There is no need to consider defences if defamation is not established

EKONG v. OTOP & 2 ORS.
SUPREME COURT OF NIGERIA
(ONNOGHEN; GALADIMA; RHODES-VIVOUR; AKAAHS; OKORO, JJ.SC)
The Appellant’s and Respondents’ clans were involved in a land dispute which resulted in a physical altercation where members of the Appellant’s clan were said to have inflicted matchet wounds on members of the Respondents’ clan. The Respondents wrote a petition to their Clan Head in which the Appellant was referred to as the leader of the opposing clan.
The Appellant sued the Respondents for defamation at the High Court of Cross River State. The Respondents raised the defence of qualified privilege and fair comment.
The trial court entered judgment in favour of the Appellant and awarded N10,000,000.00 (Ten Million Naira) damages. The Respondents were dissatisfied with the judgment and appealed to the Court of Appeal. The Appellant also cross appealed seeking a higher sum as damages.
The Court of Appeal allowed the appeal and overturned the judgment of the lower court and dismissed the Appellant’s cross appeal holding that the publication was not defamatory.
The Appellant was aggrieved and appealed to the Supreme Court.
The Appellant raised four issues for determination of which the court decided to take three together. The three issues are:
“1.       Whether the plaintiff has proved that the allegation in exhibits D, F and H referred to him and were published by the defendants to a third party.
2.         Whether the lower court was right in holding that the allegation complained of was true and as such not libelious of the plaintiff.
3.         Whether the defences of qualified privilege and fair comment availed the defendants in this case.”
On the first issue, learned counsel for the Appellant argued that there was no doubt that the Respondents published the alleged defamatory statements and that some of the exhibits mentioned the Appellant by name. He submitted that defamatory words need not refer to a plaintiff by name, provided they was published in a context where those to whom it was published understood the words as referring to the plaintiff.
On the second issue, counsel submitted that the words complained of were allegations of criminal conduct and exposed the Appellant to hatred, contempt and odium by all right thinking people. Further, the evidence led at the trial court shows that the allegation was false as the Magistrate Court dismissed the charge against the Appellant.
On the issue of the defence of qualified privilege and fair comment, learned counsel submitted that the court below failed to go into the merits of the defences because of its findings that the allegation against the Appellant was true and that it was not the Respondents who published that allegation to third parties.
In opposition, learned counsel for the Respondents submitted that the test in determining whether certain words are defamatory has always been that of a reasonable man. Given the environment and the circumstances in which the statements or words complained of were published, a man of ordinary intelligence will not come to the conclusion that the Appellant is a criminal.
Learned counsel further submitted that publication to a third party is the gist of the tort of libel and that the Appellant failed to prove this vital ingredient of his claim. Further, the petition written to the appointor of the Appellant cannot in law be regarded as publication to a third party to ground an action in libel.
On the issue of qualified privilege and fair comment, learned counsel for the Respondents also agreed that the court below merely mentioned the defences but failed to properly consider same.
Unanimously dismissing the appeal, the Supreme Court of Appeal held as follows:
“A statement is said to be defamatory where, if published of and concerning a person, is calculated to lowering him in the estimation of right-thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Every person has a right to the protection of his good name, reputation and the estimation which he stands in the society of his fellow citizens. Thus, whoever publishes anything injurious to that good name, or reputation commits a tort of libel, if written and slander, if oral. It must be noted that the test in determining whether the words complained of are defamatory is always that of a reasonable man. That is to say, given the environment and the circumstances in which the statements were made and published what would be the interpretation and understanding of a man of ordinary understanding. See Sketch Publishing Company Ltd & Anor v. Alhaji Azees A. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678, Offoboche v. Ogoja Local Government (2001) FWLR (Pt.68) 1051.
There is need to emphasize that it is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable. Thus, whenever a statement is placed before a court to determine whether or not it is defamatory, the court must make findings of fact whether the words complained of are capable of bearing defamatory meaning and then ask and find answer to, the question whether the plaintiff was actually defamed by those words. In Sketch Publishing Company Ltd v. Ajagbemokeferi (supra) this court held that in deciding whether a word is capable of defamatory meaning, the court will reject that meaning which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. See Okolo v. Midwest Newspaper Corporation (1977) 1 SC 33, Okafor v. Ikeanyi (1973) 3 - 4 S.C. 99.
... Where it is determined that the words complained of do not constitute the tort of defamation, it becomes unnecessary to consider any defences that may be available to the defendant. There is therefore no need to consider issue three as to whether defences of qualified privilege and fair comment availed the respondents.
Counsel:
Essien H. Andrew for the Appellant
O. O. Adebayo with Eunice Agbor for the Respondents
This summary is fully reported at (2014) 10 CLRN