Understanding the Thin Line Between Civil and Criminal Defamation in Nigeria, Boundaries and Legal Defences

Introduction

Defamation remains one of the most sensitive aspects of Nigerian law, a space where personal reputation and freedom of expression constantly meet and sometimes collide. The law recognizes that while every person is entitled to protect his or her good name, society must also preserve the freedom to speak the truth, express honest opinion, and hold others accountable. It is against this background that both civil and criminal defamation have developed under Nigerian law, each with distinct purposes and procedures.

Understanding Civil and Criminal Defamation

Civil defamation arises under the common law of tort and is designed to compensate a person whose reputation has been unjustly damaged by another’s false statement. Criminal defamation, on the other hand, is a statutory offence under Sections 373–381 of the Criminal Code Act (applicable in Southern Nigeria) and Sections 391–395 of the Penal Code (applicable in Northern Nigeria). Its aim is to protect public peace and order by punishing statements capable of provoking violence or widespread hatred.

The Court of Appeal in Okotcha v. Inspector-General of Police (2019) LPELR-47848 (CA) explained that civil defamation is concerned with personal injury to reputation, while criminal defamation concerns the peace of the public. The dividing line, therefore, lies in the intention behind the publication and its likely effect on society. A publication that merely injures an individual’s reputation is civil, but one that tends to incite public disorder or hatred crosses into the criminal sphere.

In both civil and criminal defamation, the parties and the remedies sought differ fundamentally in purpose and consequence. In civil defamation, the action is a private one between the plaintiff, whose reputation has been injured, and the defendant, who made or published the defamatory statement. The remedy here is primarily compensatory damages, injunctions, or an apology to restore the injured person’s reputation. In contrast, criminal defamation is a public prosecution instituted by the State through the police or the Attorney-General against the accused person for an offence that threatens public order. The remedy in this case is punitive, involving fines or imprisonment as provided under the Criminal and Penal Codes. As the Court of Appeal held in Okotcha v. I.G.P. (Supra). The accused person here, enjoys the shade of constitutional safeguards of Presumption of innocence as  guaranteed under Section 36(5) of the 1999 Constitution, and failure to establish any of the fundamental ingredients of offence alleged will occassion into failure of the charge and will lead to the discharge of the defendant.

Improper Invocation of Police Powers

It has become increasingly common to see individuals rushing to the police over issues that are clearly civil in nature, including defamation. Such practices have no basis in law. The Police Act, 2020, in Section 4, clearly defines the duties of the Nigerian Police Force as:

“The prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property, and the due enforcement of all laws and regulations.”

Nowhere in the Act is the police empowered to intervene in purely civil disputes or to enforce personal rights. In Onagoruwa v. State (1991) 5 NWLR (Pt. 193) 593, the Court of Appeal described the police in words that still echo today:

“They are custodians of legality, not instruments of oppression. Their duty is to enforce the law, not to manufacture offences where none exist.”

When the police act outside these limits, they act ultra vires,  beyond their lawful authority. Any proceeding or prosecution founded on such misuse is void. Moreover, such conduct wastes the court’s precious time and erodes public trust in both the law and its institutions. Courts have consistently warned against the abuse of their process, as seen in A.G. Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575, where the Supreme Court cautioned that the judicial process must never be used as a tool for harassment or revenge.

Ingredients of Defamation

For civil defamation, the claimant must prove three essential elements:

1. That the statement complained of is defamatory;
2. That it refers to the claimant; and
3. That it was published to a third party.

For criminal defamation, the prosecution must go further to prove beyond reasonable doubt that:

1. The accused published defamatory matter;
2. The publication referred to the complainant;
3. It was false;
4. It was made with intent to harm the complainant’s reputation; and
5. It was not protected by any lawful defence or privilege.

These requirements underscore the seriousness with which the law views defamation, especially when it borders on criminal conduct.

Defences to Defamation

The law is not blind to the need for fairness. It recognizes that people should not be punished for speaking the truth, expressing honest opinions, or communicating in good faith. The defences available to a person accused of defamation ensure that justice does not silence legitimate expression.

 Defences in Civil Defamation

1. Justification (Truth)

The truth of a statement is an absolute defence. No one has the right to complain about a statement that is substantially true. In Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535, the Court of Appeal held that “truth is a complete defence to defamation, for the law does not protect a man from the publication of that which is true about him.”

2. Fair Comment on Matters of Public Interest

A person may freely express an honest opinion on a matter of public importance, provided it is based on facts that are true and expressed without malice. The Court of Appeal in Sketch Publishing Co. Ltd v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678 held that fair comment must be an opinion any reasonable person could hold, not a reckless assertion.

3. Qualified Privilege

Certain communications made in the performance of a duty or in the protection of a legitimate interest are privileged. This defence will fail only where malice is proved. In Emeagwara v. Star Printing & Publishing Co. Ltd (2000) 14 NWLR (Pt. 688) 372, the court affirmed that a statement made in good faith, in discharge of a duty, is privileged.

4. Absolute Privilege

Some occasions are so vital that the law gives complete immunity from liability, even if the words are false or malicious. Examples include statements made in judicial proceedings, legislative debates, or official acts performed in the line of duty. The case of R v. Governor of Lagos, Ex parte Roderick (1970) NMLR 204 recognized this principle.

5. Innocent Dissemination

Those who unknowingly distribute defamatory material  such as printers, booksellers, or internet service providers  are protected where they had no reason to suspect the material was defamatory. The English case of Byrne v. Deane (1937) 1 KB 818, which has been followed in Nigerian courts, illustrates this principle.

6. Apology and Retraction

Though not a full defence, an apology or retraction may mitigate the damages awarded. The Defamation Law of Lagos State (Cap. D5, Laws of Lagos State 2015) recognizes this mitigation when the apology is made promptly and sincerely.

Defences in Criminal Defamation

1. Truth and Public Benefit

Under Section 375 of the Criminal Code and Section 392(2) of the Penal Code, a statement is defensible if it is true and it was for the public good that it be published. Both elements must coexist,  a true statement published maliciously and without public benefit can still be criminal.

2. Privileged Publications

Sections 376 of the Criminal Code and 393 of the Penal Code recognize privilege for publications made in judicial, legislative, or official proceedings, or fair and accurate reports thereof.

3. Fair Comment on Public Affairs

The defence of fair comment applies where the statement represents a genuinely held opinion on a matter of public concern, made without malice. This principle was reaffirmed in Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (Pt. 1256) 574.

4. Innocent Publication

Under Section 377 of the Criminal Code, a person is not liable if they neither knew nor intended the publication to be defamatory and took reasonable care to prevent it.

5. Consent of the Aggrieved Party

Where the publication was made with the consent of the person defamed, it cannot constitute an offence. This is recognized under Section 378 of the Criminal Code.

Misuse of Judicial Process and Consequences

The courts have consistently warned against the misuse of their time and process. Bringing frivolous or unfounded defamation claims, or using the police to pursue personal grudges, is viewed as a serious abuse. In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, the Supreme Court defined abuse of court process as using judicial procedure for purposes it was not intended.

Such misuse can attract punitive costs, dismissal of the case, and in extreme cases, disciplinary action against the erring party or counsel. The court’s time is too valuable to be spent on matters that, as judges often say, “go to no issue.” The justice system exists to correct genuine wrongs, not to satisfy vanity or vendetta.

Conclusion

The law of defamation in Nigeria is built upon balance, the balance between protecting the dignity of individuals and upholding the freedom of expression vital to democracy. Every lawyer, journalist, and citizen must understand this delicate equilibrium.

Before rushing to court or the police over alleged defamation, one must pause and ask himself,  Is this truly a matter for criminal law, or simply a civil grievance? The misuse of police powers and the abuse of court processes only weaken the integrity of our justice system.

As the courts have often reminded, the law is not a weapon for oppression but an instrument of order and fairness. Defamation law, properly understood, protects truth, honesty, and responsible expression not malice, ego, or misuse of authority.

Amb. Ibrahim Muhammad Usman is a law graduate, advocate of intergenerational justice and equity, a passionate voice for Sustainable Development Goals, Inclusive policy and good governance, AI safety and  governance in Africa,  and climate justice. He can be reached via imuhammadusman66@gmail.com or 08145101965.