MALICE USUALLY PLEADED IN DEFAMATION

• Date: 06 February 2019

(1) "In its generally accepted sense, malice means "spite or ill will". But in law, malice means more than that. In defamation cases, the dicta and decisions dealing with malice are broad in their scope. To mention just a few: In Dickson v. Earl of Wilton (1959) 1 F. & F. 419 at p. 427, Lord Campbell said "any indirect motive, other than a sense of duty, is what the law calls "malice." In Turnbull v. Bird (1861) 2 F. F. 508 at p. 524, Erie, C.J. put it thus: - "Malice means any corrupt motive, any wrong motive, or any departure from duty." Also, in Brown v. Dunn, (1893) 6 R. 67 at p. 72, Lord Herschell said: Malice means making use of the occasion for some indirect purpose". Again, in Stuart v. Bell (1891) 2 Q.B. 341 at p. 351, the point was stated by Lindley, L.J. as follows: - "Malice, in fact, is not confined to personal spite and ill will, but it includes every unjustifiable intention to inflict injury on the person defamed." As we have said earlier on, "technical malice" otherwise known as malice in law is always presumed in the plaintiffs favour. While "express malice," otherwise known as malice in fact, is never presumed, it must be proved by evidence. In our view, therefore, it is equitable to expect that just as the defendants (as in this case) are required to give particulars of the facts on which the plea of fair comment is based, so also is the plaintiff (where he intends to defeat such defence of fair comment) obliged to deliver a reply alleging malice against the defendants, and setting out particulars of the facts from which actual malice may be inferred." - Per Ibekwe, Ag. J.S.C., in Chief S. B. Bakare & Anor. v. Alhaji Ado Ibrahim Suit No. S.C. 280/1971; (1973) 8 N.S.C.C. 458 at 463.

(2) "We think it is necessary to stress here that the wordmaliciously, as usually pleaded in defamation actions, has a technical meaning. We think that in pleadings, sufficient care should be taken to draw a clear distinction between thistechnical malice," if we may say so, and actual malice. In our view, each has a definite place in the pleadings, and each also has a distinct role to play at the trial. It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, as it has been in the present case, the inference of malice is rebutted...