Libel and what test should be applied By Manzumah Nana Aishah & Isa Labaran Mukhtar

“... it should be borne in mind that the test to be applied by the court in determining whether a publication is libelous or not is not that of highly educated and accomplished professors of various academic disciplines..., but that of reasonable man on the streets who comes into contact with the words in the publication.” — Walter Onoghenene, JSC

This review is based on libel, a type of defamation and what test should be applied to determine if a publication would be said to be libelous. The court also went further to determine the defence of qualified privilege and whether it will avail the Guardian Newspaper.

A short account of the fact of the case of Ologe v. New Africa Holdings Ltd.  (2013) 17 NWLR (Pt. 1384) 449 which are all workers in the University of Abuja filed a case against the Guardian Newspaper(Respondent) for publishing a column in their article which was a supposed verbatim reproduction of the press release. The University press explained to the readers that the workers have committed act that encouraged the student in the riot that took place in the school. However, the appellant contended that the newspaper replaces having committed with having admitted which is defamatory because it will create in the mind of the readers that, they have confessed and admitted act while the word having committed as contained in the University press release that contained having committed  would leave in the mind of the reader doubts whether or not they are guilty and the readers would have considered them due to their status in the society. At the trial court, the case was resolved against the appellant but the court nevertheless awarded cost for the appellant and against the respondent hence a subsequent appeal to the supreme court.

The contention for further emphasis includes the fact that The appellants maintained that the use of the phrase “having admitted” rather than “having committed” acts of arson, looting, etc. as contained in the publication materially and substantially changed the meaning of the whole. The appellants argued that the phrase "having committed" is different from the phrase " having admitted", in the sense that while the former was only a mere allegation and the reading public may or  may not find them guilty, the latter portrayed the appellant as though they are self confessed criminals.

The respondent raised the defence of qualified privilege while maintaining that in careful consideration of the whole publication, it had  no malicious intention and was a fair and accurate report . Dissatisfied with the trial court ruling that the defence of qualified privilege availed the respondent, the appellant appealed to the court of appeal and subsequently the Supreme court.

The court while determining whether the publication was libelous(defamatory) listed some of the ingredients to be proven before an action for libel would succeed. Such ingredient has been captured in the court’s as follows: 

a. Publication of the offending words; 

b. that the words complained of refer to the plaintiff; 

c. that the words are defamatory of the plaintiff;

d. that the words were published to third parties; 

e. that the words were false or lack accuracy; and 

f. that there are no justifiable legal grounds for the publication of the words. 

Based on the above, the court held that what was reported in the newspaper was a fair report and the same with the University press and the ingredient has not been proven before the court. The court further held that, the substitution of the words does not change the substance of the publications.

Also,  the respondent raised the defence of qualified privilege which is a legal defense that can be countered against an action of defamation, because, what was reported was fair and accurate, the person making the statement has a legal, moral or social obligation to share the information, the person recieving has legal justified interest in hearing it and the statement was made in good faith. This defense can be rebutted if the plaintiff can prove that the respondent acted with malice(an active will or desire to harm someone). In view of the above,the court held that, this defense availed the respondent, as the report in their newspaper was in good faith and with no ill motive towards the appellant. Also, it was a fair and accurate report and the substitution of few words does not make it otherwise. The court made this assertion in the following words; A publication in a newspaper is not defamatory if it is an accurate and fair report of what transpired, and it need not be verbatim or word for word. If what is stated is substantially a fair and accurate account of what is sought to be conveyed, then the statement cannot be said to be defamatory. In the instant case, the substitution of the word “admitted” for “committed” did not in essence change the nature, character and substance of the press release(exhibit “B”). 

In further determination of the suit substance, the court made elaborations on how a publication will be said to be libelous( defamatory). This is because of the claims of the appellant on the exposition of the word used in both publications i.e the University press release and the newspaper. The court concluded that the publication in the newspaper would not be considered libelous because in careful consideration of the whole publication, it held no malice and a reasonable ordinary man reading the publication would not have considered it so. The court held that;  Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right thinking man is not actionable within the law of defamation”.

Subsequently, the case was resolved against the appellant. The court concluded that substituting "having committed" with "having admitted” is not defamatory and does not change the whole substance of the publication. The court is also of the view that the defence of qualified privilege availed the respondent as what was published was fairly accurate and substantially correct. The court was of the view that what was published in the University press release and the newspaper is the same, and changing few words does not make it different.  The court also in determining what is defamatory, held that a statement will be so if the ingredients of defamation that has been listed is met with and if it was done with a malicious intent which can be determined by every reasonable man, educated or not.  The court In conclusion, found no merit whatsoever in the appeal and dismissed the appeal while awarding cost in favour of the respondent.

In conclusion, it is worthy to note that defamation can both be criminal and civil in nature, the aggrieved party can bring a civil suit and sometimes defamation is criminalised under some laws of a state and others etc.

About the Authors:

Manzuma Nana Aishah is a member of Research & Litigation Directorate, Solace Chambers, Bayero University, Kano. 

Nana Hauwa’u Abdulazeez 

Isa Labaran Mukhtar is the Deputy Director of Research & Litigation Directorate, Solace Chambers, Bayero University, Kano.