A CRITICAL EXAMINATION OF THE TORT OF DEFAMATION, SHOWING IT’S RELATIONS WITH THE LAWS IN NIGERIA AS WELL AS IT’S RELEVANCE IN THE NIGERIAN LEGAL SYSTEM - Aluzu Ebikebuna Augustine
|Aluzu Ebikebuna Augustine|
This work seeks to give detailed analysis of the law of defamation in Nigeria, it’s relevance in our legal system as well as showing its relations with Nigerian laws. It embarked on an academic excursion into the weakness of this tort and suggests possible ways in which the National Assembly can make laws to consolidate on the tort of defamation in Nigeria.
Defamation- also calumny vilification and traducement is the communication of false statement that harms the reputation of an individual person, business, product, group, government, religion or nation.
The freedom of speech is an inalienable right of every human being. Thus, a person’s right to freely express himself or herself anytime or anywhere it guaranteed by the Universal Declaration for Human Rights, 1948 African Charter on Human and People’s 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 impact 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 other estimation which he stands in the society of his or her fellow citizens.
Under common law, to constitute defamation, a claim must generally be false and have been made to someone other than the person defamed.
This tort, seeks to protect a persons reputation from unjustified attack either by written or spoken words of others. In Nigeria, the tort of defamation occupies a prominent place in Nigeria Law, as it does in the laws of most African countries in which the common law applies. The immediate post undependable period in Nigeria was characterized by vigorous political activity supported by an articulate and free press. For this reason, it could be observed that:
(i) Actions on defamation in the early 1960’s mostly involved some leading political personages of regime.
(ii) There was hardly a frontline national newspaper that was not a defendant in, at least, one defamation suit during that period.
Consequently, in present day Nigeria, whoever utters, publishers, broadcasts, communicates, or telecasts anything injurious to the good name, or reputation of another commits both a tort and a criminal offence. The basis for this tort is that every person has right to the protection of his good name, reputation and estimation in which he stands in the society of his fellow citizens. Nevertheless, the court has to strike a respectable balance between the interest canvassed in this tort and the interest in the freedom of speech. In this regard, not all statements that affects a person’s reputation will be regarded as defamatory.
This legal illumination is focused on defamation as a wrong or tort in Nigeria judicial jurisprudence.
Law of Defamation (An Overview)
In Benue Printing & Publication Corp v Gwargwarda (1989) 4 N.W.L.R. (PT. 116) 439, the Supreme Court defined the tort of defamation as follows:
“Defamation consist of any imputation which may tend to lower the plaintiff in the estimation of right thinking members of the society generally, cut him off from society or expose him to hatred, contempt or ridicule” A defamatory imputation may allege criminality, dishonesty or cruelty. Williams v. Daily Times. (1990) 1 NWLR (pt. 124) 1 at p. 50.
A defamatory statement may not necessarily take the form of written or spoken words, it may also consist of carvings, painting, effigies or gestures. It is immaterial that the person to whom the defamatory statement was made did not believe it to be. What is important is that the statement has the tendency of lowering or injuring the plaintiff’s reputation. In other words, a defamatory statement may be defined as one, which tends to:
(i) Lower the plaintiff in the estimation of right thinking members of the society generally or
(ii) Expose him in contempt, hatred or ridicule; or
(iii) Cause other person to shun or avoid him; or
(iv) Discredit him in his office, trade or profession; or
(v) Injure his financial credit.
An action for defamation does not survive the death of the parties. Thus, an action for defamation cannot be maintained or continued by the relatives of a dead party or the personal representatives of the deceased party including executors, trustee’s and administrator’s of his estate.
Also, a plaintiff in an action for defamation must be a legal person. But, in the case of an artificial person, the action can only be competent when the offending statement alleges dishonest conduct or mismanagement reflecting on the trade or business reputation of the company. In Edem v Orpheo Nig Ltd (2003) 110 L.R.C.N 1673 the Supreme Court held as follows:
“It is settled law that just an individual or human being may be defamed, a trading, a corporation, a company, naturally has a trading character, the defamation of which may adversely affect and may indeed ruin it… Accordingly, a corporation or company may maintain an action for libel or slander in respect of words which are calculated to injure its reputation in the way of its trade or business.
The standard used in determining whether or not a statement is defamatory is that of right thinking members of the society. The meaning of this phrase, ‘right thinking members of the society’ is in general terms and not in particular terms.
Accordingly, it connotes the society generally and not a section of the community. Nevertheless, it includes the plaintiffs colleagues, business associates and church members, unless it is shown that their standards of conduct or morality are different from those of right thinking members (persons) generally and indeed reasonable members of the society would not consider such a statement as defamatory.
In Byrne v Dean (1937) 1 KB 818 the plaintiff alleged that the notice put up on their club’s notice board by the defendant who was a member of the club, was defamatory of him because it accused him of snitching to the police of their unlawful activities. It was held that although other members of the club might think less of the plaintiff, the statement was not defamatory because right-thinking members of the public would approve, rather than disapprove of a person who reported the commission of a crime to the police. This is in the interest of public policy.
Examples of Defamatory Statement
There are two types of defamatory statements; namely, libel (written and permanent) and slander (spoken and transient). Both are torts and crimes in Nigeria, by virtue of Section 373 of the Criminal Code. However, libel is defamation in a permanent form, slander is defamation in a transient form. Thus, defamatory words contained in print, broadcast and social media amounts to libel since they are in permanent form. It is immaterial that the defamatory statement in a permanent form was read to an audience. In Offoboche v Ogoja Local Government (2001) 90 L.R.C.N 2782; (2001) 16 NWLR. (pt. 739) 458. the Supreme Court stated thus:
“Where the 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 should be libel as much as where the document was passed round to be read by each member of the audience…”
Again, libel is actionable per se, that is without proof of actual damage. A judicial re-echo can be found in the case of Ejabulor v Ogha (1990) 4 NWLR (pt. 148) 1 at p.15it was held that questions as to proof of actual damage is totally alien to an action for libel. In that case, the defendant made a defamatory statement at a press conference and was published in a newspaper. The court held that the defendant could be sued for libel and not merely slander, and that the defendant’s counsel who had submitted that the plaintiff’s claim must fail because he has failed to prove actual damage suffered by him had erroneously believed that the action was for slander. Moreover, if the plaintiff in an action for libel proves that he has suffered actual damage, he will be entitled to recover a further sum in addition to the general damages.
On the other hand, to succeed for slander, the plaintiff must prove actual damage. In other words, no damage is recoverable merely because of loss of reputation by reason of the slander. The plaintiff must prove loss of money or some temporal or material advantage estimable in monetary terms. However, this position however is not sacrosanct. There are exceptional instances without prove of special damage. These are:
(a) Where the slanderous words complained of constitute an imputation of crime, punishment by imprisonment for at least in the first instance against the plaintiff e.g. in Agoaka v Ejiofor (1972) 2 ECSLR 109 where the defendant falsely accused the plaintiff of stealing cocoyam and it was shown that the plaintiff suffered no damage, it was held that the plaintiff was entitled to recover general damages.
(b) When the slanderous words contains an imputation that the plaintiff is suffering from a contagious disease or infectious disease such as leprosy, or other repulsive disease.
(c) Imputation of unchastity or adultery against the plaintiff in the case of a woman or girl. This can affect her moral standing in the society negatively.
(d) Where the words complained of are calculated to disparage the reputation of the plaintiff as regards his profession, trade or business and other legitimate means of livelihood.
It should be noted that where slander is not actionable per se, the special or actual damage must be proven. It should also be noted that slander is different from vulgar abuse.
As stated earlier, the tort of defamation seeks to protest a person’s reputation (good name) from unjustified, unwarranted attack either by written or spoken words of others. Nevertheless, the courts always seek to strike a balance between a person’s reputation and the exercise of freedom of expression and or speech. Thus, not all statements that affect a person’s reputation will be regarded as defamatory. Mere vulgar abuse or insult, (that is to say words or conduct which affects a man’s dignity) does not amount to defamation. Indeed, the court has tendered to take notice of the fact that it is not uncommon in social relations for people to abuse each other in exchange of hostility.
The implication is that if the vulgar or insulting words or statement are made deliberately and not in an occasion of a quarrel between the parties, an action for defamation (slander) is maintainable. In the same vein, the court will be reluctant to uphold a plea of vulgar abuse of the defamatory statement is (are) written, since in such circumstances the defendant would have had enough time to reflect on what he had written and published. This is consistent with the position of the law in Benson v West African Pilot Ltd (1966) NMLR 3 where a distinction was drawn between a spoken vulgar abuse, which is not actionable and a written one which is actionable (Libel).
Irrespective of the nature of defamation a plaintiff must satisfying certain fundamental requirements before his action for defamation whether (libel or slander) can succeed. These essential requirements or ingredients are:
(a) The words or statement was defamatory.
(b) That the defamatory words referred to the plaintiff.
(c) That there was publication of defamatory words to an audience.
(d) Special damage in the case of slander, except the case of the plaintiff falls under any of the exceptions.
The elements will be discussed briefly below:
(a) Defamatory Words:
A statement is defamatory when it is false and capable of lowering the reputation of the plaintiff in the estimation of right thinking members of the society or caused him to be shunned and (or) avoided. The defamatory nature of a statement is measured by its tendency to incite adverse opinions against the plaintiff. Examples of such statements include calling the plaintiff a thief, insane, unchaste (in case of women), infidel etc. A statement will still be defamatory even though the defendant did not intend to bring the plaintiff into hatred, ridicule or contempt. In other words, the meaning to be ascribed to any statement is not necessarily that which the defendant ascribed to it when it was published. Additionally, apart from proving the defamatory words as primary or secondary evidence, it is equally mandatory to establish that the statement emanated from the defendant.
Statements may be divided into two classes for the purpose of determining their defamatory character. On one hand are those that are prima facie defamatory and on the other hand are those that are prima facie innocent. A statement is prima facie defamatory when its natural, literal and ordinary meaning has a defamatory connotation. By natural, literal and ordinary meaning, we mean the meaning given to statements by reasonable man of ordinary intelligence with ordinary man’s general knowledge and expertise of worldly affairs.
Conversely, a statement is prima facie innocent when its natural, literal and ordinary meaning is not defamatory. Nevertheless, a statement which is prima facie innocent may be capable of bearing a defamatory meaning having regard to the surrounding circumstances known to person(s) who are in recipients of such publications. In such case, the onus is on the plaintiff to explain the sense in which the words which ipso facto qualifies them as defamatory or else such words will interpreted literally. This explanatory statement offered by the plaintiff which indicate the extended or hidden defamatory meaning which otherwise innocent statement has is called an ‘innuendo’
Innuendo are of two types namely: (a) true or legal innuendo and (b) false or popular innuendo. True or legal innuendo suggests that an ordinary innocent statement has a defamatory meaning, in relation to those to whom it is made due to the existence of certain facts known to such persons. The burden of proving this knowledge lies with the plaintiff who must equally prove the particular or peculiar facts or special circumstances known to the recipients of the publications. In order to succeed, the innuendo established by the plaintiff must lead reasonable persons with knowledge of those facts to come to the irresistible conclusion that the statement is defamatory. This was the case of Akintola v Anyiam (1961) 1 ALL NLR 508. In that case, the defendant published a book titled “Among Nigerian Celebrities.” In it , he alleged that the plaintiff, the then premier of the Western Region was the son of “Chief Sawe of Illesha and Alice”. The plaintiff who was a native of Ogbomosho sued, and the words were held to be defamatory since people who read the booklet and who knew the plaintiff claimed to be an Ogbomosho man would think that he had been lying about his origin and parentage. This can be proved by calling witness with such knowledge.
It is immaterial to the question of liability that the defendant was oblivious of the particular facts or circumstances, making the seeming innocent words defamatory.
On the other hand, false or popular innuendo is anchored on the inferences which reasonable members of the society would draw from the published statement. Here, the focus is on implied meaning of the literally innocent statement being considered. In Mutual Aid Society v Akerele (1966) NMLR 257 the defendant instructed an auctioneer to advertise certain properties for sale by public auction. The auctioneer mistakenly included the plaintiff’s house. The court held that the words in the advertisement which implied that the plaintiff’s property as being sold in the exercise by the mortgage of their property sale, the plaintiff having failed to pay a mortgage debt, were defamatory.
The Statement must relate to the Plaintiff
This is established of the plaintiff is mentioned by name (whether fictituos or fanciful) or described by means of peculiar attributes or quality. The guiding principle is whether those who know the plaintiff can reasonably think that the defamatory words statements referred to him/her. The intention of the defendant is immaterial. It is sufficient that the person to whom the defamatory statement is published, reasonably believed that they referred to the plaintiff. This is in tandem with the principle laid down in Hulton & Co. v Jones (1910) AC 20 where it was held that even when there was no intention on the part of the defendant/publisher to defame the plaintiff, the action must nevertheless succeed once reasonable people who knew the plaintiff would think the words defamatory of him. Also, the plaintiff/individual can sue for redress in respect of a defamatory statement directed at a small group or limited class which he belongs to.
Publication of the Defamatory Words
The defamatory statement is not actionable unless the words is published. Publication here means the words were communicated to an audience. In Ejabulor v Ogha (1990) 4 N.W.L.R (pt. 148) 1. the Supreme Court defined publication as “the making known of the defamatory matter after it had been written to a third party other than the plaintiff.” However, the ideal publication is that which is meaningful to the recipient. In other words, the latter must be capable of the understanding at the hearing of the statement. Every competent repetition of the statement is a fresh publication and creates a fresh cause of action. The defendant is still liable in case where a third party intercepts the publication if it is established on the part of the defendant that a third part interception is reasonably foreseeable. In the case of newspaper printers and publishers they are liable not distributors, carriers or agent as the law takes a rather lenient approach towards such persons.
A defence for defamation can be
(a) Justification (truth)
(b) Fair comment
(c) Privilege (Absolute or Qualified)
(f) Innocent dissemination
Relation and Relevance of Law of Defamation with Nigeria Law
In Nigeria, Defamation Laws has given relevance to some Constitutional and Criminal Law enactments. Defamation Law such as Defamation Law of Lagos State (1961), Defamation Law Cap 32 Laws of Western Nigeria (1959), and Defamation Law of Akwa Ibom State have given credence and further hardnosed various provisions of the Nigerian laws such as Section 34, 36 (5), Section 39, 42 (2) 46(1) of the 1999 Constitution and Section 273 of the Criminal Code, as well as the Cyber Crimes (Prohibition, Prevention etc) Act, 2015 which was signed into law on May, 2015 which provides legal framework for combating prohibition, prevention, detection, response, investigation and prosecution of cyber crimes, 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 system 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.
The Relevance of Tort of Defamation in Nigeria
It should be noted that the basis for the tort of defamation in Nigeria is to seek for compensation for injury to one’s reputation that has been disparaged, as a means of vindicating your reputation or maintaining or restoring the good image that has been so battered by the defamatory statement. The tort of Defamation Law is relevant to Nigerian Laws, especially Section 34 (1) of the 1999 Constitution as it is in consonance with that section and it tends to protect the individual’s psyche as it was the view of the Court’s findings in Uzoukwu v Ezeounu II.(1991) 6 N.W.L.R (pt. 200) 708. In that case, the appellants, natives of Atani Community in Anambra State, sued the respondents for the enforcement of their fundamental right to dignity of human person. Though, the court held in favour of the respondents, the appellants alleged that the respondents referred to them 'as slaves’ and treated them such. The court held that the affidavit relied upon only amounted to mental abuse. The definition of “person” in that section according to the court includes individual’s psyche.
Also, the Tort of Defamation in Nigeria is relevant to Section 36 (5) of the 1999 constitution of Nigeria which provides that “a person charged with a criminal offence shall be presumed to be innocent until proved guilty…” with the daily reportage flooding the social media airspace on corruption, and the latest coming from erstwhile Petroleum Minister Diezani Alison Madueke when she claimed that she was being painted “as a common criminal” in the media despite not being convicted for any crime. One can authoritatively say that this act has shifted the onus of proving one’s guilt from the prosecution to the defendant to prove his innocence. Such is dangerous to any criminal jurisprudence as it amounts to “painting a dog bad just to hang it”. This section of the constitution has also been solidified by the enactment of the Cyber Crimes (Prohibition, Preventive etc) Act 2015, particularly paragraph (b) of the above mentioned Act.
Also, this tort is relevant to Section 9 of the 1999 Constitution of Nigeria as a limited to one’s right to freedom of expression as it was the case in Akilu v Fawhimi (1989) SC. 215/1988 where it was held that the right to freedom of speech is limited or circumscribed by the duty of the person exercising it to watch against infringing on the rights of other persons.
The tort of defamation tends to protect the right against discrimination because when one’s reputation is lowered to the point of being ridiculed on the eyes of right thinking members of the society, such person will be discriminated against as envisaged by Section 42 (2) of the 1999 Constitution. Imputing that one is from an Osu race will definitely read others to discriminate against such individuals.
The torts of defamation also gives credence to Section 46 (1) of the 1999 Constitution which provides thus;
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in the state for redress.”
Weakness of the Tort of Defamation
The tort of Defamation is not proactive in nature, in the case of slander and libel in which the act must have been done and the individual have already suffered damage.
As stated earlier, the tort of defamation in Nigeria seeks to compensate for injury to ones reputation that has been disparaged. Sometimes, the remedies sought is not enough to put the plaintiff in the position he was before in the eyes of right thinking members of society, as some of those right thinking members may have died while the case was still lingering in court or have moved out of town to the extent that for them to know that the imputation was false and defamatory.
The tort of defamation does not survive the death of the parties, therefore false story propagated to tarnish one’s image will remain so on the death of the plaintiff before clearing his name. This point is mostly overlooked but in Nigeria where illiteracy is still a major problem to contend with, a false imputation that a mother (dead) of a girl was unchaste during her lifetime, will go a long way to work against her prospect of getting married as most illiterate people in Nigeria believe s character is hereditary. In such situation, the progeny on the victim of such imputation does not have a cause of action in law.
The tort of defamation though it has exhaustively been enacted and construed to readily came to the plaintiff’s aid who seeks redress for his tarnished image can not be said to be without blame, the law should be more proactive in nature than reactive as the Biblical injunction in Proverbs 22:1 says “good name is rather to be preferred to riches” and Robert Green in his book titled 48 Laws of Power re-echoed the Biblical injunction when he says in Power 5, page 37 “so much depends in reputation- Guard it with your life”. And so, the Legislatures should make the Tort more proactive.
ALUZU, EBIKEBUNA AUGUSTINE
FACULTY OF LAW
UNIVERSITY OF UYO, UYO
He can be reached on 07068689696 or firstname.lastname@example.org