In consideration of the above question, I will not be astonished if some persons assert that a child cannot sue the father for the tort of defamation in Nigeria. The reason for their assertion may be from the morality point of view. However, I am law bent and I strongly contend that a child can sue the father for the tort of defamation in our Nigerian laws. This article will be considering the capacity of a child to sue in any legal action with particular restriction to the tort of defamation.
The position of the law as held in the case of OKON & Ors v State (1988) LPELR-SC.108/1987 is that a child is any person who has not attained the age of fourteen years. Also, the definition of who a child is has been provided for in Section 277 Child’s Right Act, 2003 and Section 2 of Children and Young Persons Law of Lagos, ‘’a child means a person under the age of eighteen years’’. However, this article will not be considering the age discrepancies as provided by the Child’s Right Act and other laws and judicial authority. The article only aims at examining the legal capacity of a child to maintain an action for the tort of defamation in Nigeria.
Furthermore, Section 1 Child’s Right Act, 2003 provides: “In every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law or administrative or legislative authority, the best interest of the child shall be primary consideration.” In consideration of this section, a child maintaining an action for defamation against the father, is it actually in the best interest of the child?
It is pertinent to state that by virtue of Section 11 (C) of Child’s Right Act, 2003, which provides thus ”Every child is entitled to respect for the dignity of his person and accordingly, no child shall be subjected to attacks upon his honour or reputation”. Considering that our laws provides that a child lacks the legal capacity to sue or be sued in person, can there be a remedy as to how he can maintain an action for defamation when his reputation or honour or person has been defamed by the father?
I answer in the affirmative. By virtue of Order 11 Rule 10 and 13 of Abuja Rules, 2018, Children are entitled to sue by their next friend and defend by their guardian ad litem. Under the Rules, before the name of a person can be used as next friend, other party or relation of the child, the person shall sign a written authorization, which shall be filed in the registry. An application is first made to the court for an order that the name of the person be used as a next friend. The application is by motion exparte, supported by an affidavit to which is attached as an exhibit, written authorization by the proposed next friend. There must also be evidence that the person is fit and proper to be appointed and does not have an interest inimical to that of the child.
In the case of OMOLE & SONS LTD v ADEYEMO (1994) 1 NWLR (PT 336) p.48 @69- the court held that where a child is suing by his next friend, that fact should from the inception of the case be reflected in all the papers filed. It must also be pleaded and supported by evidence. A next friend or guardian may be a parent or other relation or friends to the child but not a mere volunteer. The Court in the case of SOFOLAHAN V FOWLER (2002) 9 NSCQR 596 @ 608-609, held that the proper way to write out the names of the parties in an action a child is suing, is for the name of the child (infant) to be placed first as the plaintiff indicating that he is an infant, suing by the next friend whose name then follows.
In light of the above circumstances and points, how can a child who is suing the father for defamation succeed? The child can only succeed in action against his father by proving all the ingredients required by law for the tort of defamation. The court in the case of OLORUNWA V AKINDUN (2016) LPELR-CA/EK/48/2014 held that defamation encompasses imputation which tend to lower a person in the estimation of the right thinking members of the society generally and this exposes the person so disparaged (plaintiff) to hatred, odium, opprobrium, contempt or ridicule.- NITEL V TOGBIYELE (2005) ALL FWLR (Pt.246) 357.
The court in the case of EMEAGWARA V STAR PRINTING AND PUBLISHING COMPANY (2000) 14 WRN 89 @ 111, held that the law is that nothing can be more intangible than a man’s reputation, dignity or feeling and it is injury to a person’s reputation, dignity or feeling that forms the essence of the tort of defamation. It is apposite to restate the position of our law as held in the case of IZEJIOBI V EBGEBU (2016) LPELR-CA/OW/132/2014, 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.
A child who is suing the father for the tort of defamation must prove the following elements as provided in a litany of cases particularly the case of AKAHIE V OCHULOR (2015) LPELR-CA/OW/290/2014: (1) false statement of fact (2) capable of a defamatory meaning or by reason of an innuendo (3) of and concerning another living person (plaintiff) (4) publication to a third party (5) some degree of fault on the part of the person making the statement (6) harm to the reputation of the person defamed.- SKYE BANK PLC & ANOR V CHIEF MOSES BOLANLE AKINPELU (2010) 9 NWLR (Pt. 1198) 179. Now it is generally accepted that a plaintiff’s general character or reputation need not be stainless, unimpeachable and without any blemish before he can maintain an action in defamation. The proper purpose of an action for defamation has been held to be to vindicate the character of the person defamed.
The most important ingredient in proof of tort of defamation is the expressed impression of others about the person whose reputation has been tarnished by an alleged act of defamation be it libel or slander. There must be evidence from a third party that he no longer holds the person (child) allegedly defamed in the same high regard that he used to do. – UNITY BANK PLC v OLUWAFEMI (2007) ALL FWLR (Pt.382) 1923 @ 1949.
The onus is always on the plaintiff in an action for defamation to show that the published or spoken words complained of are defamatory or that they covey a defamatory imputation. In order for the court to determine whether the words convey a defamatory message, the test of reasonableness must be applied for deciding that purpose. The court will therefore construe the words according to the fair and natural meaning which would be given them by reasonable person of ordinary intelligence.-PUNCH NIG. LTD v EYLTENE (2001) 17 NWLR (Pt 741) 228.
Furthermore, it is germane to restate the position of our law as held in the case of OMO-AGEGE V OGHOJAFOR & ORS (2010) LPELR_CA/B/220/2005, that it is part of and parcel of the law of defamation that a person’s reputation is not in the good opinion he has of himself but in the estimation of other people or a class of people. It is the protection of that estimation that is the real subject and aim of the law. It is also not any estimation, be it emotional, biased or sectional etc that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation.
One basic ingredient of defamation, whether it is libel or slander, is publication. In order for a child to succeed, he must prove the fact of publication. The word publication has received judicial baptism and interpretation in the case of NSIRIM V NSIRIM (1990) 3 NWLR (Pt. 138) 285, where the supreme court defined publication as the making known of the defamatory matter to some persons other than the person (child) of whom it is written or spoken. Therefore, there is an obligation on the child to prove through his statement of claim that there was publication of defamatory wordACs by his father. He must reproduce the whole words verbatim or the particular passage (if published) he complains of in his pleadings.
Inasmuch as a child can sue the father for defamation, there are a number of defences available to a claim of defamation which include justification, fair comment, privilege which may be either absolute or qualified.-ONWURAH & ORS V NWUMEH & ANOR (2016) LPELR-CA/E/63/2008
In conclusion, it is apropos and kosher to restate that for a child to succeed in an action for defamation against the father, he will institute the action by a next friend or guardian and the next of friend may be a parent(mother) or other relation or friends to the child but not a mere volunteer. The next of friend must prove all the ingredients or elements of defamation in order to succeed. I humbly submit that children are the future of our nation and therefore their dignity and reputation should be preserved even by our parents but where they fail to do so, I encourage the children to speak up so that relatives can step in and help out because the community effect of defamatory words on children cannot be overemphasised, primarily it causes them not to believe in themselves.
About the author
Chidera Nwokeke, is a graduate of Law from Ebonyi State University, a law school candidate. He is academically motivated and has passion for research in several areas of law. He has a keen interest in Dispute resolution, Litigation, Human Right and Corporate Law Practice. He can be reached at [email protected] or 08120945787
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