Criticism, Defamation and Information Management 

Government’s Reaction to Criticism & Defamation of Character 

The reaction of members of the Buhari administration when their government is criticised for bad acts or omissions, reminds one of the reaction of those who claim that they have been slandered, libelled and their characters defamed – reactions of defensiveness, anger and indignation, of being victimised, lied upon and denigrated for no reason whatsoever. While Black’s Law Dictionary 7th Edition defines “Defamation” as “the act of harming the reputation of another by making a false statement to a third person”, in Oruwari v Osler 2013 5 N.W.L.R. Part 1348 Page 535 at 556 per Chukwuma-Eneh JSC, the Supreme court held thus: “Defamation as a tort, whether as libel or slander, has been judicially defined to encompass imputation which tends to lower a person defamed in the estimation of right thinking members of society generally, and thus, expose the person so disparaged (the Plaintiff) to hatred, opprobrium, odium, contempt or ridicule”. Also see Edem v Orpheo (Nig.) Ltd 2003 13 N.W.L.R. Part 838 Page 537 at 558 per Iguh JSC. 

But, in the case of many of the statements made about the government of the day, though they may have the resultant effect of tending to bring Government into hatred, opprobrium, odium, contempt and ridicule, the question is whether some of the statements are not unfounded, some of them even true. If the Nigerian Government was the Plaintiff in a matter in which it claims to have been libelled, would they be able to succeed in their action? The Defendant would obviously be the one, who has uttered the defamatory statement.

Slander & Libel

The distinction between slander and libel was made in Oruwari v Osler (Supra). While slander is a false and defamatory statement about the Plaintiff, conveyed to a third party in a non-permanent form like spoken words, Libel is required to be in a permanent form, like in form of a  written publication about the Plaintiff, without any lawful justification, to a third party.

Falsehood: A Common Element in Slander & Libel

The question is that, if Government decided to sue many of their critics for slander or libel, would they be able to prove their case? The first element that is common to slander and libel is that, whatever is uttered against the Plaintiff, should be a falsehood. Take for example this burning issue of insecurity (see Section 14(2)(b) of the 1999 Constitution) – the fact that these days, there’s no guarantee that one can travel from Lagos to Ibadan by road and reach there safely; or that there’s no guarantee that one can travel from Abuja to Kaduna by train or by road, and reach there safely; or that people are no longer safe on their farms – in these three instances, Commuters and Farmers may be robbed, killed or kidnapped en route or on their farms. And, while so far, there has only been one unfortunate train incident (Kaduna train attack of 28/3/22), we have lost count of the number of highway attacks/kidnappings, and the violent incidents involving farmers and herders/unknown attackers. 

So, if a Defendant states, whether in permanent (libel) or non-permanent (slander) form, that Nigeria is insecure, or that it has become less secure than it was 12 years ago, would this be engaging in falsehood? I think not. On the contrary, it would be stating the obvious. If then, the Minister of Information, Alhaji Lai Mohammed aka Mr ‘De-marketing Nigeria’ decides that an action must be instituted against a Defendant who has uttered what he/Government considers defamatory against the country by shouting from every rooftop and publishing in print media that Nigeria is unsafe, the Plaintiff, in this case, the Nigerian Government, whose burden it is to prove the defamation, will be unable to discharge this burden satisfactorily, as the first element of falsehood cannot be proven as far as the allegations of insecurity in Nigeria is concerned. 

Proof of Damages

Generally, slander is actionable on proof of damages; but, there are exceptions in which it is actionable ‘per se’ – that is, without proof of damages. Exceptions include where there’s an imputation that the Plaintiff committed a crime punishable by death or imprisonment, or when the words can injure the Plaintiff in his profession or trade. 

For example, where a rival food seller maliciously disseminates a false rumour that her competitor uses human flesh or dog meat instead of cow or goat meat to cook her stews, in order to divert customers from there to her own canteen. Naturally, true or false, most right thinking people will desist from patronising such a maligned food seller. And, while certain words uttered in the heat of an argument may not be actionable, no further proof of damage would be necessary in the case of imputation that a food seller uses human/dog meat, as it would probably lead to a boycott of the food and not only ultimate ruination of the business, but destruction of the food seller’s reputation, seeing as most reasonable people would find such a practice repugnant, and be unwilling to give such a person the benefit of the doubt. 

In this case, such imputation will certainly pass the test of being defamatory as (1) it is false; (2) it lowers the food seller in the estimation of right thinking people; (3) it exposes the food seller to hatred, odium and ridicule; (4) it would definitely cause people to shun him/her and avoid his/her restaurant; (5) it would discredit him/her business; (6) it would injure his/her finances, because of loss of business for one (6) it would destroy his/her reputation. See Olaniyi v Elero 2007 8 N.W.L.R. Part 1037 Page 517 at 527 per Okoro JCA (as he then was); Adeyemo v Akintola 2004 12 N.W.L.R. Part 887 Page 390. 

Defamatory Words Must be About the Plaintiff

It is trite law that in an action for defamation, the offensive words should be published of the Plaintiff. However, it is not necessary that the Plaintiff be mentioned by name. In S.B. Dalumo v The Sketch Publishing Co. Ltd 1972 5 S.C. Page 308 at 309 per Fatai-Williams JSC (later CJN), the Supreme Court held that the test is: “Are the words used, such as reasonably in the circumstances would lead persons who know the Plaintiff, to believe that he was the person referred to”. 

Defences to Defamation: 

The three main defences to the tort of defamation, are Justification (Truth), Fair Comments and Qualified Privilege. 

Justification 

In using Justification as a defence, the Defendant must prove the truth of all material statements in the slander or libel. The truth is the answer to the action; it negates malice, and shows that the Plaintiff has no right to recover damages. The onus is on the Defendant, to prove that the statements are true. See the case of Ishaku v Aina 2004 11 N.W.L.R. Part 883 Page 146 at 169-170 per Adekeye JCA (as she then was). In Ishaku v Aina (Supra), the Court of Appeal held thus: “Therefore, the absolute truth of publication of words found to be defamatory, is the only defence to the publication…..”. In fact, if any part of the publication is untrue, it may taint the truthful parts, and make the whole statement malicious. 

Fair Comments

In Akomolafe v Guardian Press Ltd 2004 1 N.W.L.R. Part 853 Page 1 at 17-18 per Aderemi JCA, the Court of Appeal stated that Fair Comments are simply opinions expressed on matters of public interest, such as criticism of government and its functionaries; and for it to be a viable defence, the Defendant must ensure that the facts are correctly and fairly stated, based on truth. The defence of fair comment, is not is not available to a Defendant whose comments are based on falsehood. 

Qualified Privilege

In Akomolafe v Guardian Press Ltd 2004 (Supra) the Court of Appeal explained the meaning of another defence to defamation, that is, Qualified Privilege. The Latin maxim, “Salus populi suprema lex esto” – that the welfare of the people is the supreme law, is relevant here. When a false and defamatory statement about a Plaintiff is published to the public, for instance, in the course of a social duty like that of a newspaper whose duty is to disseminate News to the public, “the law recognises as having a corresponding interest to receive it from the Defendant that has a standing duty to publish it in account of public policy; such a Defendant cannot incur any legal liability, so long as the publication has not been actuated by malice”. The Court went on to explain that the qualified privilege is one in which a person has an interest or duty, legal, social or moral to make the statement to whom it is made to, while the person to whom it is made has a corresponding interest or duty to receive it. It therefore behoves the Plaintiff, to prove the falsehood of the statement and the malice that actuated it, to debunk the Defendant’s defence of qualified privilege.  

Case Review: In the Matter of the #EndSARS Lekki Tollgate Incident, Nigeria v CNN

While it is not out of place to agree that first world governments care mostly about their own selfish interests and the benefits that their countries can derive from less developed countries like those in Africa, could all three defences to defamation, for example, avail CNN for its statement that the Nigerian Army fired live bullets during the 2020 #EndSARS Lekki Tollgate incident? Yes, I think so. In a case of libel, the Nigerian Government as the Plaintiff, the case against CNN would most likely have failed.  

It is true that CNN’s statement undoubtedly exposed the Nigerian Army/Government to hatred and contempt, but was the backlash self-inflicted by the latter because of their actions of opening fire on unarmed youths that Black Tuesday, October 20, 2020? Having initially claimed that it was fake soldiers that went to the scene (disproved by Amnesty International’s vivid account of how the soldiers left their Barracks in Victoria Island, and the route they travelled to the Lekki Tollgate), then grudgingly admitted that it was real soldiers who only fired blanks into the air; and subsequently, that they took some live ammunition with them; CNN, who is the Defendant in this matter, discharged the burden of proving that its utterances were true, by analysing and tracing the expended bullet casings from the bullets fired at the Tollgate to Serbia where the Nigerian Army regularly purchased ammunition from 2005 – 2016. See the case of Sterling Bank Plc v Falola 2015 5 N.W.L.R. Part 1453 Page 405 at 429 per Adamu Augie JCA (as she then was) on the definition of burden of proof. The burden of proof which doesn’t remain static, then shifted to Nigeria who failed to disprove CNN’s so-called ‘defamatory’ de-marketing utterances. See Soki v Kpongbo 2008 7 N.W.L.R. Part 1086 Page 342 and Sections 135-137 of the Evidence Act 2011 on the burden of proof, on which party it lies, and how it shifts from one party to the other. 

In this scenario, it seems that CNN would be able to plead Justification, Qualified Privilege and Fair Comment, while Nigeria would not be entitled to any damages for defamation of character.

Conclusion 

While most governments do not particularly take kindly to criticism, even if it is constructive, this present dispensation takes the cake in abhorring it, discountenancing useful comments, quickly labelling them as defamatory hate speech against the Government, and running down the country. But, the truth is that, Government has contributed in no small measure by its actions and omissions, to the contents which have set the stage for these so-called defamatory utterances which are usually more true than false.