VICARIOUS LIABILITY

It is any situations where one person is liable for the conduct or tort of another person because of a
relationship existing between them and the wrongdoer. In "laundry vs Morgan " the court posited that
vicarious liability means one person takes the place of another as far as liability is concerned.
In "Sharon paint&chemical Co Ltd vs Ezenwe" The court held that vicarious liability is an indirect legal
responsibility, such as the liability of an employer for the act of an employee or a principal of an agent it
is the master that must be responsible for the action of the servant it cannot be otherwise since the law
cannot operate inversely.
In " Various claimants vs Catholic child welfare society " The rational for vicarious liability was
summaries up the effect that:
- The employer is more likely to have the means to compensate the victim than the employee, and can
be expected to have insures against that liability .
-The tort will have been committed as a result of actively being taken by the employee on behalf of the
employer.
Vicarious liability also refer to a situation wherein one party is liable for the negligent actions of a third
party that they were responsible for ordinarily vicarious liability is the liability of one person for the
conduct another person. Vicarious liability is a liability of a superior for the conduct of a subordinate.
Thus, vicarious liability is the liability of one person usually a subordinate such as, the liability of an
employer for the conduct of an employer in the course of employment. Vicarious liability can also be the
responsibility of a master for the primary liability established against his setvant,agent or subordinate
for a tort, committed by such subordinate, in course of employment.
In instance of vicarious liability, a master is said to be jointly and severally liable within servant for a tort
committed in the course of employment. In the other words, whenever there is a vicarious liability, the
superior is usually jointly and severally liable with the subordinate for the wrongful conduct of the
subordinate.
Example of vicarious liability
In the case of "Exxon valdez oil spill" The Exxon shipping company came under vicarious liability for the
series of event that led to 10.8 million gallons of crude oil spilling into the sea and affecting the shore.
Among other factors, the company was held accountable for lack of supervision on the captain, fatigue
among crew members on board the oil tanker, as well as the condition of radar equipment that might
have helped the ship from running aground. However, due to the multiple appeals changing award
amount, and the gray area of maritime law rule of a ship owner being responsible for actions of an
employee, this is a particular complicated example of vicarious liability.
Vicarious liability is also sometimes called "Imputed liability", it states that any party who is in an
authoritative legal relation another party is legally responsible if their actions cause harm to the other
party.

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 Examples of vicarious liability offences
There are a variety of actions/behavior that can cause harm and that an employer could be held
vicariously liable for. They include:
Breach of copyright
Libel
Harassment
Slander
Breach of confidentiality
Bullying
Physical abuse/causing of bodily harm
Mental abuse

Vicarious liability elements

In cases of vicarious liability, the court must determine who should be held liable for the incident in
question, and thus there are legal elements which determines rulings is vicarious liability. The element
are:
- The wrongful act must have been committed by an employee or other agent
- The employer or other agent must have been acting within the scope of his or her employment or
agency
-The employer or other person must have had the ability to control the employee or other agent.

Also in Ayankoya vs olukoya(1996)NWLR (pt440)(supreme Court)" the supreme Court highlighted the
follow elements:
-There must be a relationship of a certain kind with the tort fester

-There must be a commission of a tort a breach of an act

-The wrong must be done in the course of the tortfessors employment.
Based on 2 Latin mazims
- Respondent superior: A principal must answer for the act of his subordinate
-Qui Facit per album Facit perse: He who employs another person to do something, does it himself. Or
He who acts through another is deemed act in person.
Essentials for vicarious liability and how it arise:
1-There must be a certain type of relating between the parties
2-The wrongful act must be committed by another
3- The wrongful act must happen during the course of employment.
Relationship that produce vicarious liability
Diverse kinds of relationships may produce vicarious liability. However, the types of relationship where
vicarious liability commonly arise include:
1-master and servant, otherwise known as employer and employee relationship, including borrowing a
servant.

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2-Employer and independent contractors
3- casual agency, that is casual delegation
4- Parents/ child.
See " Cox vs ministry of justice "

Test for vicarious liability

In " idea ifeanyi chukwu vs Saleh Boneh ltd"
The supreme Court held that for a plaintiff to succeed in claim for vicarious 3,he must establish the
existence of 3 elements to wit :
1- That the wrongdoer is liable for the tort
2- That the wrongdoer is the servant of the master
3- That the wrongdoer acted in the course of his employment with the master.

Special consideration

Another common source of vicarious liability occurs when a child behaves negligently. The parent can
sometimes be held vicariously liable for the child's actions. One situation whereon this might occur is if a
child injures or kill someone while driving. The parents can bear responsibility for allowing the child to
have access to the vehicle.

MASTER SERVANT LIABILITY

In a case of vicarious liability both the persons at whose command the act is done as well as the person
who does the act are liable, especially where the employer decides to bring an indemnity action against
the employee. It is therefore advised that an employer seeking to recover damages from his employee
for the injury caused to a third-party act according to the provision the labor act.
In master servant relationship. The master employs the services of the servant and he works on the
command of master and thus a special relation exists between the two and incase of a tort committed
by the servant his master is also held liable.
Also, an act which is committed by the servant is considered to be done by the master through him. It is
assumed that if any wrong is done by the servant, its has been committed by the master indirectly and
so the master is held liable for these wrongs.
In Nigerian navy v Akpan &Anor the court cited the case of Boyle v kodak that the principle of vicarious
liability is essentially based on or the relationship between master servant or between the person or
party who actually or in fact committed the tort and the person or party to be held responsible liable
vicariously for such tort than that other person or party who committed the tort, commonly known in
law as the tortfeasor.
The general rule in master servant relation, is that a master is liable for the acts authorized by him and
done by the servant during course of employment.

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The liability of master of master to arise, it is necessary that the following conditions are satisfied.
1. The tort was committed by the servant
2. The servant committed the act during the course of employment.
Reasons why master is held liable or responsible for the act committed by the servant.
i. The master selects his servant and pays him remuneration.
ii. He is liable to control the work committed by the servant during the course of employment, and also
have the ability to dismiss the servant.
iii. He is also in al better position to pay for the acts committed by his servant.
In conclusion, master servant rule is a legal guideline stating that employers are responsible for the
actions of their employees. It also applies to any actions an employee undertakes while in the service of
an employer that is within the scope of their duties for that employer.

INDEPENDENT CONTRACTOR LIABILITY

Unlike an employer, an independent contractor is not subject to the employer’s supervision direction or
control.

The primary basis for the determining whether someone is an employee or independent contractor for
the purposes of attaching vicarious liability to the employer is whether the employer has the right to
control the manner in which the employee performs the job.

So even if a company hires what it thinks is an independent contractor the reality is that the hiring party
can control and direct the work being done by the contractor to a certain level then that person no
longer is an independent contractor and instead will be treated as an employee of the hiring company.

Independent contractor commonly defined as one who contracts to perform a certain task or duty
independently according to their own means and method without being subject to the control of the
hiring party except as to the ultimate.

An independent contractor is one who works for another but is not controlled by others in his conduct
in the performance of that work. He is on a master and exercise his own decisions

Generally, employers are not liable for the torts of independent contributors

EXCEPTIONS

An employer may be liable for an independent contractor’s misconduct if the employer was negligent in
selecting or retaining the independent contractor

1. The tasks assigned to an independent contractor are non-delegable

2. An independent contractor’s work is ultra-hazardous or inherently dangerous.

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The general rule of non-liability of an employer for torts committed by independent contractors has
been eroded to the point that some legal experts now argue that the rule is now primarily important as
a preamble to the catalog of exceptions.

In southern floors & Acoustics, inc. v. max Yeboah, 267 va. 687 594 s.E,2d 908

Plaintiff was injured in grocery store in aisle where flooring contractor was preparing work. General rule
regarding liability of owner for negligence of independent contractor is that owner who employs
independent contractors is not liable for injuries to third person caused by the contractor s negligence.
Respondent superior may apply if contractor, using a dangerous instrument engaging in work that is
inherently dangerous, engaging in work that is wrongful per se, or is a nuisance or is such that would
cause injury in the natural course events, unless special precaution was taken. In this case, the grocery
store had no duty to supervise the independent contractor.

VEHICLE OWNERS AND CASUAL AGENT

As we have seen, generally a person vicariously liable only where the tortfeasor is that person's servant
acting in the course of his employment and several examples have been considered of liability of vehicle
owner's for the negligent driving of their servants e.g bus drivers and lorry drivers employed as such
how ever an important extension of the doctrine of vicarious liability has been develop on ground of
public policy in order to fix liability upon the owner of a vehicle for damage caused by the negligent
driving of such vehicles by person's who are not servants but merely casual agents of the owner,such as
the owners wife son, daughter or friend where the agent drives wholly or partly for the purpose of
business of the owner. The explanation which has been adopted in several Nigerian cases in that of
Denning L.j

It has often been often supposed that the owner of

a vehicle is only Liable for the negligence of the
driver is his servant's acting in the course of his
employment that is not correct. The owner is also
liable if the driver is with the owners purpose. The
law puts an especial responsibility on the owner of
vehicle who allows it to go on road in charge someone

else no matter whether it is his servant

friends or any one else. If it is being used whole

or partly on the owners business or for the owners

purpose, the owner is liable for any negligence on
the part of the driver

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Jus as a master liability for his servants tort is limited to act committed during the course of servant
employment so is the vehicle owner liable only, where the casual agents was driving for some purpose
of the court. thus e.g a farther as his son to drive to a store in the father's car to pick up some cartons of
beer for the father, the father will be liable for any damage caused by the sons careless driving to or
from the store but he would be liable for any damage caused by the son's, father, the father will be
liable for any damage caused by the sons careless driving to or from the store but he would not be liable
where the son, with or without his permission, in he with bonvin where a father of allowed his son to
use his car to take the son girl friend home. The reading Nigerian case on his point is ducloud v Ginov
where plaintiff Mrs. ducloud sought to recover damages from the defendant Mr. G the owner of the in
which, while traveling as a passenger with Mrs. G driving she had been injured through the allergies
negligence of Mrs. G accident had occurred in Kano while the two woman accompanied by Mrs. B's child
where returning home to put their perspective babies to bed before proceeding to a social engagement.
Mrs. G was driving fast or point the car suddenly skidded and into a free causing severe injuries to the
plaintiff Mr. G had given his wife general authority to drive the car and the question to be determined
by the court was whether or not the journey had been undertaking, wholly or partly for Mr. G's purpose
the supreme court, reversing the trial judges decision held the fact that Mrs. G had general authority
and consent of her husband might be said to have an interest in his wife and child returning home with
the car was not, sufficient then the owner must be constant peril of being vicariously liable for every
accident occurring during every journey undertaken in his car since at very least he would be interested
in having his car driven back home the interest to which the law attaches significance is the in the
purpose of the journey and not ultimate interest of the owner in receiving his car or driver in present
case the wife of the defendant in our of journey and not ultimate interest of the owner receiving back
his car or driver in the present case.

the wife of the defendant was out on a journey in the purpose of which was purely social call on a friend
whose daughter was been christened that evening and in that purpose the defendant had no interest
the defendant was therefore not Liable.
See=>Manuel V Edevu, Ormrod v.crosville motor service

Presumption of service or Agency

Where the plaintiff seems to recover damages from the owner of a vehicle in respect of negligent
driving of occurred during the course of the driver's employment or Agency the plantiff task is greatly
assisted, however bay a rule of evidence propounded in Barnard v surely and first applied in Nigeria in
onuchuku v Williams to the effect that where a plaintiff in an action for negligence proves that damage
has been caused by the defendant vehicle, the fact of the owners hip of the vehicle prima facie evidence
that the vehicle at the material time was being driven by the servant or agent of the owner, or by the
owner himself in other words initial presumption of service of agency which the defendant owner must

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but if he is to avoid liability of the many examples of the application of this principal in Nigeria, the
following are perhaps the most instructive.
In onuchuku v Williams the plaintiff claimed the damages in respect of a collision between his car and
that of the defendant. The collision due to negligence of the driver of the defendant car ,but it was not
proved or admitted that the driver of defendant's car but it was not proved or admitted that the driver
was the defendant`s car at material time was being driven by someone for whose negligence the
defendant was responsible and since no evidence was called to rebut the presumption of service
Agency. The defendant was liable. The effect of this was further clarified in CFAO v ikpeazu
The supreme court held
In effect that the fact of ownership of the offending vehicle is prima facie evidence not only.
1)That the driver of vehicle was servant or agent of the owner but also
2) That the vehicle at the time of accident was being driven in the course of the driver's employment or
within the hope agency as the case may be.
Also in Barnard v sully ,ogunmuyi v solanke, Raibu v ibe

CONCLUSION

It is a known fact that it is not always possible to own a vehicle and be the one to drive it always. You
may need to allow your wife, children, ward or friend to drive it. These people are not your servants as
such but casual agents.bAgent acting for himself but not for the owner of a vehicle is liable personally
for any breach that occurs while driving a vehicle that belongs to another person. The owner of a vehicle
will only be liable if the agent is acting for the owner and not for himself.

FRAUD

Fraud is a crime or tort of deceiving somebody in order to get money, goods or benefits illegally. A
person who pretends to have some qualities, abilities that he does not really possess in order to deceive
other people and benefit therefrom in whatever way commits a fraud. Fraud is something that is not as
good, useful or helpful as people claimed them to be and for which people have parted money, goods or
other valuables for. Theft is defined as the physical removal of an object that is capable of being stolen
without the consent of the owner and with the intention of depriving the owner of it permanently.
Fraud is generally a tort but it may also be a crime. It is a misrepresentation made recklessly without
belief in its truth to induce another person to act one way or the other and in most cases to the benefit
of the person making the misrepresentation. It is a tort arising from a knowing misrepresentation,
concealment of material fact, or reckless misrepresentation made to induce another to act to his or her
detriment. Fraud is a tort generally but criminal fraud is the one that has been made illegal by statute
and which subjects the offender to criminal penalties such as fines and imprisonment. An example of a

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criminal fraud is the willful evasion of taxes accompanied by filling a fraudulent tax return.

THEFT

Theft in the law of tort is treated as a synonym to the ‘fraud’ of a servant. It is the taking and removing
something of value from a person with the intent of depriving the true owner of it. But the master of the
servant who committed the theft is liable to the plaintiff for the theft of his servant. Theft is the use of
trick to obtain another’s property or a thing of value especially by creating or reinforcing a false
impression that he is truly representing a true intention of his master. It is the failing to disclose in
property transfer, a known lien or other legal impediment by a servant knowingly or otherwise at the
expense of his principal.

LIABILITY OF MASTER FOR FRAUD AND THEFT OF THEIR

SERVANTS
In the past it was believed that a master was not liable for the fraud, theft or crime of his servant
especially when such wrongful act was undertaken solely for the servant’s own benefit and not for his
employers. Nowadays, an employer is liable for the fraud and theft of a servant committed in the course
of his employment. It is irrelevant that the servant did the particular act for his own purpose or benefit.
However, the master will only be liable if it is proved that the employee (the servant) has;
I. Actual authority; or
II. Apparent authority, to carry out the act during the life and subsistence of the employment.

The leading case that settled the question of a master’s liability for the fraud or theft of his servant is the
case of LLOYD v. GRACE SMITH & CO. (1912) A.C716. In this case, the defendants, a firm of solicitors,
employed a managing clerk who was authorized to do conveyancing work for the firm. The clerk induced
the plaintiff who owned a number of properties, to instruct him to sell the properties. He then
persuaded her to execute these documents, which he falsely told her were necessary for the sale, but
which in fact were conveyances of the properties to himself. He then dishonestly sold the properties and
misappropriated the proceeds. The House of Lords held that the defendants were liable for the fraud of
their servant.

The principle in Lloyd’s case was applied in many subsequent cases amongst which was the case of
UNITED AFRICA CO LTD v. SAKA OWOADE (1955) A.C 130 a Nigerian case where the defendant
introduced two men as his driver and clerk to the plaintiff with the instruction that the plaintiff can give
the men goods to be transported. Goods were later given to the two men by the plaintiff for carriage to
one of the plaintiff’s branches up country, but the goods were not delivered. The plaintiffs claimed that
the defendant was vicariously liable for the conversion of the goods by his servants and the Privy
Council, reversing the West African Court of Appeal and agreeing with the trial judge, held that he was

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liable. It should however be noted that a master will not be liable for the fraudulent act of a servant not
committed in the course of his employment.

In the case of LEESH RIVER TEA CO v. BRITISH INDIA CO (1966) 3 ER 593. The defendant employed
stevedores to load and unload ship at the docks. The stevedores stole fixture from the ship. The court
held that the employers were not liable for theft by the employees. The employers can be liable for the
cargo which the stevedores were asked to load and unload but not for fixtures which was outside the
course of the servant’s employment.

CONCLUSION
Generally, a person who commits a fraud or theft is the one to be liable. But under the contract of
employment the servant is employed to carry out the actual
and inherent orders of his master. As such, any benefit or liability arising out of the servants’ acts is
inputted to his master. In view of the above, a master is legitimately liable for the acts or omission of his
servant in the cause of his employment including fraud and theft committed under the law of torts.

DEFINITION OF DEFAMATION1

The wrong of defamation consists in the publication of a false and defamatory statement concerning
another person without lawful justification. That person must be in being. Hence not only does an action
of defamation not survive for or against the estate of a deceased person. But a statement about a
deceased or unborn person is not actionable at the suit of his relatives, however great their pain and
distress, unless the statement is in some way defamatory to them2

The tort of defamation occupies a prominent place in Nigerian law, as it does in the law of most Africa
countries in which the common law applies .The immediate post independence period in Nigeria was
characterized by vigorous political activity supported by an articulate and free pass. It is significant that
the plaintiff in defamation actions in the early 1960s included most of the leading political personalities
of the time, and that there least one such action during the period with the advent of military rule,
defamation actions no longer featured “battles” between politicians and the press, or between
politicians themselves, and the great increase in road traffic and therefore road accidents, in the 1970’s

1 Reference may be made to; Gatley, libel and slander 6th ed., 1967; Duncan and Hoolahan, Guide to defamation
practice, 2nd ed,. 1958. The report of the the committee on the law of defamation (cmd. 7536 (1948) of whom Lord
porter was a chairman, is invaluable, as is that presided over by Faulks J. (Cmnd. 5909,1975.)
2 Report of porter committee,para.27. for the interesting steps taken by the relatives of Mr. Gladstone to defend

his honor against the disgraceful assertion of captain wright see, Dean, Hatred, Ridicule or contempt; libel upon
the dead and the bath club case” (1927) 9 J.C.L. 1

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ensured that the negligence superseded defamation as the most frequently litigated tort. Most
defamation actions in Nigeria today are without political significance, though with recent return to
democratically-elected government the situation may change .

NATURE OF A DEFAMATORY STATEMENT

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it
refers; which tends, which tends, that is to say, to lower him in the estimation of right-thinking members
of society generally 3 and in particular to cause him to be regarded with feelings of hatred, contempt ,
ridicule, fear, dislike, or disesteem.4 The statement is judge by an ordinary, right thinking member of the
society. Hence the test is an objective one, and it is no defense to say that the statement was not
intended to be defamatory although I do not believe the imputation and may even know that it is
untrue. Hence it is settled that a statement may be defamatory although no one believes it to be true

CRIMINAL DEFAMATION UNDER THE NIGERIAN LAW

•A defamation matter is defined in section 373 of the criminal code as a matter likely to injure the
reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any
person in his profession or trade by injury to his reputation. Such matter may be expressed in spoken
words or in words legibly marked on any substance whatever, or by any sign or object signifying such
matter otherwise than by words and may be expressed either directly or by insinuation or irony. It is
immaterial whether at the time of the publication of the defamatory matter, the person concerning
whom such matter is published is living or dead.
•To impute immoral or obscene conduct to a person is defamatory of that person.
•To allege that he is a thief or to impute to him the commission of any offence is also defamatory.
•To allege that a person has planned to kill some named persons is defamatory.

LIBEL AND SLANDER5

A defamatory statement is not necessarily made in words, either written or spoken. A man may defame
another by his acts no less than by his words. To exhibit an insulting picture6or effigy holding up the
plaintiff to ridicule or contempt is an actionable libel.
The wrong of defamation is of two kinds-namely, libel and slander.
In libel the defamatory statement is made in some permanent and visible form, such as writing, printing,
pictures, or effigies." In slander it is made in spoken words or in some other transitory form, whether
visible or audible, such as gestures or inarticulate but significant sounds. It is not always easy to

3 Sliam v. Stretch (1936) 52 T.L.R. 669, per Lord Atkin

4 Capital and counties Bank v. Henty (1882) 7 App.caps 741
5 See Kaye, “Libel and slander – Two Torts or One “ (1975) 91 L.Q.R 524
6 Du Bost v. Beresford (1810) 2 Camp 511; Garbett V. Hazell, Watson and Viney LTD (1943) 2 All E.R. 359

(juxtaposition of pictures with captions) one may “ convey a libel in a frown, And wink a reputation down” : Swift,
journal of a modern lady

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determine whether in a particular case the proper cause of action is libel or slander. Is the true
difference between the two that slander is addressed to the ear, libel to the eye? 7 it that libel is
defamation crystalized into some permanent form, while slander is con-veved by some transient
method of expression? The Court of Appeal in Youssoupolf v. Metro-Goldwyn-Mayer Pictures8 did not
have much difficulty in holding that defamation in a " talking" film was libel. But there is no authority as
to whether defamatory matter recorded on a gramophone disc (unaccompanied by any pictorial or
other matter & libel or slander. It is addressed to the ear, not to the eye, but it is in permanent, not in
transient form. It is submitted that the correct answer is that to utter defamatory words with the
intention that they shall be recorded is slander only, but that when the record has been made, if it is
published, the manufacturer is responsible for libel. In such a case the person whose voice is recorded
would, it seems, become liable for libel on the ordinary principles of vicarious liability, and presumably
those who distribute or play the record to third persons are in the same position as the disseminators of
a written libel. The Defamation Act 1952,apparently9 settles a disputed point by providing " that the
broadcasting of words10by means of wireless telegraphy shall be treated as publication in permanent
form. The Theatres Act 1968, s. 4, makes a similar provision for words published during the public
performance of a play. Although libel and slander are for the most part governed by the same principles,
there are two important differences:
Libel is not merely an actionable tort, but also a criminal offence; whereas slander is a civil injury only.
Libel is in all cases actionable per se; but slander is, save in special cases, actionable only on proof of
actual damage. This distinction has been severely criticized as productive of great injustice.11It was
recognized by the Porter Committee to be arbitrary and illogical," but a majority of the Committee was
not willing to recommend, or Parliament to enact, that libel and slander should be assimilated.
The different rules applicable to the wrongs of libel and slander are due to the different historical origin
of the two actions. The rules relating to slander derive from the common law action on the case, the
rules relating to libel from criminal proceedings in the Star Chamber.

LIBEL

This means that whenever a libel is published, the law will presume that damages has been caused to
the plaintiff’s reputation and will award him general damages by way of compensation.
•According to Section 3 of the Defamation Law (1961) and Section 3 Law of Lagos State (1973) Cap 34
that any defamatory words contained in a radio and television broadcast, and any recorded audio-visual
material are within the ambit of libel.

7 Held in Mitchel V. Australian Broadcasting commission (1958) 60 W.A.L.R. 38.

8 (1934) 50 T.L.R 582.
9 But not certainty : Burns v collins (1966) V.R. 677.
10 Defined by S.16 (3) Means publication for general reception by means of wireless telegraphy within the meaning

of the wireless Telegraphy Act 1949

11 See prosper, “ Libel per Qoud” 1960) 46 Va.L.Rev. 839

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It was held that libel, in defamatory statement remains in a permanent form long after publication and
may be referred to by any persons in future and cause damage to the person or his family, except the
materials are withdrawn from circulation or destroyed by the defendant at the order of the court.
Sketch Publishing Co. Ltd v. Ajagbe Mokeferi (1989) I NWLR pt 100, pg. 678

Libel refers to permanent defamatory statements, so anything which is written (books, newspapers,
letters), anything which is broadcast (television or radio as per s.1 of the Defamation Act 1952, cable
television as per s.28 of the Cable and Broadcasting Act 1984), and even theatre productions (as per
s.4(1) of the Theatres Act 1968.) The ‘permanence’ requirement doesn’t mean ‘forever’ (because on a
long enough time line, nothing is), but rather communication which exists for longer than the time the
original message is communicated. Thus, the courts have gone as far as suggesting that skywriting can
constitute libel since the writing takes time to disperse, as in Gulf Oil (GB) Ltd v Page [1987] Ch 327,
which concerned a plane towing a defamatory statement behind itself.
Words are not necessary, it merely must be a type of permanent communication. Thus in Monsoon v
Tussauds Ltd [1934] 50 TLR 581 the defendant placed a waxwork of the claimant near its ‘Chamber of
Horrors’ exhibit. He had been tried for murder, but not convicted. Since this was a permanent
communication, this was held to be libel (described by the court as libel via innuendo).
It should be noted that libel is also a criminal offence, as well as a tort.

SLANDER

Utterances of false charges or misrepresentations which defame and damage another's reputation is
called slander
•It is a statement made in a transitory form and not in a permanent form, most often through the
medium of spoken words or gesture.
•It is sometimes said that libels is addressed to the eye, whilst slander is addressed to the ear.

Slander as we have seen is generally not actionable per se. This means that no action will lie unless the
plaintiff can prove he has suffered some actual loss, for example, that he has been dismissed from
employment as a result of slander. However, slander is actionable per se in the following cases, and so
will have the same effect as a libel. Slander
Slander is a defamatory statement which is non-permanent. In essence, it covers defamatory statements
which aren’t included under libel. The key example is spoken word - an untrue statement whispered in
the ear of the right person can be devastating to an individual, and so the law recognises this. Gestures
can also constitute slander, since they are a form of non-permanent communication - thus, even those
who communicate via sign language are covered by the law!
Because non-permanent statements have a lesser effect than permanent statements, a claimant must
show that they have suffered a ‘special loss’, in effect a loss which can be estimated in monetary terms.
The courts however have stretched this definition to include loss of a marriage prospect (in Speight v
Gosnay [1891] 60 LJQB 231), and loss of consortium (effectively, losing the financial support of a family
member, as in Lynch v Knight [1861] 9 HLC 777).
There are two exceptions to this rule. Firstly, if it is imputed that the claimant has committed a criminal

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offence punishable by imprisonment (in the first instance, as opposed to as a repeat offence), as per
Gray v Jones [1939] 1 All ER 798. This is because statements of this nature can quite easily lead to
exclusion from society and other negative effects.
Secondly, if the statements are calculated to disparage the claimant in his or her profession, business or
office. Thus, in Foulger v Newcomb [1867] LR 2 Ex. 327 the claimant was a gamekeeper tasked with
preserving foxes. A slanderous statement was made that he was poisoning them instead. This was
actionable, since it the statement was directed against his ability to practice his profession. It should be
noted that the statement must be based on the claimant’s calling, rather than merely being an
unrelated statement which nevertheless might affect others’ perception of the claimant’s ability to
undertake that calling. Thus, in Jones v Jones [1916] 2 AC 481, the statement was that a schoolmaster
had committed adultery on school premises. This was not actionable - the statement wasn’t closely
related enough to the claimant’s profession. In contrast there is the case of Thompson v Bridges [1925]
273 SW 529, in which a schoolmaster was slanderously accused of sleeping with a student. This was
calculated to disparage the claimant in his profession, and so was actionable without special harm.
Much like slanderous statements regarding criminal acts, such statements are actionable per se because
they can effectively destroy an individual’s ability to pursue their chosen profession.
It used to be the case that imputing that a girl or woman was unchaste or adulterous via slander was
actionable per se. This was repealed by s.14(1) of the Defamation Act 2013 (presumably because this
exception relied on anachronistic views of women’s societal ‘worth’). It also used to be the case the
imputing that someone had a contagious or infectious disease was an exception - this was repealed by
s.14(2) of the 2013 Act. Special damage is now required in both of these situations.

Slander is not a criminal offence.

Since slander usually requires special damage and libel does not, it will usually be preferable for a
claimant to argue that libelous defamation has occurred, if possible.

Parmiter v Coupland [1840] 6 M&W 105

The claimant was the mayor of Winchester. A newspaper, the Hampshire Advertiser, printed a series of
statements imputing that the mayor was corrupt, and ignoring his duties as mayor. Defamation was
described by Parker B, as “A publication, without justification or lawful excuse, which is calculated to
injure the reputation of another, by exposing them to hatred, contempt or ridicule”.

Case in Focus: Sim v Stretch [1936] 2 All ER 1237

The claimant brought a case against the defendant for defamation, when in a telegram he accused the
claimant of enticing away a servant. This was held to not be defamation, but merely discourteous
conduct. Lord Atkin noted the Parmiter definition (at 1240) and widened it to include words which “tend
to lower the plaintiff in the estimation of right-thinking members of society”.

This provides a rough basis for a defamatory statement as something which negatively affects a
claimant’s reputation, which might affect perception of that person’s ability to do their job, which might

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cause an individual to be considered a person of poor standing (someone you’d rather not have around),
and/or someone who is not be taken seriously or deserving of respect. None of these criteria are a right
that any individual has - rather, if someone has built themselves a truthful reputation as a decent,
competent person (for example, by not stealing and by doing their job well and giving to charity) they
have a right to not have that reputation destroyed by falsehoods (that they are a thief, an incompetent,
or that they are greedy). Thus, just as an individual has a right to not have their wages stolen, someone
who earns themselves a good reputation has a right to not have that reputation stolen or tarnished.
Most notably, reputation is not an inherent characteristic, but is a matter of perception - a man
stranded solo on a desert island has no reputation at all. Thus the defamatory nature of a statement is
not based on the reaction of the claimant to that statement, but rather the reaction of others to that
statement. This means a statement cannot be defamatory if communicated only to the subject of that
statement (if you’re told you’re a thief by another, you know that’s not true, and so your perception
cannot possibly be changed).
There is no need for a claimant to show that the statement made had a particular effect on certain
persons, or the public in general (else they’d have to run absurd surveys and polls for the sake of
evidence), instead they must simply argue that the defamatory statement would have had the
abovementioned negative effect on the claimant’s reputation in the mind of an ordinary, reasonable
recipient. This principle is essentially included in s.1(1) of the 2013 Act, which dictates the need to show
either serious harm, or likely serious harm to reputation. As a general rule, statements which are clearly
a matter of raised passions or vitriol will not be regarded as defamation, since the ordinary person will
usually be held to know the difference between a statement made out of anger and one made calmly
(and that the former type of statement shouldn’t be given much weight). This can be seen in Penfold v
Westcott [1806] 2 B & P (NR) 335. The defendant yelled at the claimant “…come out, you blackguard
rascal, scoundrel, Penfold, you are a thief!” This was not held to be slanderous (see the section above on
imputing criminal status), because anyone who heard the accusation would realize that it was in the
heat of passion. However, it is doubtful that such a defense could be applied in the case of written or
recorded statements (since the defendant invariably has a chance to not distribute their statement, and
it’s very difficult for a reader to infer that such statements are made merely out of momentary passion.)
In short: context and content are crucial to a statement being of a defamatory nature.
With the general definition above in place, the nature of a defamatory can be best understood through
its application, as in Byrne v Deane.
Byrne v Deane [1937]
The claimant was a member of a golf club, whose owners kept popular, but illegal, gambling machines
on its premises. Someone reported these machines to the authorities. An offensive poem (yes, really)
was posted in the club, imputing that the claimant had been the informant - it read “but he who gave
the game away may he byrne [sic] in hell and rue the day”.
He sued for defamation. However, this claim was unsuccessful - since the defamatory statement was
essentially implying that he had informed the authorities of a crime, this could not be regarded as
something which would lower him in the minds of the ‘right-thinking’. Notable is Greer LJ’s dissent who
argued that the defamatory statement was that the claimant was disloyal to his club - something which

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could be regarded as injuring the claimant’s reputation in the minds of the right-thinking. This illustrates
the difficulty in applying defamation - it involves not only evaluating the words used and their context,
but also the meaning that might reasonably be given to those words.

:
REMOTENESS OF DAMAGES IN LIBEL AND SLANDER
As a general principle of tort, the damages complained of as a result of a defamatory statement must
not be too remote. The plaintiff may recover compensation only for those consequences of the
defamatory statement which were foreseeable. See Vicas v. Wilcox (1806)103 E.R 244.
For example, if 'A' slanders 'B' to 'C', and 'C' repeats the slander to 'D' who then dismisses 'B', 'A' is not
liable for 'B''s dismissal because the damage to B is remote. But 'A' will be liable to 'B' if:
• He authorized the slander to 'D';
• 'C' had a legal or moral duty to repeat the slander to 'D';
• 'A' should have foreseen that his slander of 'B' would be repeated by 'C' to 'D'.
This rule of remoteness equally apply to cases of libel

WHAT A PLAINTIFF MUST PROVE

The plaintiff in a Defamation action must establish there things;
• That the words were defamatory.
• That the words referred to the plaintiff.
• That the words were published (to at least one person other than the plaintiff).

WORDS MUST BE DEFAMATORY

The words complained of by the plaintiff must be defamatory and it is for the judge to decide whether
the words complained of are reasonable capable of being defamatory Okolo v. Midwest Newspaper
Corporation (1974)2CC HCj 203 at pg.205 and Din v African Newspaper ltd (1990)3 NWLR pt.139pg.392
S.C.
Where the words complained of are clearly defamatory i.e. “A is a thief “B is corrupt “ the judges task
is comparatively simple.
The words used must be capable of Defaming the plaintiff in their natural meaning,other otherwise
the claim of defamation will fail except defamation by an innuendo is alleged and proved i.e words are
usually interpreted in their ordinary, natural and literal meaning unless the plaintiff pleads that the
words contain a innuendo that is a hidden or secondary.

INNUENDO

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 Definition by an innuendo is a defamation by the use of word which are not defamatory in actual sense
of the case or in themselves. An innuendo is an indirect defamation by the use of words with a hidden or
secondary meaning. Akintola v. Anyiam (1961)1 ALL NLR 529.

TYPES OF INNUENDO
Innuendo are of two types;
• True or legal innuendo;
• False or popular innuendo.

TRUE OR LEGAL INNUENDO

These are words which are not defamatory on their face or natural meaning, but they have a
defamatory meaning to the person to whom they are published, because of circumstances, facts
information or a special or secondary meaning which are known to the hearers or reader to whom it is
published. Akintola v.Anyiam (1961)I All NLR 529 and Duyile v.Ogunbayo & sons(1988)I
NWLR,pt.72,pg.601 S.C.

FALSE OR POPULAR INNUENDO

This is a student which is defamatory not because of my extraneous fact or circumstances known to
the people it is published but because of the defamatory influence meaning or conclusion which
reasonable people will draw from the words that have been used Mutual Aid society v.Akerele
(1966)NMLR 257,Ashubiojo v.African continental Bank LTD (1966)LLR 159 and Adeleke v.National Bank
of Nigeria Ltd (1978)I LRN 157.

THAT THE WORDS REFERRED TO THE PLAINTIFF

For the plaintiff to succeed in an action for defamation the plaintiff must prove that the publication
referred to him in other words he must prove that he is the person defamed -- BPPC v Gwagwada (1992)
4NWLR pt,116,pg449 C.A and New Nigerian Newspaper & Anor v.Oteh (1992)4 NWLR pt 237, pg 626
C.A.

THAT THE STATEMENT WAS PUBLISHED

The plaintiff must prove that the dafamatory statement was published or communicated by the
defendant to at least one person other than the plaintiff.
The basis of action in defamation is not the words themselves but the publication of it to another
person other than the plaintiff publication by a defendant may be in the form of writing as a libel or
orally by words as a slander.
It is not necessary in all cases to prove that the libelous matter was actually brought to the notice of
some third party.

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If it is made a matter of reasonable inference that such was the fact ,a prima facia case of publication
will be established This is particularly so when a book magazine or newspaper containing a libel is sold
.At this instance where the material is produced to the court by the National library of Nigeria that will
be a clear evidence that it was published to a third to a party ,see;Awoniyi v.Regd.Trustees of AMORC
(1990) 6 NWLR pt 154 pg 42 C.A and Fawehinmi v.Akilu (1994)6 NWLR pt 351 pg 387.

VULGAR ABUSE

A vulgar abuse is an ‘insulting’ statement made in the heat of an argument anger or disagreement. For
example, in BAKARE V. ISHOLA(1959) this was a fight between the plaintiff and the defendant. Therefore
a statement is not defamatory if it is mere vulgar abuse. E.g A and B are in a heat argument then in the
mid of the argument A calls B ‘a fucking thief’ then it’s a mere vulgar abuse and it won’t be put into
action.
In BAKARE .V.ishola,there was a fight between the plaintiff and the defendant. In the heat of passion
the defendant said in the presence of onlookers, “okni o elewon iwo to o sese ti ewon de yi.”which
means you are a thief ,ex convict you who have just come out of prison.” The court in this case held that
the statement was mere vulgar abuse and not defamatory.
Mere insult or vulgar abuse does not amount to defamation. The manner in which words were spoken
and the meaning attributed to them by the hearers is however important in determining whether the
words are defamatory or simply abusive. In PENFOLD.V.WEST COLE ,the defendant called out “why
don’t you come out you black guard,rascal,scoundrel’Penfold you are a thief ,” it was left to the jury to
decide whether the general abusive words accompanying…’thief’ reduced…’thief’ itself to a mere abuse.
The jury gave a verdict the term ,,,’you are a thief “was not a mere abuse but was defamatory. The
speaker of words must take the risks of his hearers construing them as defamatory and not simply
abusive and the burden is upon him to show that a reasonable man would not have understood them as
defamatory.
It is well established that words spoken as a mere vulgar abuse or insult are not actionable in slander.
Whether particular words constitute slander or mere vulgar abuse depends upon the circumstance in
which they are spoken. Thus for example, if A calls B “a dirty whore” at the height of a violent quarrel,
this may be a mere vulgar abuse and not actionable, but the same word spoken in “COLD BLOOD” would
be slander. The onus is on the defendant to satisfy the court (I)that the words were words of heat and
anger and (ii)there were so understood by persons who were present when they were uttered.
This position may be illustrated by comparing two cases BAKARE v ISHOLA and IBEAMU v UBA. In
BAKARE v ISHOLA there had been a fight been preceded by an alteration between the two parties. In the
heat of anger the defendant had in the presence of onlookers , spoken of the plaintiff in Yoruba “you are
a thief convict you who have just come out of prison.” JIBOWU C.J held that the words complained of

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were vulgar abuse, as they had been spoken while the partners were exchanging words which this court
takes judicial notice, that people commonly abuse each other as a prelude to a fight and call each other
,”ole! Elewon!”(thief! Ex convict!),which abuse no-one takes seriously as they are words of heat and
anger. The learned judge distinguished GRAY v JONAS on the facts that expressing the view that “ the
principles decided by that case would have been applicable to this case if there was no question that the
words complained of were just vulgar abuse.” In IBEANU v UBA on the other hand EGBUNE .J. Held that
the following words spoken in Igbo in the presence of witnesses;” josiah Josiah, ongi kpo ndi ori bia zulu
ewum,bia malu uma najum,” meaning in English “josiah Josiah you brought the thieves with whom you
stole my goat and you have now come to ask me,” we’re not mere vulgar abuse but constituted
actionable slander since it was clear from the evidence that there was no quarrel between the parties.
On the contrary, “the plaintiff saw the defendant passing and then called him to sympathize with him as
he had heard that the defendant had been visited by thieves who had stolen his property, “and the
defendant thereupon retorted with the slanderous words.
If the defamatory words are written or printed, not spoken, the defendant cannot rely on the defense
of vulgar abuse, since he would have had time to reflect upon what He was writing. This, in BENSON v
WEST AFRICAN PILOT LTD,Ikpeazu J rejected the contention that a report in the defendants newspaper,
to the effect that the plaintiff was “an idiot and a simpleton “was mere vulgar abuse and not actionable.

WHEN VULGAR ABUSE IS ACTIONABLE

However, where a vulgar abuse alleges a specific act of wrongdoing or accuses, charges or alleges that
the plaintiff committed a specific or particular crime or wrong, then the statement will not be regarded
as a mere slander, as the statement may lead to the plaintiff being shunned by the public or arrested by
the police. The court will hold such vulgar abuse as defamatory whether or not it was said in an
atmosphere of jokes or in the heat of anger. Similarly, the court will also held such abuse as defamatory
if they were said intentionally or deliberately in a normal setting free from jokes or fit of anger. Ibeanu v.
Uba (1972)2 ECSLR 194 at 195.

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