LAW

OF
TORT MRS MOMODU

Cases in RED and BOLD format

Sub-Headers in BOLD format
Case summary in italic format
Words Meaning in italic format
 DEFAMATION
Defamation was defined in CILOMA v ALI (1999) 2 NWLR pt 590 pg 317 as
any imputation which tends to lower the plaintiff in the estimation of right thinking
members of the society generally and expose him to hatred, contempt and ridicule.

An imputation may be defamatory whether or not it is believed by those to whom it

is published. In cases of libel and slander which is actionable per se, the
publication of the matter containing defamatory imputation is actionable without
proof of damage. The law will presume that damage flows from such publications.

The basis for this tort is that a person has a right to the protection of his good
name, reputation and the estimation in which he stands in the society. Therefore,
anybody who publishes anything injuring the good name, reputation or estimation,
commits the tort of libel if it is written or slander if oral. see COMPLETE
COMMUNICATIONS LTD v ONOH (1998) 5 NWLR (PT. 549) 197 @ 221.
From the above definition given, a defamatory statement is defined as one
which tends to:

a. To lower the plaintiff in the estimation of right thinking member of

the society
b. To expose him to hatred, contempt and ridicule
c. To cause other people to shun or avoid him
d. To convey an imputation that disparage (regard or represent as being
of little worth.) him in his office, profession, calling, trade or business
or
e. to injure his financial credit

The law of defamation is made up of the torts of libel and slander which both deal
with the protection of the plaintiff's interest in his reputation
Libel is usually in a permanent form e.g. written or printed words. Slander is
usually in a transitory (not permanent) form.
Libel is addressed to the sight while slander is addressed to the ears and is
usually oral or spoken.
Libel is usually actionable per se i.e. the plaintiff does not need to prove
special damage.
In slander, he needs to prove special damage except in some special cases e.g.
 ▪ Where the defendant imputes a criminal offence to the plaintiff
▪ Where the slander imputes that the plaintiff suffer from a contagious disease
such as leprosy, gonorrhea, syphilis, HIV (AIDS), cancer e.t.c.
▪ Imputation of immorality e.g. adultery. This includes lesbianism. SEE KER
R v KENNEDY (1942) 1 K.B 409
▪ Imputation as to fitness of a man for his profession or calling.

The words must be defamatory: i.e. to say it must contain all the elements listed
earlier on in A-E In OYETUNDE SHOBAYO v DAILY TIMES (1977) 14
OYO STAT HIGH COURT REPORTS pt 1, pg 19 there was a publication on a
newspaper of an article captioned "LAWYER SUED FOR NEGLIGENCE". This
was held to be defamation matter because the word "negligence" implies
professional negligence or incompetence and therefore libelous of a lawyer by way
of his profession. See also AWOLOWO v KINGSWAY STORES NIG LTD
(1968) 2 ANLR 217 and BRYNE v DEAN (1937) 1 KB 818.

A particular section of the community was defined in EGBUNA v

AMALGAMATED PRESS OF NIGERIA (1967) 1 ALL N.L.R 25 by the
supreme court as a body of persons who subscribe to standards of conduct which
are those of society generally.

Note:
Any spoken words which fall within one or more of the five definitions given
earlier on maybe defamatory. few examples are given as follows:

A. To state that a lawyer obtained a fake degree and defrauded his clients.
(what about charge and bail lawyers?)
B. To state that a university lecturer committed "adultery" with a female
student.
C. To state that the plaintiff had "stolen" the defendant's bag of beans
D. To state that a female teacher was a "wayward and loose" woman (words
like ashawo, prostitute) SEE COMPLETE COMMUNICATIONS LTD v
ONOH (SUPRA)
 ASSESMENT OF DAMAGES IN LIBEL

The object of awarding damages in a libel action is to compensate the plaintiff for
any loss or injury he has suffered. The trial court can take into consideration the
following factors

A. The station in life of the plaintiff which includes his position and status and
in particular, the geographical spread of his influence.
B. The extent and level of damages done to the plaintiff by the libelous
publication
C. The nature of the libel, the mode and spread of the publication.
D. The totality of the conduct of the defendant. i.e. any apologetic or remorseful
conduct of the defendant, his desire to make amends and possibly to settle
out of court, or a retraction of apology. This will mitigate the award of
damages.

1. Publication in an action founded in defamation is making the alleged defamatory

material known after it has been written to some other persons than the person of
whom it is written. In an action for libel or slander, it must be established that the
alleged defamatory material was published.

2. The purpose of awarding damages in a libel case to a successful plaintiff is to

vindicate his good character or reputation.

3. On whether it is necessary to prove damages in action for libel, it was held that
every libel is of itself a wrong in regard to which general damages are imputed. it
follows that damages need not be proved in an action for libel. Thus if a plaintiff
proves that a libel has been published of him without justification, his cause of
action is complete and he does not need to prove that he suffered any resulting
actual damage or injury to his reputation for such damages is presumed by law.

INNUENDO BY DEFAMATION

Innuendo arises in pleading of libel action where the meaning of the words alleged
to the libelous is of doubtful or ambiguous import. Where the meaning of the
words is précised or clear, a plea of innuendo is mostly unnecessary. The court will
make use of the meaning of the word in determining whether there exist a cause of
action in libel. SEE COMPLETE COMMUNICATIONS LTD V BIANCA
ONOH (SUPRA) (A weekly publication stating Bianca's revealing pictures. The
court looked at the natural and ordinary meaning of the words in determining
whether there is the cause of action. emerging naked, nude, or draped and may be
regarded as a mad person)

There are two types of innuendo namely

1. True or Legal Innuendo

2. False or Popular Innuendo

True or legal innuendo is the type of innuendo where the plaintiff contends that
although the words used are not defamatory, on their face, they convey a
defamatory meaning to persons to whom they were published because of certain
special facts or circumstances not set out in the words themselves but known to
those persons. SEE AKINTOLA v ANYIM (19610 1 ALL N.L.R 506

False or popular innuendo is what we have where the plaintiff contends that the
words are defamatory, not because of any special fact known to those whom the
words were published but because of some defamatory influence which reasonable
persons would draw from the words themselves. SEE TOLLEY v. FRY (1930)
KB 467. Here, the plaintiff relied on the natural and ordinary meaning of the
words.

DEFENCE TO ACTION IN DEFAMATION

JUSTIFICATION

The plea of justification is a complete defense to an action for libel and slander that
the defamatory imputation is true. The truth of the imputation is an answer to the
action because it takes malice. The defense of justification even when not
specifically pleaded can be inferred from the totality of evidence at the trial. In the
case of INUSHUKWA V. ONOBO (1974) CCHCY 1919, the defendant made a
statement that the plaintiff was a lunatic and a proper subject of confinement. It
was held that since the psychiatrist said that the plaintiff was very irritable and a
fighting mood, that was sufficient justification for the defendant's statement. Even
if this was activated by malice, it is justified because it is true and malice becomes
irrelevant.

FAIR COMMENT

Refers to criticism on matters of public interest, such as criticism of government

and public functionaries, works of arts, plays, books e.t.c. Today, the press enjoys
greater freedom than in the past.
Fair comment is one of the essential elements of freedom of speech. To
sustain the defense of fair comment, the whole facts must be correctly and fairly
stated on the premises upon which the comment is based must be whole truth.
The matter commented upon must be of public interest and is left for the
court to decide the criticism of government, persons in public offices, including
religious leaders and works of art (play) are done in the public interest and are
therefore subject to fair comment. SEE SKETCH PUBLICATIONS V. ALHAJI
AJAGBEMOKEFERI (1989) 1 NWLR, PT 10. 678.

PRIVILEGE

Under this defense, we have absolute and qualified privilege.

a. Absolute Privilege: Public policy demands that persons should speak and
write with absolute freedom without fear or liability for defamation. This is a
complete defense to an action for libel or slander however false or
defamatory the statement maybe and however maliciously it may have been
made. Examples include the following
i) Statements made in course of and reference to judicial proceedings by
any judge, juryman, advocate, party or witness.
ii) Statement made in proceeding of the legislature.
iii) Communication made by one officer of state to another in the course of
his official duty.
iv) Communication between husband and wife. SEE MINTER V. PRIEST
[1930] A.C 558.
b) Qualified Privilege: The defense is founded on the principle that the public
convenience is to be preferred to private interests and that communication
which the interest of society require to be unfettered may freely be made by
 persons in actual honesty without actual malice notwithstanding that they
involve relevant comments condemnatory of individuals.

OTHER DEFENCES

VOLENTI NON FIT INJURIA

It is the law that for the defense to apply as a defense to libel suit, it must be
proved that the plaintiff expressly or impliedly asserted in the defamatory
publication.

APOLOGY

This defense may mitigate damages and in some cases, aggravate them. Apology it
requires a complete withdrawal of the imputation and expression of regret for
having been made.
Where an action for defamation is settled, the parties may apply to make a
statement in open court.