Introduction
The law of defamation is concerned with the protection of a person’s reputation. In Nigeria, this area of tort law is primarily derived from the English common law, a legacy of its colonial history. However, it has been developed through a distinct body of Nigerian case law and statutes enacted by various State Houses of Assembly. The tort seeks to strike a balance between the individual's right to their good name and the constitutional right to freedom of expression, which is guaranteed under section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Defamation can be divided into two forms: libel and slander. Libel refers to defamatory statements in a permanent form, while slander refers to those in a transient form. This assignment will explain the general principles of defamation under Nigerian law, distinguish between libel and slander, outline the essential elements a claimant must prove to succeed in an action, and finally, discuss the principal defences available to a defendant.
The Nature of Defamation in Nigerian Law
A defamatory statement is one which injures the reputation of another by exposing them to hatred, contempt, or ridicule, or which tends to lower the person in the estimation of right-thinking members of society generally (Akomolafe, 2011). The Nigerian Supreme Court in Sketch Publishing Co. Ltd v Ajagbemokeferi [1989] 1 NWLR (Pt. 100) 678 adopted the classic test of whether a statement would cause a person to be ‘shunned or avoided’ or looked on with a feeling of hatred or ridicule. The primary focus is not on the injury to a person's feelings, but on the damage to their public reputation.
To determine if a statement is defamatory, the Nigerian courts apply an objective test: what meaning would a reasonable, ordinary person attribute to the statement? In Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR (Pt. 1256) 574, the court emphasised that it is the natural and ordinary meaning of the words that is considered, unless the claimant pleads an innuendo. An innuendo arises where the words, though appearing innocent on the surface, carry a defamatory meaning to a specific group of people who have knowledge of special facts.
Distinguishing Libel and Slander
The primary distinction between libel and slander lies in the medium through which the defamatory statement is conveyed.
Libel is the publication of a defamatory statement in a permanent or written form. This includes writing, printing, newspaper articles, photographs, and even films or broadcasts on television and radio. Under Nigerian law, libel is actionable per se, meaning the claimant does not need to prove that they have suffered any actual, quantifiable financial loss. The law presumes that the publication of a defamatory statement in a permanent form will cause damage to the claimant's reputation.
Slander, by contrast, is a defamatory statement made in a transient or temporary form, typically through spoken words or gestures. Unlike libel, slander is generally not actionable per se. To succeed in an action for slander, a claimant must prove 'special damage', which means they must show evidence of a specific financial loss or other damage of a material nature that was a direct result of the slanderous statement.
However, there are four exceptions where slander is actionable per se, meaning no proof of special damage is required. These categories, inherited from the common law, are well established in Nigeria:
- Imputation of a Crime: Alleging that the claimant has committed a criminal offence punishable by imprisonment. In Bakare v Ishola [1959] WNLR 106, a statement that the claimant was a thief was held to be actionable per se.
- Imputation of Certain Diseases: Stating that the claimant is suffering from a contagious or repulsive disease, which would cause them to be shunned by society.
- Imputation of Unchastity to a Female: Making a statement that suggests a woman or girl is unchaste or has committed adultery. This is often codified in state-level defamation laws.
- Imputation of Unfitness in Profession or Business: Making a statement that disparages the claimant in their office, profession, trade, or business. The statement must be a direct attack on their competence or integrity in that professional context.
The Essential Elements of Defamation
For a claimant to succeed in a defamation action in Nigeria, they must prove three essential elements on the balance of probabilities.
1. The Statement was Defamatory
As discussed, the claimant must first establish that the words complained of were defamatory. The statement must be one that would tend to lower the claimant’s reputation in the eyes of ordinary, just, and reasonable people in society (Guardian Newspapers Ltd v Ajeh). The intention of the publisher is generally irrelevant; the important factor is the effect the statement has on those who read or hear it.
2. The Statement Referred to the Claimant
The claimant must prove that the defamatory statement referred to them. It is not necessary for the claimant to be mentioned by name. The test is whether an ordinary reader or listener with knowledge of the special circumstances would reasonably understand the statement as referring to the claimant (Dalumo v The Sketch Publishing Co. Ltd [1972] 1 All NLR (Pt 1) 130). This applies even if the defendant did not intend to refer to the claimant.
3. The Statement was Published
Publication means the communication of the defamatory matter to at least one third party, that is, a person other than the claimant. Without publication, there can be no injury to reputation. Communicating a defamatory statement only to the claimant themselves is not sufficient. In Okotcha v Olumese [2000] FWLR (Pt. 22) 1152, the court held that sending a defamatory letter directly to the claimant, without it being seen by a third party, did not constitute publication. However, if it is reasonably foreseeable that a third party will see the statement (for example, sending a defamatory email to a work address that an assistant might open), this may amount to publication. It is a long-standing rule that communication between spouses does not amount to publication in law.
Defences to Defamation
A defendant in a defamation case may rely on several defences to escape liability. The main defences under Nigerian law include justification, fair comment, and privilege.
1. Justification (or Truth)
The defence of justification provides a complete answer to a defamation claim. If the defendant can prove that the statement they published was substantially true, the action will fail. The burden of proof is on the defendant to establish the truth of the 'sting' of the defamatory allegation (Ishaku v A.A. Chanchangi Airlines Ltd (2009) All FWLR (Pt. 493) 1319). It is not necessary to prove the truth of every single detail, as long as the core of the statement is proven to be true.
2. Fair Comment
This defence protects honest expressions of opinion on matters of public interest. To succeed, the defendant must show that:
- The statement was a comment or opinion, not an assertion of fact.
- The comment was based on true facts that were in existence when the comment was made.
- The comment was honestly made.
- The matter commented upon was one of public interest (e.g., the conduct of politicians, public institutions, or works of art).
This defence will be defeated if the claimant can prove that the defendant acted with malice, meaning the comment was made dishonestly or for an improper purpose (Sketch Publishing Co Ltd v Ajagbemokeferi).
3. Privilege
Privilege provides immunity from a defamation action in certain circumstances. It is divided into two types: absolute and qualified.
- Absolute Privilege: This provides a complete defence, and the motive of the defendant is irrelevant. It applies to statements made in specific situations where public policy demands complete freedom of speech. These include statements made during judicial proceedings, in the course of parliamentary debates within the National Assembly or a State House of Assembly, and communications between high-ranking government officials in the course of their duties.
- Qualified Privilege: This defence applies where the person making the statement has a legal, social, or moral duty or interest to make it, and the person to whom it is made has a corresponding duty or interest to receive it. Examples include job references or reports of suspected wrongdoing to the proper authorities. This defence is 'qualified' because it is lost if the claimant can prove that the defendant was motivated by malice (Iloabachie v Iloabachie [2005] 13 NWLR (Pt. 943) 695).
Conclusion
In summary, the Nigerian law of defamation, comprising libel and slander, serves as a vital tool for protecting personal and professional reputations against unwarranted attacks. Grounded in English common law principles, it has been shaped by local statutes and a rich body of judicial precedent from Nigerian courts. To establish a claim, a claimant must prove that a defamatory statement was made, that it referred to them, and that it was published to a third party. In turn, a defendant can rely on established defences such as justification, fair comment, or privilege. The law continues to perform the important function of balancing the fundamental right to freedom of speech with the equally important right of an individual to their good name.
References
Akomolafe, K. (2011) Law of Torts in Nigeria. 3rd edn. Princeton & Associates Publishing Co. Ltd.
Bakare v Ishola [1959] WNLR 106.
Constitution of the Federal Republic of Nigeria 1999 (as amended).
Dalumo v The Sketch Publishing Co. Ltd [1972] 1 All NLR (Pt 1) 130.
Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR (Pt. 1256) 574.
Iloabachie v Iloabachie [2005] 13 NWLR (Pt. 943) 695.
Ishaku v A.A. Chanchangi Airlines Ltd (2009) All FWLR (Pt. 493) 1319.
Okotcha v Olumese [2000] FWLR (Pt. 22) 1152.
Sketch Publishing Co. Ltd v Ajagbemokeferi [1989] 1 NWLR (Pt. 100) 678.
