The tort of defamation (2) – Defences

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Kaine Agary

There are several defences to defamation including justification, fair comment, and privilege (absolute and qualified).

Justification — When the statement is the truth. The person being accused of defamation bears the burden of proving that the statement is indeed the truth.

Fair comment —When the statement merely expresses the opinion of the person making it, and the statement is of public interest. The opinion must be based on fact and is not motivated by malice.

Privilege — In certain circumstances, the law will recognise that free discourse outweighs the need to protect a person’s reputation. Absolute privilege covers statements by and between certain groups of people, e.g., communication between a lawyer and client. Qualified privilege applies when the accused defamer can show that without malicious intent, they were protecting an interest or exercising a duty to provide information (for instance in a job reference letter, news reportage, etc).

In the Supreme Court case of V. M. Iloabachie, Esq. v. Benedict N. Iloabachie (as reported in Nigerian Supreme Court Report (20050) 5 NSCR Vol. 2) where the nephew instituted a defamation claim against his uncle over letters the uncle wrote to the Mgbelekeke family and the Director-General of the Ministry of Lands, Awka.

As already mentioned, the basis of the matter was a property transaction by the nephew, Vincent Iloabachie, Esq, which was objected to by the uncle. In an effort to have the transaction overturned, after trying unsuccessfully to resolve the matter with the nephew, the uncle wrote the letters using the following words, which the nephew believed were defamatory:

‘… The purported “sale” was not authorised, it is as illegal as it is fraudulent, because Vincent (the nephew) never consulted or discussed with any member of the family before his action. The purported “sale” is also very unprofessional and against the ethics of the legal profession because no honest and responsible lawyer will sell what is being held in trust for the family without consultation. The team of solicitors to the Peter Iloabachie family are already looking into these illegal, fraudulent, unprofessional and various other aspects of Vincent’s action…’

The uncle’s main defence to the claim was qualified privilege. Adding to the lead judgment delivered by Pats-Acholonu, JSC, Oguntade, JSC said: “It is my firm view that both courts below were right in the views they expressed on the defence of qualified privilege … The defendant stated that he was the head of the Peter Iloabachie Family and that the property sold by the plaintiff… belonged to Peter Iloabachie Family who had acquired it originally from the Mgbelekeke Family. Because the Peter Iloabachie Family did not have the documents concerning the land with it, it became necessary for the defendant to send (the letter) to Mgbelekeke family; and for a similar reason, the defendant sent (the letter) to the Director-General, Ministry of Lands, Awka. These, in my view, were legitimate steps to take to abort the sale of the property in dispute. The Mgbelekeke family had to be informed so that it would not recognize or validate the sale of the property by the plaintiff… As for the Director-General of Lands, it had the duty to register and record transactions concerning the sale of land in Anambra State. It is therefore my view that both the Mgbelekeke family and the Director-General of Lands Awka were persons who had an interest and duty to receive the communications addressed to them by the defendant.”

As discussed earlier, Iloabachie, Esq., the nephew, showed on testimony and cross-examination that he was not a truthful person. Akintan, JSC, also adding to the lead judgment said:“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… In the instant case, it is not in doubt that the contents of the letters published by the respondent and relied on by the appellant are defamatory in nature. But the respondent had proved that they are true. It was a very bitter truth that the appellant played an infamous role when he sold the family property, of which the respondent was the head, and that such sale was made without the consent or knowledge of the respondent or that of any principal member of the family whose prior consent was required before such sale could be validly made. The appellant, as a grandson, totally lacked the authority to make the sale and misappropriate the money realized from the sale. The alleged publications were also made to only those who were entitled to receive the complaints made in the publication. The defence of justification was therefore rightly available to the respondent.”

Vincent Iloabachie, Esq. failed to impress the judges all the way to the Supreme Court.

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