“The public is increasingly disgusted with a steady diet of defamation, and prepared to reward those who refrain from it.” – MITCH DANIELS
The law of defamation is one thoroughly handled under civil law, particularly tort law. It is under tort law, defined as injury to the reputation of the person resulting from words written or spoken carrying false contents and published to the ears or eyes of a third person; the intent to mislead a third party is not of relevance but sufficient enough that upon the facts, a reasonable man was likely to be swayed by the defamatory statement prima facie thus a heightened likelihood of holding a negative view about the person defamed. This writer, however, is not unaware of the fact that the abusive words or insults uttered as prelude to a fight may be considered as words not to be taken seriously after considering the status of the parties, and the circumstances that led to the bitter words. To be mentioned pronto is the fact that words written are called libellous acts and it goes as far as covering media publications or print outs. The defamatory statements by word of mouth, is called slander. Since it has been a brief discourse on tort law, it is safe to add that damages is the relief sought generally for this tort – whilst it is actionable per se (without proof of injury) for libel, slander could prove difficult as the claimant in establishing the basic ingredients of the tort must be able to plead and capture the exact words or gestures complained of, and must be able to lead evidence establishing same. The claimant must be able to prove the injury, generally, if the thirst to rope in the defamer lingers in the taste bud. It is expedient at this juncture to stress that the claimant leads evidence in verbatim which proffer not the substance but the actual defamatory words so used as this goes a mile in assisting the bench determine whether indeed those words in their ordinary and natural meaning (or other ways applied), will pass for defamation: AKIN OLAIFA V GABRIEL ADEDEJI AINA; CHIEF S.O.N. OKAFOR V D.O. IKEANYI – the import of this being that the court will not lend its hands to a claimant who hurls “hearsay evidence” to the courtroom seeking redress neither will the court cherish the testimony of a witness who robustly testifies what he heard from a passer-by because the claim will not be based on third party testimony who was not present when the slanderous words were uttered. A notable case is EMMANUEL BEKEE & ORS V FRIDAY EBOM BEKEE.
The arrival that slander is not actionable per se will tip the moment we consider the exceptions to the general rule. In instances where there is imputation of crime on the claimant, or imputation of a venereal disease, or imputation of unchastity, or imputation affecting business reputation; then there will be little need to further prove the injury as these are actionable in itself with damages duly assumed: EGBE V ADEFARASIN; OLANIYI V ELERO. There are defences to this tort but since the focus is chiefly on criminal defamation, it may be convenient a time to dwell on it – the defences to defamation under criminal law are similar in subject matter with that under civil law just that punishment with the option of bail is readily the comeuppance in the former, while it is for the latter, damages. Also, a criminal suit is come about because of the supposed inclination of such defamatory words to arouse passion, provocation, and revenge thus affecting the public peace the law strives to maintain.
WHAT IS CRIMINAL DEFAMATION?
The term criminal defamation is defined in s.373 (1) of the criminal code. To regurgitate its wordings, “defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation.” Subsection 2 has that: “such matter may be expressed in spoken words or any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words and may be expressed either directly or by insinuation or irony.” What will be agreed upon having read the section, is that the law is not concerned with the degree of hurt the defamed bears rather it is concerned with the likelihood of such defamation to have reduced the defamed subjecting him to hatred, contempt, or ridicule. Put it aptly, where the alleged defamatory matter does not go to show exposure to hatred, contempt, or ridicule, then there is no culpability. A typical scenario is where Mr A makes false statements about Mr C to the hearing of a group of people that Mr C’s wife goes about in different cars a product of which was owed to her libidinousness, then the offence becomes complete if such unfriendly remark was one enough to reduce Mr C’s household to ridicule and hate. The part that has to do with innuendos and ironies was seen supra in the succinct x-ray of defamation under tort law. If the defamatory words are done in means other than directly, then it will remain a case of defamation after weighing the facts and finding the nebulous comments to be ironic and laced with impropriety all in a bid to say false things about the defamed – it is the view of this writer that in 9/10 cases, innuendos may be intended false statements as the defamer seems to ever pass his message in a way that he could claim naivety as to his intent or innocuousness as to his speech. On innuendos, the case of Arayi v. Ojubu is key. In this case, A made an oral statement to a village audience to the effect that the Olu of Warri had ordered each person to pay five pounds flat rate tax and seven pounds each for the Western Region free compulsory primary education scheme. The magistrate found that the Olu of Warri had said nothing of the kind and that the words were defamatory. On appeal however the High Court held that the words spoken were, without an innuendo, not defamatory of the Olu for they could not reasonably be said to expose him to hatred, ridicule, or contempt. – this case, clearly not direct on point, also flows to the shore of the legal position that merely to publish of another that he owes money is not defamatory though if an inability to repay is implied it becomes defamatory (the position in R V. COGHLAN).
A close look at s.373 (1) cc evinces that where the defamatory matter is likely to damage the defamer in his occupation or trade then there is an offence. This ordinarily means that he has a reputation to so protect that such imputation on his business reputation will affect his earnings and many other wrongs. It is to be agreed with Akintunde Esan that reputation of such a person defamed should not be doggedly taken or implied to mean a white life without a string of imperfections but this writer stresses here that such a reputation which suffered such imputation may not know justice if indeed his nature of job includes illegal trades and transactions. It is apposite to consider the last two subsections under this section.
SECTION 373(3) & (4) OF THE CRIMINAL CODE
Under criminal law, where the defamer is seen to have defamed a dead man, there may be no crime. This should be taken with due caution and open-mindedness as the writer is not unaware of the fact that s.373 (3) cc posits in blank prints: it is immaterial whether at the time of the publication of the defamatory matter, the person concerning whom such matter is living or dead. What must be gleaned from all, under this subhead, is that merely to defame a dead man, may be no crime and the logic being that if it were to be a crime, the conduct of the deceased will never be brought into question and it would ever prove a difficulty to write history. What this sub-section seems to cure remains the object of the ridiculing little wonder the use of it is immaterial; but for the dead it is usually a question of who becomes the object subjected to a likelihood of hatred, contempt, and ridicule. It is submitted therefore that where a publication concerning a dead man goes to affect his relatives in such a way as to bring them to contempt and ridiculing, there is an offence. It is an offence where the defamatory words are targeted at the siblings or household of any deceased individual with a view to bring them to hatred.
With a close look at s.373 (1), (2), and even (3) cc; it appears that there is no need to prove before the judges, the intention of the accused to bring upon the defamed any shrinking reputation or otherwise – thus a similarity between that dwelt under civil law which dwells on the facts and circumstances of the alleged defamatory remark. But it is wise to give s.373 (3) cc a deeper look. It is not enough for the relatives of a dead person to cry about the hurtful words or the innuendos used by the accused and expect the judge to sentence the accused; rather, the relatives are to prove the intent of the defamer to injure them: R V. ENSOR. From the ratiocination of Prof. Okonkwo, it will appear that the proof of such intention becomes key to make the court see beyond the facts that the words were to the dead and no more, but are defamatory statements with a view to bringing the relatives to contempt, hatred, and ridicule. Reading the case of R V. LABOR, it should be understood that it must be proved by the prosecution that there was a living member of the family of the deceased whose reputation may have been injured by the publication.
The law is clear on the matter. Criminal defamation as we have been made to understand recognises the axiom that dead men have no rights nor suffer any wrongs; it also recognises the fact that in cases of this nature vide s.373 (3), the law is interested in the proclivities of defamatory statements made about a dead man capable of bringing to smudge the reputation of family members – it is the living alone that are subject to legal protection. Of needed addition is the terse legal confirmation that it is very material for the consent of the Attorney-General of the Federation to have been sought before prosecution of defamatory matters concerning a dead person is given flesh and blood in a court of law. This is the whole gist in s.373 (4) cc.
PUBLICATION OF DEFAMATORY STATEMENTS
There is no mention of the word, “libel” or “slander” in the criminal code but a cursory look at relevant sections of the Code vide the definition section treated supra and even s.374(1) (a) & (b) cc, will show that the description attached in these provisions have same bearing with the branches of defamation treated under tort law supra. It has already been said what constitutes defamation in s.373 (2) cc – it goes to cover that of spoken words or audible sounds, and that of written remarks or anything otherwise than by words. From the definition section, the criminal code recognises slander and libel as branches of defamation from its wordings; and like defamation under tort law, criminal defamation must be published. Looking at s.374 (1) (a), for the purposes of this Code the publication of defamatory matter is in the case of spoken words or audible sounds, the speaking of such words or the making of such sounds in the hearing of the person defamed or any other person. Agreed, the publication will be complete upon the utterances of the defamatory words to either the hearing of the defamed or to some person other than the defamed. Where the audible sounds are recorded and are defamatory, it shall be deemed to be published if reproduced in any place to the hearing of the persons other than the person causing it to be reproduced. This is the law under s.374 (2) cc; the examples of such matter include tape, disc, and the remaining means mentioned in subsection 3 of this section.
The proviso that centres on libellous acts is s.374 (1) (b) cc. It has that in other cases, the exhibiting it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with intent that it may be read or seen by the person defamed or by any other person. It is transparent from this subsection that the defamatory statements will be deemed published from a mere exhibition of its content in the public with intent that it be read or seen. Both subsections end with the inclusion that the defamation is deemed published if heard by the person defamed or a third party. It is the part that allows for completion of the offence if heard by the defamed person alone, that shows the disparity between tort and the law of crime on this subject matter – it should not be forgotten that under tort, the publication must take place but completed upon communication to a person other than the plaintiff; for criminal defamation, an offence is deemed sufficient if uttered to the defamed and no more. It is the view of this writer, however, that s.374 (1) & (2) cc may suffer infeasibility for the singular fact that in cases of spoken words of defamatory matter, it may become impossible to prove the crime as there was no witness to make the prosecution’s case positive. How can words told to the hearing of the defamed only, amount to defamation? If the intention of the draftsmen in s.373 in its natural meaning is about determining whether the defamatory words were of high likelihood to bring hatred, contempt, or ridiculing to the defamed, then how is it feasible for the defamed to prove that beyond the emotional weeps he suffered after hearing the slurs, the words he heard alone were bound or most probably exposing him to contempt or hatred? It needs be reiterated here that the court is more interested in protecting the reputation of the defamed on this matter – one should be deemed defamed when exposed to hatred; or the tendency of its publication to attract some regrettable injury, stays high.
DEFENCES TO CRIMINAL DEFAMATION
The defences under here have large similarity with that under tort law. Just as truth of a statement is a justification under defamation in tort law, s.377 cc embraces such as a reliable defence. There is yet another defence known as absolute privileges vide s.378 of the Code. Under this section, the president or governor is considered privileged upon publication of the defamatory matter. It should be understood that immunity covers these public officers vide s.308 of the extant constitution of Nigeria. The question as to whether the president can be sued for criminal defamation is one that must be answered positively where it is evinced that he stands as a nominal person – nominal party meaning one who does not have a personal interest but his interest in any particular case is by virtue of his office. The idea to be taken therefore is that there lies no criminal responsibility on the president hence it will be futile a course to aim for the big bone (a conviction): HASSAN V. ATANYI.
Say we settle here for a while, it is the law that no civil or criminal proceedings shall be instituted or continued against the public officers mentioned in subsection 3 of s.308 during his period in office: RAFIU LAWAL V. THE STATE (1981). A full read of s.308 CFRN will show that while the constitution puts shackles on the legal foot of a party to continue a suit that was pending before such a public officer came to know immunity, it seems rather silent as to whether the public officer that is now immune should as well be debarred from bringing suits to court in his personal capacity. But whether it becomes safe to hold that the public officers are debarred may suffer far-reaching intention of the draftsmen as it so soothes logic and no-brainer puzzles to hold affirmatively that the nearest in meaning of s.308 (2) CFRN, which estops parties other than the public officers from suing public officers in unofficial matters, is for the public officers to so institute actions civil in nature as it is common knowledge that criminal matters are state affairs. This is as good as it gets because relying on the lead judgement given by Onnoghen JSC in the case of Global Excellence Communications Ltd v. Mr Donald Duke, and joining my legal credo with Ayoola JSC in the celebrated case of Tinubu v. IMB Securities PLC. In these cases, the twelve tablets of interpretation were used in shedding light to a rather bright area (s.308) – the twelve tablets were given by Obaseki JSC in the case of AG BENDEL V. AG FEDERATION. In the Donald Duke’s case, judgement was entered for him after the due appropriation of opposing learned counsel’s argument which was flowery and laced with undiluted items of morality and no more. If indeed the draftsmen intended to debar the public officers, it should have done so during its construction. The mere fact that one might choose to call it narrow does not in any way change the law and the expectation that the court make fanciful abracadabra on matters within the jurisdiction of the legislature will amount to usurpation of power and clear neglect for the constitution it so seeks to protect by due interpretation – as Obaseki JSC put it in Ojokolobo V Alamu, “…if the language is clear and explicit, the court must give effect to it, for in that case, the words of the statute speak the intention of the legislature. Its function is jus dicere not jus dare. The words of a statute must not be overruled by a statute.” Of disturbing concern was the submission of Justice Abubakar Talba in a case situate at Abuja that late President Yar’Adua was debarred from instituting a legal action on a defamatory matter published by Leadership Newspaper surrounding his health status. It seems smooth sail if we consider Global Excellence Communications Ltd v. Mr Donald Duke (supra). Here a preliminary objection was made by the defendants that the governor is debarred from suing while in office in his personal capacity. While the governor succeeded at the trial court, the appeal was allowed in the Court of Appeal only to be reduced to dust at the supreme court level that the governor had such right to so sue; it was added by the court that it was not for the court to read in between the clear lines of s.308 and choose to smuggle laws that be not intended by the draftsmen. That we suffer our minds to matter purely concentrated on criminal defamation, it is apposite we segue into a conditional privilege.
A good read on s.378 cc will show that it is absolutely privileged to give testimony in a court of law though it is misleading on the surface. Defamation claim must fail here as the court expects that witnesses be free to express themselves without fear of imminent law suits over one false statement too many. In Liley v. Roney, a complaint to the law society or its equivalent had been held to be absolute privilege (this is found in s.378 (2)). There may be little need to dwell on the defence of conditional privilege but it must be stated as a matter of guide for law finders that the apropos section touching on this defence remains in s.379 cc.
Where the defamatory matter is published in a periodical, like tort law the alleged defamer is expected to rebut the presumption of knowledge by leading evidence to show lack of knowledge of such publication as well as lack of negligence if indeed the criminal responsibility be absolved. This is the undiluted message in s.380 (2) cc. There are other defences under the code like that of protection of innocent sellers of books and newspapers (381 cc), fair comments, to mention to this point.
PENAL SECTION FOR CRIMINAL DEFAMATION
Subject to what has been said in s.380, s.381 of the Code, and letters under fair comments et al, it should be taken broadly that any person who publishes any defamatory matter is guilty of a misdemeanour and is liable to imprisonment for a year, and any person who publishes such defamatory matter knowing it to be false is liable to imprisonment for two years. S.375 cc is the relevant section that establishes what has just been said. There is no complexity in this proviso. It is the law that where the prosecution is unable to prove intent, then the accused will not escape the lesser conviction i.e. the one year jail term: S.179 (1), CPA.
Where it becomes a felonious act is when the defamer publishes or threatens to publish the defamatory matter, or promises not to proceed in its publication, or offers mischievously to prevent its publication with the intent to extort money or any other material from the victim; or to procure, attempt to procure for any person and from any person anything of whatever kind which clearly suggests an undue advantage, is punishable under the criminal code vide s.376 with imprisonment for seven years.
In leading evidence in an indictment for publication of defamatory libel, where the accused pleads not guilty he may show that such a publication was not defamatory in content, or that it was not published by him, or it was a fair comment and no more, or that it was absolutely privileged. Examining s.6 of the Libel Act, 1843, the accused cannot on such a plea seek to prove the truth of the matter unless, of course, he is charged with publishing the matter knowing it to be false. Justification, if and when pleaded, must be in line with s.6 Libel Act (supra). There is more to this subject-matter, but the above should be able to keep one abreast with the basics and little conflicts known or yet known in the legal community.
©Authored by OKOCHA Obed.