The legal basis for pre-authorization protocol and the implications of failure in an action for defamation
By Adeh Leonard
In many jurisdictions, including Nigeria, it is not always strictly mandatory by substantive law to request for a retraction of the offensive statement before suing in an action for defamation, but it is often a procedural requirement and highly recommended in practice for several reasons:
1. Pre-Action Protocols: In certain states like Lagos and the FCT, Abuja, the High Court Rules mandate a Pre-Action Protocol, which requires a claimant to send a “Letter of Claim” before filing a suit for defamation. This letter typically demands a retraction of the defamatory statement and of course an apology. Thus, where the defendant is a government agency or a public officer, a formal pre-action notice is generally required by statute, the failure to provide this notice can lead to the case being struck out for want of jurisdiction.
2. Mitigation of Damages: Requesting for retraction serves to mitigate damages, in other words, if a defendant refuses to retract a statement after being put on notice, it can strengthen your claim for aggravated damages. Conversely, if they do retract, it may limit the damages you can recover against a defendant who has already retracted.
3. Proof of Malice: For certain types of defamation, proving you asked for a retraction and same was refused can help establish malice or the defendant’s lack of good faith.
4. Strategic Advantage: A formal demand letter for retraction usually provides an opportunity for an amicable settlement, potentially saving you the time and expense of a full blown court trial.
There are also a number of essential elements to prove in Court. This means that if you proceed to court, you generally must prove the following:
1. Publication: The Claimant must establish that the statement complained of was made to at least one person other than yourself.
2. Reference: That the statement clearly referred to you, the complainant.
3. Defamatory Nature: That the words contained therewith lowered your reputation in the eyes of “right-thinking” members of the public or the society.
4. Falsity: Recent Nigerian Supreme Court decisions such as in the case of “Abalaka v. Akinsete” have now placed the burden on the claimant to prove that the statement made by the defendant and complained about is actually false and not true.
– Where the complainant fails to establish these facts to the satisfaction of the court, the action for defamation fails and same shall collapse like a pack of cards.
Barr Adeh, writes as a notary public and private legal practitioner.
