MOOT, MOCK AND DEBATE SOCIETY FRIDAY SPECIAL: LAW OF TORTS: A CRITICAL EXAMINATION OF DEFAMATION IN NIGERIA

By Will Simon

University of Jos

Recently, the media was abuzz with the issue between musician Falzthebadguy (Folarin Falana) and Martins Vincent Otse (VDM). Although the legal proceedings stemming from that controversy and that of the Erisco company have largely subsided, the underlying issue remains a pressing concern: The Tort of Defamation. But first, what is a tort?

A tort is a harmful act or omission that causes injury or loss to another party. While there are several kinds of torts including nuisance and negligence, the one we are principally concerned with is the Tort of Defamation.

In the case of Chilkied Security Services and Dog Farms Ltd v. Schlumberger Nigeria Ltd & Anor (2018) LCN/4623(SC), the Hon. Justice of the Supreme Court, Kekere-ekun, remarked

that, “Tort, whether as libel or slander, has been judiciously defined to consist of the publication to a third person or person of any words or matter which tend to lower the person the famed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred… or to injure his reputation… ”

In Nigeria, in order for a defamation lawsuit to proceed however, the comment must be defamatory to the general public, not simply a ‘particular’ portion of the public. The court, in Egbuna v. Amalgamated Press of Nigeria Ltd (1967) 1. All N.L.R 25 at P. 30, defined ‘a particular portion of the public’, as “a body of persons who subscribe to standards of conduct which are not those of society generally.”

Defamatory Laws in Nigeria

Defamation in Nigeria is principally covered under the Federal Defamation Act of 1961. There are other laws including section 391 to 395 of the Penal Code Law and Section 373 of the Nigerian Criminal Code Act.

Another relevant law is the recent Cybercrime (prohibition, prevention) Act 2015, which covers online defamation, providing that “any person who knowingly sent a message or other by means of computer systems or that he knows to be false… commits an offense under this Act.” Also, Section 29 (3)(a) of the Legal Reform (Torts) Law, Ch. L82 Laws of Lagos State 2015 places defamation under the right of privacy, providing that “Anyone who publishes a matter concerning the private life of another is liable for invasion of privacy if the matter publicized…would be highly offensive to a reasonable person.”

Types of defamation

Defamation is generally divided into two:

1. Libel: This is a written and permanent false statement published in the form of a blog post, email, television/radio broadcast, WhatsApp message, video clip and even an image. It is the most popular type of defamation and is actionable per se. The Falz and VDM case, which involved a video posted on Twitter, falls under this.

2. Slander: This involves a non-permanent form of a defamatory statement made in public or private that is later reported. It is not actionable per se and may be harder to prove.

When is a statement a crime? The Test For Defamation

The three tests for a defamatory statement were established in the case of Sketch v. Ajagbomkeferi (1989) 1. N.W.L.R (Pt. 100) 678 SC. They are:

1. It must be a statement concerning any person which exposes him to hatred, ridicule or contempt for which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade.

2. It must be a false statement. (The Supreme Court, in the recent case of Abalaka v. Akinsete (2023) 13 N.W.L.R 343 moved away from the traditional presumption of falsity, and explicitly placed the burden on the claimant to establish that the statement was not only defamatory, but also false.)

3. Would the words tend to lower the Claimant in the estimation of right thinking membersof society generally?

What doesn't constitute defamation?

1. Vulgar abuse is not defamation it is merely an insulting statement made in the heat of passion. Thus, it may cost you a few friends but you cannot sue. Bakare v. Ishola (1959)

W.N.L.R. 106

2. Merely writing a false statement does not amount to defamation, only publication of the false statement to a third party or persons can be termed as defamation. Pullman v W. Hill & Co Ltd [1891] 1 QB 524

Defenses

There are certain situations that may be used in a defense case against a defamation charge. They include:

1. If the wrongdoer (alleged) is not the publisher.

2. If the statement does not refer to the alleged victim.

3. If in its ordinary meaning the statement is not defamatory.

4. If the statement was true.

5. If it was fair comments on a matter of public interest.

6. If it was made in the heat of an argument.

7. If it was made under a situation of absolute or qualified privilege in favor of the alleged wrongdoer (litigation proceedings or parliamentary proceedings). See the cases of Bekee & Ors v. Bekee (2012) LPELR-21270CA; Onwurah & Ors v. Onwumeh & Anor

(2016) LPELR-40304(CA); and Anya v. A.N.N. Ltd (1992) N.W.L.R (Pt. 247) 319 SC

Awards For Damages

In the case of Daily Times v. Emezuom (1996) 2 N.W.L.R (Pt. 132) 340 at 355, the court, per

Olatawura J. C. A, held that,

“The damages should be based on the evidence from the witnesses, his position (Claimant’s) within the community, his feelings and the effect of the publication since the publication of the defamatory article and the conduct of the defendants.”

Under section 392 of the Penal Code Law, any person who defames another shall be punished with a prison term of up to 2 years, a fine or both. For publishers of the defamatory matter, a term of up to 10 years, a fine or both. For sale of the defamatory material, a term of up to five years, a fine or both.

Under section 375 of the Criminal Code Act, any person publishing a defamatory matter is guilty of a misdemeanor and is liable to be imprisoned for one year. And anybody publishing a defamatory matter, knowingly, is liable to imprisonment for 2 years.

Conclusion

Section 37 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides for the Freedom of Expression of every citizen in Nigeria, hence the Tort of Defamation can be seen as a limitation to that freedom.

Going back to the Falz and VDM case, it is clear that his video was a clear case of libelous defamation, as held by the court who has since ordered him to withdraw all defamatory materials published by him.

Yes. Right to expression is a fundamental right, however rights remain valid only as long as they do not infringe on the rights of others. So before you share that juicy gossip or spread that shocking rumor. Pause. Think of the consequences.