N.B. This article is particular to Nigeria.

Defamation in Torts

Defamation is the lowering of a person in the estimation of right-thinking members of the society. In other words, defamation is an abuse on someone’s reputation by another person.

Historically, there were many defamation cases in Nigeria in the early 1960s, involving the press and different political personalities. This was because the post-independence era was characterised by vigorous political activities, combined with free press. Let us now dig deeper into what constitutes a defamatory statement.

A defamatory statement is one that tends to lower the plaintiff in the estimation of right-thinking members of the society; or to expose him to hatred, contempt or ridicule; Or to cause other persons to shun or avoid him; or to discredit him in his office, trade or profession; or to injure his financial credit.

This definition has been given judicial credence in a plethora of cases. These include the Court of appeal case of Enertech Eng. Co. Ltd v. Alpha praxis Nig. Ltd (2014). And Sun Publishing Ltd & Ors v. Dumba (2019) (CA).

See also: Nuisance in torts

In the Supreme Court case of Chilkied Security Services and Dog Farms Ltd v. Schlumberger Nigeria Ltd & anor (2018), Kekere-ekun J.S.C. remarked, “Defamation, as a tort, whether as libel or slander, has been judicially defined to consist of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit.”

General Public or Particular Section

Note that for an action on defamation to succeed, the statement made must be defamatory in respect to the public generally, and not just ‘a particular section of the public’. The lowering of the plaintiff in the estimation of a particular section of the public may not amount to defamation.

In Egbuna v. Amalgamated Press of Nigeria Ltd. [1967] 1 All N.L.R. 25 at p. 30., the term ‘a particular section of the public’ was defined as “a body of persons who subscribe to standards of conduct which are not those of society generally.”  

The foregoing is evident in the case of Byrne v. Dean [1937] 1 K.B. 818. In this case, the plaintiff belonged to the same golf club as the defendant. The plaintiff alleged that the defendant had defamed him by putting up a notice in the club. The notice was to the effect that the plaintiff had made a report to the police about certain illegal gaming machines kept on the club premises.

Simply, the court held that the defendant’s statement could not be defamatory. The standards of the members of the club were not those of the society generally. In fact, a reasonable man in the society would find the action of the defendant praiseworthy.

Also, the standard of determining a right-thinking member of the society is that of a normal reasonable man.  Not polluted by extra-conscientious or censorious characteristics. In other words, the court does not regard the ‘I-don’t-care’ people. Or those who may be so emotionally weak that they regard every simple negative statement as defamatory. See Winfield and Jolowicz on Tort (1975). See also the words of Per Adefarasin J., in Awolowo v. Kingsway Stores (Nig.) Ltd. (1968) 2 All N.L.R. 217 at p.230.

Types of Defamation

A defamatory statement can be of two types;

• Libel, or
• Slander

Libel is a defamatory statement in a permanent form. On the other hand, Slander is defamation on a temporary or transient form. Most common libels are written or printed words, which may be found in a book, newspaper, letter, etc. Slander is most often done through the medium of spoken words or gesture.

Distinction between Libel and Slander

Historically, libel and slander were separate torts. But today, they are treated as two aspects of a single tort called Defamation. Both are generally governed by the same principles. Two major differences between libel and slander are as follow:

1. As earlier mentioned, libel is defamation in a permanent (usually written) form. While Slander is defamation in temporary form, spoken or gesture
2. Libel is always actionable per se, while slander is not. This means that there is no need to prove actual damages in a libel action. Slander is not actionable per se, except in certain cases.

In Nthenda v. Alade (1974) 4 E.C.S.L.R. 470, the plaintiff brought an action that an article published by the defendants was defamatory to him. The defendants were the proprietor, the editor, and a reporter of the Lagos Weekend newspaper. They argued that the plaintiff’s action should fail because he had not proved that he has suffered any actual damage as a consequence of the publication.

However, Bello S.P.J. restated the position of the law, that in an action for libel, the plaintiff need not prove that he had suffered any actual damage as a consequence of the publication. Both malice and damaged are presumed from the publication itself, in the absence of lawful excuse.

Therefore, once a publication is found to the libelous, the law presumes damage.

See also: Fundamental Human Rights under 1999 Constitution

Situations when Slander can be actionable per se

A slanderous statement can be actionable without the need to prove damages (actionable per se) in the following circumstances.

1. Direct imputation of Crime. Like calling the plaintiff ‘a thief’ assertively.
2. Imputation of contagious or repulsive diseases. This would definitely make others shun or avoid the plaintiff. Such diseases may be contagious skin infirmities, leprosy, etc.
3. Imputation of unchastity or adultery. See section 1 of the Slander of Women Act 1891, Section 5 (1) of the Defamation Law of the eastern States, and Section 4 of the Defamation Law of the western States. In Kerr v. Kennedy [1962] 1 K.B. 409, ‘unchastity’ was held to include lesbianism.
4. Imputation affecting professional business reputation. Like saying that a lawyer knows no law, or that a banker is bankrupt.

What to Prove in an action for Defamation?

For an action in Defamation to succeed, the plaintiff must prove three important things:

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).

These points to be proven has been given judicial recognition in the Court of Appeal case of Wala v. FGN (2020). Also, that the words must be published has been restated in Dairo v. Union Bank & Anor (2007), in the Supreme Court.

Vulgar Abuse

It is worthy of notice that a statement is not defamatory if it is mere vulgar abuse. What does that mean? A vulgar abuse is an ‘insulting’ statement made in the heat of passion.

For example, in Bakare v. Ishola [1959] W.N.L.R. 106, there was a fight between the plaintiff and the defendant. In the heat of passion, the defendant said in the presence of onlookers, “ole ni o, Elewon, iwo ti o sese ti ewon de yi.” This in English meant, “You are a thief. Ex-convict. You who has just come out of prison.”

That court held that the statement was mere vulgar abuse, and not defamatory.

However, in a case of libel (written or printed defamation), the defendant cannot rely on vulgar abuse as a defense. See Benson v. West African Pilot Ltd. [1966] N.M.L.R. 3. In this case, the defendant published a defamatory statement in their newspaper, to the effect that the plaintiff was “an idiot and a simpleton”. The court rejected the contention that the report was mere vulgar abuse and not actionable.

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See also: Nigerian cases on Defamation

Credits:

• KODILINYE and ALUKO: The Nigerian Law of Torts pg. 136-145
• Lecturer’s note. Dr Alayinde. Faculty of Law. Obafemi Awolowo University, Ile-Ife.