ESTABLISHING A CASE OF LIBEL AND THE DEFENCE OF JUSTIFICATION & QUALIFIED PRIVILEGE

Libel is the publication of a defamatory matter in a permanent form or in a written form. The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit. In the case of UBN Ltd v. Oredien 1992 6 NWLR (PT 247) 355 CA Tobi JCA at pg. 371 paras C-D, held:

“An intangible but priceless asset and possession of any human being is the respect, reputation and esteem he has from others. In the sociological set up of any society, any human being is entitled to respect of his person and this is reciprocal. He is entitled to protect himself from being abused, insulted and disparaged with a view to lowering his reputation before right thinking men of society, either orally or in writing. He is entitled to his good name. Therefore, if any person makes a publication which is injurious to that good name, the victim of that publication is entitled to seek a redress on defamation in a court of law”

In any action for Libel, the Claimant must prove that the matter complained of: (i) is defamatory (ii) refers to him (iii) has been published to a third person. In the case of Sketch v. Ajagbomkeferi 1989 1 NWLR (PT 100) 678 SC Wali JSC 695 para C-D, it was held that there are three tests in determining whether a statement is defamatory which are as follows:

(i) A statement concerning any person which exposes him to hatred, ridicule or contempt, or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession, or trade.

(ii) A false statement about a man to his discredit.

(iii) Would the words tend to lower the Claimant in the estimation of right thinking members of society generally?  

In the case of Okechukwu v. UBA Plc & Anor (2017) LPELR-43100(CA), it was held:

“The law is well settled to the effect that in order to prove a libelous publication, and sustain an action for libel, the plaintiff must establish that:

(i) There was a publication of the offending article or letter;

(ii)  The publication was in writing;

(iii) The publication was with respect to the plaintiff;

(iv)  The publication was false and defamatory of the plaintiff;

(v) The publication was made by the defendant;

(vi) The publication was made to another person(s) apart from the plaintiff and

(vii) The defendant had no justification or lawful excuse for the publication against or about the plaintiff.”

In order to decide the meaning to be given to words in a publication, the law adopts as its measuring stick the understanding of the ordinary reasonable man i.e. what is the meaning that the words convey to the ordinary man. It has also been held by the courts that natural and ordinary meaning may also include any implication or inference which a reasonable reader guided not by any special but only general knowledge and not fettered by any strict legal rules of construction would draw from the words. Any publication that  lowers a person in the estimation of right thinking members of society generally, discredits him in his profession and is injurious and disparaging to his person is defamatory.

It is now settled law that it is defamatory to impute to a man in any office any corrupt, dishonest or fraudulent conduct or other misconduct or inefficiency in it, or any unfitness or want of ability to discharge his duties and this is so whether the office be public or private.

In the case of Citibank Nigeria Limited v. Ikediashio (2014) 7 CLRN the Court of Appeal held that where a banker dishonours a customer's cheque without justification, it is liable to the customer in damages for injury to his reputation. In addition, where a banker makes an endorsement on a cheque, which endorsement is libelous, the customer can claim for damages for libel.

Publication

To establish an action for libel,  there must have been publication of the words or the matter of which complaint is made. The wrong which the law recognizes and for which it gives redress is not the actual writing or speaking of the defamatory matter but the communication of it to third parties. Publication means the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written or by drawing the attention of some other person to it.  

Publication is also effected by any act by a person which convey the defamatory meaning of the matter to third parties. Any libelous communication to anyone other than the person actually defamed is in law capable of constituting publication. Indeed, it is not essential that there should have been any overt act at all; one who permits defamatory words to remain on premises under his control may thereby make himself liable.

In the text Gatley on Libel and Slander 8th Edition, Chapter 6 at Page 104 paragraph 227, the Learned Author stated that:

“It is not necessary for the Plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can be reasonably inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case”.

Where the words complained of are defamatory in their natural and ordinary meaning a defamed person need prove nothing more than their publication as there is a rebuttable presumption in his favour that the defamatory averments are false.

Plea of justification

A plea of justification is a defence raised by an author/publisher of a defamatory statement that the whole of the defamatory statement complained of, that is to say the averments themselves and any reasonable inference to be drawn from them are substantially true.

It is presumed in all actions for libel that the matter complained of is untrue, and that damage has been caused to the defamed person. This means that the entire burden of proving that the matter complained of is true or that it has not caused the complainant damage is generally on the authors/publishers of the defamatory statement. The question whether there was an intent  to defame the complainant is irrelevant, so far as the essential ingredients of an action for libel are present/established.

In order to succeed upon a plea of justification, the onus lies upon the author/publisher to prove that the whole of the defamatory matter complained of, that is to say the averments themselves and any reasonable inference to be drawn from them are substantially true. When a plea of justification is pleaded, it involves the justification of every injurious imputation which a reasonable person may find libelous. If any material part of the libelous publication is not proved/justified, the defamed person is entitled to damages in respect of such part, provided it would, by itself form a substantial ground of an action in libel.

The plea of justification must be broad enough to cover every injurious imputation contained in the libel and comments in so far as they contain statements or inferences of a defamatory character.

Where there is an allegation of crime, the proof required, in compliance with the Evidence Act is proof beyond reasonable doubt. In the case of ACB v. Apugo 1995 6 NWLR (PT 399) 65CA, Edozie JCA held at Page 86 paras C-E, that:

“it is settled law that to prove the plea of justification in an action for defamation, the defendant must prove that the defamatory imputation is true. The defendant must justify the precise imputation complained of. In other words, strict proof is required, a plea of justification means that the libel is true, not only in its allegation of fact but also in any comments made thereon.”.

Lord Denning MR stated in the case of Associated Leisure Ltd (Phonographic equipment co ltd) v. Associated Newspaper Ltd (1970) 2 QB 450 at 456, (1970) 2 ALL ER 754 at 757-8 CA, that “like fraud, counsel must not put a plea of justification on the record unless he has clear and sufficient evidence to support it. A defendant who pleads justification is required to deliver full particulars of the facts and matters upon which he relies in support of such a plea and the evidence at the trial in support of this plea will be strictly confined to those particulars. The particulars must be sufficiently detailed not merely to enable the claimant go to trial knowing the general lines of the case to be made against him, but to know the particular facts which the defendant alleges against him and which go to justify the imputation contained in the libel.”

Plea of qualified privilege

It is settled law that an occasion of qualified privilege is one in which the maker of a publication has an interest or duty, whether legal, social or moral, to make it to a person who has a corresponding interest or duty to receive it. It is the existence of such an interest or duty that destroys the inference that the maker of the publication was actuated by another, which the law usually makes in areas of defamation and allows for the occasion to be privileged, except there is evidence of actual or express malice.     

The defence of qualified privilege will not avail an author/publisher of a defamatory statement  where his actions were actuated by malice. In the case of Uko v. Mbaba 2001 4 NWLR (PT 704) 460 CA, the Court held:

“The appellant would have made a good defence based on qualified privilege since the publication of the defamatory matter to the A.I.G; Zone 6, Calabar, was made on a privileged occasion, but having been actuated by malice, as correctly found by the learned trial judge, the defence of qualified privilege cannot avail the appellant. The defence of qualified privilege must be made without malice as the presence of malice destroys the privilege. …furthermore, it is the law that the defence of qualified privilege where relied upon must be specifically pleaded before it can be entertained”. Ekpe JCA pg 477-478 paras G-B.

In the case of Nta v. Babatope 1996 4 NWLR (PT 440) 75 CA, Pats-Acholonu JCA at pg. 90-91 paras H-A, defined malice in law as “any corrupt motive, any wrong motive or any departure from truth, it does not mean merely spite but improper motive to do or assist in doing what one knows to be wrong or wicked.”

The duty to report a matter to appropriate authorities is not to be abused by making it an opportunity of indulging in some private spite, or for using the occasion for some indirect purpose or under the influence of some indirect motive. Any indirect motive other than a sense of duty is what the law calls malice.

The Plea/defence of qualified privilege is not an absolute defence and will not avail a defendant where the action of the defendant is actuated by malice. While it is trite that the Police; the EFCC and regulatory bodies have the responsibility and are empowered to receive complaints from the general public, it is not a license for any person to raise unfounded and malicious allegations against a person with reckless disregard for the truth.

In the case of Atoyebi v. Odudu [1990] 6 NWLR (PT 157) 384SC, where a plea of qualified privilege was raised in publishing a disclaimer, the Supreme Court held as follows:

“…..those who publish disclaimer should be conscious not to infringe on the rights of others. The disclaimer appears to me a reckless outburst of a disgruntled boss. There is ample justification for the learned trial judge’s finding: “I find no evidence to convince me that the plaintiff engaged in any activity which would amount to a misconduct let alone professional misconduct. There is no evidence whatsoever that the plaintiff has ever been queried by his employer or tried by any tribunal” pg. 400 Para B-C

In the case of Newbreed Org. Ltd v. Erhomosele 2006 5 NWLR (PT 974) 499 SC, the Supreme Court held:

“Even a positive belief in the truth of what is published on a privileged occasion-which is presumed unless the contrary is proved-may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by law. The commonest case is where the dominant motive which actuates the defendant is not the desire to perform the relevant duty or to protect the relevant interest, but to give vent to personal spite or ill-will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled”…. Pg. 541 paras D-H.

In the Supreme Court’s Judgment delivered in February 2016 in the case of  Mainstreet Bank Ltd 7 Anor v. Dominic Binna, the Supreme Court held:

“It is necessary to state briefly what an action for defamation and a defence of qualified privilege entails. This was explained quite lucidly by this court in the case of: Chief S.B. Bakare & Anon Vs Alhaji Ado Ibrahim (1973) 6 SC 147 @ 152 - 153 thus:

“In an action for defamation it is usual to allege in the statement of claim that the words were printed and published "falsely and maliciously” If the publication is shown to be false, malice is inferred by operation of law; it is enough to show that the words complained of, are completely false. … Where defamatory words are published without lawful excuse, the law conclusively presumes that the defendant is motivated by what is often described as malice in law; accordingly the plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published "maliciously" ... It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, ... the Inference of malice is rebutted, and the burden is thrown upon the plaintiff of showing and proving 'express malice' against the defendants. This is generally known as "malice in fact, "and to be able to discharge the onus at the trial it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred."- PER K. M. O KEKERE-EKUN, J.S.C

Award of Damages

In the case of Basorun v. Ogunlewe 2000 1 NWLR (PT 640) 221 CA, the court held that defamation, spoken or written, is always actionable and even if damages is not proved, the law will infer damage needed to establish the action in the following circumstances:

i)  When the words are written or printed

ii)  When the words spoken impute a crime punishable with imprisonment

iii) When they impute certain disease naturally excluding the patient from social intercourse

iv)  When words spoken of a person following a calling, end spoken of him in that calling, which impute to him unfitness for or misconduct in that calling. Pg. 236 para F-G.

It is now settled law that if a person’s reputation is under an undeserved cloud of rumour and suspicion, he is entitled to recover damage to the good reputation he deserves. An action for defamation is essentially an action to compensate a person for the harm done to his reputation. In all actions for libel it is presumed that the complainant has suffered harm and the actual sum to be awarded are said to be at large. Although a person’s reputation has no actual cash value the court is free to form its own estimate of the harm in the light of the circumstances. Where there is no plea of special damage, but the complainant alleges that the words are calculated to cause damage the court will not order the complainant to give particulars tending to show whether loss has in fact occurred.

Once a case of libel has been established, the victim is entitled to the general damages as compensation to vindicate his reputation, for the injury to his feelings and also aggravated damages where the author/publisher is unapologetic or remorseful and where his actions are  calculated out of malice or where he persists in a plea of justification that cannot be substantiated.

In the case of Ojukwu v. Nnoruka 2000 1 NWLR (PT 641) 348 CA, the court held that in a case of defamation, where the defendant sets up the defence of justification, but fails to prove or justify it such a course attracts aggravated damages.

Questions relating to proof of damages are totally irrelevant or alien to an action for libel. It is a well settled principle that every libel is of itself a wrong in regard to which the law imputes general damages thus if a complainant proves that a libel has been published of him without lawful justification, his cause of action is complete, and he needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed by law.

The court also takes into account the station in life of the defamed person and any damage which he may have suffered as a result of the publication of the defamatory matter. In the case of Uyo v. Nigerian National Press Ltd 1974 NSCC vol. 9 pg. 304, the Court held that whatever method of assessment of damage is employed, a great part of the exercise of assessment must be arbitrary but the entire exercise must at all stages have reference to the evidence in the case and the subject-matter of the action. Such an award must be adequate to repair the injury to the Claimant’s reputation which was damaged; the award must be such as would atone for the Claimant’s character and pride which were unjustifiably invaded, and it must reflect the reaction of the law. Coker JSC pg. 307 paras.20-25.  

In conclusion, a person is entitled to his reputation and good name and when it is unduly besmirched without good cause or justification, the person is entitled to payment of damages.

DISCLAIMER:

This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and the writer and/or the Law Firm of Argyle & Clover Attorneys at Law. Specialist legal advice should be sought about the readers’ specific circumstances when they arise.