The tort of defamation occupies a prominent place in Nigerian law as it does in the laws of most African countries in which the common law applies. The immediate post-independent period in Nigeria was characterised by vigorous political activity supported by an articulate and free press. It is significant that the plaintiffs in defamation actions in the early ‘60s’ included most of the leading political personalities of the time and that there was barely a national newspaper which was not a defendant in at least one of such actions during the period.
On successful completion of this unit, you should be able to:
- Define defamation law
- Identify the types of tort of defamation.
- Explain knowledge of Innuendo.
- Study some cases
3.0 MAIN BODY
3.1 The Tort of Defamation
Defamation is concerned with injury to reputation resulting from words written or spoken by others.
A defamatory statement may be defined as one, which tends to:
- Lower the plaintiff in the estimate of the right thinking members of the society or
- To expose him to shame, contempt or ridicule or
- To cause other persons to shun or avoid him or
- To discredit him in his office, trade or profession
- To injure his financial credit.
The words contained of, must tend to injure the plaintiff/s reputation in the minds of right thinking people generally not merely in the minds of a particular section of the public. Any written or spoken words which fall within one or more of the five definitions listed above may defamatory. The following are examples of statements held defamatory beby the Nigerian courts:
- That a medical practitioner had a fake degree and that he exploited the public.
- That a public official was corrupt or had been arrested on suspicion of corrupt practices.
- That a legal practitioner had defrauded his clients.
- That a university lecturer had committed adultery with a female student.
- That a female teacher was a bad woman etc.
It may be noted at this point that there is an initial presumption that a defamatory statement is untrue; but if the defendant can prove that the statement is substantially true, it will have a complete defence to action for defamation. This is the defence of justification which will be anconsidered later.
- Libel and Slander
There are two types of defamation: (a) Libel
- Libel is defamation in a permanent form – the most common being written or printed words contained in a newspaper, a book, a letter, a notice and etc. Defamation is also in a permanent form if contained in a painting, a cartoon, a photograph, a statue or a film. Also by the defamation law of 1961, section 3 CAP 32 Laws of Lagos State, which is identical to Sec. 1 of the English Defamatory Act of 1952, defamatory words contained in a radio broadcast are to be treated as being in a permanent form. Television broadcasts are also within the ambit of the sections, which define words as including pictures, visual images, gestures and other methods of signifying meaning. The Defamation Law of the Eastern States expressly provide that broadcasting includes publication for general reception by means of a wireless telegraphy or television.
- Slander is defamation in transients form most often through the medium of spoken words or gestures. It is sometimes said that libel is addressed to the eye while slander is addressed to the ear. The differences between libel and slander is that, whereas libel is always actionable per say, and that is, without the need to prove actual or special damage Slander is not actionable per say except in special cases.
3.2 Libel Actionable Per Say
This means that whenever a libel is published, the law will presume that damage has been caused to the plaintiff’s reputation and will award him by way of compensation.In case of NTHENDA VS. ALADE reported in 1974, 4 East Central State Law reports (ECSLR) page 470, the plaintiff brought an action against the proprietor, the editor and a reporter of the Lagos weekend newspaper alleging that an article published in the newspaper was defamatory of him. The defendants argued that the plaintiff’s action should fail, as he had not proved that he had suffered any actual damage
as a consequence of the publication. Judge rejected this contention saying that in an action for libel, the plaintiff need not prove malice in law and need not prove that he has suffered any actual damage as a result of the publication. Both malice and damage are presumed from the publication itself, in the absence of lawful excuse. In case of WILLIAMS VS. WEST AFRICA PILOT reported in 1961, NO 1, All Nigeria Law Report, Page 866 it was held that once a publication has been found to be libel, the acknowledges damages. See also the case of CARONER VS. lawSketch Publishing Company Ltd, reported in 1979, 3 Law Reports of TheNigeria (LRN), pg. 276). The plaintiff is entitled to recover a large sum if, in a libel action, he can prove that he suffered actual damage.
3.2 Exceptional Cases in Which Slander is Actionable Per Say
- Imputation of Crime: It is slander actionable per say to allege that the plaintiff has committed a criminal offence punishable by imprisonment. For e.g to call the plaintiff a thief. In the case of AGOAKA VS. EJIOFOR, reported in 1972, 2 ECSNLR, Pg. 109. in that case for instance the defendant falsely accused the plaintiff in a village gathering of having stolen his cocoyams. It was clear from the evidence that the plaintiff had suffered no actual damage and ANIAGOLU (J) held that the plaintiff was entitled to recover general damages for slander. Note that to be actionable per say, there must be a direct assertion of the guilt. A mere allegation of suspicion is not sufficient and the crime alleged must be punishable corporally i.e by imprisonment etc. See the case of FARASHI VS YAKUBU, reported in 1970, Northern Nigeria Law Report, pg 17 where the plaintiff had committed adultery with defendant’s sister-in-law. Actual damage was not proved but the court said: “It is well settled law that damage need not be proved where a person is accused of a crime”.
- Imputation of Certain Disease: it is actionable per say to say that the plaintiff is infected with certain infectious or contagious disease. Since this will tend to cause other persons to shun or avoid him.
- Imputation of Unchastity or adultery concerning any woman or girl is actionable per say.
- Imputation Affecting Professional or Business Reputation e.g that a surgeon is incompetent, a banker is fraudulent, and engineer has no technique, a lawyer knows no law, a trader is insolent etc.
3.4 Special Damage in Slander
In cases of slander, which are not actionable per say, the plaintiff, cannot recover damages merely on account of his loss or reputation. He will be able to recover only if he can prove that he has suffered some special or actual damage. Special damage here means loss of money or of some material or temporal advantage such as loss of employment, loss of a client, refusal of credit, loss of the hospitality of friends who had provided material things like food, drinks etc. It is well established that words spoken as mere vulgar abuse or insult are not actionable in slander. Whether particular words constitute slander or mere vulgar abuse depends upon the circumstances in which they are spoken. In the case of BENSOH VS. WEST AFRICAN PILOT LIMITED, reported in 1966 in Nigeria. Monthly Law Report III, IKPEAZU (J) rejected the contention that a report in the contention that a report in the defendant’s newspaper to the effect that the plaintiff was an idiot was mere vulgar abuse and not actionable. What the plaintiff must prove is libel and slander:
i) That the words were defamatory
ii) That the words referred to the plaintiff
iii) That the words were published to at least one person other than the plaintiff
3.5 The Innuendo
Innuendos in the law of defamation are of two types:
i) The True or Legal Innuendo
ii) The False or Popular Innuendo.
For instance, a statement that Mr X was a frequent visitor to a house at No. 10 Lagos Street is perfectly innocent as its face, but it connotes other meanings, since it may be defamatory if it was
published to other persons who knew the special facts that No. 10 was the special Headquarters of prostitutes or armed robbers etc.
ii) False or Popular Innuendo: Here the plaintiff contends that the words are defamatory not because of any special intrinsic facts or circumstances known to those to whom the words were published but because of some defamatory inference which reasonable persons generally would draw from the words themselves e.g. in a caricature, nick name. A false innuendo goes beyond the literal
meaning of the word.
3.6 Defences to Defamation
3.6.1 Justification (Truth) The defendant should not plead justification unless he has good reason to believe he will succeed as failure to establish the defences usually inflate damage awarded. will
3.6.2 Fair Comment
On a matter of public interest based upon facts truly stated, honestly, and not actuated by malice. made
3.6.3 Absolute Privilege
This is a complete defence to an action for libel or slander however false or defamatory the statement may be and however maliciously it may have been made. It arises in those circumstances such as proceedings in the legislature or in a court of law. Where public policy demands that persons should be able to speak or write with absolute freedom without fear or liability for defamation. This includes communication made by one officer of state to another in the course of his official duties.
3.6.4 Qualified Privilege
Both absolute and qualified privilege exists for the same fundamental purpose and that is to give protection to persons who make defamatory statements in circumstances where the common convenience and welfare of society demands such protection. But whereas absolute privilege is limited to a few well-defined occasions, qualified privilege applies to a much wider variety of situations in which it is in the public interest that persons should be able to state what they honestly believe to be true without fear of legal liability.The main difference between the two is that a plea of qualified privilege will be defeated if the plaintiff proves that the defendant in publishing
the words complained of was actuated by express malice whereas in absolute privilege, the malice of the defendant is irrelevant.
It destroys qualified privilege. See the case of OWEN VS. AMALGAMATED PRESS of Nigeria Ltd., reported in 1997, Lagos Law Report, Page 6.
Self Assessment Exercise 3.1
- Distinguish ‘defamation’ from ‘libel and slander’
- What are the three basic essential element of defamation?
- Why are there exceptions in slander that is actionable per say?
The role of the editor is relevant here. Technically, in law, he is liable along with the writer for any libellous or seditious material in his newspaper. Care must therefore be taken to avoid infringements.
In this unit, you have learnt that:
- Defamation generally covers any statement made by someone towards another person or what the person does, with the established intent to disparage, or cause a person to be demeaningly estimated in the perception of right thinking people
- Defamation manifest in two forms namely, libel and slander
- Justification, Fair comment, privileges (absolute and qualified and malice can be pleaded as defences to defamation.