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THE DEFENCE OF QUALIFIED PRIVILEGE

Dictum

The defence of qualified privilege is a defence to an untrue publication. It can only be claimed however when the occasion of the publication is shown to be privileged. An occasion is privileged when the person who makes the documentation has a moral duty to make to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order for the occasion may be privileged. See the case of MAINSTREET BANK LIMITED & ANOR v. DOMINIC BINNA (2016) LPELR-48351 (SC).PUNCH (NIG) LTD V OVBEREDJO (2018)LPELR-44540(CA) The defence of qualified privilege will not avail a defendant if there is evidence of actual or express malice. If the action of the defendant is actuated by malice. See the cases of UKO v. MBABA (2001) 4 NWLR (PT 704) 460 CA; CHIEF S. B. BAKARE & ANOR v. ALHAJI ADO IBRAHIM (1973) 6 SC 147 @ 152-153.

— A.O. Obaseki-Adejumo, JCA. Gbemre v Gbemre (2023) – CA/AS/114/2020

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TRUTH OF A DEFAMATORY STATEMENT IS JUSTIFICATION

One of the defences available to a defendant in an action for libel is that of justification. It is therefore a complete defence to an action for libel or slander that the defamatory imputation is true. The truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to a character free from that imputation if he has no right to it. He cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to and as such the allegation in a defence that the words complained are true is therefore called a plea of justification. A defence of justification is therefore a complete bar to any relief sought by a party who complains of defamation. It is appropriately described in the Latin maxim: damnum absque injuria.” Until it is clearly established that an alleged libel is untrue, it will not be clear that any right at all has been infringed: See Registered Trustees of Amore v. Awoniyi (1991) 3 NWLR (Pt. 178) 245 at 257.

— Akintan, JSC. Iloabachie v Iloabachie (2005) – SC.137/2000

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CHARACTER IS PUT IN ISSUE IN A TORT OF DEFAMATION SUIT

The tort of defamation, whether libel or slander, relates essentially to damages to the character of the person. In other words a plaintiff who institutes an action for libel has invariably put his character in issue. He is understood to be telling the whole world what a good person he is, and stating that some one is trying to destroy his enviable good name. He puts his reputation at stake depending of course on what the defamation is all about. In the course of consideration of the case but particularly as in this case where the appellant has shown through his pleadings what a person of great repute and of unblemished character he is, he has literally thrown his hat on the ring, caution to the wind, and dares the defamer to disprove his good and admirable character. Where in the process of the proceedings, facts elicited in the evidence portray him as an inveterate liar incapable of distinguishing truth from falsehood he might have unwittingly succeeded by his inconsistent statements and falsehoods destroyed his character which he has held out to the world to be clean. In such a case he cannot complain if the court finds out that he is a chronic, or penitus insitus liar.

— Pats-Acholonu, JSC. Iloabachie v Iloabachie (2005) – SC.137/2000

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PUBLICATION IS A REQUIREMENT TO SUCCEED IN DEFAMATION

It is the settled position of the law that defamatory words are actionable once it is libelous and has been published to a 3rd party. Publication is one of the basic ingredients of defamation. For a Claimant/plaintiff to succeed in libel there must be proof by evidence of publication to a third party and the reaction of the 3rd party to such publication. See the cases SKETCH PUBLICATIONS LTD v. AJAGBOMKEFERI (SUPRA), NSIRIM v. NSIRIM (SUPRA).

— A.O. Obaseki-Adejumo, JCA. Gbemre v Gbemre (2023) – CA/AS/114/2020

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RELYING ON THE PLEA OF DEFENCE OF JUSTIFICATION

It is trite that for a defendant to rely on a plea of Justification, the words spoken or written must be true. The defence of justification is made out the moment a defendant establishes that the alleged libelous words are true. All the defendant has to do, is to justify the substance of the publication by showing that the main charge or gist of the libel is true. See the case of RAFIU AJIBOLA OKIKIOLA OGBARA v. KAZEEM OLORUNIMBE OGBARA (2022) LPELR-59307(CA). A plea of justification means that the libel (defamatory words) is true, not only in its allegation of facts but also in any comment made there on. The defendant who pleads justification is required to deliver full particulars of the facts and matters upon nich he relies in support of such a plea inits statement of defence and the evidence at the trial in support of this plea of justification. See the case of FIRST BANK OF NIGERIA V. GHANNY INTERNATIONAL LIMITED & ANOR (2022) LPELR-58083 (CA). The defendant must prove that the statement made is true in substance and fact, irrespective of whether the statement was made out of malice or as fair comment. The duty of proving the truth of the statement is on the defendant, and the plea of justification must be broad enough to cover every injurious imputation contained in the libel.A summary is that he must justify his action. Strict proof is required not a mere ipsi dixitin pleadings.

— A.O. Obaseki-Adejumo, JCA. Gbemre v Gbemre (2023) – CA/AS/114/2020

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ACTUAL DEFAMATORY WORDS MUST BE STATED IN THE PLEADINGS

More so, it is of necessity in an action for defamation either libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim. It is on the perusal of the actual words complained of as pleaded that the court will determine whether or not the words convey defamatory meaning. Failure to plead such actual words is fatal to the plaintiff’s case. See. Olaifa v. Aina (1993) 4 NWLR (Pt286) 192; Okafor v. Ikeanyi (1979) 1 NWLR (Pt. 100) 678; Olaniyi v. Elero (2008) All FWLR (Pt.411) 975 at 986 Paras C-E.

— S.D. West, JCA. Fayose v ICN (2012) – CA/AE/58/2010

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DEFENSE OF ABSOLUTE PRIVILEGE TO DEFAMATION

Nwaenang v. Ndarake & Ors. (2013) LPELR – 20720 (CA): “I should state that the law on defamation or libel has recognized situations which would constitute a complete defence to an action or defamation or libel. For instance, there are occasions on which the law regards the freedom of speech as essential and provides a defence of absolute privilege which can never be defeated no matter how untrue the words or statement may be. Such occasions includes when the words or statement were said or made in parliament….words or statements said or made in the course of judicial proceedings by judges, counsel, witnesses and other officials or persons which relates to the proceeding…”

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