Defamation By Libel: A Civil Wrong and Criminal Offence In Nigeria

370 views | Chinemerem Nnawuihe | August 18, 2020

The Black’s Law Dictionary defines defamation as: “An intentional false communication, either published or publicly spoken, that injures another’s reputation or good name. 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. Includes both libel and slander”.

In the case of N.E.P.A V Inameti (2000) FWLR (Pt 130) 1695 at 1721, the Court of Appeal, Calabar Division defined defamation thus:

A defamatory statement is one which has a tendency to injure the reputation of a person to whom it refers which tends to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, disdain or disesteem.

The Law of Defamation arose because every person has a right to the possession of his good name, reputation and the estimation in which he stands in the society. Every person wants to guard his reputation jealously and may go to any length to establish his good name.

The making of false and derogatory statements have always been recognised as a wrongful act in modern history and Literature, and it has always been an actionable wrong in every modern system of Law.

An example could be seen in Act 3, Scene 3, 155 – 161  of the Shakespearean Tragedy, OTHELLO (1603), where it was stated thus: “Who steals my purse steals trash; ’tis something, nothing; ‘Twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed“.

Under Section 39(1) of the 1999 Constitution (as amended), Freedom of Expression is guaranteed to all Nigerians, including the freedom to hold opinions and to receive and impart ideas and information without interference.

Aware that such wide rights may be utilised for purposes which may not be in the interest of the state and individuals, the right to Freedom of Expression was made derogable by the Constitution.

Section 45 of the Constitution provides that nothing in Sections 37 to 41 shall invalidate any law that is reasonably justifiable in a democratic society:

  1. In the interest of defence, public safety, public order, public morality or public health, or
  2. For the purpose of protecting the rights and freedom of other persons.

The Law of Defamation derogates from the right of a citizen to exercise his right to liberty/freedom of expression. The objective is not to limit or restrict the exercise of the right to liberty of free speech and publication; the real purpose is to prevent the improper exercise of the right or its abuse.

The problem faced by the Law of Defamation is how to strike a balance between an individual’s freedom of expression on the one hand and the protection of the rights and freedoms of other persons and security of the state on the other hand. While a person has the right to discuss and comment on the affairs of other individuals or the state, the Law exists as a check on the right of free speech. A balance is struck by making a defamatory statement a strict liability tort or offence, while on the other hand, providing the necessary safeguards or exceptions.

The Law, therefore, represents a conscious effort to resolve the conflict between two important but divergent and competing interests; the public interest in the freedom of speech and publication and the right of the individual to maintain his good name or reputation against unwarranted or unlawful invasion.

Types of Defamation

There are two types of Defamation: Libel and Slander.

A defamatory statement is considered a Libel if it is published in a permanent form. While it is a Slander if it is published in a spoken or transient form.

The Law of Libel

In the case of Akinola V Anyiam (1961) ANLR 529 at 534, Libel was defined as everything printed or written which reflects on the character of another and is published without lawful justification or excuse whatever the intention might have been.

Besides writing or printing, libel is also committed if the publication of the defamatory matter is in any other permanent and visible medium such as caricature, effigy, paints, signs, books, newspaper, statue, pictures, notices or cartoons and made without lawful justification or excuse.

The keyword is PUBLICATION.

What is publication?

In Libel, publication means making known of a defamatory matter in a permanent form to a person or persons other than the person to whom it refers.

It is not enough for a defamatory matter to be in a written, printed or permanent form it must be published.

In the case of Edoro & Another V Gurara Finance & Securities Co. Ltd (2003) FWLR (Pt 142) at pp 9, 11 & 19 the court held that, to constitute publication for the purpose of grounding an action for libel, the defamatory statement or matter in its permanent form must be communicated or delivered to a third party.

The libellous statement or matter in its permanent form must be delivered to a third party and not to the person to whom it refers. If it is delivered only to the person to whom it refers, then no publication has occurred. The reason is simple, a person’s reputation does not lie in the good opinion he holds of himself but in the estimation, he stands in the eyes of members of the public. The Tort of Defamation protects a person from injury to his reputation among other people and not from injury to his feelings about himself.

The communication or delivery of the libellous statement or matter to at least one person is sufficient to constitute publication. This was the view of the court in the case of Bata V Bata (1948) W.N. 366.

An important point should be noted from the case of Dr M.O. Offoboche V Ogoja Local Government & Another (2001) FWLR (Part 68) 1051 at pages1065 and 1066 that is, each and every publication and republication of a libellous statement or matter gives rise to a distinct and separate cause of action.

Another point to be noted is that, anyone who repeats a defamatory matter is liable to the same extent as though he originally published it. Anyone who disseminates a defamatory matter is also liable as though it were an original publication by him, unless he has no knowledge of its defamatory character.

For example, in a libel contained in a newspaper publication, the following persons will be liable for a libel: the writer of the published article, the publisher, the editor, the printer, the news agent and even the street vendor.

Proof Of Libel

The essential elements to found an action for Libel are:

  1. That the words were defamatory.
  2. That the words referred to the plaintiff.
  3. That the words were published to at least one person other than the plaintiff.

The onus at all times lies firmly on the plaintiff to prove to the satisfaction of the court that the tort of defamation has been committed against him.

In the case of Sketch V Ajagbemoleferi (1989) 2, SCNJ 151 at 160 it was held that, it is the duty of a judge to decide whether the words complained of are in fact defamatory of a plaintiff based on the evidence adduced in support of the complaint. The words complained of must not only refer to the plaintiff but they must as well convey a defamatory meaning in the minds of reasonable persons in the circumstances of the particular case.

In order to determine whether the plaintiff was the one referred to in a case of Libel, Foster-Sutton P. laid down the following principle in the case of Zik Enterprises V Awolowo (1955) 14 WACA thus:

The first question which has to be determined is: are the words complained of in conjunction with the relevant circumstances reasonably capable of being understood to apply to the plaintiff? In the case under consideration that question ought in my view, to be answered in the affirmative.

What the above principle sought to establish is that, it is not essential that the plaintiff should be referred to by name; he may be identified by his initials, nickname, office, photograph, drawing or he may be identified through a group of which he is a member. If by reason of facts and matters known to persons to whom the words were published, such person would understand the words to refer to the plaintiff, then it is not essential that there should be something in the words complained of to connect them with the plaintiff. The test is, are the words such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to?

In the case of Nsirim V Nsirim (1990) 5 SC (Pt 11) at 106 it was established that, the onus firmly lies on the plaintiff to prove the publication of a libellous statement concerning him and if he fails to discharge that onus, there is no cause of action. The proof must be given by credible and admissible evidence because it is a publication that gives rise to a cause of action.

This was also the view of the court in the case of Justice Sylvester Onu V Dan Agbese & Another (1987) 2 QLRN page 54.

Under the Nigerian Law, the publication of a defamatory matter is both a civil wrong/injury and a criminal offence. It is ranked as a criminal offence because of its supposed tendency to arouse angry passion, provoke revenge and thus endanger the public peace.

When a defamatory statement or matter is taken as a criminal offence it becomes what is called Criminal Libel.

The Law on Criminal Libel is provided under the Criminal Code Cap 77 LFN 1990 and under the Penal Code Cap 345 LFN 1990.

The Criminal Code is for the Southern part of Nigeria while the Penal Code is for the Northern part of Nigeria. Both laws serve as our Criminal Law and they make the publication of a defamatory matter whether it is Libel or Slander a criminal offence. There is no distinction under our Criminal Law between Libel and Slander; both are the same.

Section 373 of the Criminal Code defines defamation as:

Matters likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his profession or trade by an injury to his reputation. Such matters may be expressed in spoken words or in any audible sounds or in words legibly marked on any substance whatever or by any sign of object signifying such matter otherwise than by words and may be expressed either directly or by insinuations or irony. It is immaterial whether at the time of the publication of the defamatory matter; the person concerning whom such matter is published is living or dead. Provided that no prosecution for the publication of defamatory matter concerning a dead person shall be instituted without the consent of the Attorney-General of the Federation.

From the definition of defamation by the Criminal Code, even a dead person can be defamed. If a defamatory publication is made against a dead person with a view to bring his living relatives into hatred, contempt or ridicule, then an offence has been committed.

Section 391 of the Penal Code, defines defamation thus:

Whoever by words either spoken or reproduced by mechanical means or intended to be read by signs or by visible representation makes or publishes any imputation concerning any person intending to harm or knowing or having reasons to believe that such imputation will harm the reputation of such person; save in the cases hereinafter excepted is said to defame that person.

Under the Criminal Law, the penalty for publishing a defamatory matter is a liability to imprisonment for a period of one year and any person who publishes a defamatory matter knowing it to be false is liable to imprisonment for two years.

When a publication is taken as a criminal offence, the aim of the person defamed is to secure the conviction of the publisher and the consequent imposition of punishment. The objective of the law is to punish the offender upon conviction.

However, when a person who is defamed treats the publication as a tortious act (civil wrong) he seeks a civil remedy which must be in damages or compensation on monetary terms. This is because, the province of the Law of Tort is to allocate responsibility for injurious conduct and award compensation to the victim. The aim of the law is to compensate the person whose reputation has been injured by a libellous publication.

In the case of Rotimi Williams V West African Pilot (1961) ANLR 896 at 907 the court held that, the main objective for awarding damages in an action for libel is to vindicate the character or reputation of the person defamed.

Within the past few weeks, some high profile libel suits have been filed in our courts. Some of these cases include:

  1. The N7 Billion Libel suit filed by the Governor of Rivers State, Barr Nyesom Wike against ThisDay Newspapers at the High Court of Port Harcourt.
  2. The N2 Billion Libel suit instituted by the Attorney-General of the Federation (AGF), Abubakar Malami, SAN at the Federal High Court Abuja against Sahara Reporters and its publisher, Mr Omoyele Sowore.

This goes to show that, public officers, while carrying out their official duties, do everything possible to protect their integrity and reputation against any publication(s) they consider defamatory to their person and character.

Recently, the Vice President of Nigeria, Prof Yemi Osinbabjo SAN, GCON in an attempt to protect his reputation, following a publication by the Sun Newspaper, wrote a letter to the Sun Newspaper through his solicitors. In the letter, dated 12th August 2020 and titled: PRE-ACTION NOTICE – DEFAMATION OF HIS EXCELLENCY, PROF YEMI OSINBAJO, SAN, GCON IN YOUR PUBLICATION OF AUGUST 9, 2020, Prof Osinbajo demanded an apology from the Sun Newspaper which should be published in at least three national newspapers and also an undertaking not to further publish any libel against him. He also gave the Sun Newspaper, 7 days to comply with his demands or face a libel suit.

In far away London, United kingdom, the former Attorney-General of the Federation (AGF), Mohammed Adoke, SAN filed a nine-page Application of Defamation against the Attorney-General of the Federation (AGF), Abubakar Malami, SAN titled: ‘False evidence about Mohammed Bello Adoke, SAN in the P&ID case being heard in England’ at the Commercial Court of the Property and Business Courts of England and Wales in London.

In his application, Mr Adoke stated that, some referenced portions of Mr Malami’s witness statements filed in defence of Nigeria’s case at the court is defamatory and malicious against him.

Defences And Safeguards Provided by Law To An Action For Libel

  1. Justification – It is a complete defence to an action for libel to prove that the words or matter complained of are true; the law will not permit a man to recover damages in respect of an injury to a reputation which he doesn’t possess. In order to succeed upon a plea of justification, the defendant must prove that the whole defamatory matter and any reasonable inference to be drawn from them are substantially true.

Section 9(1) of the Defamation Law of Lagos State provides that, it is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

2.   Fair Comment – It is a defence to an action for libel that the words complained of are fair comments made in good faith and without malice on a matter of public interest. A person is not only entitled to hold his own opinion but it must be his honest opinion based upon true facts. Before a comment can be said to be fair the truth of the facts upon which it is predicated upon must first be established. This defence is not available only to journalists and newspapers but also to everyone.

The basic requirements of the defence of fair comment are that such comment:

  • Must be of public interest.
  • Must be based upon facts truly stated.
  • Must be a comment or opinion and not an assertion of facts.
  • Must be honestly made.

Section 10(1) of the Defamation Law of Lagos State states that it is a defence to an action for defamation for the defendant to show that the following conditions are met –

  • That the statement complained of was a statement of opinion.
  • That the statement complained of indicated whether in general or specific terms, the basis of the opinion.
  • That the honest person could have held the opinion on the basis of

– any fact which existed at the time the statement complained of was published; or

– anything asserted to be a fact in a privileged statement published before the statement complained of.

3.  Absolute Privilege – The defence of absolute privilege is a complete bar to an action for defamation no matter how false or malicious the words complained of may be. The reason for this is expediency.

Examples are:

  • Statements made in the course of and with reference to judicial proceedings by a Judge, a Magistrate, a Legal practitioner, a party or witness are absolutely privileged.
  • Statements made during legislative proceedings at the National Assembly or at the State Houses of Assembly.
  • Statements made during Executive proceedings – Federal Executive Council (FEC) Meetings, State Executive Council Meetings, Federal Capital Territory Administration (FCTA) Meetings etc.

Under Section 176 of the Torts Law of Anambra State, publication of a defamatory matter by a husband to his wife, a wife to her husband or a wife to another wife both of whom are married to the same person shall be absolutely privileged.

4. Section 12(2) of the Defamation Law of Lagos State, has provided a defence for Website operators for the publication of defamatory statements. The Law provides that, it is a defence for the operator to show that it was not the operator who posted the statement on the website.

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