DEFENCES TO THE TORT OF DEFAMATION: WHY THE HATE SPEECH BILL IS ABSOLUTELY UNNECESSARY BY Nwani, Tailorson,Esq. Ogun State Based Legal Practitioner Pegasuslegalassociates@gmail.com

PEGASUS LEGAL

It is a cardinal principle of justice that we must hear both sides before judging. It is well settled, and it has become trite that any proceedings, no matter how well conducted that breached the rule of fair hearing is void ab initio. Therefore, this essay is concerned with the possible defences available to those facing defamatory actions.


They are persons who can be referred to as innocent disseminators such as book sellers who sell books which contains libellous materials, newspaper vendors, libraries or museum may raise the defence of innocence in the following circumstances:-
That at the time they disseminated the material they did not know that it contained a libellous matter and
That it was not due to negligence on their part in not discovering the libel contained in the article, newspaper or books.
Justification: – this defence refers to the truth of the statement. On this, the defendant asserts that although he has truly published the alleged defamatory words; it is nothing but the truth. In Iwuoha.vs. Okoroike (1996) 2 NWLR (pt 429) 321; Obakpalor vs.Oyefeso (1997) 6 NWLR (pt 508) 256; Section 377 of the Criminal Code makes truth a defence to a charge of defamation. It was held thus:-
A plea of justification means that the words were true and the plea covers not only the bare statements of facts in the alleged libel, but also any imputation which the words in their context may be taken to convey.  


Flowing from the above, in Mcpherson Vs.Daniels (1829) 1 Q.B. & C 263 at 272,Littledale J.submitted thus: “the law will not permit a man to recover damages in respect of an injury to a character which he either does not have, or ought not to possess”.
Sectio 11 of the Defamation Law of Oyo State provides that 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 is 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. See Iwuoha.Vs.Okoroike supra, it was held that where in an action for defamation, the defence raises a plea of justification, the procedure to follow is for the plaintiff, first to tender the document complained of and then give formal evidence to the libel after which the defendant leads evidence in support of his plea of justification and the plaintiff may then give evidence in rebuttal. See also Pedro.Vs.Orafidiya (1975) 1 NMLR 336.


Fair Comment:-this defence thrives on the fact that the statement is a fair comment on matter of public interest. This presupposes that honest criticism ought to be allowed in any civilised society since this is necessary and indispensible in the efficient performance of any public institution or office. The defence of fair comment is open to every member of the public, but in order to succeed the defence must prove the followings:-
That it is a matter of public interest
That the words complained of by the plaintiff are fair comment
That the facts on which the comment is found are true; and
That the comment on the facts is true.
Worthy of mention is the fact that for a comment to pass the fair comment test, the following conditions must be met:-
It must be based on facts truly stated
It must not contain imputations of corruption or dishonourable motives on the person whose conduct or words is criticised save in so far as such imputations are warranted by the facts.


It must be an honest expression of writer’s real intention. Mere exaggeration would not necessarily make the comment unfair.
As always, a roll up plea combines the defence of justification and fair comment on same defence. The defendant strives to establish the veracity of the facts his comment is based on. Section 12 of the Oyo State Defamation Law provides thus:-
In an action for libel or slander in respect of words consisting partly of allegations of facts and partly the expression of opinion a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as proved.


The Court must ascertain in roll up plea whether the opinion as expressed goes beyond the boundary of fair comment before reaching a decision on it. Being alleged statement of facts, is it true?
However, there is a subtle difference between the defence of fair comment and justification. A defence of  justification means that the libel is true not only in its allegation of facts, but also in any comment made therein. The defence of fair comment, the defendant does not take upon himself the burden of showing that the comments are true. If the facts are truly stated in a matter of public interest, the defendant will succeed if the court is satisfied that the comments are fairly and honestly made.


Absolute Priviledge:-is a complete defence to defamation. It may be used s a defence in cases of proceedings in legislative House or in court of law or where public policy demands that persons should be able to have free discussion on issues with absolute freedom and without fear. In Ojeme.Vs.Punch (Nig.) Ltd (1996) 1 NWLR (pt 427) 701,it was held that a fair and absolute report in newspaper or proceedings held before any court exercising judicial authority if published contemporaneously with the proceedings is absolutely privileged.


Flowing from the above, it is established that a newspaper report of judicial proceedings is privileged, must be a fair and accurate report of what transpired in the court. See also Majekodunmi .Vs.Olopade (1963) NMLR 12. Section 378 of the Criminal Code deals with instances when a defamatory matter is absolutely privileged.


Qualified Privilege:- absolute and qualified privilege protect persons who make defamatory statements in circumstances where the common convenience and welfare of society is in issue and demands such protection. Qualified privilege covers a whole lot of field where public welfare is at stake while absolute privilege is restricted to the grounds listed above. In Ogoja .Vs. Offoboche (1996) 7 NWLR (Pt 458) 52, the court opined thus:-
In general, an action lies for the malicious publication
Of statements which are false in fact and injurious to
the character of another, and the law considers such publication as malicious, unless it is fairly made by a
Person in the discharge of some public or private duty,
whether legal or moral, or in the conduct of his own affairs,
in matters where his interest is concerned. In such cases the occasions prevents the inference of malice, which the law draws from unauthorised communications, and afford a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of the society.


In African newspaper Ltd. Vs.Ciroma (1996) 1 NWLR (Pt 423) 156, the Court of Appeal held that the essential element of qualified privilege is reciprocity of interest as the facts relied on by the maker must be true since mere belief is insufficient.
The followings are examples of qualified privileges:-
Statements made in performance of a legal, moral or social duty.
Statements made in self defence. This may happen in the defence of one’s trade or name.
Statements made between parties having a common interest. This may be pecuniary or professional.
Statements made to the proper authorities in order to obtain redress for public or private grievances.
Fair and accurate report of proceedings in legislative House.
Fair and accurate report of judicial proceedings.
Comments privileged by statue.


Section 379 of the Criminal Code states instances when qualified privilege may be raised as a defence.
Malice may destroy the defence of fair comment or qualified privilege. This happens when the defendant used privileged occasion for an improper purpose. Abbot J. submitted on this issue in Oweh.Vs. Amalgamated Press of Nigeria (1956) L.L.R. 6:-
Actual malice does not necessarily mean personal spite or ill and may exist even though they be no spite or desire for vengeance in the ordinary sense. Any indirect motive other than a sense of duty is what the law calls malice. Malice means making use of an occasion for indirect purpose. 
Note, there are other factors that could vitiate the plaintiff case outside the above defences:-
Death of the plaintiff or defendant
Consent of the plaintiff. The maxim is volenti non-fit injuria
Statue of limitation. This is because nothing can call the court into activity; but conscience, good faith and reasonable diligence. Where these are wanting the court is passive and does nothing.
Res judicata
Accord and satisfaction. This may be achieved by publication of a correction of the defamatory words or an apology for the publication. In Harbour. Vs. Eronini (1986) NSCC 420, Bairaiman J. submitted thus:-
In libel cases, an apology withdrawing whatever imputations contained in the article complained of and stating that the writer regrets” whatever inconveniences or embarrassment they have caused the plaintiff is an admission that the words complained of bear defamatory meaning.     
The court opined that the followings must be taking into consideration in the assessment of damages:-
The conduct of the plaintiff,
The plaintiff’s position and standing,
The nature of the libel,
The mode and extent of the publication
The absence or refusal of any retraction or apology and;
The whole conduct of the defendant from the time when the libel was published down to the very moment of the verdict.
Worthy of mention is the fact that publication must be pleaded and proved in cases of slander and libel. This is due to the fact that in this area of law, it is publication that gives the plaintiff a cause of action. See Ugbomor.Vs. Hadomeh (1997) 9 NWLR (Pt 520) 307; Giwa. Vs. Ajayi (1993) 5 NWLR (pt 294) 423.


See Igu’s submission in Cross River State Newspapers Corporation .Vs. Oni (1995) 1 NWLR (pt 371) 270.
It is not the law that one’s general character or reputation must be transparently be stainless, unimpeachable and without any blemish whatsoever before one can successfully maintain an action for defamation.
Above all, from the legal authorities x-rayed above and the opinion of seasoned jurists shown in this work, one can without doubt or any sense of contradiction submits that the hate speech bill is absolutely unnecessary; in view of the safeguards already offered by the tort of defamation which could come through libel or slander. Equally of importance is the place of free speech in all civilised societies which led to the several defences available to the defendant in face with defamatory action. The checks and balances are in the defamatory law to ensure that no man could injure the reputation of another without reasonable excuse.

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