo is alleged and proved. In construing what is the “natural meaning of words” Lord Reid in the English case of Lewis v Daily Telegraph Ltd stated in his dictum as; what the ordinary man would infer without special knowledge.

In the similar vein, Adefarasin J. as he then was in Omo-Osagie v Okutubo said; in determining whether words in their natural meaning are defamatory, the judge should construe the words according to the fair and natural meaning which the word will be given them by reasonable persons of ordinary intelligence who are neither unusually suspicious nor unusually naïve. The court will reject that meaning which can only emerge as the product of strained or forced or utterly unreasonable interpretation.

Accordingly, in dealing with an action for defamation, the trial court must; make its findings on whether the words complained of bear a defamatory meaning; and decide the question of whether the plaintiff was actually defamed by the words. To help the court achieve this, the plaintiff must set out in his statement of claim the exact words which he alleges to be defamatory of him, to enable the court to determine whether they constitute a ground of action.

As stated earlier, words may be defamatory in their literal, natural, or ordinary meaning or because they contain an innuendo, a hidden or secondary meaning known to the community. Thus, defamation by innuendo is defamation by the use of words which are not defamatory in themselves but are defamatory because of a special or secondary meaning surrounding facts or circumstances which are known to those it is published.

An innuendo is an indirect defamation by the use of words with a hidden or secondary meaning. Such hidden meaning or implication may be more telling or injurious in effect than a bold and obvious statement. Where the plaintiff alleges defamation by the use of innuendo and not by the natural meaning of the words used, then, the plaintiff will be allowed to lead evidence to establish the innuendo that he claims to be present in the words, by pleading and setting out the particular meaning he claims the words possesses. Innuendo arises where the meaning of the words alleged to be defamatory is of doubtful or ambiguous import.

Where the meaning of the words is precise and clear, a plea of innuendo is unnecessary; as the court will make use of the natural and ordinary meaning of the words in determining whether there exist a cause of action in defamation. In the case of Cassidy v Daily Mirror Newspaper Ltd, the defendant newspaper published a photograph of Mr. Cassidy and a certain lady with the caption, “Mr Cassidy and Miss X whose engagement have been announced.” The plaintiff, Mrs Cassidy who was Mr Cassidy’s lawful wife sued the newspaper for libel alleging an innuendo,that people might think that her husband was unmarried and that she was living with him in circumstances of immorality as opposed to being his lawful wife. It was held: that the defendants were liable for defamation. Innuendo was proved and she was entitled to damages. In the English case of Newstead v London Express Newspapers Ltd, Duparcq LJ stated;

 “ if a defendant has been careful and precise, he may by his care avoid the risk of a successful action; but he cannot in my opinion escape liability merely by showing that he was careful and that his intentions were good.”

  Again, in the case of Cassidy v Daily Mirror Newspapers Ltd, Russell LJ reiterated the law thus: “liability for libel does not depend on the intention of the defamer, but on the fact of defamation.”  In the Nigerian case of Adeleke v National Bank of Nigeria Limited, the plaintiff had an account with the defendant bank which was in credit. He issued a cheque to a third party which was drawn on the bank.

The cheque was returned to the plaintiff’s drawer unpaid. Ibidapo-Obe J held that the defendant’s bank was liable for defamation. The return of a cheque to a drawer whilst his account has sufficient funds to pay the amount written on the cheque raises the innuendo that the drawer was not credit-worthy and therefore dishonest. This takes us to the second element of the tort of defamation.

For the plaintiff to succeed in an action for defamation, the plaintiff must prove that the publication referred to him, that is, he is the person the words referred to. He must prove that he is the person marked out or identified by the words. In other words, he must prove that he is the person defamed. The plaintiff must call a witness to whom the words were published to say that when he or she heard or read the defamatory words, he thought that the plaintiff was the person referred to. However, the plaintiff need not be the person the defendant intended or was actually referring to.

It is sufficient if the description, identity or defamation is applicable to him. The question to ask is: Would a reasonable-minded person who knew the plaintiff believe that the plaintiff is the person defamed? If the answer is yes; then the plaintiff can recover.

The necessity that reference must be made to the plaintiff was explained in the case of Dalumo v The Sketch Publishing Co, where the defendant published an article about top officials of the Nigerian Airways. The plaintiff, a top official of the Nigerian airways brought an action for defamation. The issue was whether the article referred to the plaintiff. The Supreme Court affirming the judgement of the trial court held: that since the class of people referred to was so small and ascertainable, there was no doubt that the plaintiff came within it. Fatayi-Williams JSC as he then was explained the law thus:

“it is an essential element of the cause of action for defamation that 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: are words such as… would lead persons who knew the plaintiff to believe that he was the person referred to.

There is sufficient reference to the plaintiff where his name is mentioned, or and also where he is simply referred to by his initials, position, profession, trade, or office he holds, present or past, the nickname, photograph, any identifiable drawing, or verbal description of him or any combination of these, or by reference to a particular group or class of persons to which he belongs in such a way that the plaintiff fits the description. The third and last requirement of defamation is that:

The plaintiff must prove that the defamatory statement was published or communicated by the defendant to at least one person other than the plaintiff. Where a wrongful statement was communicated by the defendant to the plaintiff alone, and nobody else, if the plaintiff goes and publishes the statement to a third party or to the public, an action for defamation will not lie.

Thus a defendant will not be liable if the plaintiff publishes to the public what he had for instance, quietly whispered into the plaintiff’s ear. Karibi-Whyte JSC succinctly explained the law in the case of Ejabulor v Osha II thus: “It is well settled law that no action is maintained unless the words complained of have been published. To constitute publication, the defamatory matter must be published to a third party and not merely to the plaintiff. Publication is the making known of the defamatory matter to a third party other than the plaintiff”.

Communication of annoying words by the defendant to the plaintiff himself, without the knowledge of a third party does not give a right of action, because the tort of defamation protects the reputation of a person from being injured among other people or the public. It is not to protect a person from injury to his feelings when he or she is told offensive or potentially scandalous words. In the case of Okotcha v Olumese, the plaintiff wrote to the IG of Police requesting for a character certificate to support his application for a visa to travel to the USA.

The defendant, a police officer attached to the Central CID sent plaintiff a sealed letter headed “to whom it may concern”, where it was erroneously stated that the plaintiff had been convicted twice in the Magistrate Court for offences involving dishonesty. The plaintiff submitted the sealed letter to the embassy. In an action for defamation by the plaintiff, it was held: that the action fails inter alia, because it was the plaintiff himself and not the defendant who communicated the defamatory letter to a third party.

It is also important to note that under the tort of defamation, it is immaterial that the defendant did not intend to refer to the plaintiff; a plaintiff need not be the person to whom a defendant intended to refer so long as the plaintiff is defamed. In other words, mistake is not a defense for the defendant as long as someone has been defamed. Therefore, it is not an excuse or defense for the defendant to plead that he did not intend to defame the plaintiff or that the plaintiff was unintentionally or unknowingly defamed by him. Similarly, where a defendant defames a person he does not know, he will be liable, so long as the statement sufficiently identify the plaintiff except or unless liability is excluded by appropriate words on the published item.

For this reason, exemption clauses excluding liability are usually published for instance on films based on fiction of fictitious characters. The intention of the defendant not to defame the plaintiff is only relevant for the assessment of damages, as it will have a reduction effect on the amount of damages that may be awarded.

Every repetition of a defamatory statement in writing, orally or in any other form is “a fresh publication” that gives a new right of action. It is a distinct defamation which creates a new cause of action. It is not a defense that the defendant did not originate, author, or initiate the defamatory statement or was merely repeating or saying what he heard. Disclosing the name of the originator of the defamatory publication is equally no defense, but it may only negative malice in appropriate circumstances.

In the case of M’Pheraon v Daniels, in an action for slander, for words spoken about the plaintiff in his trade implying that the plaintiff was insolvent, the defendant pleaded that one T. W. spoke and published to the defendant the said words and that he the defendant at the time of publishing the words had declared that he had heard and been told the same by the said T. W. The court held: that the defendant was liable for defamation of the plaintiff through slander. It is not an answer to an action for defamation for a defendant to show that he heard it from another person.

Innocent dissemination is the distribution or dissemination of a defamatory article, such as: a book or film containing a defamation, without knowing of the defamatory content. The law takes a lenient view of subsidiary distributors of publication, because their role is subsidiary. Often, they do not read the publications or they may not have the professional knowledge to understand the implication of the publication. For instance, a street vendor who gets his allocation of newspaper for the day sets off to sell them immediately.

Time is of essence if he is going to sell all his allocation for the day. He cannot afford the time and luxury of reading through to check.  Therefore, subsidiary distributors are usually not liable for defamation provided that the defendant distributor can show that: he did not know the book or publication, was libelous and that his lack of knowledge was not due to negligence on his part, which is a matter of fact to be decided in each case and the burden is on the defendant to show his lack of knowledge of the libel and carelessness on his part.

Apart from being a civil wrong for which an aggrieved person may bring civil proceedings for damages and or obtain other orders in court, defamation is also a crime. This is due to the fact that defamation tend to accession altercation and breach of peace, the legislature has deemed it fit to criminalize defamation.

Just like in civil law, defamation under criminal law consist of libel and slander. In criminal law, libel is usually called criminal libel. The Criminal Code in sections 373-381 defines and criminalizes defamatory statements in appropriate circumstances.

There are several defences available to a defendant in an action for defamation. These defences are briefly summarized below:

The defense of justification or truth means that the information that was published is true in substance and therefore is justified. A plea of justification admits the publication of the defamatory expression, but asserts that the statement or story is true in substance and in fact.  Once a statement is true, the defendant has a complete defense, even if he had made the statement maliciously.

As the court said in the case of M’Pherson v Daniels: “the law will not permit a man to recover damages in respect of an injury to a character which he does not possess”.  In the same vain, Greer LJ in the case of Chapman v Ellesmere has this to say: “in my judgement, anyone who knows that a man has been convicted of larceny at a criminal trial, before a court of competent jurisdiction is entitled to say, without being sued for slander or libel, that that man has been convicted”. In a claim for defamation, it is not the duty of the plaintiff to proof that the defamatory statement was false. 

The law presumes in the plaintiff’s favor that the statement is false. However, where the defendant contends otherwise, and proves that the alleged defamatory words are true, he will defeats the plaintiff’s claim.  In this regard, It is a case of injury without a legal wrong, that is, injury without a legal remedy.

An offer of amends is a publication of a correction, or an offer to publish a correction, and an apology for defamation, especially an unintentional defamation.

It is an impartial observation, opinion or criticism on a matter of public interest, currency or discuss. A fair comment is a dispassionate expression of opinion or conclusion, on facts correctly stated. The key to advancing this defense is that, the statement must be presented as opinion, rather than fact, and that the statements made are ones which are actually matters of opinion. However, malice on the part of the defendant usually destroys a plea of fair comment and may also aggravate damages

The defense of privilege is designated to protect certain defamatory statements from legal action on the grounds of public policy. In this context, privilege from legal action is absolute or conditional immunity from liability for a defamatory publication made by a person.

Therefore, no action may be filed against the maker of a privileged statement, such as a member of a National Assembly or a member of the House of Assembly of a state. Thus, statements made in parliamentary proceedings or judicial proceedings are regarded as privileged statements and thus not actionable

Where a plaintiff gave consent to the publication, he cannot consequently sue in respect of the statement. Consent may be given in respect of a particular publication or may be general. Instances of consent are where a person invites the press to report his events or for an interview and photo session or accept to take part in an event being recorded for broadcast on a news media and so forth. There must be evidence of assent before a defence of consent will be successful.

An action for defamation cannot be brought on behalf of a dead person. This is because reputation is a personal possession and only the owner of the reputation can sue in respect of it. In an action for defamation, the maxim action personalis moritur persona which means, a personal right of action dies with the person who has it applies.

Thus, where a dead person is defamed, neither his personal representatives nor his family can sue to protect his reputation, unless the allegation also defames a living member of the family or other persons.

A claim for defamation must be filed within the time allowed by statute after publication of the defamation, otherwise, it is statute barred for not being brought within the time limited by law. Under the limitation laws of the various states, actions for slander or libel must be filed within the time limited by law.

However, if the defamation was committed by a public officer in the course of his employment, under the Public Office’s Protection Act or Laws (POPA), action must be brought within three months. Where the action is not brought within the time limited by these laws, the right of action is statute barred.

There are several remedies open to a plaintiff in the tort of defamation, these include: award of damages, injunction, seizure and destruction of the defamatory matter or the article and offer of amends, accords and satisfaction, retraction and apology privately and or publicly.

In conclusion, the general public is advised to always be carefully guided on the information or statement they make or publish. If the statement has the potential of damaging other’s reputation, it is strongly advised that the veracity or authenticity of such statement be verified to avoid litigation and ultimately payment of damages or being held behind bars in the event it is a criminal defamation.

AUTHOR; JUSTICE OJIENOH