Olebara, Oguguo Paschal PhD.
Introduction
The recent decision of the Court of Appeal dismissing Mosunmola (Mo) Abudu’s ₦200 million libel action has generated significant discourse within Nigerian legal jurisprudence. The Court of Appeal sitting in Lagos held that mere proof of publication of defamatory material is insufficient to sustain an action in libel without evidence that the publication actually injured the claimant’s reputation in the estimation of right-thinking members of society.
The judgment undoubtedly strengthens the protection of freedom of expression and reinforces judicial insistence on proof rather than speculation. Nevertheless, it raises an important jurisprudential question: Can a Court of Appeal require proof of actual reputational harm where the Supreme Court has consistently held that libel is actionable per se? In several supreme court decisions on libel, particularly in Guardian Newspapers Ltd v. Ajeh, the Supreme Court reaffirmed the essential ingredients of libel and maintained that libel is actionable per se. The Court recognised that once defamatory publication is established, the law presumes injury to reputation without requiring proof of actual pecuniary loss.
Similarly, in Oduwole v. West, the Supreme Court held that once libel has been established, general damages are presumed. The claimant is therefore not ordinarily required to demonstrate actual financial loss or produce independent evidence that members of society thought less of him or her after publication.
Earlier still, the Supreme Court in Cross River State Newspaper Corporation v. Oni reiterated that injury to reputation in libel cases is presumed by law. The Court recognised that written defamatory publications possess an inherent capacity to lower a person’s reputation and therefore do not require additional proof of actual damage before liability may arise. The law presumes that reputational injury accompanies written defamatory statements.
While the recent decision of the Court of Appeal seeks a radical deviation from laid down principles of the tort of libel on one hand, it raises the bar for the constitutional value of freedom of expression and public accountability, it simultaneously raises difficult questions about its compatibility with the traditional common law doctrine that libel is actionable per se. This commentary critically examines the legal reasoning of the Court, its consistency with established principles of Nigerian defamation law, and its likely implications for future litigation.
2.0 The Traditional Position of Nigerian Law.
Historically, Nigerian defamation law inherited the English common law distinction between libel and slander. Libel, being defamatory matter in permanent form, has traditionally been regarded as actionable per se. This means that once a claimant proves:
- That the statement was defamatory;
- The statement referred to the plaintiff;
- The statement was published in a permanent form
the law presumes damage to reputation without requiring proof of actual loss. This principle has long been recognised because written publications possess permanence, wider circulation and greater capacity to injure reputation than spoken words.
Numerous Nigerian authorities have consistently affirmed this doctrine. Once the publication lowers the claimant in the estimation of right-thinking members of society, damages become recoverable without proof of actual pecuniary loss.
The Court of Appeal’s decision therefore appears, at first glance, to introduce an additional requirement that traditional common law did not demand.
3.0 The Court of Appeal’s Reasoning:
The Court would have observed that although the defendant admitted publishing the article, the claimant merely testified that several friends and associates contacted her after reading it. However, none of those individuals testified before the court. The Court therefore concluded that there was no evidence establishing that the publication actually lowered the claimant’s reputation in their eyes.
According to the Court, judges cannot speculate that reputational damage occurred merely because an allegedly defamatory publication exists. Consequently, publication alone could not sustain liability. The Court of Appeal appears to require claimants to establish actual reputational injury through independent evidence before succeeding in libel.
That requirement appears difficult to reconcile with the Supreme Court’s repeated affirmation that libel is actionable per se. If this interpretation is sustained to be correct, the Court of Appeal has effectively introduced a fifth element into the tort of libel which is proof of actual reputational harm that has not previously formed part of Nigerian Supreme Court jurisprudence. But the real question is if the world has moved on from the old order?
4.0 Comparative perspective on the changing world view of the tort of libel.
The recent decision of the court of appeal reflects broader international developments.
Internationally, the law of libel has undergone significant reform over the last three decades. The trend has been away from the traditional common law presumption that libel is actionable per se and toward requiring some form of actual or serious reputational harm, particularly where freedom of expression and public interest reporting are implicated. However, the degree of reform varies considerably across jurisdictions.
The Traditional Common Law Position
Historically, English common law adopted by Nigeria treated libel as actionable per se. Once the claimant established the grounds, damage to reputation was presumed. The claimant did not need to prove actual financial loss or call witnesses to establish that others thought less of him. This rule was justified because written publications were considered permanent, widely disseminated, and inherently damaging to reputation. Today, many common law jurisdictions have departed from this approach.
United Kingdom – Serious Harm Requirement
Under the UK’s Defamation Act 2013, a statement is not defamatory unless its publication has caused, or is likely to cause, “serious harm” to the claimant’s reputation. In England and Wales under the Defamation Act 2013 provides: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” The UK Supreme Court has interpreted this provision in Lachaux v Independent Print Ltd
Background
The Supreme Court’s decision in Lachaux v Independent Print Ltd is a landmark authority on the interpretation of the “serious harm” requirement under section 1(1) of the UK’s Defamation Act 2013. The case arose after several British newspapers published articles concerning the acrimonious divorce and child custody dispute between Mr. Lachaux and his former wife. The publications alleged that Mr. Lachaux had committed domestic abuse, manipulated the legal process, and abducted his son. Mr. Lachaux commenced libel proceedings, contending that these allegations had seriously damaged his reputation.
At first instance, Warby J held that section 1(1) introduced a new and higher threshold for libel claims different from what existed under the common law. Rather than presuming serious damage from the publication of defamatory statements, a claimant must prove, on the balance of probabilities, that the publication has caused or is likely to cause serious harm to his or her reputation. In determining whether this threshold was met, the court considered not only the defamatory meaning of the words but also the actual consequences of publication. Applying this approach, Warby J concluded that the publications had caused serious harm, relying on factors such as the wide circulation of the articles, the gravity of the allegations, and evidence that the statements had reached individuals who knew the claimant.
The Court of Appeal affirmed the finding that serious harm had been established on the facts but disagreed with Warby J’s interpretation of section 1(1). It held that the provision merely raised the threshold of seriousness without requiring proof of actual harm. According to the Court of Appeal, the phrase “is likely to cause serious harm” referred simply to the inherent tendency of defamatory words to damage reputation, allowing courts to infer serious harm without direct proof.
The Supreme Court unanimously rejected the Court of Appeal’s interpretation. Delivering the judgment, Lord Sumption held that the Defamation Act 2013 significantly altered the common law by introducing a genuine statutory requirement that serious harm must be established as a matter of fact. While the common law presumed that defamatory publications caused some reputational damage, it did not presume that the damage was sufficiently serious. Consequently, claimants must demonstrate, through evidence or persuasive factual inferences, that the publication has caused or will probably cause serious reputational harm.
The Court further explained that the wording of section 1(1) “has caused or is likely to cause serious harm” requires courts to examine the actual impact of the publication rather than relying solely on its defamatory tendency. This interpretation was reinforced by section 1(2), which requires companies trading for profit to prove serious financial loss, indicating Parliament’s intention that the consequences of publication should be central to the inquiry.
Although the Supreme Court confirmed that actual harm must be established, it emphasised that direct testimony from readers is not always necessary. Courts may infer serious harm from surrounding circumstances, including the gravity of the allegations, the extent of publication, and the claimant’s reputation within the relevant community. Applying these principles, the Court held that Mr. Lachaux had satisfied the statutory threshold and dismissed the publishers’ appeal. The decision establishes that while claimants face a higher evidential burden under the Defamation Act 2013, proof of serious harm may still be established through compelling circumstantial evidence and reasonable factual inferences.
Thus, England has expressly abandoned the traditional common law presumption. The policy objective is to prevent trivial defamation claims and encourage freedom of expression. However, unlike the United Kingdom, Nigeria has not legislatively displaced the traditional doctrine that libel is actionable per se.
Consequently, if this emerging judicial approach is consistently followed, it has the potential to significantly transform Nigerian defamation law, particularly in relation to libel actions. The effect would be to move Nigerian law away from the traditional presumption that damage automatically flows from defamatory publication and toward a requirement for claimants to demonstrate actual reputational injury. Accordingly, future libel claimants may be required to:
- present independent evidence demonstrating the adverse effect of the publication on their reputation;
- provide proof of economic or professional losses, such as termination of employment, loss of business opportunities, or cancellation of contracts;
- tender evidence of social, professional, or personal consequences arising from the defamatory statement; and
- establish measurable reputational harm beyond the mere fact of publication.
Such a development would represent a significant shift in Nigerian defamation jurisprudence, aligning it more closely with contemporary international trends that seek to balance the protection of reputation with the constitutional importance of freedom of expression. This will significantly increase the evidential burden in libel actions. Defendants, particularly journalists and media organisations, may benefit from stronger protection where claimants rely solely upon publication.
5.0 Conclusion
The Court of Appeal’s decision marks a potentially transformative moment in Nigerian defamation jurisprudence. It advances important constitutional values by promoting freedom of expression, encouraging public accountability, and discouraging speculative libel claims founded solely on publication. Its insistence on credible evidence of reputational harm may lead to more disciplined and evidence-based adjudication.
However, the judgment also raises substantial doctrinal concerns. By requiring proof of actual reputational injury, it appears to depart from the long-established common law principle that libel is actionable per se, thereby imposing an evidential burden that may be difficult if not impossible for many deserving claimants to discharge. This is particularly problematic in the context of online publications, where reputational harm is often diffuse, widespread, and incapable of direct proof through witness testimony.
The long-term significance of the decision will depend on whether the Supreme Court reaffirms this approach. If affirmed, it may reshape Nigerian defamation law by moving it toward a modern, rights balancing model that places greater emphasis on demonstrable reputational harm. If rejected by the Supreme Court, the traditional presumption of damage in libel actions will remain the governing principle. Until then, the judgment stands as one of the most consequential and debated appellate decisions on defamation in contemporary Nigerian jurisprudence. We await the Supreme Court.
