DEFAMATION

Defamation was the most litigated tort in the early 1960s involving most of the leading political
personalities of the time and the press. In other words, although not exclusively concerned with
the activities of the media, the majority of defamation actions do concern statements made by
the press. The role of the law of defamation is to ensure that freedom of speech does not
outweigh the interests of individual i.e. there is the need to strike a balance between the right to
freedom of expression and protection of reputation of the individual.

Defamation has to do with injury to reputation as a result of words written or spoken by

others.

What is Defamatory Statement?

A defamatory statement is one which tends to lower the plaintiff in the estimation of right-
thinking members of society generally; or to expose him to hatred, contempt or ridicle; 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. Ofoegbu v. Onwuka (2008) All FWLR (Part 412) 1141 @ 1161;
Esenowo v. Ukong (1999) 6 NWLR (Pt. 608) 611. Some Examples of statements held to be
defamatory:- a statement that a medical practitioner had a “fake” degree and that he exploited
the public African Press Ltd v. Ikejiani (1953) 14 WACA 386; or that a university lecturer had
committed adultery with a female student; see Nthenda v. Alade (1974) ESCLR 109; or that a
legal practitioner had defrauded his clients Lardner v. The Sketch Publishing Co. Ltd (1979) 3
[Link].N 276.

Note that if the statement complained of only tends to lower the plaintiff’s reputation in the
minds of “a particular section of the public”, this will not amount to defamation. See Egbuna v.
Amalgamated Press of Nigeria Ltd (1967) 1 All NLR 25 @ 29.

In Byrne v. Dean (1937) 1 KB 818, the plaintiff who belonged to the same golf club with the
Defendant alleged that the latter had defamed him by putting up a notice in the club to the
effect that he (plaintiff) had made a report to the police that certain illegal gaming machines
were kept on the premises of the club. It was held that this statement could not be defamatory.

Note further that the term “a particular section of the community” was defined as “a body of
persons who subscribe to standards of conduct which are not those of society generally”. See
Egbuna v. Amalgamated Press of Nigeria Ltd (Supra). In this context, this will not include the
colleagues or business associates of a professional person unless their standards of conduct or
morality are different from those of right-thinking persons generally.

Types of Defamation
Defamation consists of the torts of libel and slander which used to be separate torts historically.
Today they are treated as two aspects of the single tort of defamation. Libel is a defamation in a
permanent form. While slander is defamation in a transient/temporary form. It is often through
the medium of spoken words or gestures. There is some doubt as to whether defamatory words
recorded on disc, tape or CD are libel or slander. Street considered that libel required a visual
communication whereas dalmond thinks any permanent recording would be libel.
 Distinction between Libel and Slander
They are generally governed by the same principles. Yet they differ.

(a) Libel is a defamatory statement in some permanent form while Slander is a defamatory
statement in purely transitory form. Daura v. Danhauwa (2011) All FWLR (Pt 558) 991;
Indepenent Newspaper Ltd v. Idiong (2012) All FWLR (Pt 647) 677

In Daura v. Danhauwa, Okoro JCA (as he then was) had held as follows:

“A defamatory statement may be libel or slander. It is libel if it is

published in a permanent form i.e. in writing, print, photograph,
carving, statue or carton. Slander on the other hand is defamatory
statement which is published in a transient form, i.e. by words spoken or
gestures. Libel is always actionable without the need to prove actual
damage, i.e. that is actionable per se, whereas slander, except in certain
cases, it is only actionable on proof of particular damage, i.e. it is not
actionable per se….”

(b) Libel is always actionable per se (without proof of special damage which is calculable as a
specific sum of money), (slander is not) in Nthenda v. Alade (Supra) Bello, S.P.J. rejecting
the defendant’s argument that the plaintiff had failed to prove that he had suffered
damage and as such his action has to fail has this to say.

“In an action for libel, the plaintiff need not prove malice in law and
needs not prove that he has suffered any actual damage as the result of
the publication. Both malice and damage are presumed from the
publication itself, in the absence of lawful excuse.”

See also Chief Rotimi Williams and Others v. The West African Pilot (1961) 1 All N.L.R 866.

In other words, to succeed in an action for slander, damage must be proved except in the
following instances:

1. Where there is an imputation of crime.

Any allegation that the plaintiff has committed an offence punishable by
imprisonment is slander actionable per se. In Agoaka v. Ejiofor (1972) E CSLR 109 the
defendant falsely accused the plaintiff of being a thief. It was clear from the evidence that
the plaintiff did not suffer actual damage. The court held that he was entitled to recover
general damages for slander.

Note that (before) imputation of crime can amount to slander actionable per se (i.e.
without proving damage) only in the following situations:

i. there must be a direct assertion of guilty. e.g. “Ade is a thief” – actionable per se
“Ade is suspected to have stolen” – not actionable per se

ii. the words used must be looked at in the context in which they were spoken.
“Ade is a thief” – actionable per se. [But if followed by “(Ade is a thief)… he has sold to
me a cloth not worth half of the money he collected from me” (not actionable per se).
 If the 2 words/expression were taken together they do not impute any criminal
offence.
Also vulgar abuse – not actionable defamation.

iii. The crime alleged must be punishable corporally (death, imprisonment or caning) i.e.
it must carry a sentence of imprisonment at first instance rather than one which
merely attracts a possible prison sentence or a fine.

In Farashi v. Yakubu (1970) N.N.L.R 17, the plaintiff claimed damages for slander in
respect of words uttered by the defendant imputing that the plaintiff had committed
adultery with the defendant’s sister-in-law. Actual damage was not proved. The learned
judge found that under s. 387 of the Penal Code, adultery by a man was punishable by
imprisonment but the section further provided that the man concerned must be subject to
a native law and custom in which extra-marital intercourse was recognised as a crime.
Evidence was adduced which showed that under the local law and custom to which the
plaintiff was subject, adultery was not a crime, since it was not punishable by caning
unless the adulterer failed to pay compensation to the woman’s husband. The court held
that the position was similar to imprisonment in default of paying a fine and that the
slander was accordingly not actionable without proof of actual damage.

2. Where there is an imputation of socially undesirable diseases e.g. contagious diseases:-

(TB), small pox, leprosy, or repulsive diseases:- AIDS. These would tend to cause other
persons to shun or avoid him.

3. Where there is an imputation of unchastity or adultery.

Section 1 of the Slander of Women Act 1891 has made such an imputation concerning any
woman or girl actionable per se. Unchastity has been held to include lesbianism KERR v.
KENNEDY (1942) 1 K. B. 409.

4. Where there is an imputation affecting professional or business reputation.

Where there is an imputation that the plaintiff is unfit to carry on his trade,
profession or calling. The statement must disparage the plaintiff in the way in which he or
she exercises his profession. E.g. that a surgeon is incompetent, that a lawyer knows no
law, that a trader is bankrupt. See Hopwood v. Muirson (1945) KB 313, where it was held
that an allegation that a headmaster had committed adultery was not actionable per se but
it would have been had the alleged adultery been committed with a pupil or a teacher at
his school.

Note that at common law, imputation affecting professional or business reputation

will not be actionable slander per se unless it amounts to disparagement in the way in
which the plaintiff exercises his profession see Jones v. Jones (1916) 2 A. C. 481 @ 500
while the court held that saying that a schoolmaster had committed adultery with a
married woman employed as a cleaner the school was not actionable per se because
although the statement imputed moral misconduct to the plaintiff and would certainly be
 injurious to him in his profession, it did not allege misconduct in the course of his duties
as a schoolmaster.

Note further that this CL rule is still in force in the northern states of Nigeria. See
Onojioghofia v. Okitipai (1974) 4 ECSLR 465 whereas the CL rule has been altered in the
Western, Eastern and Lagos States by statutory provisions modeled on section 2 of the
English Defamation Act 1952 which provides:-

“In an action for slander in respect of words calculated to disparage the

plaintiff in any office, profession, calling trade or business held or
carried on by him at the time of publication, it shall not be necessary to
allege or prove special damage, whether or not the words are spoken of
the plaintiff in the way of his office, profession, calling, trade or
business.”

It should also be noted that where slander is not actionable per se (i.e. apart from the
above 4-situations) the plaintiff must prove that he has suffered some special damage
(actual damage) and not mere loss of reputation to be able to recover damages.

Vulgar Abuse
Note that words of heat and anger are not actionable in slander. Whether particular words
constitute slander or mere vulgar abuse depends on the circumstances in which the words are
spoken. Cf. the following cases:-
Bakare v. Ishola (1959) WNLR 106

There was an altercation/dispute which led to a fight between the two parties. In the heat of
anger the defendant had in the presence of onlookers spoken of the plaintiff in Yoruba – “Ole ni
o. Elewon, iwo ti o sese ti ewon de yi” Literally translated to English it means “You are a thief. Ex-
convict, you who have just come out of prison”. The court held that these were vulgar abuse.
Jibowu C. J had this to say:

“It is a matter of common knowledge, of which this court takes judicial

notice, that people common only abuse each other as a prelude to a
fight and call each other ‘Ole! Elewon! (Thief! Ex-convict!) which abuse
no-one takes seriously as they are words of heat and anger.” – p. 107
Ibeanu v. Uba (1972) 2 ECSLR 194.

The plaintiff saw the defendant passing and called him to sympathise with him as he had heard
that the defendant had been visited by thieves who stole his property. The defendant retorted
him in Igbo language in the presence of witnesses as follows “Josiah, Josiah, ongi kpo ndi ori bia
zulu ewum, bia malu uma najum” meaning in English “Josiah, Josiah, you brought the thieves
with whom you stole my goat and you have now come to ask me”. The court held that these
were not mere vulgar abuse but constituted actionable slander.

Note that the onus is on the defendant to satisfy the court that:
i. the words were words of heat and anger; and
ii. that the people who were present understood them to be so.
Note also that the defence of vulgar abuse will not avail the defendant in a case of libel. (if the
defamatory words are written or printed. See Benson v. West African Pilot Ltd (1966) NMLR 3.

Remoteness of Damage in Defamation

Generally libels or the damage eomplained of must not be too remote. If A slanders B leading to
wrongful dismissal of B by C, will A be liable to compensate B for the dismissal? The answer is
NO! because the dismissal being wrongful is too remote a consequence of the slander. Note that
the modern view is that A will be liable if dismissal of B was the natural and probable result of
the slander (it does not matter whether it is wrongful or not).
Cf: If A slanders B to C who repeats to slander to D and D now dismisses B, A will not be liable to
compensate B for his dismissal except
(a) if he authorised the repetition; or
(b) C had a legal or moral duty to repeat it; or
(c) A should have foreseen that his slander would be repeated.

Note that same rules of remoteness apply to cases of libel.

What the Plaintiff must prove

In an action for defamation, the plaintiff must prove the following:

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).

1. Words must be defamatory

The definition of defamatory statement has been considered. In Nigeria juries are not
used, therefore it is the Judge that will decide if the words were capable of being
defamatory in the eyes of a reasonable man and whether the words were defamatory. See
Okolo v. Midwest Newspaper Coorporation (1974) 2 CCHCJ 203 @ 205; Akurefe v. The
Sketch Pbulsh Co. Ltd (1971) IV. I.L.R. 13 @ 15.

The Judge does this by establishing the standard of “right thinking members of the society
and the words construed in their fair and natural meaning that a reasonable person of
ordinary intelligence would give them. Where the words complained of are clearly
defamatory e.g. “Olu is a thief”, this is a simple task. But the task becomes considerably
difficulty where the words complained of are capable of either a defamatory or an
innocent meaning (the difficult task is the court must decide which of these two meanings
did they convey to those to whom they were published). See Eyo v. Eastern Nigeria
Information Service (1963) 7 ENLR 144.

Innuendo – an indirect remark about sb/sth usually suggestions bad or rude

In the law of defamation, Innuendoes are of 2 types.
(a) True (or legal) Innuendo:- These are words not defamatory on their face but have a
defamatory meaning that could be understood by people who knew the plaintiff from the
words. E.g. “our pastor is a regular visitor to No. 15, Aderemi Road, Ile-Ife” is innocent on
its face but may be defamatory if it was published to persons who knew the special fact
 that No. 15 Aderemi is a brothel because ten, the statement would carry the innuendo that
our pastor is promiscuous against his calling. See Akintola v. Anyiam (1961) 1 All NLR 508
Cf Johnson v. Daily Times of Nigeria Ltd (1966) LLR 110

Note that details of all such meanings should be explained in the pleadings and the
plaintiff must establish that the words might be reasonably understood in a defamatory
sense by persons who have knowledge of special facts, otherwise, his plea of innuendo
must fail.

(b) False (or popular) innuendo:- These are words that are defamatory because of defamatory
inference which reasonable persons generally would draw from them. E.g. a wrong refusal
by bank to honour a cheque drawn by a customer and marked same “Return to Drawer” or
“R/D” such a statement is defamatory Ashubiojo v. African Continental Bank Ltd (1966)
LLR 156; Adeleke v. National Bank of Nigeria Ltd (1978) 1 LRN 159. See also Mutual Aid
Society Ltd v. Akerele (wrongful advertisement of sale by public auction of the plaintiff’s
house) by auctioneer instructed by the defendant mortgagee). Okeke v. Mkpanam.

2. Words must refer to the plaintiff.

The plaintiff must show that the defamatory words referred to him/her. This does not
mean that his name has to appear, it is enough that anyone who knew the plaintiff would
know that the words referred to him or her. See Fatayi – Williams J.S.C’s dictum in Dalumo
v. The Sketch Publishing Co. Ltd.

Therefore, this requirement will be met where

- the plaintiff is referred to by his correct name Lardner v. The Sketch Publishing Co. Ltd
(1979) 2 L.R.N 276 @ 279.
- the plaintiff is identified by e.g. his initials, nickname, office or post, drawing or verbal
description of him, or by reference to a class of people to which he belongs (provided that
the defamatory words can be reasonably understood as referring to him). In The Service
Press Ltd v. Azikwe the respondent brought an action against the appellants in respect of a
libelous article in the appellants’ newspaper concerning a “Ben Azikwe”.

The WACA held that the action must fail as there was no proof that the Ben Azikwe
referred to in the article was the same person as Nnamdi Azikwe, the respondent.

Cf Dafe v. Tsewinor (1967) NMLR 331 – the defamatory statement made about “a minister
from Aboh” in the suspended Mid-West Government was held capable of referring and did refer
to the plaintiff who was a Minister of Finance and the only Minister from Aboh in the
Government. See also Bakare v. Olumide (1969) 2 All NLR 324; Ukpoma v. Daily Times of
Nigeria Ltd (1979) 2 L.R.N 357.

Note that where a class of people is defamed (e.g. “all Judges are corrupt” or “all lawyers
are thieves”) no individual member of that class can sue for libel unless the class is so small or
ascertainable that what is said of the class is necessarily said of each and every member of it (all
lawyers in Ile-Ife are thieves”); or if the circumstances of the case show that the plaintiff was
particularly pointed at. See Knupffer v. London Express Newspaper Ltd (1944) AC 116; Dalumo
v. The Sketch Publishing Co Ltd (Supra). Where the SC held that the class “top officials of the
Nigeria Airways Corporation” referred was small and ascertainable one and there was no doubt
that the plaintiff who was the acting general secretary came within it.

There have occasionally been cases in which writers of fiction have innocently chosen a
name for a character which is also by chance the name of a living person. That person has then
claimed that he or she could be taken to be the character in the book and if the character is
depicted in an unfavourable light a successful libel action has followed was established under
the Common Law in Hulton & Co v. Jones (1909) 2 K.B 444 and Cassidy v. Daily Mirror
Newspapers Ltd (1929) 2 KB 33. Note that to ameliorate the harshness of these sorts of
decision, the various Defamation Laws in force in the states have enacted that unintentional
defamation is protected. See for instance, section 6 Defamation Law Vol. 2 (Cap D2) Laws of
Lagos State, 2003. These provisions of the Defamation Laws are in consonance with the
constitutional guarantee of freedom of expression and the press stipulated in section 39 of the
1999 Constitution. Note that an action for libel must fail if publication of the defamatory matter
is not proved. See Chief O. N. Nsirim v. E. A. Nsirim (1990) 2 NSCC 302.
The act of publishing the libelous matter constitutes the cause of action. What then is
“publication”. By publication is meant the making known of the defamatory matter to some
persons other than the person to whom it is written. The writing of a libel to the person or
party libeled does not constitute publication for the purpose of a civil action. Note that this had
prompted legislative intervention in England leading to introduction of the defence of
“unintentional defamation. See section 4 of the Defamation Act 1952 which was later
introduced into Nigeria by section 6 Defamation Law 1961.

3. Words must be published

The statement must be published to a person other than the plaintiff alone. It is not
actionable in civil law merely to make a defamatory statement to the plaintiff alone out of ear-
shot of a third person, or to write a letter to the plaintiff containing defamatory material. If the
plaintiff showed a potentially defamatory letter to someone else, there is a defence of volenti since
it is the plaintiff and not the defendant who has published the statement. In Okotcha v. Olumese
(1967) FNLR 174 the plaintiff wrote to the Inspector General of Police in Lagos requesting a
character certificate in respect of his application for visa to visit the USA. The defendant sent
this certificate headed “To Whom It May Concern” and errorneously stated therein that the
plaintiff had been convicted twice. The plaintiff showed the certificate to a third party. Held that
the plaintiff’s action for libel must fail.

Note that every repetition of a defamation statement is a fresh publication which will give
rise to a fresh cause of action. For example in the case of a libel in a newspaper, the journalist,
the sub-editor, the editor, the publisher, the distributor and newsagent and street vendor could
be sued (subject to the defence of innocent dissemination).

Some Example of
The following situations will not amount to publication
(a) Publication of defamatory words to persons who would not understand the words e.g. by
being an illiterate who could not read or is blind, or is deaf to hear or he does not
understand the language in which the words are written or spoken.
(b) Publication to a person whom the defendant did not intend to publish and to whom he
could not reasonably have foreseen the words would be published. e.g. where a father
wrongfully opens a letter addressed to his son, or where a servant opens a letter
addressed to his master (even if the letter is unsealed) – Huth v. Huth (1915) 3 KB 32, or
where a 3rd party unexpectedly overhears the defendant’s words.

(c) Statement made to one’s spouse

The following situations will amount to publication

(a) Words written on a postcard or open message (such as a telegram).
(b) Defamatory statement placed in an envelope and addressed to the wrong person.
Hebditch v. Macllwaine (1894) 2 QB 54.
(c) Speaking in a loud voice about the plaintiff so that people nearby can overhear White v. JF
Stone (1939) 2 KB 827.
(d) Sending a letter to the plaintiff in circumstances when it is likely to be opened by a 3rd
party. Pullman v. Hill (1891) 1 QB 524 – a secretary clerk opened a letter, Theaker v.
Richardson (1962) 1 WLR 151.
(e) Making a defamatory statement to the plaintiff’s spouse.

Malice
In many areas of the law of tort the presence or absence of malice is irrelevant and if it is
relevant, it may only go to enhancing the amount recoverable in damages. However, in
defamation actions, it may be especially important to consider whether the statement was
published maliciously, not only to allow the plaintiff to recover a higher award of damages, but
because it is a necessary element in the law itself.
“Malice” as it is used in the law of defamation (as it is often alleged in the pleadings,
virtually as a formality, that the publication was made “maliciously”) means that the publication
was made spitefully, or with ill-will or recklessness as to whether it was true or false. The bad-
feeling must have led to the words being published and must, in particular, have been directed
towards the plaintiff.
Note that the presence of malice will destroy defences of justification, unintentional
defamation, faire comment on a matter of public interest and qualified privileged.

Defences
Unintentional Defamation
The defendants published a fictional story in their newspaper concerning the adulterous
exploits of one “Artemus Jones” A real person named Artemous Jones, who was a barrister,
sued the defendants for libel and his action succeeded despite that the use of his name was
quite accidental.
In Hulton & Co v. Jones (Supra) the plaintiff, who was called Artemus Jones was a
barrister. He succeeded in a defamation action against the defendants who had published a
story about a fictitious character called Artemus Jones, a church-warden in Peckham who was
portrayed as having a mistress. It contained this statement:
 Whist! There is Artemus Jones with a woman who is not his wife, who must be,
you know, the other thing
… Really, is it not surprising the way our fellow countrymen behave when they
come abroad? Who would suppose by his goings on, that he was a church-warden
in Peckham?

The plaintiff called several witnesses who swore that they thought the article referred to
Artemus Jones the barrister, even though he had never lived in Peckham and had never been a
church-warden.

Note that at Common Law it is no defence to an action for libel or slander that the
defendant did not intend to defame the plaintiff.
Note that by virtue of section 6 of the Defamation Law 1961 (for Lagos State), a defence is
provided as long as the words were published “innocently”. The constituents of the defence are
as follows:- (or words are published “innocently” withing the statutory definition if)

(a) The statement must have been made innocently, i.e.

- the publisher must not have intended the words to apply to the plaintiff, and must not
have known of any circumstances by which they might be understood to refer to the
plaintiff (as in Hulton v. Jones)
- the words were not defamatory on the face of them and the publisher did not know of any
circumstances by virtue of which they might be understood to be defamatory of the
plaintiff (as in Cassidy v. Daily Mirror)

In either case the publisher (or his servant and/or agent) must have exercised all
reasonable care in relation to the publication.

(b) If the defendant is prepared to claim that the words were published innocently (that is no
mean feat) he or she may make an offer of amends which includes (a payment into court
and) an offer to publish a suitable correction and apology; or to take reasonable steps to
notify persons to whom copies have been distributed, where copies of the defamatory
material have been distributed, that the words are alleged to be defamatory of the
plaintiff.

(c) If the offer of amend is accepted, there is a bar to further action for defamation.

(d) If the offer of amend is rejected there will be a defence if the defendant can prove

- that the publication was innocent, (and there was no negligence).

- that the offer of amends was made as soon as practicable after the complaint.
- that if the defendant was not the author of the statement, that the person who was the
author made it without malice.
 Innocent dissemination
The defence of innocent dissemination is designed to protect booksellers (who sell books
containing libelous material); libraries or museums (which exhibit libelous books) or
newsvendors (who sell libelous newspapers)
This defence was explained in Vizetelly v. Mudie’s Select Library Ltd (1900) 2 QB 170.
(The publishers had requested the defendants, a circulating library, to return certain bks which
were likely to contain libels. They did not do so and were liable for defamation. It was held that
the defence could apply to libraries, booksellers and other “mechanical” publishers of libel,
provided.

- (the publication is innocent) that they did not know that it contained a libel at the time of
dissemination
- that there were no circumstances which ought to have made them aware that the
publication could have contained a libel
- there was no negligence on their part in not knowing of the libel

This defence was raised in the Nigerian case of Awolowo v. Kingsway Stores Ltd (1968) 2
All N. L. R. 217 where the defendants had sold copies of a book entitled “The One-Eyed Man is
King”. Portions of this book were highly defamatory of the plaintiff. The defendants relied on
innocent defamation in their defence. Held that the defendants had been negligent in not
discovering that the book contained libelous matter since its title was an intriguing one, thus
the defence of innocent defamation failed. See the dictum of Adefarasin J. on page 252.

Justification or Truth
If the statement made about the plaintiff is true, there can be no action for defamation or
in other words, an action for defamation cannot succeed where the statement made about the
plaintiff is true notwithstanding that the defendant was actuated by malice or some improper
motive. See Onwuchekwa v. Onovo.

Note that the burden of proof is on the defendant to prove that the statement made is true
because the law presumes that it is false and it is sufficient if he proves his statement to be true
in substances. See Edwards v. Bell (1824) 130 ER 162; Pedro v. Orafidiya (1974) 12 CCHCJ 51
@ 61.
Note further that where the defendant fails to establish the defence of justification
pleaded, the failure will usually inflate any damages awarded against him, the court treating it
as an aggravation of the original injury. Eyo v. Eastern Nigeria Information Service (1963) 7
E.N.L.R 144 @ 148.
At common law a defence of justification will fail altogether if the defendant failed every
charge of the defamatory allegation. Note that this rule has been modified by section 7 of the
Defamation Law 1961 applicable in Lagos, and other old Western states and old Eastern states
various Defamation Laws which contain identical provisions. It provies:

In an action for libel or slander in respect of words containing two or

more distinct charges against the plaintiff a defence of justification shall
not fail by reason only that the truth of every charge to not proved if the
 words not proved to be true do not materially injure the plaintiff’s
reputation having regard to the truth of the remaining charges.

Note finally, on this defence that where the defendant repeats a defamatory statement
originally made by someone else, he must prove that the statement was true not merely that it
was made.

Fair Comment
This defence is designed to protect stamens of opinion on matters of public interest and it
is frequently relied upon by the press although it is not the exclusive preserve of the press. The
requirements for this defence are:
(a) The matter commented on must be one of public interest. E.g.
- government affairs
- the administration of justice
- the management and affairs of public institutions such as hospitals, prison,, schools
and universities Nthenda v. Alade
- church matters Oke v. Gansallo (1923) 4 NLR 109
- the conduct of private businesses which affect the community at large South Helton
Co. v. North-Eastern News (1894) 1 QB 183
- anything which may fairly be said to invite comment or challenge public attention
Ibrahim v. Bakare (1970) 1 U.I. LR 244

(b) The statement must be a comment or opinion and not an assertion of fact.

The defamatory must appear on its face to be a comment or opinion and not a
statement of fact because this defence will not apply where the defamatory is a statement
of fact.
Note that it is not always easy to distinguish comment from fact however recourse
will be had to circumstances of each case. See Bardi v. Maurice (1954) 14 WACA 414.

(c) The comment must be based on facts set out accurately.

Note that this defence does not protect statements of opinion which are based on
incorrect facts. (As a matter of logic, opinion must be based on something and that
“something” must be factually correct) otherwise the defence will fail. See Bakare v.
Olumide (1969) 2 All N.L.R 324. See also African Press Ltd. v. Ikejiani where the
defamatory statements were based on inaccurate facts that the plaintiff’s doctorate degree
obtained in medicine “was a fake” and that he had been “kicked out of the University”, the
WACA held that the defence of fair comment must fail.

A defendant who pleads fair comment must prove the truth of every fact, however minor,
contained in the libel at common law, section 8 of the Defemation Law provides to the
effect that such a lapse shall not lead to failure of the defence of fair comment. “THE ROLE-
UP PLEA”

(d) The comment must be “honestly made”

 A comment may be “fair” for the purposes of the defence notwithstanding its being
violent, exaggerated, biased or clearly wrong provided it was honestly made. The test is
subjective to the defendant and is not based upon what a reasonable man would consider
“fair” but whether the defendant honestly held the view which was expressed.

Note however that an imputation of corrupt or dishonourable motives made against the
plaintiff will not be protected by the defence of fair comment unless the defendant shows,
not only that he honestly believed the imputation to be true, but also that he had
reasonable foundation for his belief.

(e) The comment must not be actuated by express malice.

“Express malice” defined by the Supreme Court as any corrupt motive or wrong motive in
Bakare v. Ibrahim will defeat the defence of fair comment if proved by the plaintiff. This
may be done by evidence of previous dealings between the parties which engendered
resentment or a desire for revenge on the part of the defendant. See Ebuwa v. United
Africa Co Ltd (1955) 14 WACA 56; African Newspapers Ltd v. Coker Nig. (1973) 1 NMLR
386.

Absolute Privilege
There are certain occasions when the law regards freedom of speech as essential and
provides a defence of absolute privilege which can never be defeated no matter how false
or defamatory the statement may be and however maliciously it may have been made.
Communications in the following situations are covered by the defence of absolute
privilege.

(a) Statements made in the course of judicial proceedings by judges, witnesses, juniors and
counsel.
- this privilege extends to defamatory statements contained in trial and pre-trial
documents such as pleadings & affidavits Foley v. Asfour (1970) [Link] 74.
Note that this privilege extends to other tribunals recognised by law e.g. courts
martial and disciplinary committee such as the Legal Practitioners Disciplinary Committee
when they are exercising judicial and not purely administrative functions Majekodunmi v.
Olapade (1963) WNLR 12 – Statements made to anti-corruption officer (not covered),
Saraki v. Soleye (1972) 2 U.I.L.R 271.

(b) Statements made in proceedings of the Legislature

Section 1 of the Parliamentary Papers Act 1840. Statements made in either House of
parliament of the Federal legislature and State legislature are absolutely privileged. This
also extends to statements made in debate or in committees as well as statements of
witnesses called to give evidence before a committee.

(c) Statements made by officers of state to one another in the course of their official duty e.g.
Minister, Ambassadors