Dr. (Mrs.

) Ohwomeregwa

LAW OF TORTS

DEFAMATION

A fundamental feature of the 1999 Constitution is the provision which clothe citizens
and foreigners in Nigeria with the right of freedom of expression in Section 39. In other
words, freedom of expression and the rights to hold opinion as well as receive and impart
information is a constitutional right open to all irrespective of their social status and political
affiliation. Owing to the fundamental nature of these rights, citizens are at liberty to exercise
the rights to freedom of expression without fear or favour.

The above position notwithstanding, right to freedom of expression is not absolute. It

is a qualified right, subject to conditions, restrictions, and regulations. One of the conditions
and or qualification for exercise of right to freedom of expression is the need to protect the
reputation of others and safeguard their right to dignity of human person. Thus, where
exercise of one’s right to freedom of expression interferes with another’s right to dignity of
human person, the law interferes to strike a balance. In other words, where exercise of one’s
rights to freedom of expression interferes with another exercise of his right to dignity of his
person or constitutes an undue attack to another’s reputation, the law will interfere to check
the undue interference. This intervention of the law is usually commenced through an action
for defamation. In the case of Sketch Publishing Company Limited V. Alhaji Ajegbemokeferi
(1989) IJELR 50562 (SC), Oputa JSC has this to say ‘the tort of defamation arises because
every person has a right to the protection of his good name, reputation, and the estimation in
which he stands in the society of his fellow citizen’.

Defamation, therefore can be defined as any verbal or printed publication about

another without any lawful justification or excuse, capable of exposing the person against
whom the publication is made to public ridicule contempt, scorn, disgrace, or intending to
induce a negative opinion of him in the mind of right thinking persons; or occasion injury to
his personal reputation in his profession occupation or trade. The Penal Code Act applicable
to the northern part of the Nigeria in Section 319 defines defamation as words, either spoken
or reproduced by mechanical means or intended to be read or by signs or by visible
representation, makes or publishes any imputation concerning any person, intending to harm
or knowingly, or having reasons to believe that such imputation will harm the reputation of
such person is said to defame that person.

Also, Section 512-514 of the Criminal Code Act provides that defamatory matter is a
matter likely to injure the reputation of any person by exposing him to the hatred, contempt,

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or ridicule or likely to damage any person in his profession or trade by an injury to his
reputation.

In the case of F.M.B.V Adesokan (2003) 3 NWLR, 19 29, Onoghen JCA as he then was
defined the defamation as any imputation which may tend to lower the plaintiff in the
estimation of right thinking members of the society generally and expose him to hatred,
contempt, and ridicule.

Again, in the case of Benue Printing and publishing corp. V Gwagwada, (1989) 4
NWLR (pt 116) 439, the Supreme Court held deformation as ‘any imputation which may tend
to lower the plaintiff in the estimation of right thinking members of the society, generally,
cut him off from the society or expose him to hatred contempt or ridicule. See also the case
of Edem V Orpheo (2003) 13 NWLR pt. 537 at 539-540.

In the case of Salaudeen V. Okunloye (2020) 8 NWLR, pt 1272 CA, 455, it was held that it is
the publication of the libelous matters that entitles the plaintiffs to a right of action and for
his action to succeed, it must be established that the libelous matters has lowered the
estimation which others hold the plaintiff and not just what the plaintiff thinks of himself. In
the case of Byrne V. Dean (1937) IKB, 818, the plaintiff and defendant are both members of
the golf club. The plaintiff’s case is that the defendant had defamed him by putting up a note
in the club stating that the plaintiff had made a report to the police about certain illegal
gaming machines kept in the club premises. The case was dismissed on the ground that
although members of the golf club may scorn the plaintiffs, members of the public will not
hold the same views as right thinking members of the public will applaud a citizen who
report illegality to the law enforcement agents. In amplifying this and giving meaning to the
words ‘right thinking persons’ Adefarasin J has this to say in the case of Awolowo V
Kingsway Stores (Nig.) Ltd (1967) 1 All NLR 26 at 20I- ‘in measuring the standard of the
average right thinking members of the public, the court will rule out persons who are so lax
or so cynical that they could think not the worst of a man whatever is imputed on him. The
law will also rule out those who are so censorious as to regard even trivial accusations as
lowering another reputation, or who are so hasty as to infer the worst meaning from any
ambiguous statement. Thus, an ordinary citizen is neither unusually suspicious no unusually
naive.

Elements of Defamation
In an action for defamation, the following facts must be established by the plaintiff:
1. Publication: for an action for defamation to succeed, the offending statement must
have been published. In other words the defamatory statement must have been
communicated to third parties other than the plaintiff. Thus, writing of a libelous matter or
speaking a slanderous matter to the plaintiff alone does not amount the
publication/defamation.
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2. The publication must be false

3. Malice: for an action to be sustained in defamation it must be established that the

defamatory matter/statements is published out of malice in other words, the plaintiff must
established a malicious intent of the defendant otherwise the defense of fair comment may
vitiate the claim.

4. Damage: Damage is the quantifiable loss suffered by the plaintiff as a result of the
defamation. It is the worthy of note that libel is actionable per se and need not proof of
physical damage. However, Slander it’s not actionable per se and as such, the plaintiff must
established injury.

5. Repetition: repetition of a defamatory matter usually entitles a claimant an action

against a new vendor. Generally, the law uses new vendor, such as publisher, newspaper
magazine, repetition of the defamatory publication after warming men entitled the claimant
to a defamatory against defendant /new vendors.

Generally defamation is broadly divided in total heads /categories; slander and libel.

SLANDER: Slander is a transient form of defamation committed throughout spoken words

or gestures. Gestures as a means of defamation apply to the deaf and people who are hard of
hearing. Thus, mere act can qualify for, and convey defamatory imputation, if it could be so
understood by reason of conventional meaning. this includes gestures such as hissing at a
person, placing a lamp in front of a person‘s house suggesting that the house is a brothel,
burning a person in effigy. However, it has been heard that conduct without words cannot
amount to defamation. See the case of Zenith Bank International Bank Limited V. Nosa
Daries (2021) LPELR-54150 (CA). As to the nature of words to constitute defamation,
Section 2 (1) Defamation law of Bendel State currently applicable to Edo state, define words
as ‘including a reference to pictures visual images, gestures and other method signifying
meaning.

In defamatory suits based on slander, it is necessary to call us weakness the person to whom
the defamatory words are published. In other words to prove publication in slander, the
persons to whom the words was published must be called as witness. Also, it is worthy to
note that statement made to the police cannot amount to defamation see Zenith Bank V Nosa
Daires (Supra).

Slander is not actionable per se. Thus, for a claimant to succeed in an action in slander, he
must prove the particular damage suffered. See the case of Yesufu V Gbadmosi (1993) 6
NWLR pt 299 @ 364 CA. Failure of a claimant to approve specific damages will disentitle
him of any award of damages. See the case of Onojoghofia V Okitipail (1974) ESCLR, 466.

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This notwithstanding, there are instances where slander is actionable per se without proof of
physical injury or damage.

Instances where slander is actionable per se

It has been earlier stated that slander is not actionable per se. Proof of a defamatory
statement without proof of loss resulting from the defamation as a specific damage does not
entitle a claimant to remedies. However, there are instance where slander is actionable per
se. These are instances such as:

i. Imputation of Crime: It is a slander actionable per se to allege that a claimant has

committed a criminal offence punishable by imprisonment. It then means that the mere fact
of calling someone a thief without proof or justification is actionable without proof of
damage.

Nevertheless, for an imputation of crime to be actionable per se:

a. There must be a direct assertion of guilt by the defendant. For example, to say that Mr.
A is a thief is actionable per se, however, to say that Mr. A is suspected of having
stolen is not actionable per se. Thus, it is advised to use the word “allegedly”.
b. The word used must be looked at or considered in the context where it was spoken; for
instant, to say that A is a thief is actionable per se, but if the word ‘A is a thief’ is
followed with ‘he sold a few oranges to me an exorbitant price’. it is not actionable
per se.
c. The crime impacted must be punishable corporally with imprisonment at least.

ii. Imputation of certain Diseases: it is a slander actionable per se to impute that a

person is infected with certain contagious diseases. The reason for holding that oral
imputation of contagious disease is slander actionable per se is based on the fact that being
afflicted with contagious disease would tend to isolated/ disassociate the plaintiff from
normal contacts in the society.

In Nigeria, it has not been settled as to the nature of contagious diseases and ailments that
fall within this category, the imputation of which would constitute slander actionable per se.
In Jamaica however, it has been held that imputation of tuberculosis is not actionable per se.
See the case of Murray v. Williams (1936) 6 JLR 180.

iii. Imputation of unchastity or Adultery

The community reading of the provision of Section 1 of Slander of Woman Act 1891,
Section 5(1) Defamation Law of Eastern States and Section 4 of the Defamation Law
Western States, an imputation of unchastity or adultery concerning any woman or a girl is
actionable per se. unchastity includes lesbianism as it is in the case of Kerr V Kennedy
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(1942) 1 K B 409. Thus, using any published words/statements, suggesting that a person is
guilty of fornication or adultery is slanderous and actionable per se. See the case of Colby v.
McGiee.

In the case of Iles v. Swank, the defendant referred to the plaintiff stating “she keeps a public
house, I could do business with her if I wanted to… she is that kind of a woman”. The Court
held that the statement was slander actionable per se. However, it must be noted that at every
point, court usually interpret words in the context where they are used.Thus, if the words
have been used as a mere vulgar abuse, the words would not be actionable per se.

iv. Imputation Affecting Professional or Business Reputation: The law protects all legal
profession from defamatory utterances. However, for an utterance to be held slanderous per
se for affecting a profession or businesses, the plaintiff must state the nature of the
profession to enable court determine whether or not a statement of that nature is capable of
disparaging the plaintiff’s reputation in the usual practice of that profession. See the case of
Wright v. F.W Woolworth Co. where it was held that referring to the plaintiff as a ‘nigger’ is
not enough since she did not state the nature of the job where she claimed the nigger
imputation has attacked.

Again, to succeed in action under this heading, the plaintiff must prove that the word spoken
affected him in the practice of his profession or business. For instance in the case of Jones v.
Jones, it was held that the imputation that a school master committed adultery, with a
married woman employed in that school is not actionable per se. The rationale behind this is
because although the statement imputes adultery and misconduct on the school master, it
does not allege misconduct in his course of duties as a school master. See also the case of
Onojioghofia v. Okitipai (1974) 4 ECSLR, 406.

This position has received a statutory reformation in the Western, eastern and Lagos states
by virtue of Section 2 English Defamation Act 1952, applicable to these religion/ states. The
section provides that ‘in any action for slander in respect of words calculated to disparage the
plaintiff in any office, profession, calling, trade or business held or carried on by him at the
time of the publication, it shall not be necessary to allege or prove special damage, whether
or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade
or businesses. Thus, by virtue of the above statute a plaintiff need not prove special damages
once it is established that the word is spoken of him in the way of his office, profession or
business.

Defences to Slander
Vulgar Abuse: A vulgar abuse is a mere negative statement/comment which is not
slanderous because its maker’s intention is not for it to be taken seriously as it is not intended
to be believed. As such, statements of that nature are not capable of causing damage to the
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plaintiff’s reputation. Insulting comments made in anger and during heat of passion and
quarrel would most likely fall within vulgar abuse as it does not tarnish the image of the
person to whom it is made; and the public to whom it is published in most cases do not take
it serious considering that it was made in the heat of passion during altercation. In the case of
Mrs. Nene Amorn v. Mr. Smart Amorn, it was held that, the words spoken of the plaintiff by
the defendant were mere vulgar abuse as the parties were involved in a quarrel before the
offensive words were spoken. See also the case of Bakare V Ishola (1959) WNLR 106 where
it was held that courts take judicial notice of the fact that people commonly abuse each other
as a prelude to a fight and no one takes the abuses seriously as they are words of heat and
anger.

However, where there was no quarrel between the parties before the defamatory words were
said, defence of vulgar abuse cannot avail the defendant. See the case of Ibeanu V Uba
(1972) 2 ECLR, 194. In this case, the defendant made a defamatory statement in Igbo
language against the defendant which when interpreted means ‘Josiah! Josiah!! You brought
the thieves with whom you stole my goat and now you have come to ask me’. Evidence
revealed that the plaintiff saw the defendant passing and called him to sympathize with him
over his stolen property when the defendant made the slanderous statement in presence of
passers-by. The court held that the statement is not a vulgar abuse as there was no evidence
of prior or immediate quarrel between the plaintiff and the defendant.
Where the slanderous words are published in foreign language, the words must be pleaded
with reasonable certainty and interpreted in the plaintiff’s pleadings. In addition, the plaintiff
must call an expert to interpret the foreign language to the court. In summary, for a plaintiff
to succeed in an action in slander, he must plead the actual words as published. Also, he
must plead the words’ interpretation in English language using a sworn interpreter as an
expert witness.
Libel:
The tort of libel is committed through the publication of defamatory words in writing. See
the case of Iloabachie v Iloabachie (2005)13 NWLR (pt. 943)695 pgs 735-736, paras H-A.
Writing is a permanent form of publication which can be referred to at any time and once it
is capable of affecting the reputation of the person against whom it was published, it
becomes libel and defamatory. See the case of Sketch Publishing Co. Ltd. V Ajagbe Mokeferi
(1989)1 NWLR, pt 100, pg 679 Sc.
Some scholars have maintained that defamatory publications that would qualify for libel
include publications in a permanent form such as that contained in a painting, cartoon,
photograph, a statute or film. Also, according to Sections 3 of Defamation Law of 1951 and
Defamation Law of 1961, defamatory words contained in a radio broadcast are permanent
form of defamation. Again, Section 2(1) of the Defamation Laws of the Eastern States
provides that broadcasting includes publication for general reception by means of wireless
telegraphy or television.

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In the case of Omon v Ekpa (2019)15 NWLR part 1696, CA 104, it was held that imputation
of betrayal of trust against a lawyer in a permanent form attracts negative feelings against the
lawyer whose trade is rooted in trust from members of the public. As held in the above case,
for a claimant to succeed in an action for libel, he must prove the following:
i. Publication of the offending word
ii. That the offending word refers to him,
iii. That the offending words were published to a third party
iv. That the words are false/lack accuracy
v. That there are no justifiable legal grounds, for the publication
N.B libel is actionable per se.
The practice as it applies to evidence in civil defamation is that the claimant must lead
evidence through a third party to show that the publication was made, the publication is false
and the effect of the publication or the reaction of the third party. See the case of Iwueke v
IBC (2005)17 NWLR (pt. 955) at 482. In the case of Daily Telegraph Pub. Coy Ltd. v.
Ekeuwei, the court reiterated this position and held that for a claimant to succeed in a
defamation action, he is expected to prove and satisfy the basic elements of his claim.
Facts to be Established in Proving Libel
1. That the Statement Conveys Defamatory Meaning to Those Whom it was
Published
As stated above; defamatory statements are statements capable of injuring the
reputation of the person to whom it refers. Reputation is injured when one is lowered in the
estimation of members of the society generally. Thus, an expression which exposes the
plaintiff to disgrace, humiliation, ridicule or contempt is defamatory. To determine whether
or not a statement is defamatory, the court will determine the effect/impact of the statement
on right thinking members of the public. See the case of Dumbo v Idugboe (1983)1 SCNLR,
29. Thus, defamatory statements are not determined based on the reputation a plaintiff hold
of himself but on that held of him by reasonable members of the public. Thus, in like
instances, the court will construe the words according to the fair and natural meaning which
reasonable members of the public will ascribe to it. See Punch Nig. Ltd. v. Eyitene (2007)17
NWLR, (pt. 741)228.
In construing words/defamatory statements, courts usually examine words in their, fair
and natural meanings. In other/some instances, words are construed in their secondary
meanings otherwise known as innuendos.
Innuendo
In law of defamation, innuendos are statements that do not convey defamatory meanings in
their ordinary form but in secondary sense/uncommon sense. In other words, an innuendo is

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an indirect defamation using words in their uncommon, hidden or secondary meaning. There
are basically two types of innuendo in law of defamation:
a. True or legal innuendo
In proof of true or legal innuendo, the plaintiff contends that although the words used
are/appear innocent and inoffensive on the face of it or while construed in its common sense,
they however convey defamatory meaning because of certain special facts or circumstances
known to the persons to whom it was conveyed. See the case of Akintola v Anyiam (1961)1
All NLR, 508.
b. False or Popular innuendo
Here, the plaintiff’s proof is not on the extra special facts known to the persons the
words were published, he rather contends that the words convey some defamatory inference
which reasonable persons generally will draw from the statement. Example, it is a false or
popular innuendo for a bank to reject a customer’s cheque for insufficient fund even when he
had sufficient fund in his account. In the case of Okeke v Mkpanam (1962)6 ENLR, 209, it
was held that the word ‘economic shylock’ used in referring to the plaintiff- politician
conveys a popular innuendo since the inference would mean that he is irresponsible and unfit
to represent his constituency.
2. The words/Statement Must be Made to a Third Party
Another fact to be established by the plaintiff is that the words are published to a third
party or third parties. In the case of Nsirion v Nsiriom, it was held that publication consists of
reducing the libelous matter to writing and delivering same to any person other than the
person injuriously affected. In establishing publication, the name of the person to whom the
libelous statement was made must be pleaded. See the case of Giwa v Ajayi. In establishing
publication in libelous statements, the mere fact that defamatory statements are published in
newspaper or magazines suffices.
As to who can be sued in defamation, the common law position in newspaper and
magazine publication is that anybody in the chain of production and distribution of the paper
including the proprietor of the newspaper, the editor, printer, publisher and even the vendor
can be sued jointly or severally. However, the law provides for means of reducing or
containing the work gap of persons that can be sued by allowing the defence of innocent
dissemination. This defence avails those whose contact with the publication or published
material are mere subordinate. Thus, a person who is not the author, printer or first /main
publisher of a work can rely on this defence provided that he can establish that
i. He did not know that the book or paper contained the libel complained of;
ii. That such want of knowledge was not due to any negligence on his part. See the case
of Awolowo v. Kingsway Stores & ANor (1968) All NLR, 606
3. The Defamatory Word Must Refer to the Plaintiff

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 In order to succeed in an action for libel, the plaintiff must establish that the words
refer to him. It is immaterial that the name referred to is the plaintiff’s nick name. See the
case of The Service Press Ltd v Azikiwe (1951)14 WACA, 176.
Defamation of a Class or Group
Where a defamatory statement refers to a group or class of persons, no one member of the
group can maintain and sustain an action in defamation. See the case of Knupffer v London
Express Newspaper Ltd. (1944) AC, 116. However, where the group referred to is so small
and ascertainable that anything said of the class is necessarily said of every individual
member of it, an individual member can sue. See Dalumo v Sketch Publishing Co. Ltd.

Unintentional Defamation
At common law, it is immaterial that the statement alleged to be defamatory does not refer to
the claimant but another person with similar features of identify once the statement
/publication is defamatory. The defendant is held liable whether or not he intends that the
defamation is or/refers to the plaintiff. This is the position in the case of Newstead v London
Express Newspaper (1940)1 KB, 3. In this case, the defendant’s newspaper published a
defamatory article about one Harold Newstead. Another person who goes by Harold
Newstead sued the newspaper for libel and lead evidence to establish that the statement has
attacked his reputation as his peers including his witnesses now sees him in a negative light
as a result of the statement. The defendant newspapers’ defence is that the plaintiff was not
the person referred to and there was no intention to defame him. In delivering judgment in
favour of the plaintiff, the Court of Appeal held that liability for libel does not depend on the
intention, but on the fact of defamation. See also the case of Gulton v Jones (1909)2 KB 444
(CA).

However, as time goes on and the law develops, the apparent injustice occasioned by
cases of this nature calls for attention. As such, the defamation Act of 1952 was birthed and
in Section 4, it provides for defences to cases of unintentional defamation. This section
which is impairi material with Section 6 of the Nigerian Defamation Law of 1961 provides
that where words are published innocently as defined by the statute, a defendant may escape
liability for damages if he is willing to publish a reasonable correction and apology
otherwise known as ‘offer of amends’

An offer of amends under the Act is an offer,

i. To publish a suitable correction and apology; and

ii. Where copies of the defamatory material have been distributed by or with the
knowledge of the defendant, to take reasonable steps to notify persons to whom copies have
been distributed that the words are alleged to be defamatory of the plaintiff. See Section 6
Defamation Act of 1961.
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An offer of amend is usually made where

a. the publisher did not intend to publish the words of /and concerning the plaintiff and
did not know of circumstances by virtue of which the words ought be understood to refer to
him;

b. The words were not defamatory on the face of them and the publisher did not know of
circumstances by virtue of which they ought be understood to be defamatory of that person
and in either case, the publisher exercises reasonable care. If the offer of amends were made
and the plaintiff refuses to accept it, then in defence of the case, the defendant will prove that

- The words were published innocently;

- That the offer was made as soon as practicable after the defendant learnt that the
words might be defamatory of the plaintiff;

- That if the publication was of words of which the defendant was not the author,
that the words were written by the author without malice.

Defamation in the Online Space, the Internet Service Providers and Defence of
Innocent Dissemination

The concept of innocent dissemination is a common law principle that has been applied in
defence of internet intermediaries by courts in certain jurisdictions. In the case of Ubby v
Compuserve, 776F, Supp. 135 (S.D.N.Y 1991, Don Fitzpatrick published a daily newsletter
called Rumosrville. Scuttlebutt, the plaintiff claimed that Rumosrville had published
disparaging remarks about it and joined CompuServe alleging that as a publisher,
CompuServe was liable for the statement of its authors. The Southern District Court of New
York Supreme Court held some representations and policies of the defendants was enough to
make it liable. Thus, it appears that when a publisher places/arms itself with policies and
terms, then failure to ensure that posts and publications follow the policies make the
publisher liable.

In the Nigerian case of Nicholas Okoye v Ladum Liadi & 2 Ors, the court held that time
Google was not liable as it only operate as internet intermediary and was neither the author,
editor or publisher of the defamatory contents.The court father held that the position will be
different if the services provider was negligent in publishing the defamatory matter.

General Defences for Defamation

Apart from defense of innocent dissemination discussed above, a defendants in a case of
defamation may rely on the following defences:

1. Justification
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2. Fair comment

3. Absolute privilege

4. Qualified privilege

Plea of justification or truth

A plea of justification, that is a plea that the statement or words said or published in
slander and label as the case may be are wholly or substantially true. According to the courts
in the case Onwuchekwa v Onovo (1974)12 CCHCJ, 1919, the law will not allow a man to
recover damages for injury to a character he is not in fact entitled to. In this case, the plaintiff
sued the defendants for referring to him as a person of unsound mind that should be in a
psychiatrist. The defendant laid evidence to establish/justify the statement relying on the
state of the plaintiff when she was last seen by the defendant, confined in Yaba psychiatrist
Hospital and the court of uphold same as justifiable. See also the case of Rode v Smith
Newspaper, Nthenda v Alade.

To succeed in this plea of justification, the author/publisher or maker of the statement

(defendant) must lead evidence to show that the whole of the defamatory matter/statement
complained of and any reasonable inference that can be drawn therefrom were actually true.

Plea of fair comment:

Fair comments refer to statements or comments made by a person in response to
certain facts that he believes honestly to be true, even though they may not be true. For this
comments/plea to succeed, it must be established that the comment is fair, legitimate and of
public interest such as information about corruption of public office holders etc. For this
defence to succeed, it must be established that:

- The matter commented on is of public interest

- The statement must be a comment, opinion and not an assertion of fact.

- The comment must be based on facts truly stated

- The comment must be honestly made requirements must be actuated by express

malice.

Plea of absolute privilege

This plea avails those who are entitled or imnuned to legal action as a result of
statements made in course of their offices and positions by virtue of the nature of the office
or position. The rationale for absolute privilege stems from the fact that in certain
circumstances, people will only speak or volunteer information if they are certain about their
security after making such statement.
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The following are instances where absolute privilege apply:

- Statements made in the course of and with reference to judicial proceedings by any
judge, juryman, advocate, parties for their witnesses.

- Statements made in the proceedings of the legislature

- Communications made by one officer of a state to another in the course of his official
duty.

- Reports of judicial proceedings

Plea/Defence of Qualified Privilege

Defense of qualified privilege is similar to that of absolute privilege. However, the

underlying difference between absolute and qualified privilege is that in absolute privilege,
malice on the part of the defendant is immaterial while in qualifies privilege, the defendant
must prove that his action is not tainted with malice.

Occasions of qualified privilege are:

- Statements made in the performance of legal, Moral or social duty so volunteer the
defamatory statement and the recipient has corresponding duty to receive the statement

- Former employer making references

- Statements made to the proper authorities in order to obtain redress for public private
governance. See Ajala v Showunmi (1977) CCHCJ 25.

- Statements made in self defence: A defamatory statement made by a defendant in an

attempt to defend himself or his property from attack is privileged. See the case of Osborn v.
Boulter.

- Statements made between parties having a common interest in an action

- Fair and accurate reports of proceedings in the legislature

- Fair and accurate reports of judicial proceedings

- Statements privileged under the defamation Acts.

Limitations to Privileged Statements

Generally, the right / privilege to statements apply to persons legally placed or occupying
certain positions where the privilege is permissive. This is unlike the defence of fair

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comment which is open to the general public. See the case of Concord Press Ltd. v. Obijo
(1990) 7NWLR, pt. 162, 303. This notwithstanding, defence of privilege-abslute or qualified
is limited in the following ways:

a. Restriction on Excess Privilege: Where the defamatory statement is published more

than the number of times or outside the period within which it was intended to be
published, defence of privilege will be defeated. Thus where a publication is meant for
few persons, publishing it to the general public may vitiate the defence of privilege.
b. Excessive Publication: publishing more than the period of time within which it is
intended to be published amounts to excess publication and vitiates the defence of
privilege.
c. Malice: Defence of privileged communication will not avail a defendant whose motive
of publishing is tainted with malice.

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