Wale Igbintade
The Court of Appeal Lagos Division has ruled that the mere publication of an allegedly defamatory statement is not enough to sustain a claim for libel, holding that a claimant must produce credible evidence showing that the publication actually lowered his or her reputation in the eyes of right-thinking members of society.
The court made the pronouncement while dismissing an appeal filed by the Chief Executive Officer of EbonyLife Group, Mosunmola (Mo) Abudu, against the judgement of the Lagos State High Court, which dismissed her libel suit against child rights advocate, Oluyemisi Wada.
In a unanimous decision, the three-member panel held that although Wada admitted publishing the disputed article, Abudu failed to establish a crucial element of defamation because she did not call any independent witness to testify that the publication negatively affected their opinion of her.
The panel, comprising Justices Folasade Ayodeji-Ojo, Muslim Sule Hassan and Polycarp T. Kwahar, delivered its lead judgment through Justice Hassan.
Abudu had sued Wada for libel, seeking N100 million in general damages, N100 million in aggravated damages, an order compelling Wada to publish a retraction and apology in THISDAY, two national newspapers and online platforms, as well as a perpetual injunction restraining further publication of the alleged defamatory statements.
In her defence, Wada denied liability and relied on the defences of justification and fair comment.
She maintained that her publication merely questioned the management of funds raised during a benefit concert organised by Abudu for street children, arguing that the issue was one of legitimate public interest.
Dissatisfied with the High Court’s decision, Abudu appealed on six grounds. She argued that the trial judge erred by holding that she failed to prove publication despite Wada’s admission that she authored and published the article.
She also contended that the lower court was wrong to insist on evidence from third parties before determining whether the words complained of were defamatory.
Before considering the substantive appeal, the Court of Appeal dismissed Wada’s preliminary application seeking to strike out two grounds of appeal and the related issues formulated by Abudu.
The court held that the grounds properly arose from the trial court’s decision and were therefore competent.
On the merits, however, the appellate court agreed with the trial court that Abudu failed to prove an essential ingredient of defamation.
Justice Hassan held that although Wada admitted publishing the article in THISDAY, publication alone could not establish libel.
According to the court, a claimant in a defamation action must also prove that the publication lowered his or her reputation in the estimation of reasonable and right-thinking members of society.
The court further held that while publication in a national newspaper amounts to publication to the whole world, the claimant must still call at least one person who read the publication and whose opinion of the claimant was adversely affected.
Justice Hassan observed that Abudu testified only on her own behalf despite claiming that several friends and associates contacted her after reading the publication.
“The appellant must go ahead to establish that in the eyes of reasonable men or third parties her reputation has been ruined, her estimation destroyed or her business value diminished before damage can be established,” the court held.
The court added that for it to determine, without evidence from readers, that the publication was defamatory would amount to speculation and improperly draw the court into the arena of the dispute.
It consequently resolved the first two issues against Abudu.
On the third issue, relating to Wada’s reliance on the defences of justification and fair comment, the court held that the publication concerned a matter of public interest involving funds raised from members of the public for charitable purposes.
Justice Hassan noted that Abudu, as a public figure and child rights advocate, organised a public fundraising campaign, while Wada, who also advocates for children’s rights, was among the contributors to the initiative.
The court held that Wada was entitled to question how the funds were utilised and to express her views on the matter.
According to the court, the publication merely challenged Abudu to provide greater transparency regarding the management of funds donated by members of the public.
It further held that criticism relating to the use of publicly donated funds was protected by the defence of fair comment, adding that organisers of public fundraising campaigns should expect public scrutiny and accountability.
The court further remarked that Abudu ought to have regarded the publication as constructive criticism rather than a personal attack, noting that it would not have cost her anything to provide a fuller explanation of how the charitable funds entrusted to her by members of the public were utilised.
Having resolved all three issues against the appellant, the Court of Appeal dismissed the appeal in its entirety, affirmed the judgment of the Lagos State High Court delivered on May 3, 2019, and made no order as to costs.