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Talking Law with Ivie Omoregie: On Becoming – Did Someone Say ‘Defamation’?

Ivie Omoregie

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Ivie OmoregieI am sure we are all aware of recent social media happenings involving the release of a certain book….

On Sunday 27th November 2016, Nigerian On Air Personality, Toke Makinwa broke the internet with the release of the much anticipated “Must Tell” book, titled “On Becoming”. The book details several events which have occurred in her personal life and which have been instrumental in making her the woman she is today. Although touching on several life changing incidences, including the loss of her parents at the tender age of 8, the book also recounts, in detail, events which might have led to the breakdown of Toke’s marriage to her estranged husband Maje Ayida.

In the wake of the book, many critics have condemned Tokes decision to publish the book, and many have labelled it defamatory to Maje’s character. On several occasions, I have heard people say “Toke went too far, Maje needs to sue her for everything she has”. This article looks at the various types of defamation and the possible defences for same.

Types of Defamation
Defamation is where one party shares negative and false information about another party, which then causes irreparable damage to the affected parties reputation. There are 2 types of defamation, these are:-
1. Libel – this is defamation in a permanent form, usually printed words or written somewhere for public consumption, examples of this include a newspaper publication, a letter, a notice or a book. An oral conversation which is later streamed on the internet would also be an example of libel.

2. Slander – this defamation is made orally; spoken words or gestures.

“Libel is addressed to the eyes, whilst slander is addressed to the ears”

In order to have a valid claim for defamation, the following elements must be present:
a. The plaintiff must show that the defendant made false and damaging statements about them;
b. The plaintiff must show negligence on the part of the defendant in making the statement;
c. The plaintiff mush show that the defendant was not protected by the rules governing “privileged publications” to third parties;
d. Where claiming special damages (i.e a loss of specific revenue directly resulting from the defamatory publication), the plaintiff must show evidence of the special damages being claimed.
A publication may be deemed as being defamatory where it clearly has the potential of harming the reputation of another, thus negatively affecting his/her position in the community or causing third parties to refrain from voluntary association.

Issues with proving defamation
The test for proving defamation is somewhat tricky. Over the years, the courts have often found it difficult to determine whether or not a statement is actually defamatory. It is a very subjective area, with some statements being regarded as defamatory by some, but not by others.
The burden of proof generally lies with the plaintiff – meaning that it is for the plaintiff to show that he or she has been defamed in the eyes of the community or within a specific group within the community. The context in which the statement has been made goes a long way in determining the meaning behind a statement and whether or not the statement was intended to be offensive. The courts tend to take into account the associated facts and circumstances. Thus, there may be instances where two statements are identical in content; however, due to the context in which the statements are made, one may be deemed as defamatory whilst the other not defamatory.

Defences
There are several instances where seemingly defamatory content is legal and valid on the part of the maker, these common defences include:

a. Freedom of Expression – where the statement was a fair comment and it relates to matters of public interest, then the maker of the comment is protected by their fundamental right to freedom of expression. These statements must be fair and must be relatable to a legitimate concern of the public;

b. Privileged Statements – may be either absolute or qualified privileged statements. These are statements made by persons who are protected due to their status or position in society. These people are usually legislature or in the court of law – where public policy demand’s that persons should be able to express themselves with absolute freedom. These types of privileges may also be considered as an immunity. The nature of the statement and the intent behind its making are irrelevant; what the law recognises is the fact that certain officials, in the enablement of the discharge of their official duties, should be shielded from all liability;

c. Consent – where the plaintiff had previously consented to the release of the defamatory statement, then this will be a complete defence against any possible action; and,

d. Truth – where the defendant alleges and can show that the statement is a reflection of the truth, then this will serve as a viable defence. I must stress that the entirety of the statement need not be literally true for this defence to stand. What the courts require, is for the statement to be substantially true. Thus, where there may have been some embellishments to the “gist”, as long as the majority of the statement is substantially true. Truth will stand as an affirmative defence.

Conclusion
Defamation is such a grey area as in most instances it is difficult to prove, especially where there might be elements of the truth in the statement; so, coupled with the challenges being faced by the Nigerian legal system, bringing an action for same, might be simply too tedious to diligently pursue.
The Toke\Maje case can be clearly likened to the Dr Dre (“Beats by Dre”) incident in America, where Dr Dre’s ex-girlfriend, Michel’le, released a movie detailing the domestic abuse she faced at the hands of the legendary rapper; generally portraying him as an abusive, lying, cheating, manipulator who seriously maltreated her once he became successful. Her defence to his claims of defamation of character was that she was telling the truth, and till tomorrow, Dr Dre has been unable to sue her or stop the airing of the movie.

Releasing details of the personal happenings of one’s life is a subjective decision and one which is very personal to the person involved in that particular situation. However, in saying this, we would all agree that everybody has a right to tell their truth, as long as it is a statement of facts which have occurred in their personal life. Our right to free speech truncates any other person’s right to secrecy. Whether you agree with their decision or not does not take away their right to make that decision.

Toke spoke her truth; she detailed some of the challenges she faced in her relationship with Maje and discussed how they have made her the woman she is today. I am sure if we all wrote our personal memoirs, there would be a few people who would not be pleased seeing their conscious actions in print.

Does Anita have a claim for defamation of character? Well that’s a completely separate article.

Ivie Omoregie is the Founding Consultant at Skye Advisory. Skye Advisory is a boutique business advisory firm with locations in London, England, as well as Lagos, Nigeria. Skye Advisory offers bespoke Legal, Financial and General Business advisory services to small and micro businesses. Ivie is a duly qualified lawyer with years of cross border experience in the areas of Corporate Advisory, Energy and Projects, Finance and Litigation.  Ivie is also an active member of the Nigerian Bar Association as well as an avid woman's and children's rights promoter. View more details about her at www.IvieOmoregie.com. Follow her on Twitter @Ivie_Omoregie and Instagram @Ivie.Omoregie "

29 Comments

  1. Nnamdi

    December 2, 2016 at 2:01 pm

    Defamation my nuts. Why hasn’t Maje released a statement or even a tweet? When Billz was ranting, didn’t Tiwa come back with that interview?
    You think Toke wouldn’t have had legal advise beforehand? maje knows he can’t even try it cos there will be piles of evidence against him. Besides, this na naija, which court will take preside over the case sef?

    • FasholasLover

      December 2, 2016 at 4:47 pm

      Ivie, where can l post your kiss to? All those shouting defamation regarding the book pls. y’all go and sit outside at night in the harmattan cold. Nonsense. If you have not read the book at least try and read it. before condemning Toke. Y’all think Toke will write a book detailing her life and all the sordid details without seeking legal counsel? Did she lie in the book? I beg Toke, l hope you are feeling good Today. God bless your hustle. I already paid for and gifted 4 people the online version. Let more women speak up. There is no shame in anything. Shame kills. The freedom we all enjoy today as black people, as women w spear headed by those who suffered and decided no one else should go through what they went through.

  2. TeeS

    December 2, 2016 at 2:06 pm

    Lol. Defamation what?
    Toke isn’t stupid where business is concerned.
    For her to have written everything like that. She sure wasn’t worried about no defamation she got her behind covered(lawyer and co) Maybe Maje even has a cut!(I highly doubt it)

    • MeThinks

      December 2, 2016 at 8:43 pm

      I think Maje got a cut. I mean, it’s too much in that book. L’ai

  3. Molly

    December 2, 2016 at 2:12 pm

    But I think Anita has a claim. She was portrayed as the other women and as a woman with no morals. Where as it was Toke that was the other woman for the majority of that relationship.

    • Dlapikin

      December 2, 2016 at 3:23 pm

      How was Toke the other woman when they were living together married and had publicly dated for over a decade?

    • Anoy

      December 2, 2016 at 6:23 pm

      living together for decade. …from where did u get that lie
      they only been married for a minute. …in her book she was clearly the other eoman

    • See

      December 2, 2016 at 6:27 pm

      In Toke’s history Anita was the other woman. That is Toke’s truth. If Anita writes her history, she can also portray Toke as the other woman and it will be her truth.

    • Ese V

      December 3, 2016 at 4:33 am

      Lol. Anita has a claim? Really?
      Anita that very publicly got pregnant and had a child for Maje while he was married to Toke? By lay, she IS the other woman. She can write her own book if she’s offended, but she can’t claim nada.

  4. sista

    December 2, 2016 at 2:37 pm

    Ivie, you always take me to the classroom with your style of writing which to me is teaching. I love your explanations. Kudos
    About the issue at hand, whatever rocks the characters’ boats

    • Panama

      December 2, 2016 at 5:01 pm

      I second this. Love this girl. ??????

  5. Rose

    December 2, 2016 at 2:43 pm

    My Internet has been working just fine thank u.

  6. Baymax

    December 2, 2016 at 2:50 pm

    “Does Anita have a claim for defamation of character? Well that’s a completely separate article.”

    Haba, that’s the article I want to read naw. Shey Anita is a lawyer.

    • dupsy

      December 2, 2016 at 3:28 pm

      I don’t think Anita has any leg to stand on as regards defamation of character because she was involved in adultery with Maje and has a child to prove this adulterous act, Had it been she didn’t have a child and there was no concrete witness or enough substantial evidence to prove she was having sex with Maje while he was still married to Toke, then Anita can sue for defamation of character ( I don’t even think Toke will be that foolish to write a book and mention Anita’s name in the book like she did in her new book). However since Anita and Maje’s son was born while he was still married to Toke, then Anita has no standing to shout any defamation of character.

    • tunmi

      December 2, 2016 at 3:45 pm

      Was the child conceived before they were married?

    • An

      December 2, 2016 at 6:26 pm

      Anita child was conceived in November. Toke wedding was January so baby making came first

    • word

      December 2, 2016 at 3:54 pm

      My dear, she has nothing to claim. If there was no baby now, they would probably have sued claiming they were just good friends. The boy is proof Toke isnt lying, so neither Maje nor Anita can claim defamation.

  7. word

    December 2, 2016 at 3:31 pm

    There is absolutely no difference between what Toke did and what Tiwa did. No difference at all. If there’s none, then why are people venting bitterly over Toke’s move? The underlining emotion of these critics is envy….the fact that Toke was smart enough to make a business out of a mess similar to Tiwa’s (and is about to hammer some more). Or you think they care for Maje’s or Anita’s feelings? Odiegwu! See ehn, nobody attacks failure or poverty. You just show slight potential for growth and you will wonder if you offended the world.

    • FasholasLover

      December 2, 2016 at 4:50 pm

      I agree with you. Very well said. Misery loves company. I wonder if anyone who has condemned Toke will wish a Maje or an Anita in their life/marriage.

    • Ese V

      December 3, 2016 at 4:42 am

      As in! I paid for the book on iTunes with my hard earned £££ and absolutely having no regret supporting a woman brave enough to share her story in a society where everybody will tell you to look the other and accept that all men cheat.

      Oh Toke is smiling to the bank? Go for it, Ms Makinwa! Hope you make millions off it for having the business acumen to monetise the situation.

  8. Cookie

    December 2, 2016 at 3:32 pm

    Are we still on this?

    • Sour

      December 2, 2016 at 5:06 pm

      Why are you soo sour?

  9. OA

    December 2, 2016 at 3:45 pm

    In some parts of the US (minority), Toke could even sue Anita for snatching her husband from her – “alienation of affection” I believe it’s called! LOL! Some of the weird-ish common laws in Yankee sef. I am sure they did away with that law in Nigeria if it ever existed after maybe two days of existence. There will be too many women being charged to court.

  10. TeeS

    December 2, 2016 at 4:25 pm

    What are you smoking please ?

  11. Missappleberry

    December 2, 2016 at 8:58 pm

    Talking about suing…Phil Collins ex wife just sued him for a false statements he made about her in his autobiography according to daily mail…http://www.dailymail.co.uk/tvshowbiz/article-3994636/He-caused-considerable-distress-Phil-Collins-ex-wife-Andrea-Bertorelli-suing-star-wholly-false-statements-autobiography.html

  12. Justmythought

    December 2, 2016 at 11:21 pm

    All i read is a book about a girl with no sense of self worth whatsoever where maje was concerned .she potrayed herself as someone who never thought she could get a better guy than maje that will fit into the kind of hype she wanted for her life and career.
    I mean how bad could it get,a guy alienated your severally and at a point according to you would not even take pics with you,you had to adk him if he found you attractive inorder to have sex with you for the first time during your relationship, stood you up more than three times before eventually marrying you

    You just coudnt and wouldnt let go. Even in seperation you re still been vindictive.you initally showed class until you released the book and showed how much u still wont let the guy be.

    Hes cheated severally and you still went ahead and married him,so the turn out of event wasnt a shock am sure if it were not that the in thing now is to show your followers good example u still would have stayed after all the mess.you are clearly obsessed with the guy.all those god spoke to you and blablabla is just to defend sob story book,to appear as a victim of love and still appear strong minded at the same time and its all bull that no intelligent mind would buy.

  13. Justmythought

    December 2, 2016 at 11:26 pm

    U still hqve not become cos every thing you wrote revolved around maje.point to something that was for toke about toke and resulted into becoming toke.Not evrything toke obsessed about,struggled to get eventually got and lost and and a year later still obsessing about to get sympathy.

  14. Manny

    December 4, 2016 at 5:03 am

    My only grouse is with the title of the book. It should have been titled “Maje and his many wrongs”. Truth be told, the book wasn’t about becoming.

    • DAME

      December 5, 2016 at 12:22 pm

      Lol, i agree with you. That on becoming tittle is for someone who realized way early before all this mess…..you already Became my dear..what are you Becoming????

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