Owing to recent jurisprudence, debate has arisen amongst jurists and legal scholars on the necessity of calling third-party evidence to prove a cause of action in civil libel (i.e. written defamatory statement). The conventional school of thought is that for a civil action in libel to succeed, the plaintiff must show that the defamatory words would in the opinion of reasonable people negatively affect a third party's assessment of the plaintiff. The Plaintiff does this by calling the said third partie(s) to give evidence before the court.

A more liberal and dissenting position is, that there are circumstances where third-party evidence is not required to prove a civil action for libel. This school of thought draws support from the trite principle of law that in civil matters, what is required is for a party to call cogent and compelling evidence (including admissions) to the attention of the Court to prove, on the balance of probability the averments in that party's pleadings. In other words, it is not the number of witnesses called that is of importance, but the quality of the evidence supplied by the witness(es).1

This school is of the opinion that where the evidence of a solitary witness (or the defendant admits to being the author of material that is clearly defamatory of the Claimant and responsible for the publication of same) satisfies the Court, the court can act on the evidence of that lone witness or the admission with no need to call a third party to attest to what a reasonable man would consider defamatory.

This article therefore examines the dynamism of the current Nigerian jurisprudence on the tort of libel vis-à-vis the requirement for calling third-party evidence in support of one's case.

What is defamation and what is libel?

It is important to begin with an acknowledgement of the strict legal scope of the concept of defamation and libel. Whilst it is correct to say that defamation involves false statements impugning on someone's goodwill, reputation, integrity or right standing in the society, and it is also correct to state that all libellous statements are defamatory in nature, not all defamation is tantamount to libel.

Defamation is defined in the Black's Law Dictionary 8th Edition as the act of harming the reputation of another by making a false statement to a third person. A false written or oral statement that damages another's reputation. Defamation thus occurs when one makes a false statement intending to harm another's reputation.

Defamatory statements are classified as either "libel" or "slander". Libel is written or visual while slander is spoken or oral defamation.2 The above classification is critical in perhaps appreciating and situating the jurisprudential issues regarding proof of defamation in a civil action.

The rationale for access to the right to institute civil proceedings for defamation is the right of every individual to enjoyment of their reputation and self-respect in the society without undue or unwarranted interference of that enjoyment by others. A cause of action for civil defamation is the legal mechanism by which any individuals may protect themselves from such undue or unwarranted interference. The action, if successful, affords redress where their reputation has been found to have been unjustly disparaged. It affords such individuals the opportunity to seek redress in the Courts where they believe their rights to enjoyment of reputation have been violated or otherwise exploited and provides individuals with the actions which can be brought in the courts of law.3

Although tortuous defamation is the more common and more widely discussed type, defamation is a dual-nature legal transgression and may -depending on the circumstances of occurrence- be classified as a civil wrong or a criminal act. In its civil form, 'defamation seeks to protect for a man during his life-time the untainted smearing of his reputation and good name. It is therefore a wrongful act in the eyes of the law for a man to directly impress in the mind of another person a matter that is not only untrue but is likely in the ordinary and natural course of things to substantially injure the reputation of a third party. The successful institution of a suit for the tort of civil defamation may attract the award of damages in favour of the person wronged'.4

Though criminal defamation is not the focus of this article, the elements that distinguish it from its civil counterpart before same is countenanced by a criminal court are set out in the article of Chief Afe Babalola SAN previously referred to, and may be paraphrased as follows:

  • There must be a case to go before a criminal court that is so clear at first sight that it is beyond argument that there is a case to answer.
  • The libel must be a serious one, so serious that it is proper for the criminal law to be invoked. It may be a relevant factor that it is unusually likely for the libel to provoke a breach of the peace, although that is not a necessary ingredient at all.
  • The question of the public interest must be taken into account, so that the judge has to ask himself the question: 'Does the public interest require the institution of criminal proceedings?

The above and literature on defamation, libel and slander actually shows that defamation in its criminal form is restricted to criminal libel as opposed to slander, although both are actionable for civil purpose. Practically speaking, common sense dictates this pragmatism in relation to criminal actionability of slander, otherwise every private opinion, position, comment, belief, statement and even oral abuse, insult, castigation expressed or made orally against a person in the hearing of third parties regarding his person or character would be inherently an actionable criminal action and lead to a floodgate of litigation and stifling of freedom of expression, particularly in this age of social media. Furthermore, frictions are an inherent part of human interactions including in homes, marriages, families, offices and societal interactions generally.

Tortuous and criminal action for libel is predicated on the publication of a written statement (a notice, advertorial, correspondence, electronic statement, video, etc made available to third party or parties).

Libel and Human Rights under Nigerian Law

The civil tort of libel in Nigeria is a product of the tension between various constitutional provisions touching on social order, the privacy, dignity and reputation of a person5 and the freedom of expression of each citizen6.

For instance, it is the constitutional duty of every citizen to respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood7. The State is also to protect each individual's dignity, protection from inhuman treatment- which though usually evocative of physical torture, includes psychological and emotional torture, character assassination, etc- under Section 34 of the 1999 CFRN as amended

Freedom of expression is enshrined as a fundamental Human Right in the constitution of the Federal Republic of Nigeria8 while the African Charter on Human and Peoples' Right9 and Universal Declaration of Human Rights10 which also contain provisions expressing the fundamental nature of the right to Freedom of Expression have also been ratified by the Nigerian Government. As in other jurisdictions, the right to sue for defamation is a recognized curb on the fundamental right to freedom of expression enshrined in the Nigerian Constitution. Freedom of expression is a prerequisite in a just and democratic society, it would, however, be dangerous to permit the right operate untrammeled. This is confirmed by the International Convention on Civil and Political Rights (ICCPR) Article 19 (3) of which provides: –

19 (3) The freedom of expression carries with its special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be as are provided by the law and[where] necessary:

  1. For the respect of the rights or reputation of others; (emphasis supplied)
  2. For the protection of national security or of public order, or of public health or morals.

The foregoing considerations therefore provide the constitutional and indeed international basis for the tort of defamation and particularly libelous publication. The tort of libel therefore, is a civil action for defamation instituted to protect an individual's reputation from false permanent (i.e written or electronic) statements which would directly or indirectly, negatively affect the said individual's reputation and the esteem in which he is regarded by others.

Libel and Corporate Entities

As earlier emphasized, libel occurs when there is publication to a third party of words or matter containing an untrue imputation against the reputation of another person. The term person as used here, also include companies, partnership firms, or any organization with corporate personality for that matter.

Under the Nigerian law, an individual's right to protection of reputation extends to reputation of a Corporate individual or personality. In Zenith Plastics Industry Ltd. v. Samotech Limited (2007) LPELR-8260(CA) at Pp.37-38, Paras. F-B, the Court of Appeal held that it is the law that a corporate body, i.e. a legal person could bring an action for libel against a person who has published material, the company believes has unjustly disparaged its business, the management of its business or unjustly states that the affairs of the company are conducted in a dishonest manner.

Consequently, the Corporation or company can maintain an action for libel without proof of special damages as if it were a natural person. However, where the statement does not reflect on the management, trading or business reputation of the company, no action for defamation will lie.11

Is the burden of proving libel different from general standard and burden of civil proof?

In the exercise of this legal right, the law12 places the onus of proof on the plaintiff who alleges that his reputation has been impugned by the defendant.13 Section 133 of the Evidence Act, 2011 provides definitive direction on the standard of proof required to succeed in a civil action. It provides as follows:

  1. In civil cases, the burden of first proving existence or non- existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
  2. If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

The foregoing provision and a long line of judicial authorities14 establish that the standard of proof required to succeed in a civil action is the 'preponderance of evidence' or, put another way, 'the balance of probability'.

What then constitute a preponderance of evidence: what must the plaintiff prove to the court to succeed in a civil action for libel? The Court of Appeal, whilst adopting the decision of the Supreme Court in Guardian Newspapers Ltd & Anor v. Rev Pastor C. I. Ajeh (2011) LPELR-1343(SC), held in Access Bank Plc v. Ajayi (2018) LPELR-43813 at Pp. 22-28, Paras. C-F that to prove libel, the claimant must establish the following:

  1. The words complained of must have been written;15
  2. The publication must be false;16
  3. The words must be defamatory or convey defamatory imputation;17
  4. The words must refer to the claimant;18
  5. It must be the defendant who published the words; and
  6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel.

Bearing in mind the aforementioned Section 133 of the Evidence Act, and decision in the two authorities cited above, one might reasonably conclude that to succeed in a civil cause of action in defamation for libel, the Claimant may only be required to show that the publication subject of the suit is possessed of the six characteristics set out by the Supreme Court in the decision in Guardian Newspapers Ltd & Anor v. Rev Pastor C. I. Ajeh (supra), while also adducing more cogent evidence in support of his case than the Defendant does in support of his own.

The general practice in relation to evidence to be led in civil defamation action is that the Claimant must lead evidence -in addition to the above 6 elements - through a third party showing the false publication and consequential effect of the publication on a third party. In the case of Iwueke v IBC [2005] 17 NWLR (Pt. 955) 447 at 482 the court held that:

"For a plaintiff to succeed in libel there must be proof by evidence of a third party of the effect of alleged publication on him, i.e. the reaction of a third party to the publication. Afterwards libel contains in the publication by the respondent, by means of printing, writing, pictures or the like signs of a matter defamatory to the plaintiff."

It follows that the traditional approach is that a plaintiff must in essence prove that at least one person other than him (which for all intent and purpose is deemed in law to be a representative of the general public) now holds him in lower esteem: what is therefore important for a court to see is not the reaction of the plaintiff to the publication but the reaction of a third party to the publication complained of. It is not what the plaintiff thinks about himself but what a third party thinks of the plaintiff as regards his reputation.19

Therefore, traditional approach to proof of actionable libel is that unless and until it is shown that a third party expresses his impression in relation to the alleged defamatory material, the Court will not find for the Claimant.

However, a few recent decisions encapsulating a more liberal view in terms of proof of libel and protection of an individual's reputation argues that traditional case law does not expressly include evidence of third party within the 6 elements of the tort of libel which a plaintiff is expected to prove as outlined above by the Nigerian Apex Court in the Guardian Newspaper and Access Bank cases. In other words, these essential elements of facts to be established in proof of libel do not expressly require the production of a third-party witness who read the publication and inferred that same was defamatory (i.e. caused him in his mind to have a lower esteem of the Plaintiff than he previously had assuming the publication read was true).

This is apparently some of the arguments advanced by the liberal jurisprudence that believes it is enough to provide a compelling evidence of a false publication without having to be exploring and finding a third party opinion, particularly when the words published are inherently perceived as being defamatory or injurious. This position is buttressed in a few recent cases.

In the recent case of Asheik v. M.T. Nig Ltd (2010) 15 NWLR (Pt. 1215) 114 at 164, it was held, among other things, that "where words are defamatory in their ordinary sense, the plaintiff need prove no more than that they were published. He need not call witnesses to prove what they understood by the words..."20 In other words, this case reflects the more recent liberal position that has been taken in certain cases in Nigeria which seem to support the general burden expected of a plaintiff to discharge in a case.

It is pertinent to note that the art of advocacy in a trial allows counsel to make a compelling case through skillful cross examination which sometimes leads to documentary or oral admissions in evidence. It is elementary principle that a party has the right to establish his case through the witness of the other party irrespective of the purpose the party calling him want him to serve in the proceeding21.

Indeed, it has been said that admissions during trials are the best (and certainly most direct) evidence and a plaintiff that obtains same has successfully proved his claim before a court. In Iniama v. Akpabio (2008) 17 NWLR (Pt.116) 225 at 344 the Court held that

"an admission against interest extracted under cross-examination is the best evidence in law. The law does not permit a litigant to blow hot and cold at the same time." Refer also to Ezenwa v. Ekong (1999) 11 NWLR (Pt.625) 55; Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260.

It must further be noted that the tort of slander being an oral form of defamation pitches the word of an adversary against another, and by extension shows the fundamental necessity of the evidence of a third-party witness.

From all the above, it can be argued in favour of the liberal school of thought in relation to requirements for discharge of a plaintiff's burden of proof in a libel case that the mandatory requirement of a third party witness (other than the defendant) to support the case according to traditional jurisprudence should be optional and for persuasive effect as opposed to same defeating a claim of libel which has otherwise been proved via compelling and cogent evidence.

This is also because practically speaking, even though the giving of evidence in a court is a civic duty, this is not a culture that is well entrenched under our Nigerian clime, and thus, third parties/members of the public are usually reluctant to inconvenience themselves and it is sometime quite difficult to procure third party evidence at no cost: even an application for such third party to be summoned to the court via subpoena to give evidence is not without its costs and risks with a reluctant witness and other relational issues.

Furthermore, some third parties summoned to give evidence may assert some defences such as privileged communication in order to refuse to give evidence, particularly where they act as professionals. Therefore, unless and until it is shown that a third party expresses his impression in relation to the alleged defamatory material, the Court will not find for the Claimant.

There are however some authorities that suggest that a Claimant in a civil action for libel may not be required to call a third-party opinion or evidence to prove the case.

Any basis for convergence

It is opined that the dynamics of proof of libel cases is changing on account of societal, technological and cultural changes: nowadays, incidence of actionable libel has been excessively exacerbated by the rise of the internet of things and social media, diversity of values, and fundamental rights susceptibilities. Individuals, corporate entities and even persons occupying political offices now take to social media, twitter handles, etc to make statements of policy, opinion, condemnation, etc: these electronic forms of communication certainly make the issue of publication a moot one to prove.

Furthermore, the falsehood in the publication can be easily ascertained in this age of internet and availability of information and fact checking online. When statements are published online, they become immediately available for reading online, reactions and comments worldwide and can lead to character assassination even when unfounded.

It is safe to say that even without the evidence of third party viva voce (i.e. orally in a trial court) , there can be such amount of compelling evidence of libellous statements available to enable the court decide whether this has lowered the reputation of the plaintiff in the mind of any right thinking person in the society.

It follows that there are clear circumstances where the case can be made that oral evidence of a third party may be supportive or corroborative rather than mandatory to establish a compelling case of libel.

If this is the case, the jurisprudence surrounding third party oral evidence in libel cases may correctly be construed as relieving the Claimant or plaintiff in an action for libel from calling third party evidence on the meaning of the defamatory statement published (or words complained of) where:

  • The stipulations as to what constitutes civil defamation set out in Guardian Newspapers Ltd & Anor v. Rev Pastor C. I. Ajeh (supra) are satisfied:
  • It is proved that the words were authored and caused to be published by the Defendant.
  • The words are defamatory in their ordinary sense.

It is conceded that a word that is found to be defamatory in its ordinary sense is an issue of fact to be decided by the court in a trial, but it is safe to say that abusive words, accusations of indecency and various statements made on acts touching on moral turpitude would be accepted as being words that are inherently defamatory in their ordinary sense if the statement is unfounded.


It is said that law is an instrument of social engineering. The evolution regarding approach to proof of libel reflects changes and evolution in the forms and impact of communication in society with the advent of ICT and social media. It appears that case law is adjusting to these realities with the aim of protecting persons from reputational risks.


1. See Otusile v. Maiduguri Metro council (2004) 4 NWLR (pt.863) 290, Agbi v. Ogbeh (2006) 11 NWLR (pt.990) 65.

2. Araromi, Marcus, Determining Legal Responsibilities in Defamation: Crossing the Dividing Line between Real World and Internet Jurisdiction or Last accessed on July 23, 2020.

3. The Tort of Defamation and the Right of Reputation last accessed on the 23rd of July 2020.

4. Afe Babalola SAN, "When False Publications may amount to Criminal Libel" last accessed on August 5, 2020.

5. Please see sections 17(2)(b), 24 (c), 34, 37 and 45 of the 1999 Constitution of the Federal Republic of Nigeria as amended

6. Section 39(1) 1999 CFRN as amended

7. This is the bedrock of the social pact which implies that the absolute freedom of every individual stops where the equally absolute right of another starts, such that in a democratic society, such fundamental human right is both protected and curtailed in the public interest.

8. See Section 39 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).

9. Article 9 of the African Charter on Human and Peoples' Rights 1986

10. Article 19 of the Universal Declaration of Human Rights, 1948.

11. Inland Bank Nig. Plc. v. Fishing & Shipping Co. Ltd. (2010) LPELR-9158(CA) at pp.15-16, paras. D-A; Duyile v. Ogunbaye & Sons Ltd (1988)1 NWLR (Pt. 72) 62.

12. Section 131 of the Evidence Act, 2011.

13. See Iloabachie, Esq. v. Iloabachie (2005) LPELR-1492(SC).

14. Sule & Ors v. Orisajimi (2019) LPELR-47039(SC); Chilkied Security Services & Dog Farms Ltd v. Schlumberger (Nig) Ltd & Anor (2018) LPELR-44391(SC)

15. See Esenowo v. Ukpong & Anor. (1999) LPELR-1166(SC) where the supreme court held that the tort of libel consists in written publication of [a] false defamatory statement[s] concerning the plaintiff without lawful justification.

16. Esenowo v. Ukpong & Anor (Supra).

17. See the Sketch Publishing Company Ltd. & Anor v. Alhaji Azeez Ajagbemokeferi (1989) LPELR-3207(SC).

18. See the case of Izejiobi v. Ebgebu (2016) LPELR-40507 at P. 42, Paras. B-C where the Court of Appeal held that "it must be borne in mind that an action for defamation is a purely personal action. The Claimant must be the person who has been directly and personally defamed. The statement must refer to the Claimant, i.e., identify him or her, either directly or indirectly... The test to be applied is whether the defamatory statement is capable of being understood as referring to the person of the Claimant."

19. See the case of Chief Nsirim v Nsirim [1990] 3 NWLR (PT 138) 285 at 289; (1990) 5 SCNJ 174

20. See Nigerian Westminster Dredging and Marine Ltd. v. Smoot & Anor (2011) LPELR-4619(CA).

21. See Simon v State (2017) LPELR-41988(SC)

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