We have seen Nigeria’s Asa sue a newspaper for calling her a Lesbian. Now, Charly Boy, a self proclaimed 60+ year old bad boy of the music industry follows Asa in suing for the alleged rumor that he is gay. Charly Boy, in a country that outlaws homosexuality, has been bold in displaying affections for a member of the same sex. In one instance, newspapers ran pictures of him kissing television personality host Denrele. Subsequently, Mirror Newspaper ran a story calling him gay AND stating that Charly Boy confirmed he was gay to them on tape.
When the subsequent story broke a couple of weeks ago, many said and seemed to say, “tell us something we didn’t know.” Charly Boy, for all the liberalness he displays and his live and let’s live attitude, didn’t find it funny. He threatened to sue and it appears wrote a demand letter that the publication renege on the story or else face legal action. The publication said, “bring it on. We have you on tape. You wanna fight, bring it on.” Charly Boy has now sued.
What I find most interesting is the quote from his lawyer which shows how remarkably different Nigerian Tort law is from US tort law.
“If any publication calls Charly Boy gay, I think it’s a fair comment. (In the USA, lawyers would be out of their minds to make such a statement.) He’s in the public domain, people will always speculate. But it’s wrong to out-rightly report that in an interview he actually said so. ( Here, the lawyer is simply saying it is okay to say that Charly Boy is gay, even if he is NOT, because it is a fair comment. The media just cannot say he said he was gay. This is according to Nigerian Tort law. However, for us under US law, if the statement that he is gay is inherently a false statement, the last thing you want to concede is that it is a fair statement to make.) That’s a line that shouldn’t be crossed’, Charly Boy’s counsel Ope Banwo said. – The Netng.com
In the Nigerian Supreme Court Case of Guardian Newspapers Ltd. and Anor versus Pastor C.I Ajei, the facts were parallel to this, although the allegations of “gay” was not in that fact pattern. In that case, the Pastor was accused of stealing items in an article titled ‘Lessons from a Pastor,’ among other things. Guardian published the story. The Pastor sued for 10million Naira and an injunction to stop further publishing. He claimed the story was false and malicious and since it was published, he lost his congregation.
The Pastor won his lawsuit. The Guardian was not happy and was able to appeal the case all the way to the Supreme Court. The Supreme court reaffirmed the Pastor’s win and also reiterated the elements that a Plaintiff has to prove to win on a libel claim.
So, let’s look at the elements of libel:
According to the Supreme Court, “The tort of defamation is either libel or slander”
The essential ingredients of libel are:
1. The words complained of must have been written;
2. The publication must be false
3. The words must be defamatory or convey defamatory imputation;
4. The words must refer to the plaintiff;
5. I t must be the defendant who published the words;
6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel.”
NOTE: If you want to prove your libel case in Nigeria, the law requires an actual reproduction of the entire article you say is libelous.
“For the plaintiff to succeed in a case of Libel he must reproduce verbatim the whole of the article or the particular passage he complains of in his pleadings.” – See Guardian Newspaper v. Pastor Rjei (note the parties are listed the way they are because the case was appealed by the Guardian newspaper. In the lower trial court when the case was first filed, it would be listed as Pastor Rjei v. Guardian.)
Damages/Money You Win
If the court finds that Charly Boy wins his case, what next? The court has to tell him how much he won.
“In libel cases, once the offensive article is found to be libelous of the plaintiff, damages follow and the damages awarded is general damages. On the other hand where there is direct pecuniary benefit from the offensive publication punitive damages are awarded. See Awolowo v. Kingsway Stores Ltd & Anor.”
NOTE: Punitive damages is awarded to punish a person.
When the court is awarding damages, it must consider the following factors when exercising (its) discretion:
(a) The standing of the plaintiff in society
(b) The nature of the Libel
(c) The mode and extent of the publication
(d) The refusal to retract or render an apology to the plaintiff
(e) The value of the local currency
See Mayange v. Panoh Nig Ltd 1994 7NWLR pt .358 p. 570, Ziks Press Ltd v. Alvan Ikoku 13 WACA p.188
Defendants can claim qualified Privilege or Fair Comment, among others, as a defense. Often, “Fair Comment” is used as a defense. You noticed in the initial quote that the lawyer there said it is a “fair comment” but goes on to say the issue is really the newspaper saying that Charly Boy said he was gay.
A couple of things on “fair comment.” When you file a lawsuit in Nigerian courts for defamation including libel and slander, there is a presumption of a “technical malice” as the Supreme Court has been quoted in saying in other similar defamation cases. This means it is presumed that the Defendant acted with Malice. Once the defendant, the person you sued i.e. media says, “your honor it was a “fair comment!” that presumption is rebutted and now, you must make a claim and showing of “actual malice” if you want punitive damages aka (punishment money).
In the USA, we get to a malice analysis if celebrity/public figures are involved. That is because the US Supreme Court in the 1964 New York Times Co. v. Sullivan did away with the common law use of “Fair Comment.” The Court reasoned that the US values the freedom of the press which includes freedom from punishment just because you publish a story. When public officials/celebrity figures act, their conduct is in the public interest, and as such, the public has the “right to know.” Therefore, the standard is a lot tougher to defeat when a celebrity sues a newspaper for defamation.
Finally, what is “fair comment?” I like this Wikipedia definition which almost seems like a play on the malice doctrine, although it discusses US law.
“In the United States, the traditional privilege of “fair comment” is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a “common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff”.”
Let’s see how this case shakes out. If the newspaper has proof (i.e. the recorded statement they claim), then Charly Boy I don’t know what to say to you. If the Newspaper does not have proof that Charly Boy confirmed he was gay, then may the best man win.
Photocredit: Denrele photo by Yemoja news
1st Photo: L-Charly Boy, R- Denrele
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