Tort of Defamation in Nigeria

Tort of Defamation in Nigeria

Introduction

The law of defamation in this country has not changed even by latest developments in law. A man is entitled to his good name and to be called what he is. But if in a man’s life, he happens to have a blur and that blur is with the sanction of law recognized as such, it is no libel to point it out, even if it is done for mischief. That a man is entitled to the estimation he stands in the opinion of others is qualified only if what is said of him is false and thus lowers that estimation.

Indeed, the tort of defamation is concerned with injury to reputation resulting from words written or spoken by others. It is natural for a person to contend that he/she has been defamed if someone says or implies something negative about their character to a third person but whether this is defamatory depends on factors such as its context and to whom it was said.

It must be borne in mind that an action for defamation is a purely personal action. The claimant must be the person who has been directly and personally defamed. The statement must refer to the claimant, i.e., identify him or her, either directly or indirectly.

What is Defamation?

Defamation as a tort, whether libel or slander consists of the publication to a third person or persons of any words or matter which tends to lower the person defamed in the estimation of right thinking members of society generally, or to cut him off from the society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession.-SALAUDEEN v. OKUNLOYE (2019) LPELR-48469(CA)

Defamation involves a false statement that defames or harms another person’s reputation.¬†Generally, the law of defamation protects a person’s reputation, be it natural person or corporate body or institution. The law presumes that every person is of good character until the contrary is proved.

The tort of defamation, whether libel or slander, relates essentially to damages to the character of the person. In other words a plaintiff who institutes an action for libel has invariably put his character in issue.

Types of defamation

Defamation has two arms:- (1) Libel and (2) Slander.

Libel is defamation in a permanent form mostly written or printed words in a book, letter, notice, newspaper etc, whereas slander is usually expressed through speech. It is made viva voce. Again Libel is always actionable per se that is, without the need to prove special or actual damage.

Slander is not actionable per se, 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.-OLANIYI v. ELERO (2006) LPELR-5237(CA)

Purpose of an action for defamation

Now, it is generally accepted that a plaintiff’s general character or reputation need not be stainless, unimpeachable and without any blemish before he can maintain an action in defamation.

The proper purpose of an action for defamation has been held to be to vindicate the character of the person defamed. The law is that nothing can be more intangible than a man’s reputation, dignity or feeling, and it is injury to a person’s reputation, dignity or feeling that forms the essence of the tort of defamation.

The general theory that damages are compensatory and are awarded on the basis of restitution falters when faced with the truth that it is almost a fiction that money can be used to restore a man’s injured reputation or dignity to its former condition.

A man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in this reputation. Therefore since the person who has injured the plaintiff in his reputation must pay for the injury the plaintiff has suffered, there is an element of compensation in the award of damages made. But that is usually not on the basis that it will restore the plaintiff to the position he was before he was defamed, as if he has not been defamed, where the injury he suffered has not led to pecuniary loss. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) 36 WRN 1 at 20.

Elements of the tort of defamation

In any case of defamation, the plaintiff must prove three things and these are:- (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.

It is settled law that there is no actionable wrong in defamation unless there is publication of the defamatory material to at least one person not being the person defamed.-SUNDAY v. UBA (2021) LPELR-55767(CA)

The law is now trite that for a plaintiff to succeed in an action of defamation he must not only prove that the defendant published the defamatory words he must identify himself as the person defamed.

Publication is the main anchor of defamation. There must be clear evidence of publication of the offensive publication to ground the tort of defamation. Thus, publication is the bedrock/foundation in the pyramid of ingredients of defamations.-BSS ENGINEERING SERVICES LTD & ORS v. FIDELITY BANK (2021) LPELR-53458(CA)

The requirement of publication to a third person is to underscore the whole essence of the tort of defamation, which is geared principally towards the protection of the estimation of one’s own reputation in the eyes of others and not in the eyes of oneself.

Thus, it is the protection of one’s own reputation in the estimation of others and the right of a person to have the estimation in which he stands in the eyes and opinion of others unaffected by false statement to his discredit that is the whole essence of the tort of defamation.

It follows therefore, to amount to publication, the words must convey a defamatory meaning to those to whom it is addressed, for in law defamation and the damages that are consequent upon its proof consist principally in the apprehension of those to whom it was published and thus the burden of proving publication, in all cases in which it is not presumed, rests squarely on the Claimant.

Whether conduct alone without words can constitute defamation

Sometimes a mere act may convey a defamatory imputation, if it would be so understood by reason of a conventional meaning, e.g. hissing at a theatre, or by reason of the inference to be drawn from it, whether by the ordinary man, or by some person with special knowledge to whom it was published. Thus there could be defamation without words.-ZENITH BANK v. IYAMU (2021) LPELR-54150(CA)

Whether defamation is actionable per se

Defamation/libel is actionable per se and once there is credible evidence and the Court is satisfied that the defamation was established or proved as required by law, it can find for the Claimant and award damages, as may be appropriate.

There is no need for proof of actual damages in monetary or material terms by the claimant before an award of damages is made by the Court. The damages are presumed by law to have flowed naturally and automatically from the proved defamation/libel of the Claimant. See Asheik v. M. T. Nig. Ltd (2010) 15 NWLR (1215) 114

On whom lies the onus of proof in an action for defamation

No civil action for defamation will be maintained unless the words complained of have more than their ordinary meaning and the onus will be on the plaintiff to prove the extraordinary meaning of the words used.

Whether a Claimant must plead and prove that defamatory words referred to him

To proof defamation, the Plaintiff must specifically plead the exact words used by the Defendant, and proceed to lead credible evidence in proof thereof. What is required to be pleaded is the “exact words” and not a paraphrase of those words.

ln an action for defamation, it is essential as well as indispensable that the Claimant must insert or include in his Statement of Claim the allegation that the words complained of were spoken or written of and concerning the Claimant. This requirement is very essential because the very essence of the law of defamation is the protection of the reputation and estimation of the Claimant in the opinion and eyes of others. Thus, in law no matter the gravity of the imputation made, no speech or writing is esteemed to amount to defamation unless it refers to and reflects on some particular persons or person.

Test for determining the natural and ordinary meaning of words in an action for defamation

It is an essential element of the cause of action for defamation that the words complained of should be published “of the plaintiff”. If the words are not so published, the plaintiff is not defamed and cannot have any right to ask that the defendant should be held responsible to him in respect of them.

It is not necessary that the words should refer to the plaintiff by name. Provided that the words would 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 used such as, reasonably in the circumstances, would lead persons who know the plaintiff to believe that he was the person referred to?

It is the Court that decides in the end whether the words complained of are defamatory. In so deciding, the trial Judge: (a) Considers the meaning, the words would convey to the ordinary person: (b) Considers the circumstances in which the words were published; and (c) Determines whether in such circumstances, a reasonable person would likely understand them in a defamatory sense. See Okafor v. Ifeanyi (2007) 12 NSCC 43.

In deciding whether the words complained of are defamatory, the trial Court must bear in mind, the rule that information or complaint made to the police authorities cannot ground action for defamation. It is the duty of any citizen who knows or reasonably believes that a crime has been committed to assist the police with information. In the interest of the society therefore, any such information to the police or relevant authorities will be privileged. See P. G. S. S. Ikachi v. Igbudu (2005) 12 NWLR (pt. 940) 543

Whether a company can sue for defamation

A company can sue for defamation. It has reputation and goodwill which can be protected. An injury to its reputation can lead to loss of its goodwill. The Courts will in appropriate cases protect the reputation and goodwill of a company by award of damages and injunction. While it is true that a company being an artificial person is incapable of having natural grief and distress, this does not mean the same thing as its reputation in the way of its trade and business.-ODUNTAN v. GENERAL OIL LTD (1995) LPELR-2249(SC).

Relationship between tort of defamation and injurious/malicious falsehood

The tort of defamation embraces and houses injurious/malicious falsehood, an economic tort against the reputation of financial institutions which occasions/inflicts it with pecuniary losses; as one of its species. In other words, injurious/ malicious falsehood comes within the wide firmament of defamation. Being the legal parent of injurious/malicious falsehood, both exhibit symbiotic relationship. Hence, one cannot be discussed without the other.-STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR-55610(CA).

Principles guiding award of damages in action for defamation

Damages in defamation can only be awarded where it is established that one’s reputation has been injured. It is not awarded in order that the man defamed gets compensation for his damaged reputation.-MMAJU & ANOR v. IKWUKA (2018) LPELR-44141(CA).

whether a statement made to the Police can constitute defamation

A report or statement made to the Police cannot constitute defamation.-ZENITH BANK v. IYAMU (2021) LPELR-54150(CA)

How to determine the liability of a defamer

It is trite that where a person addresses a press conference and makes statements which ultimately turn out to be defamatory of another person, he will be liable as the originator, publisher or author of the statements, while other persons and members of the press who publish it are liable for repeating or publishing same.-CHIME v. EZEA & ANOR (2014) LPELR-24128(CA)

 

Defences available to a claim of defamation

There are a number of defences available to a claim of defamation which include justification, fair comment, privilege which may be either absolute or qualified.-ONWURAH & ORS v. NWUMEH & ANOR (2016) LPELR-40304(CA)

Read also: THE PRACTISE OF INFORMED CONSENT IN NIGERIA

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