Strict liability

At common-law, the truth of every single defamatory statement must be proved. However, under Section 5, Defamation Act and Section 7, Defamation Law of Lagos it would suffice if the truth established in relation to one statement can substantially extinguish the defamatory effect of the other statements. A similar provision is contained in Section 5 of the Defamation Act 1952 England.

The truth need not correspond 100 percent with the defamatory statement. In Alexander v North Eastern Railway Co, 3 weeks imprisonment was alleged while the plaintiff was actually sentenced to 2 weeks. The plea of justification still succeeded.

In Onwuchekwa v Onovo, the defendant stated that the plaintiff was a lunatic. A senior consultant at the Yaba Psychiatric Hospital was able to adduce evidence that the plaintiff was suffering from Delirium Tremens. Held, no defamation.

However failure to prove the defence would obviously aggravate damages.

Fair/honest comment: journalists, commentators, media houses political and social enthusiasts and in fact, citizens need to be given space to air their views in relation to matters which affect the public. The crux of this defence is that;

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  The matter commented upon must be of public interest or that which challenge public attention.
  
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  The defendant must have expressed his opinion on the facts which he honestly thought were true. In essence, the defendant must not have invented the facts he commented upon. In African Press Ltd v Ikejiani, asserting that the plaintiff is fraudulent and has a fake degree was fatal to the defendant’s plea of fair and honest comment.
  
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  Comment must be fair and honest and not an assertion of fact. In Nthenda v Alade, accusing a lecturer of immoral association and adultery with a female student was held to be an assertion.
  
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  The comment must not be actuated by malice. The defendant should not use the occasion for some indirect purpose-Bakare v Ibrahim. In African Newspaper Ltd v Coker, malice was construed where the defendant persistently insisted that the government official should be investigated for corruption. In Thomas v Bradbury, Agnew and Co Ltd, malice vitiated his defence. See also Halpin v Oxford Brookes University.
  

“” Where the defendant makes the statement in the performance of a legal or moral duty he owes to a third party: In Ayoola v Okajure, the defendant was asked to write a reference in relation to his former employee to the prospective employer. He replied with a confidential letter stating that she was lazy and flippant. The court held that there was qualified privilege in such instance. Can also arise where the defendant (deeming it contingent) who owes a duty and has a relationship with the third party warns him about the plaintiff’s behaviour. Communication which is contingent and made by parties with a common interest in the subject matter.

“” Reporting the commission of a crime to the police. Salmond on Tort posit that the defence should not avail a person who discloses information without request except there is a confidential relationship between the parties. In Economides v Thomopulous, disclosing to the police that the plaintiff was evading tax was a qualified privilege.

“” Statements made in self-defence: To enable the defendant to repel charges against him and prevent attack to his reputation. In Osborn v Boulter, a republican complained to his beer suppliers that the beer supplied was of poor quality. They replied that the republicans may be watering it down to make it poor.

Note however that the reply must not be unconnected with the attack.

“” Fair and accurate reports of Legislative proceedings: In Oweh v Amalgamated Press of Nigeria, the plea failed where the defendant stated that a member of the house called the other member a crook and this was not the case.

“” Fair and accurate reports of Judicial Proceedings: In Omo-Osagie v Okutobo, it was reportedl “Chief Judge tells a teacher, you are a bad woman”. This was a lie. The defence failed.

“” Fair and accurate report of the proceedings of international and local judicial bodies, tribunals, and associations.

Note the Reynolds Defence which gives media houses a reasonable degree of protection in reporting matters of public interest. In Reynolds v Times Newspapers, it was held that the seriousness of allegation, nature of information, steps taken to verify the information, urgency of the matter, circumstances of publication, and so on… shall be examined to know if the company should be exculpate.

In Derbyshire County Council v Times Newspaper, the court was of the opinion that public authorities should not be allowed to institute libel actions because they should be open to criticism.

In Omega Bank v Governor of Ekiti, the court noted that a corporate body cannot have feelings so therefore can’t be defamed. In Labati v Badmus, the defendants alleged that the plaintiff was involved in exam malpractices and extortion of money from students. Held to be defamatory.

ECONOMIC TORT.

Tort law has developed over the years in a bid to live up to its aim. The aim of tort law includes: (amongst others) the protection of the individual and his property through the tort of Trespass. The apportionment of blame and the central aim of encouraging man to live in an accommodating manner.

The law of tort evolved by inept reasoning of the judiciary. It went from trespass (to person and chattel) and securing the return of goods trespassed with by the writ of detinue… then went over to defamation to protect the reputation of an individual. Then to the tort of conversion and slander of title. Then to the tort of injurious falsehood where a false statement is made with malice in relation to the plaintiff. Tort went over to liability for negligent misstatements in the case of Hedley Byrne v Heller and Partners Co. The tort of passing off and deceit then arose to provide damages for negligent or fraudulent misrepresentation (See Derry v Peek) and to prevent consumer confusion.

In Lumley v Guy, a new tort called interference with contract was developed. In this case, the plaintiff had employed a lady to sing at the theatre, she was enticed away by a third party. The court held that he caused damage to the plaintiff.

Then came the tort of conspiracy. It is a tort committed where a combination of two or more people maliciously set out to carry out an unlawful intention so as to inflict damage on the plaintiff.

In Allen v Flood, a union official maliciously procured the dismissal of some union workers. It was held at the Court of Appeal that it is a tort to maliciously procure the dismissal of another. The House of Lords overruled, holding that there was no element of combination of 2 or more as such, the motives of a single defendant is irrelevant. In Quinn v Leatham, the defendants (members of a trade union) sought to make sure that the plaintiff (a butler) was dismissed because he had a quarrel with them. When they failed, they tried to induce the plaintiff’s customers not to deal with him. The court found conspiracy.

Then to the tort of intimidation. Where the court held that it is any threat to do something unlawful if one’s demands are not met. For example A telling B to slap C or else he would set his dog on B.

Then to the tort of passing off whose theme is that a man is not to sell his goods on the pretence that they are goods of another. John walker v Henry ost Vine products v Mackenzie. The tort aims at protecting the goodwill of a business.

The tort of Passing off the humble beginning from the case of Perry v Truefitt.

FORMS OF PASSING OFF.

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   Imitating the plaintiff’s trade mark.
   
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   Imitating the getup or appearance of the plaintiff’s goods.
   

In Bollinger v Costa Brava wine co, the court extended the scope. Stating that champagne is known as French Champagne and the defendant cannot market his product as Spanish champagne so as to confuse the public.

Note however that the plaintiff has to establish that the goodwill of his business has been damaged. Bradford Corporation v Pickles.

Parker-Knoll v Parker-Knoll International Ltd; in this case both companies were manufacturers of Furniture one based in UK and the other America which just began trading in UK. An injunction was granted to stop further trading as the names were too similar to deceive.

Tussaud v Tussaud, the defendant who had left the plaintiff’s employment still retained the plaintiff’s name. An injunction was granted to prevent usage of the plaintiff’s name.

Niger Chemist v Nigerian Chemist; the court held that the defendants would greatly confuse the public if they continue to trade in a name (Nigerian Chemist) so similar to the plaintiff’s (Niger Chemists Ltd).

Other forms of passing off.

__Imitation of Address: the court would look at the extent to which the customers are deceived and harm caused to the plaintiff’s business. In Day v Brownrigg, the plaintiff’s house popularly known as “Ashford Lodge”. The defendant then named his own house from “Ashford villa” to “Ashford Lodge”. The court however held that the plaintiff had no cause of action because he was not able to prove damage.

---Common Field of Activity.

Formerly, the plaintiff must show that he has a common field of activity as the plaintiff. This has been criticised. In McCulloch v Lewis A May ltd, the action of passing of failed because the trade of Broadcasting and selling Cereal are not the same.

----Descriptive words. Unless the name is so unique that it is now associated with the product, the court would not accord protection. In British Vacuum Cleaner v New Vacuum Cleaner, the court held that the word, “vacuum cleaner” cannot be protected because it only described the equipment.

Remedies

In Pasley v Freeman, it was held that a person who makes a false statement intended to be acted upon must make good the damage naturally resulting from its being acted upon.

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  The defendant must have made a false representation: Legh v Legh. In R v Barnard, the defendant wore the robe of an Oxford student and obtained credit for food. It was held that he falsely represented by conduct. Generally, there is no duty to disclose except;
  

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  There is a statutory duty to disclose: Edginton v Fitzmaurice, the directors of a company advertised for shares for the purpose of building the company meanwhile it was for the purpose of paying off liabilities. The court held that there has been deceit.
  
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  Partial disclosure has already been made. Then fully disclose.
  
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  The defendant should not actively conceal a fact
  
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  Where the defendant discover that a previous statement he thought was true is now false.
  

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  The defendant was aware of its falsity: In Derry v Peek, the company invited investors assuring that their tramway would run on mechanical power. They honestly thought that the board would approve their request. They did not get the approval It was held that the defendants honestly believed in the truth of the statement.
  
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  Intended that the statement be acted upon by the plaintiff: Langridge v Levy, the court held the seller liable where he represented his gun to be good and the plaintiff bought it. It burst and injured the plaintiff when he fired it. See also Peek v Gurney.
  
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  The plaintiff acted in reliance to the statement and sustained damage: Edgington v Fitzmaurice. Central Railway of Venezuela v Kisch, the court held that claimants who had relied on a false statement in a company's prospectus were entitled to claim damages. In S Pearson and Sons Ltd v Dublin Corporation, the court held that this liability remains. Notwithstanding the fact that the parties entered an agreement excluding liability. In England, the tort of deceit was taken further in A v B (2007) where a defendant successfully sued his former girlfriend (for E22,000 damages) who had falsely claimed that he was the father of her son
  

The law then introduced the tort of INJURIOUS FALSEHOOD.

This is similar to but unlike defamation. Here the element of injury to reputation in the minds of right thinking members of a society is lacking. This tort focuses on economic engagements. The Younger Committee on Privacy pointed; the malicious publication in a newspaper that a famous pop singer has joined the monastery would certainly not lower him in the esteem of right thinking members of the society but he could lose engagements and therefore, money.

The elements of this tort include:

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  The defendant made a false representation: In Ratcliffe v Evans, the court held that there was injurious falsehood where a publication stated that the plaintiff has ceased to trade which was not the case. In Shepherd v Wakeman, the false statement that the plaintiff was already married when she was not. She lost suitors.
  
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  The representation was made with malice: if the defendant knows that the statement is false. Meaning the absence of just cause or excuse.
  
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  The statement was communicated to a person other than the plaintiff.
  
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  The plaintiff suffers damage: in Barrett v Associated Newspapers, the court held that there is not damage where the defendant stated that the plaintiff’s house was haunted by a ghost. There may have been damage if it was a commercial enterprise and the assertion reduced the flow of customers.
  

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