DEFAMATORY STATEMENT:REPUTATION AS A CONDITION SINE QUA NON IN AN ACTION FOR DEFAMATION

 

REPUTATION

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REPUTATION AS A CONDITION SINE QUA NON IN AN ACTION FOR DEFAMATION

BY ANACHUNA VALENTINE CHINONSO Esq

In this article, reputation will be considered in all entireties. The aim of the law of defamation is to vindicate the reputation of the person defamed and to compensate the injured party by way of damages, but when the person has no good reputation in respect of what is said or published about him, the law will not protect him[1] . In Michelson v United States[2] The court captured the gravamen of what the plaintiff in action on defamation seeks to protect in the following words:

When a plaintiff seeks to recover the actual injury to his reputation, he is attempting to recover for damage to an element that is based on the slow growth of months and years, the resultant picture of forgotten incident, passing events, habitual and daily conduct and on the general discussion and comment concerning a person in the community

It is pertinent to mention that many of the opinions discussing reputation testimony arise either in the context of proving the character of a victim, criminal  defendant or witnesses. Reputation may be a permissible method of proving these issues[3]. The evidence offered by the plaintiff must reflect his complete description of what the people in the community have said and are saying about the plaintiff, the personal Knowledge and belief of a single person do not reflect the community’s evaluation of reputation.[4] Having laid the proper foundation for this topic, it is imperative to decipher what the law means by reputation.

4.1 What is Reputation

Reputation is a mysterious term[5] the common law has not attempted to define reputation. The dictionary defines it as ‘ common or general estimate of a person with respect to character and other qualities[6].   Reputation is so sacrosanct to an action in defamation that there are some concepts established as regards to reputation, which will equally aid in understanding appreciatively the meaning of reputation. Some of these concepts are[7]:

Reputation as a property

The concept of reputation that is most easily available to contemporary observers is that of reputation in the market place. This concept of reputation can be understood as a form of property akin to goodwill. It is this concept of reputation that underlies our image of the merchant, who works hard to become known as credit worthy or that of a carpenter who strives hard to achieve a name for quality workmanship. Such a reputation is capable of being earned in the sense that it can be achieved as a result of individual efforts or labour. Thomas Starkie[8]  well described this concept of reputation over a hundred and fifty years ago thus: ‘ Reputation itself, is considered as the object of injury and its being an important channel to the various artificial relations  which are created as society advances. To Stakie, reputation protected by defamation law is something a person can earn through ‘ the exertion of talent’. This concept explains why defamation proscribes aspersion on an individual’s character.

Reputation as Honour

This concept is of the view that reputation is not commensurate with the value of the market place. In underscoring its view, the proponents stated that a purse according to Shakespeare is mere trash when compared to good name[9]. In this concept, the individual claim a right to reputation, this is seen as honour in this concept, by virtue of his status within that society. For example a king does not work to attain the honour of kingship, rather benefits from the honour which society attributes to the position. In opposition of this concept to the concept of reputation as property, the proponents of this concept state that: ‘The value of honour is the value of meaningful life and for that reason is what cannot be measured by market place’[10]. Also the proponents are of the view that a good name ought to be more precious than life itself and aptly put by B.Rich[11] thus:

As the soul is more precious than the body, so it is greater offence to take away any man’s good name which refreshes the soul  than to defraud him of his food that sustain the body

Reputation as Diginity

According to Lord John Stewart in Rosenblatt v Baer[12]he held thus:

The right of a man to the protection of his own reputation from unjustified invasion and hurt, reflects no more than our basic concept on the essential dignity and worth of every human being; a concept at the root of any decent system or ordered liberty.

A preliminary objection to this concept of reputation as dignity, is that defamation will not impose liability, unless there is a publication to a third party[13]

In Laniecki v Polish Army Veteran Association[14]the court  comprised of the jury, adopting in part of shakespearian  words on reputation stated:

He who steals my purse takes trash, but he that steals my reputation, steals my life.. as juries we feel that no amount of good can compensate for a mans reputation.

4.3 REPUTATION AS AN ELEMENT IN DEFAMATION

In the book of proverbs chapter 22:1 the Holy Bible in its replete of wisdom states: ‘ if you have to choose between a good reputation and great wealth, choose good reputation’. Also Williams Shakespeare in his quintessential way of putting words said as regards to reputation:

The purest treasure mortal times afford is spotless reputation, that away men are like guilded loam or painted clay, A jewel in a ten-times barr’d chest is a bold spirit in a loyal breast, my honour is my life, both grow in one, take honour from me and my life is  done[15]

Also the same Shakespeare on reputation, a man replete with wisdom said:

Good name in man and women, dear my lord is the immediate jewel of their souls

Who steals my purse steals trash; it is something but nothing, twas mine ,tis his, and has been slave to thousands; but he that filches from me my good nam, robs me of that which not enriches him and makes me poor indeed[16]

 

It is germane to state that having laid the proper foundation as it relates to reputation and having deciphered from the forgoing that reputation is sacrosanct to any human being and should be guarded jealously, it is pertinent to consider extensively, reputation as an element in defamation.

In the case of Illoabachie v Illoabachie[17]and affirmed in the case of Punch Nigeria Ltd v Eyitene[18], the court held  ‘That a plaintiff who brings an action in defamation, puts his reputation in issue and a defendant in mitigation of damage may give evidence that  the plaintiff has bad character citing authorities to his contention’. However it is imperative to know when it can be rightly said plaintiff’s reputation has been tarnished. In the case of Punch Nigeria  Ltd  v Eyitene[19]the court held thus:

Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to the disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of right thinking man is not actionable within the law of defamation.

Also Green LJ Tolly v Fry[20]held  thus:

Words, however they may appear to damage a man in the eye of the community, are not defamatory or actionable within the law of defamation, unless they amount to disparagement in the eyes of the right thinking members of the public generally

It is germane to note from the forgoing, that for an action in defamation of which a plaintiff alleges damage to his reputation to succeed there must be a disparagement of his reputation in the eye of the public generally not just to a section of the community

Also it is important to state that  Tolly v Fry[21] was adopted and cited  with in approval by Brett JSC, in the Nigerian case of  Egbuna v Almagamated Press of Nigeria Ltd[22].

The aforementioned principle was well illustrated in the case of Byrne v Dean[23]. The plaintiff in this suit and the defendant were both members of golf club, the plaintiff alleged that the defendant has defamed him by putting up a notice in the club to the effect that the plaintiff had made a report to the police about certain illegal gaming machines kept on the club premises. It was held by the court thus;

That the defendant statement could not be defamatory, although the other members of the club may think less of the plaintiff in consequences of it, right thinking members of the general public will approve rather that disapprove of a person that reported a criminal offence to the police

It is important to decipher the import of ‘A particular section of the community’ before which it can rightly be said that a plaintiff’s reputation might not have been damaged. The term was defined by the Supreme court in Egbuna v. Almagamated Press of Nigeria[24] thus:

As a body of persons who subscribe to the standards of conduct that is not of the society generally, thus for example, the colleagues or business associates of a particular profession are not a particular section of the economy, in this context unless their standard  of conduct or morality are different from  those of right thinking persons generally,. Therefore, a statement which tends to lower the plaintiff in the estimation of his colleagues would be defamatory, unless it was shown that reasonable members of the society will take a different view

Furthermore, in assessing the standard of the average of right thinking member of the society, the court in Lewis v Daily Telegraph Ltd[25]and equally adopted in Awolowo v. Kingsway Nigeria Ltdsaid  thus:

That the court will rule out on the one hand persons who are lax or so cynical that they would think none the worse of a man, whatever imputed to him and on the other hand those who are censorious as to regard even trivial accusations (if they were true) as lowering another’s reputation or who are so hasty to infer the worst meaning from any ambiguous statement…. The ordinary citizen is neither unusually suspicious nor unusually naïve and he does not always interpret the meaning of a word as would a lawyer for he is not inhibited by a knowledge of the rules of construction.

It is important to state at this point, that where a man has no reputation worthy to protect, he cannot succeed in an action for libel to protect nonexistent reputation, because as rightly put in the case of Dr Anate v Sanusi[26]‘That such a man cannot be allowed to recover for injury to a character he does not possess; the libel will be justified as an absolute defence’. Also, in the case of  Din v Africa Newspaper [27] the court held that ‘A man’s reputation blurred by sanctions of the law is not libel’

There are various method of which reputation may be proved in the United States, which will be x-rayed  in order to appreciate the topic of this research work[28]. These methods are:

Testimony by a member of the community

This type of method of proving reputation is by calling a witness who can testify that he is aware of the plaintiff’s reputation in the community and can testify whether his reputation is good or bad. The witness may not testify his personal knowledge about the individual, but he may testify about what the community feels or are discussing. This method has been criticized as a method of proving reputation because is raising opinion in disguise. Is doubtful whether this method will work in Nigeria, because by the provision of The Evidence Act,2011 s 67 states ‘ That the opinion of any person as to the existence or non- existence of facts in issue or facts relevant to a fact in issue is inadmissible except as provided in sections 68 to 76 of this Act. From the forgoing it is imperative to state that the feasibility of this method working in Nigeria will depend on the circumstances falling within the exception stated thus far.

Also, from this method,   it has been argued that the testimony of the witness as regards to reputation will be based on his perception and does not reflect the assessment of the community about the individual

Testimony as of a Stranger

Efforts have been made to measure reputation by sending a stranger into a community to ascertain a person’s reputation and subsequently the stranger’s testimony on the issue is offered. These attempts have generally been rejected by the courts. Apparently these attempts have failed because there have been no strong evidence to show that the stranger has taken steps to accurately discover the reputation. In Parker v. State[29] in this case, the court refused to allow an investigator to testify.

Public Opinion Survey

This an  advancement in the  ability to measure accurately the views and attitudes  of large  number of persons have made, through the development of pools or public opinion which are commonly used in commerce and politics[30].  A survey is designed to study a limited number persons, sample with respect to a particular matter, in order to obtain a result applicable to the entire problem.  It evaluates the thoughts and beliefs of those interviewed and the reasons to those thoughts and beliefs. Properly administered survey may measure the extent and existence of any actual injury to the plaintiff’s reputation as a result of publication. A preliminary objection may be raised that survey results are inadmissible hearsay and in the light of the aforementioned circumstance, its feasibility is doubtful in Nigerian Jurisprudence, when juxtaposed with Evidence Act, 2011 s 37, unless it can be accommodated in any of the exceptions.

Having considered the following it can be irrefutably said that Reputation is a desideratum in defamation as aptly captured in the case of Michelson v United States[31] The court captured the gravamen of what the plaintiff in action on defamation seeks to protect in the following words:

When a plaintiff seeks to recover the actual injury to his reputation, he is attempting to recover for damage to an element that is based on the slow growth of months and years, the resultant picture of forgotten incident, passing events, habitual and daily conduct and on the general discussion and comment concerning a person in the community.

4.3 REPUTATTION DISTINCT FROM FAME

Reputation and fame may look closely related but in all entirety, they are distinct from the other. Blacks Law dictionary defined Reputation as a person’s character, credit, honour, good name and defined fame as the act of being notorious in a community and involve in the affairs of the community. Reputationa to my personal perception is what people think about  a person privately while Fame is what people think of the person publicly. In an action for defamation, what the plaintiff complains is damage to his reputation which is what people know him for, which always revolves around good name, which the plaintiff is alleging that is damaged and therefore that he should be either compensated in damages caused or injuction restraing further publication or republication depending on the circumstances. As regards to fame, it is mostly an acknowledgment from the public and such an acknowledgment cannot be possibly said to be injured.

 

4.4 REMEDIES FOR INJURY TO REPUTATION

Reputation is an important element in action for defamation as seen from the foregoing. It is a notorious fact that in an action in defamation, the gravamen of what the plaintiff is complaining is an injury to his reputation. It is germane to mention, that at common law, whenever the law gives a right or prohibits an act, it also gives a remedy. This is aptly captured in the  latin maxim ‘ Ubi Jus Ubi Remedium’ and it means that there is no wrong without a remedy. However, flowing from the foregoing it can rightly be said that if a plaintiff in an action in defamation can rightly prove injury to his reputation, he deserves a remedy for the wrong alleged. The remedies that are likely available to a plaintiff in an action in defamation are:

  • Damages
  • Injunction
  • Retraction and open apology

However as regards to damages, it is worthy of note, that a man does not get compensation for his damaged reputation, he gets damages because he was injured  in his reputation. In the case Offoboche v Ogoja Local Government & Anor[32]where the ten million awarded to the plaintiff was reduced to fifty thousand Naira by the  lower court.

Also the court held in the case ofIshola Diana v New Nigerian Newspaper Ltd[33]thus:

In assessing damages for defamation,  the court should ensure that the award made is adequate to assuage the injury to the plaintiff’s reputation, character and pride; however , the court should consider the conduct of the plaintiff, the station in life of the plaintiff, the mode and extent of publication, the absence or refusal of any retraction or apology and the conduct of the defendant from the time the libel was published, right through the time judgment was delivered in the case, if it the libel was proved ( as it was not in the present case) it was stated that three million naira was at the high side and five hundred would have been adequate.

The above stated decision was also affirmed in the case of First Bank Plc v. Mrs Aboko[34]

Furthermore, the court equally held in Adeosun & anor v. Alhaji Afolabi & anor[35]the court held thus:

An action for libel in defamation succeeds on proof of loss of reputation, not loss of money or business interest. Thus where the plaintiff fails to prove loss of self-esteem by the publication of the disclaimer he complained about cannot recover damages in that behalf. Loss of intergrity occasioning disgrace, caused by defamation, must be proved by evidence on the standard of a reasonable person of ordinary intelligence, who would view whether the publication on and of the plaintiff is understood to be defamatory as to have reduced the plaintiff in esteem.

There are two types of award of damages worthy of mention and they are aggravated and exemplary damages. A distinction between the two is that in exemplary damages, is to punish  the  defendant whose conduct has been outrageous or scandalous( ie disgraceful) while in aggravated damages it is awarded to compensate the plaintiff for any aggravated harm done to him, such as injury to his feelings as a result of  the special circumstances of the case[36]

As regards to the case of exemplary damage, it is imperative to look at the dictum of law lords in circumstances where the defendant’s acts which has been held to be tortious and was done with a guilty knowledge, the motive being that the chances of economic advantage, outweigh the chances of economic or even perhaps physical penalty[37]

Thus Lord Delvin in Rooks v Benard[38]stated thus:

That exemplary damage includes cases where the defendant with a cynical disregard of the plaintiff’s right has calculated that the money to be made out of his wrong doings will probably exceed the damages at risk.

Further, Pearson LJ in Mccaney v Associated Newspaper[39]held that ‘Compensatory damage may include not only actual pecuniary loss and anticipated loss or any social disadvantages which result or maybe thought likely to result from the wrong which has been done’.

Finally as regards to exemplary damage, Lord Halisham in Bromme v Casell[40] regarded the principle of exemplary damage as teaching the defendant that tort does not pay

Nevertheless, as regards to injunction the court can grant an interim or interlocutory injunction to restrain the further publication or republication of the defamatory matter. Also the court may award Quia Timet injuctionto stop the intended publication, before is being circulated.

Also the defendant may openly apologize or retract  the defamatory statement as seen in the unreported case of Bola Tinubu v Daar Comunication Plc[41]in this case the chief executive officer of Daar commiunication apologized to Ahmed Tinubu as regards to the defamatory matter. Notably is advisable to give the defendant an opportunity to apologize to the defendant before issuing writ of summon.

An apology demanding unreasonably conditions should not be imposed, such as an apology being in terms dictated by the plaintiff otherwise the defendant would be justified in refusing  such demand[42] . In the case of British  American Ins Co Ltd & Ors v  Alhaji Sule[43]it was held that apology is an admission of wrong and plaintiff is not precluded from suing although it could be a valid mitigation of damages.

In the case of Complete Communication Ltd v. Bianca Onoh[44]The court held that a plaintiff  who is awarded damages for libel is entitled to apology from the defendant. It should be noted that a general request for apology is insufficient; the plaintiff should put forward the terms of the letter or statement[45]

An apology must be of the same scope as the libel so that it would attract same attention. this was stated by Bramwell in Lafone v Smith[46] .

Finally, an apology could render a defendant liable to  libel if it amounts to republication

 

References:

 

[1] O Francis Et al  ‘Application of the law of  Defamation and Sedition in Nigerian Jurisprudence’ ( 2017) 8 Journal of Advanced Research in Law and in Economics 59

[2] [1948] 355 US 469

[3] F Schauer, ‘Developments in the law of Defamation’ (1956) 69 Havard Law Review 875, 877

[4]Michelson v United States Supra

[5] F Schauer loc cit

[6] J Murray, Oxford English Dictionary (United Kingdom : Oxford University Press) (1910) p 496

[7] F Schauer loc cit

[8] F Shauer, Loc cit

[9]Ibid , p.875

[10]Ibid, p. 876

[11]Ibid, p. 878

[12] [1966] 383 US 75 – 92

[13] F Shauer, op cit, p. 882

[14] [1984] 413 US 1105

[15] W Shakespeare, Richard III ( Auburn: Arkangel Publisher 2003) Scene I

[16]W Shakespeare, Othello (Oxford : Clarendon Press, 1975)Act III, Scene III, 155

[17]Illoabachie v illoabachieSupra

[18] (2002) FWLR (Pt 125) 678

[19] Punch Nigeria Ltd v Eyitene

[20] (1930) 1 KB 467

[21]Tolly v. FrySupra

[22] [1967] 1 ALL NLR 25 P. 30

[23] [1937] 1 KB 818

[24]Egbuna v. Almagamated Press of NigeriaSupra

[25] [1964] AC 234

[26] (2002) FWLR (Pt93) 1902

[27] [1990] 3NWLR [Pt 139] 392

[28] J Weinstein & M Befer, ‘Westein law of Evidence’ (1998) 2 Harvard Law Review 405

[29] (1984) 2 US  458

[30] J Westein & M Beffer, Loc cit

[31] [1948] 355 US 469

[32](2001) 7 S.C 123

[33][1986] 2 NWLR [Pt.22} 323

[34] (2006) ALL FWLR [Pt.301] 1897

[35] (2004) ALL FWLR [Pt. 130] 1695

[36] L Oshitokumbo , An Almanac of Contemporary Judicial Restatements with Commentries(Nigeria: Spectrum Books Limited,2008) p. 354

[37]ibid

[38] (1964) A.C 1230

[39] (1965) 2 Q.B

[40] (1972) A.C 1079

[41] ( Unreoported suit number  ID/196 GCMW/ 2015 ruling delivered on 5/8/2015 by Justice Iyabo Akinkugbe Lagos State High Court.

[42]Risk Allah v Johnstone(1868) 18 LT 620

[43] (2001) FWLR [Pt8) 1178

[44] [1998] 5 NWLR [Pt 549] 197 CA

[45]Khan v Ahmed( 1957) 2 QB 149

[46] (1858) 3 H&N 735

Onuorah Chibuzor Michael by name, born 11th September,1990, From Anambra state, Nigeria

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