Whether Defamation is a Personal Action

CASE TITLE:  OJU v. UNILORIN & ORS (2023) LPELR-60788(CA)

JUDGMENT DATE: 25TH JULY, 2023

PRACTICE AREA: TORT (DEFAMATION)

LEAD JUDGMENT: TUNDE OYEBANJI AWOTOYE, J.C.A.

SUMMARY OF JUDGMENT: 

INTRODUCTION:

This appeal borders on the Tort of Defamation.

FACTS:

The appeal is against the decision of the High Court of Justice delivered on 20/12/2018 in Suit No. KWS/188/2011.

The Claimant (now Appellant) had instituted an action against the Defendants claiming as per paragraph 15 of his statement of claim as follows:

“15. Whereof, the Claimant claims against the Defendants jointly and severally;

a. a sum of One Hundred Million Naira (N100,000,000.00) only, being general damages for the libel printed and published by the Defendants of and concerning the Claimant at page 7, vol. 4, No. 60 of Monday, March 7, 2011 and page 3, vol. 4, No. 62 of Monday, March 21, 2011 editions of the “UNILORIN BULLETIN”.

b. An Order compelling the Defendants to retract the said defamatory words by way of letter of apology addressed to the Claimant and to be published in at least three successive editions of the “UNILORIN BULLETIN”

c. An Order of perpetual injunction, restraining the Defendants from further publication of such or other words defamatory of the Claimant.”

The parties filed and exchanged pleadings:

The Defendants in their joint statement of Defence challenged the competence of the suit on the following Grounds:

i. The claimants’ case as presently constituted is inchoate and discloses no reasonable cause of action.

ii. The case is incurably defective

iii. The Honourable Court lacks jurisdiction to entertain the case.

The defendants also counterclaimed claiming as per paragraph 26 of their Statement of Defence and Counterclaimed as follows:

“WHEREOF the counter-claimants counterclaim against the defendant to counter-claim as follows:

i. A retraction of all the stories and articles published in the clarion the April, 2011 edition together with an unqualified apology to be published in at least 2 National Dailies in an acceptable format.

ii. The sum of N50,000,000.00 (Fifty Million Naira) as general damages for libelous printing and publishing of the stories and articles contained in “The Clarion” the April 2011 edition which has damaged the name and reputation of the counterclaimants.

iii. AN ORDER of perpetual injunction restraining the defendant to counterclaim, whether by himself, servants, agents, privies or otherwise from publishing or causing to be published, any further or similar defamatory publications of the counterclaimants either jointly or severally.”

The claimant later filed a Notice of Preliminary Objection to challenge the jurisdiction to entertain the counterclaim on four grounds.

“1. That the counterclaim is fundamentally defective as it discloses no cause of action or reasonable cause of action and the Defendants/counterclaimants have no locus standi to any counterclaim whatsoever against the Claimant in this case.

2. That on the premise of the absence of a cause of action or reasonable cause of action as well as the lack of competence to counter-claim/claim against the claimant herein, this Honourable Court lacks jurisdiction to entertain the Counter-Claim.

3. That the Claimant is not a proper party to the Counter-claim sequel to which the Court cannot entertain same.

4. That this Counter-claim is a gross abuse of Court process.”

After hearing the parties, the learned trial Judge gave judgment dismissing both the claim and the counterclaim respectively. Miffed by the above, the Appellant brought this appeal and the respondent cross-appealed. 

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

“1. Whether the trial court was not wrong in refusing the appellant’s application dated 29th December, 2016 praying for amendment of his statement of claim.

2. Whether the trial court was not wrong in holding that the words complained of cannot imply defamation of the appellant on the ground that the appellant admitted not knowing his salary off hand and on the ground that the evidence of pw2 is hearsay and not reliable.

3. Whether the trial court was not wrong in holding that the appellant’s case cannot be maintained without joining Asuu.

4. Whether the trial court was not wrong in holding that the appellant did not prove to whom the words complained of were published.

5. Whether the trial court was not wrong in holding that the defence of justification, qualified priviledge and fair comment availed the respondents in the circumstances of this case.”

The Cross-appeal was determined on the following issues:

“1. Whether considering the facts and circumstances of this case, the cross appellants have not established a tort of defamation against the cross respondent before the lower court.

2. Whether the counter claim at the lower court was an abuse of court process and whether the cross respondent has been able to establish any defence against the counterclaim.”

DECISION/HELD:

In the final analysis, the appeal succeeded, while the cross-appeal failed. ​

RATIOS:

• ACTION- NECESSARY PARTY(IES): Who is a necessary party
• PRACTICE AND PROCEDURE- AMENDMENT OF COURT PROCESSES/PLEADINGS: Principles governing amendment of pleadings/Court processes
• PRACTICE AND PROCEDURE- ABUSE OF COURT/JUDICIAL PROCESS(ES): What constitutes abuse of Court process
• TORT- DEFAMATION: Meaning and nature of defamation; test to determine whether words are defamatory
• TORT- DEFAMATION: Whether every publication or republication of defamatory material is actionable
• TORT- DEFAMATION: Distinction between defence of justification and qualified privilege and ingredients of same
• TORT- DEFAMATION: What a plaintiff must prove in an action for defamation
• TORT- DEFAMATION: Whether a class of persons can be defamed as a class, and an individual, by a mere general reference to the class to which he belongs

TORT- DEFAMATION: Whether defamation is a personal action