Jan 6, 2017

Defences to Defamation | by Simileoluwa Owotomo

According to the Black’s Law Dictionary, “Defamation” means “Holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil”. It states further that Defamation is the unprivileged publication of false statements which naturally and proximately result in injury to another.

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably understands that it was intended to express.

It is important to note that Libel and Slander are both methods of Defamation, the former being expressed by print, written pictures or signs: the latter by oral expressions or transitory gestures Defamatory Statements may consist of libel (written publication) and slander.

From the following, it is important to note the integrals of libel and the integrals of slander. There are three constituents of libel, namely:

(a) Publication
(b) Whether the words complained of were published by the defendant; and
(c) Whether the words referred to the plaintiff. See AFRICAN NEWSPAPER LTD. V. CIROMA (1996) 1 NWLR (PT. 423) 156 AND UGO V. OKAFOR (1996) 3 NWLR (PT. 438) 542.

 The apex court held in NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) 285, 297-298 PER OBASEKI, JSC that, "By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written ....It is the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous document was made must be pleaded".

The constituents of Slander, on the other hand are;
a)     a false and defamatory statement concerning another;
b)    an unprivileged communication;
c)     fault amounting at least to negligence on the part of the publisher and;
d)    either actionability of the statement irrespective of harm or the existence of special harm.
In AYUBA v. SULE (2016) LPELR-40263(CA) it was held that "The first requirement that is essential in slander is malice. To succeed in a case of slander, the plaintiff must prove-the words spoken, communication of the words to a third person, falsity of the communication against the plaintiff, damage must be proved except the slander is actionable per se, the actual words spoken should be reproduced in the language spoken with an English translation. See AMAHAGWU V. NGWOKOR (2004) ALL FWLR (PT.219) 1091 AT 1098, YESUFU V. GBADAMOSI (1993) 6 NWLR (PT.299) 363.

 In THE SKETCH PUBLISHING CO. LTD. AND ANOR. V. ALHAJI AZEEZ A. AJAGBEMOKEREF(1989) 1 NWLR (PT. 100) 678I , the word defamation is defined as "a statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business."

According to a plethora of decided cases, it has been held that in order to succeed in an action for defamation, a plaintiff must prove that the libel or slander has been published, that is communicated to some other person or persons other than the plaintiff himself. See UGO V. OKAFOR (1996) 3 NWLR (PT. 438) 542 AT 560.. SEE ALSO OKPARA V. UMEH (1997) 7 NWLR (PT.511) 95 AT 98

In BEKEE & ORS V. BEKEE (2012) LPELR-21270(CA) Per ONYEMENAM, J.C.A. P. 20, paras. D), it was held that the defences which can be raised by anyone who is sued for defamation;
"Beyond what I have stated above, libel and slander share common defenses. Accordingly, anyone who is sued for defamation can raise any of the following defenses:
-That the alleged wrong doer was not the publisher of the statement;
-That the statement did not refer to the alleged victim;
-That the statement's meaning was not defamatory;
-That the statement was true;
That the statement was fair comment on a matter of public interest.
-That the statement was made in the heat of an argument."

In ONWURAH & ORS v. NWUMEH & ANOR(2016) LPELR-40304(CA) Per OGUNWUMIJU, J.C.A. (P. 16, Para. C), the defences to the tort of defamation were succinctly stated as follows:

"There are a number of defences available to a claim of defamation which includejustificationfair commentprivilege which may be either absolute or qualified."
From the above, one can deduce that the defences to defamation are the following;

I shall discuss these defences below

According to the Black’s Law Dictionary, “Justification’ is defined “explanation with supporting data. A maintaining or showing a sufficient reason in court why the defendant did what he is called upon to answer, particularly in an action of libel…”

In ANYAH V. A.N.N. LTD. (1992) NWLR (PT. 247)319 (1992) 7 SCNJ 47.it was held that;
“"Under a plea of justification, the onus is on the defendant to show that the alleged libel is true; in fair comment the onus is on him to show that the facts commented on are acknowledged to exist or are true. If the defendant brings evidence to prove the facts commented upon to be true or acknowledged to exist, the plaintiff should be entitled to produce evidence that they are neither acknowledged nor true. But he cannot divide his proof, bringing forward part of his evidence in the first instance and more in reply.

However, it is important to note that the defence of justification is only relevant only were publication is proved and libel is established. SEE AYENI V ADESINA (2007) ALL FWLR (PT. 370) 1451 AT 1476 - 1477 PARAS. H - A (CA).

A defence of justification is therefore a complete bar to any relief sought by a party who complains of defamation. It is appropriately described in the Latin maxim:damnum absque injuria". Until it is clearly established that an alleged libel is untrue, it will not be clear that any right at all has been infringed: See REGISTERED TRUSTEES OF AMORC V. AWONIYI (1991) 3 NWLR (PT. 178) 245 AT 257.

It is important to note that whenever a defence of justification or qualified privilege is raised in a case of libel, the party raising the defence is understood to be admitting that he published the words complained of but contends that the words published are true and he is therefore not guilty of defamation. At common law, under a plea of justification, the defendant must prove the truth of all the material statements in the libel. There must be a substantial justification of the libel. See: DUMBO & ORS. V. IGBUGBOE (1983) ALL NLR 37; (1983) 2 SC 14; AYENI V. ADESINA (2007) ALL FWLR (370) 1451 @ 1471 E." Per KEKERE-EKUN, J.C.A (Pp. 48-49, paras. G-C).

According to the Black’s Law Dictionary, Fair comment is “ a term used in the law of libel applying to statements made by a writer in an honest belief of their truth, relating to official acts, even though the statements are not true in fact”. Defense of fair comment is not destroyed by circumstance that jury may believe that the comment is logically unsound but it suffices that a reasonable man may honestly entertain such opinion, on facts found.”

Fair Comment must be based on facts truly stated, must not contain imputations of corrupt or dishonourable motives except as warranted by the fact, and must be honest expression of writer’s real opinion.

In OKOLIE V MARINHO (2006) 15 NWLR (PT. 1002) PG.338 PARAS. A-B, it was held that “Fair comment is available only in respect of expressions of opinions which are based on facts which are proved true and on statements of fact not proved true but which were made on a privileged occasion.”

In G. CAPPA LTD v. DAILY TIMES OF NIGERIA LTD (2013) LPELR-22028(CA), it was held that “…..when a Defendant avers as his defence that the comment is a fair one, he is saying no more than that the story was based upon true facts, which were in existence when the comment was made - see Basorun v. Ogunlewe (2000) 1 NWLR (Pt.640) 235, wherein it was further explained that-

"This is so because before a comment can be said to be fair the truth of the facts upon which it is predicated must first be established - - - For the law does not permit a person to invent untrue facts or stories about a man and then comment upon them. In other words, the defence of fair comment will avail the Defendants if they can show that they had only, in good faith expressed their opinion based on facts truly stated on a matter of public interest".

In MAKINDE & ORS. V. OMAGHOMI (2010) LPELR-4461(CA), it was held that “In order that a Defendant will be availed of defence of fair comment, the following conditions must be present:-
(1) It must be based on facts truly stated;
(2) It must be honest expression of the writer's real opinion;
(3) It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticized save in so far as such imputation warranted by facts. See:- DAVIS VS. SHIPSTONE (1886) 11 APPEAL CASES PAGE 29." PER BAGE, J.C.A.(P. 21, PARAS. C-G)

Thus, it is important to state that a plea of fair comment succeeds as defence if the facts relied on by the defendant are sufficient to justify the statement or publication that the plaintiff finds to be libelous. The facts must be the truth. See AKOMOLAFE & ANOR. V. GUARDIAN PRESS LTD & 3 ORS. (2010) 1 SC (PT. I) P.58

According to the Black’s Law Dictionary, Privilege is an exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in performance of a political, judicial social or personal duty.

Privilege is either absolute or conditional. The former protects the speaker or publisher without reference to his motives or the truth or falsity of the statement. This may be claimed in respect, for instance, to statements made in legislative debates, in reports of military officers to their superiors in the line of their duty, and statements made in legislative debates, in statements made by judges, witnesses, and jurors in trials in Court.

Conditional or Qualified Privilege will protect the speaker or publisher unless actual malice and knowledge of the falsity of the statement is shown. This may be claimed where the communication related to a matter of public interest or where it was necessary to protect one’s private interest and was made to a person having an interest in the same matter.

"Qualified privilege is a defence to an untrue publication. It can only be claimed however when the occasion of the publication is shown to be privileged."
In PULLMAN V. HILL LTD. (1891) 1 QB, it was held that "An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged." See also ILOABACHIE V. ILOABACHIE (2005) 13 NWLR (PT.943) 69 (2005) 5 S.C (PT II) 149

In FBN PLC & ANOR V. ABOKO(2005) LPELR-7494(CA) Per ADEREMI, J.C.A. P. 19, Paras. B-F) it was stated as follows;

From the above discourse, it seems to me that three elements of qualified privilege emerge and they are:
"(1) The occasion for making it must be fit.
(2) The matter must bear reference to the occasion, and
(3) The words complained of must be published from right and honest motives."See Horrocks v. Lowe (1975) AC 135. I pause to say that any privilege that attaches to an occasion on which defamatory words are published by one person to another is the privilege of the publisher alone. The person to whom it is published needs no privilege, as he commits no tort. It follows that, a defence of qualified privilege, if it is not characterised by gross and unreasoning prejudice, is a complete defence. "
In bringing an action for defamation where such statement was made on an occasion of qualified privilege, there must exist defamation where such statement was made on an occasion of qualified privilege. Where the defence of qualified privilege or fair comment is pleaded, and the plaintiff has served a reply alleging express malice, the condition of mind of the defendant when he published the words is a matter directly in issue See ATOYEBI V. ODUDU (1990) NWLR (PT.157) 384(1990) 9-10 S.C 150 PER OLATAWURA, J.S.C. (P. 21, PARAS. D-E).

It is pertinent to note that where defamatory words are published more extensively than the occasion requires, or maliciously published, the defence of privilege or fair comment are forfeited. See Saraki v Soleye (1972) 2 UILR 271; Oweh v Amalgamated Press of Nigeria Ltd (1957); Aruna v Taylor( 1977); Okon v The C.O.R Advocate Ltd (1961)

From all that has been stated above, one must note that in order to succeed in action against defamation, the essential elements of the defence must be strictly adhered.

Simileoluwa Owotomo.

Simileoluwa is an Associate at Ayodele, Olugbenga & Co.


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Ed's Note - This article was originally published here