This article seeks to address the frequent use of the threat of defamation lawsuit, by medical association officials, against their due-paying members who allege corrupt practices by such officials. The proof of the truism or otherwise of these allegations leveled against the association officials is usually a story for another day. These allegedly corrupt and incompetent officials, instead of being transparent to the last limit in order to eradicate suspicion, would rather indulge in what is seen by some members as empty threats to take any dissenting voices down in a defamation lawsuit battle. To their minds, they could use funds contributed by their association members any way and anyhow they figured, and yet expect those paying the dues and levies to keep mute when they are not being effectively carried along the activities of the association officials. They fail to understand that every member of the association is entitled to all the details about how the officials run the association. They fail to understand that the officials of an association lay no claim to the ownership of the association, rather, that they are mere servants of the group, with the competitive privileges of being in charge of the day to day running of the association. In so doing, these officials are positioned to rip the benefits of coming in contact with people that matter in the society, propagate their idea of what is good for the association, and control the resources of the association in behalf of the association; a benefit they stand a chance of exploiting out of office.
This article seeks to illuminate the established legal position that public officers, and in the case of an association, the association officials, are not protected or permitted by law to hide their lecher and incompetence under a threat to sue the members of the group who are alleged to have defamed them or accused them falsely in their capacity as leaders of the association. It is trite that the tort and crime of defamation do not avail a public officer in his capacity as a public officer. It is only on rare qualified conditions with proved actual malice that such officials can seek remedy in court. This is mostly available where the defamatory publication trickles out beyond his official capacities to his private life. Thus, an attack on the official shall not extend to his bedroom manners.
The Appeal Court of Nigeria Per OHO, J.C.A. (Pp. 63-64, Paras. D-B) in the case of NNAJI & ORS v. IWUEKE (2018) LPELR-44043 (CA) said:
"In determining whether the publications in EXHBITS "J", "B", "C" and "F" in the circumstances under which they were made were libelous and defamatory of the Respondent, the need to rely on the principles laid down in AKOMOLAFE vs. NEIC LTD (2000) FWLR (PT. 27) 2016 cannot be overemphasized. In this case, it was held that a publication is defamatory if it is calculated to lower the Plaintiff in the estimation of right thinking people or to cause him to be shunned or avoided, or exposes him to hatred, contempt or ridicule or to disparage him in his office, profession or calling or reflect on his character. See also SKETCH vs AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678; GIWA vs. AJAYI (1993) 5 NWLR (PT. 294) 428."
The question that arises here is whether in the circumstances under which the statement was made there could be said to be defamation. The quality of the statement is as good as the circumstances under which the statement was made. Therefore, a statement that is defamatory in law in one circumstance may cease to be defamatory in law in another circumstance. The fact that a statement as published by one party is defamatory of another party does not ground an actionable defamation. In other words, not all defamations are actionable. That is why many defamation lawsuits fail. Court will take into cognisance the circumstances surrounding the making of the statement before arriving at the conclusion that there was in fact an actionable defamation.
The Defendant, although he published defamatory statements against the Plaintiff, has what is called DEFENCE TO DEFAMATION. This simply means that a Defendant who is in Court over an allegation of Defamation can still not be found liable once he raises those defences to Defamation, and Court sustains the defence. These defences include:
1. Truth or justification of the statement 2. The allegedly defamatory statement was merely a statement of opinion or fair comment 3. Consent to the publication of the allegedly defamatory statement 4. Absolute privilege 5. Qualified privilege in matters of common interests 6. Retraction of the allegedly defamatory statement.
In the light of the foregoing, the court is saddled with the onerous task of striking an acceptable balance between the interest in protecting a person's reputation and the interest in freedom of expression. The position of the law is firmly established that in an action for defamation the plaintiff will only succeed if he is able to prove the essential ingredients of the tort, viz (1) that the words complained of are defamatory (2) that the words referred to the plaintiff (3) that the words were published. In the case of slander, the plaintiff must also prove special or actual damage done to the Plaintiff, unless he can come under the exceptional cases where slander is actionable per se. Slander is actionable per se if the law allows Plaintiff to recover without proving that the defamatory publication caused him any harm. It is trite that an action for defamation cannot be sustained without proof of publication.
The success of the plaintiff in an action for defamation also depends on the absence of an acceptable defence from the defendant. When successfully raised, some of the the defences of justification, absolute privilege, qualified privilege, and fair comment would completely exonerate the defendant from liability in an action for defamation. Only qualified privilege and fair comment require a defeating reply from the Plaintiff. Justification and absolute privilege completely exonerate the Defendant at all time. The availability of these defences clearly confirms that the right to freedom of expression would not be denied easily and the restriction provided by the law of defamation is by itself not absolute. The entrenchment of the right to freedom of expression in the Constitution underscores its importance and the need for its protection and promotion. This constitutionally entrenched right to freedom of expression cannot be easily displaced by the undefined constitutional derogations and some statutory provisions on defamation.
The Court of Appeal, in the case of NNAJI & ORS v. IWUEKE supra, has stipulated what the defence of qualified privilege entails. Per OHO, J.C.A.:
"On what constitutes the defense of qualified privilege, the need to rely on the learned Author of GATELY ON LIBEL AND SLANDER 8TH EDITION at paragraph 441, cannot once again be overemphasized. Here, the position of the law on qualified privilege is stated as follows: 'There is an occasion upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statement about another which are defamatory and in fact untrue. On such occasion, a man stating what he believes to be true about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege for the protection which the law, and ground of public policy affords, is not absolute but depends on the honesty of the purpose with which the defamatory statement is made.'"
In EMEAGWARA vs. STAR PRINTING AND PUBLISHING CO. LTD (2000) 5 SCNJ 115 AT 185 the Apex Court Per OHO, J.C.A. (Pp. 64-66, Paras. B-B) held that for a report to be privileged it must be fair and accurate. What is stated must be substantial and fair comment of what occurred to earn a defense of privilege. The position of the Supreme Court is that the defense of qualified privilege will avail a Defendant if there is a common interest between the maker of the statement complained of and the person to whom it was made. That is what the Apex Court referred to as "reciprocity of interest". See also the case of MAMMAN vs. SALAUDEEN (2005) 18 NWLR (PT. 958) 511 PARA C in this connection. This reciprocity of interest is the crux of the matter in pure association affairs. This reciprocity of interest effectively converts qualified privilege, in association matters, to an absolute privilege. This is because what amounts to absolute privilege in the general population is akin to discussions on exclusive association platforms that is analogous to an Assembly. This takes away the need to prove negligence where the plaintiff is a private person, as well as the proof of actual malice in the case of a public officer; for qualified privilege.
There is a duty of a plaintiff to deliver a reply from which express malice can be inferred in answer to a defence of fair comment or qualified privilege in the suit of a public officer. For a private person, the reply to be delivered shall prove the inference of negligence in the publication of the defamatory statement. One of the duties required of the Respondent where in an action the Defendant invokes the defense of qualified privilege is to negative the defense as expected and as provided by the Rules of Court. It is important to note that as Plaintiff or Claimant, as the case may be, the only way to negative the defense of qualified privilege under the law is to plead and prove express malice (or negligence as the case may be) on the part of the Defendant. See once again, the case of MAMMAN vs. SALAUDEEN (Supra) at Page 513 - 514 paras H - B. Usually, the place to plead express malice is in a reply to the Statement of Defense. See also the case of BAKARE & ANOR vs. ADO IBRAHIM (1973) 6 SC 205 AT 215 in support. It is carefully observed by this Court that the only pleadings contained in the records of Court are the original Statement of Claim of the Respondent. It is therefore important to note that the Respondent as Plaintiff did not bother to file a Reply to the Statement of Defense as required by the Rules of Court. The implication of this is that the Respondent as Plaintiff, failed to plead or prove any express malice against the Appellants as Defendants. That being the case the defense of qualified privilege relied upon by the Defendants was therefore not negatived . What it therefore means is that the defense of qualified privilege relied upon by the Defendants was deemed admitted by the Respondent as Plaintiff. Perhaps, what the Respondent has to be made to understand here is that it is mandatory for the Plaintiff to deliver a Reply to show that the Defendants were actuated by express malice and that where the Plaintiff fails to deliver the mandatory Reply, the failure is fatal to the entire Plaintiff's claim. There are Supreme Court decisions in support of this position. The need to deliver a Reply is actually a requirement of the Rules of Court. See Order 24 Rule 23 (1), (2) and (3) of the Sokoto State (Civil Procedure) Rules, 1987, and in other States High Court Civil Procedure Rules, which provide generally that:
"1. Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. 2. Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privilege occasion, the Plaintiff shall, if he intends to allege that the defendant was actuated by express malice, deliver a Reply giving particulars of the facts and matters from which such malice is to be inferred. 3. Where in an action for libel or slander the defendant alleges that in so far as the words complained of consists of statements of facts, they are true in substance and in fact, and in so far as they consists of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the facts and matters he relies on in support of the allegation that the words are true."
Per OHO, J.C.A. (Pp. 66-70, Paras. B, Order 24 Rule 23 (1), (2), and (3) of the Sokoto State High Court (Civil Procedure) Rules 1987 has a similar provision as Order 82 Rule 3 of the Rules of the Supreme Court PRACTICE of England 1965, which states that where in an action for libel the defendant pleads fair comment on a matter of public interest or published upon a privileged occasion, the Claimant if he intends to allege that the defendant was actuated by express malice shall deliver a Reply giving particulars of the facts and matters from which such malice is to be inferred. This Rule of Court was interpreted by the Supreme Court in the case of CHIEF S. B. BAKARE, WEST AFRICAN PILOT LTD vs. ALHAJI ADO IBRAHIM (1973) 3 SC 205. The effect of failure to file the mandatory Reply shall preclude the Claimant from raising the plea of express malice to defeat the defenses of fair comment and qualified privilege raised by the Defendants. It must be noted that malice must be proved with facts and not imaginations.
All the above submissions apply to the defamation of a private person. The whole scenario changes when a public person is alleged to have been defamed. A public person is a private person occupying or running for a public office. Defamatory comments and publications on the activities of the public officer in his capacity as a public officer, are not readily considered defamation. This is based on public policy for the protection of the public. In the case of an online or offline discussion on a closed association forum, all the association officials are, for all intents and purposes, public officers of the association.
The New York Times Co. v. Sullivan, 376 U.S. 254 (1964) was a landmark decision of the U.S. Supreme Court in which the Court ruled that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of American public officials to sue for defamation. Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation (ie publication of a false defamatory statement to a third party), he or she must also prove that the statement was made with "actual malice", meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true. This expression of untrue statements or opinions are fueled by suspicious actions or deliberate withholding of timeous information from the due-paying association members. Mr Justice Goldberg, with whom Mr Justice Douglas joins, concurring in the result, stated:
"The Court today announces a constitutional standard which prohibits "a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Ante, at 279-280. The Court thus rules that the Constitution gives citizens and newspapers a "conditional privilege" immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer.... In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right 'to speak one's mind,' cf. Bridges v. California, 314 U. S. 252, 270, about public officials and affairs needs "breathing space to survive," N. A. A. C. P. v. Button, 371 U. S. 415, 433. The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel".
This erudition is as poignant as it is classical. The Court went ahead to regret that qualified privilege capable of being negatived by a reply pleading in proof of actual malice, rather than absolute privilege, was attached to defamatory statements against public officers, as Court would have wished.
"We would, I think, more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity. This Nation of ours elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as "obscenity," Roth v. United States, 354 U. S. 476, and "fighting words," Chaplinsky v. New Hampshire, 315 U. S. 568, are not expression within the protection of the First Amendment, freedom to discuss public affairs and public officials is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. 'For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.'"
The Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P., at 286):
"It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged."
In summary therefore, it is a herculean task for a public officer to win a defamation suit against members of his group who published untrue stories about him in his official capacity. To recover in defamation, he shall not only prove defamation, but also prove malice. Unfortunately to him, the proof of malice is a proof with facts, and not sentiments.
In conclusion, an association official, would be better served, by not trying to hide his fraudulent activities during his stewardship, under the threat of litigation for defamation against those he leads or have led in the past, in so far as the issue under discussion are centered around his stewardship. The only option available to him is to explain himself and his activities out to members and recover his dignity if there is actually any. The concept of reciprocity of interest absolutely absolves a member of an association of any liability in defamation while discussing association matters and the manner in which the association officials run the association. It is therefore distasteful, disheartening and repulsive to see a medical association official initiate a defamation suit against another medical brother on account of discussions had on a medical forum on how a medical association is run by the officials. Per onnoghen, J.S.C. (Pp. 33-35, paras. D-A) in Mamman v. Salaudeen (2005) 18 NWLR (Pt.958)478:
"From the principle of law involved in the defence of qualified privilege as reproduced supra, the privileged occasion recognized by the common law can be classified into one of two classes; viz; (a) Where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it, or, (b) Where the maker of the statement is acting in a matter in which he has a common interest with the recipient. When the test for determining whether the statement was made in a qualified occasion is that of duty to make the statement, Earl Loreburn in James v. Baird (1916) SC. (H.L) 158 at 163 -164 stated the position thus: - "In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of question of public policy." On the other hand, if the test to be used is that of protection of interests, Lord Esher, M.R. in Hunt v. Great Northern Railway (1891) 2 Q.B. 189 at 191, laid down the following: - "The occasion had arisen if the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When those two things co-exist, the occasion is a privileged one." Still on protection of interest as constituting a ground for the defence of qualified privilege, Lord Young in Shaw v. Morgan (1888) 15 R 865 at 870 stated the position, inter alia, as follows: - "If the statement is made ... in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice ... and he is only answerable if malice be shown to have existed in fact." It is very important to note that whether the statement is made in a discharge of a duty or in protection of an interest, there must be reciprocity on the person receiving same otherwise the defence cannot avail the defendant."
Classes of statements, which have been held to constitute privileged occasion include the following: -
(a) Statements made in the discharge of a public or private duty;
(b) Statements made on a subject-matter in which the defendant has a legitimate interest;
(c) Statements made by way of complaint about those with public authority or responsibility;
(d) Reports of parliamentary proceedings;
(e) Copies of or extracts from public registers; and
(f) Reports of judicial proceedings - See Gatley on Libel & Slander, 9th Edition (1998)
In Atoyebi v. Odudu (1990) 6 NWLR (Pt.57) 384 at 399, court stated that reciprocity of interest is an essential element in the law of qualified privilege; that for the defence of qualified privilege to avail a defendant in an action for defamation, there must exist a common interest between the maker of the statement and the person to whom it was made.
So, what are we talking about again! A discussion in a closed association forum, with no external person, centering wholy on the way and manner the association officials conduct the affairs of the association, is privileged. Only the proof of accentuation of malice in a reply pleading by the Plaintiff can challenge the privilege status of the publication.
The regrettable part of this macabre dance of litigation by some association members against fellow association members on issues that are purely association issues, is that in the end, the Court will throw the suit into the dustbin and refer them back to the association to sort themselves out. This happens after the enormous waste of time, energy and valuable resources by both parties in a case that ought not to go to court in the first place. Purely association issues lying and strong words over the management of an association are sorted out at the association level. A complaint about lies and false allegations against members by members on association issues are reported to the association Disciplinary Committees, and not to Court. It is only an Appeal from the Disciplinary Committee on matters that are against Natural Justice that issues outside the association if the Congress derelicts in addressing them.
Awkadigwe Fredrick Ikenna (MBBS, LLB NIG, MWACS, DSC)
awkadigweikenna@gmail.com
08039555380
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