James Abayomi Agaja

 Abstract

Considers the implications for libraries of Section 391 of the Nigerian Penal Code and Articles 512–514 of the Nigerian Criminal Code. Distribution of any publication that tends to expose an individual to public contempt, ridicule, or disgrace is forbidden. The questions are what does constitute this kind of defamation, and to what extent libraries are culpable if they have copies of publications that are found to be defamatory. The weight of opinion suggests that libraries may indeed be held accountable for possessing such material, but perhaps not if the material had been acquired prior to the legal finding that it is defamatory. In any case once an item has been judged defamatory, libraries should move copies out of open shelves to closed stacks with restricted access.

One of the impediments to free flow of information in Nigerian libraries is the law of defamation. Although some librarians seem to be unaware of the fact, it is a weapon which, if properly used by an aggrieved party, can dent the image of the librarian and bring into disrepute any library concerned. The fact that no librarian has fallen victim of defamatory law does not mean that defamatory publications are not present in Nigerian libraries. They are quite available either in newspaper articles or books. But persons whose personalities have been soiled by contents of such publications are probably not sure whether libraries, which are one of the greatest centres of information storage and dissemination, can also sue and be sued as legal entities. But what is defamation?

According to Justice Dore, defamation is:

Any written or printed article published of and concerning a person without lawful justification or excuse and tending to expose him to public contempt, scorn, obloquy, ridicule, shame or disgrace, or intending to induce an evil opinion of him in the mind of right thinking persons, or injure him in his profession, occupation or trade is libelous and actionable, whatever the intention of the writer may have been. The word need not necessarily impute actual disgraceful conduct to the plaintiff; it is sufficient if they rendered him contemptible and ridiculous. [1]

Section 391 of the Nigerian Penal Code states that:

Whoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reasons to believe that such imputations will harm the reputation of such person, is said ... to defame that person. [2]

Articles 512–514 of the Nigerian Criminal Code are quite plain on this issue:

Defamatory matter is matter likely to injure the representation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his profession or trade by an injury to his reputation. Such matters may be expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matters otherwise than by words, and may be expressed whether directly or by insinuation or irony. It is immaterial whether at the time of the publication of the defamatory matter, the person concerning whom such matter is published is living or dead. [3]

This definition excludes verbal insults or vulgar abuses which are usually preludes to serious fighting between warring factions. And it is quite adequate, because whatever a person expresses verbally can be denied in the law courts, unlike what has been mechanically recorded or documented in black and white.

When can a book be rightly said to contain defamatory matter? Care has to be exercised in determining whether or not a publication is libelous. A litigant or the agent of a litigant in a defamation case must convince the court that:

1. The litigant’s name has been mentioned in connection with a malicious publication.
2. The image created in the said publication is essentially that of the litigant.
3. The litigant has been ridiculed as part of a group or singled out for ridicule.

The Man Died, a controversial novel by Wole Soyinka — Nigerian playwright, educator, and 1986 Nobel Laureate for Literature — has been selected for discussion in this article [4]. This is because for some time to come, prospective readers of this popular novel will not find it in Nigerian markets and even in open access in libraries if the order of a court that censored the publication is lawfully obeyed. The Court arrived at this decision after many years of protracted legal battle between the first defendant, who was the author of The Man Died (Professor Wole Soyinka), and the complainant, Alhaji Olufemi Okunnu, an ex–commissioner in the military regime of former Nigerian head of state General Yakubu Gowon (1966–1975).

The complainant’s argument was that a detailed study of some sections of the publication revealed that:

1. His name has been severally and contemptuously mentioned in the publication as “Okunnu type of the young opportunist bourgeoisie ...” [5]
2. His person has also been sarcastically described in the publication. For example, when an interviewer asked the author his opinion about the complainant’s personality, he said:

   A clown! A joke even in the Akintola days when public clownery was a special prerogative of politicians. a fascist and hatchet man of the NNDP,^[*] he dressed himself exactly as Fani–Kayode in the ornate buba and tapered trousers, even to the cap which he set at the precise Fani–Kayode angle. Wore the same kind of heavy dark glasses trimmed his beard to look exactly like that of the fascist strong man. Cultivated Fani’s walk, paraded himself at parties, night clubs, a walking mimicry monkey marionette of the NNDP Number two man. Even danced like Fani or tried to. Then the NNDP fell. Fani–Kayode was cracked on the head by soldiers and clamped into detention. Instantly the time–serve changed his tailors, affected a nondescript shirt and trousers. Dark glasses were off, the beard and moustache shaved. Banished was the strutting Fani monkey of NNDP glory.... [6].

3. He has also been singled out for ridicule in the publication because the first defendant saw him as a non–performer when he was still a member of Cabinet (Executive Council) in Gowon’s regime. Still answering questions on the portrayal of the complainant in the book, the Soyinka wrote:

   Let me just say that when you choose that type to be part of a team for formulating national policies it’s no wonder you expect and demand yesmanship from the intelligentsia. [7]

4. As a former member of a group that formulated national policies, the “Committee of Ten” of which he was a member was not spared insults. The first defendant (the author) has also commented on the group in this way:

   They are not intellectuals. And they lack any sort of conviction or commitment. Except playing games in the corridors of power. [8]On this group he commented further that: “Let us say simply that I disapprove of power prostitutes.” [9]

The complainant therefore urged the court to dismiss any appeal by the defense counsel because the publication is a prototype of all defamatory qualities, meticulously planned and executed to mar his image in the society.

The defendant (Solinka) argued that he did not intend to defame the complainant in the publication. His preoccupation, according to him, was to expose large–scale corruption, flagrant abuse and misuse of powers and positions, wanton killings, and lack of regard for human rights that characterized the then military regime (1966–1975). He cited the case of a dutiful journalist who lost his life on the orders of the then governor of the former Western Region of Nigeria. According to the defendant, some journalists were assigned to cover a party thrown in honour of one of the political elites of the period, which was well attended by important dignitaries. The governor and his wife were also present. Suddenly during the dancing session, the region’s first lady (the governor’s wife) became uncomfortable with the presence of the television crew and lodged a complaint with her husband. As a result of this, all the members of the television crew were ordered to be arrested, tortured, and locked up immediately. One of them, Sowemimo by name, got his ankles broken during the ordeal. No hospital in Nigeria could make him walk again, and he had to be sent abroad for further treatment. The defendant continued that he followed the pressman’s case with keen interest up to London where he was told that the man had been flown back to Nigeria. He later received a cable, which he used as the cover title of the biographical novel, from one of the colleagues of the pressman written in a simple phrase — “The Man Died.” In fact, nothing can better describe the pathetic case of the pressman than this extract from a personal statement of one of his colleagues:

In England his amputation story began. First, below the knee, then above the knee, then the whole thing from the socket was chopped off. The wound was badly infected (gangrene) and soon his lungs became impaired. The English people could no longer help him, so he was sent back home as a bad case. He was only six weeks at home, when he died. [10]

The trial judge later came to a conclusion that the publication had many parts. While a part exposed the societal ills and governmental excesses at the period under review, the other part (especially page 36) was libelous and ordered it censored by law. One of the most widely read national dailies reported the judgement:

A Lagos High Court has banned the novel, “The Man Died”, from further printing, circulation and selling. Mr. Justice C. Johnson made the order while delivering judgement in a N500,000 libel suit instituted against a Nigerian novelist, Professor Wole Soyinka, by a former Federal Commissioner, Alhaji Olufemi Okunnu. He awarded N250 as damages against Professor Soyinka and held that some sections of the book were libelous and defamatory. In the six–year legal battle, the University of Lagos Bookshop, which was joined as a co–defendant, was also ordered to pay N100 as damages to Alhaji Okunnu. The litigant in his action claimed that certain portions of the book were deliberately set out to defame him (Okunnu). [11]

Nigerian Television Authority (NTA) also telecast the proceeding of the court in detail to the nation on the same day the judgement was delivered during its Network Programmes.

The question that still remains to be answered is the stand of libraries as regards copies of the censored publication which have been acquired before this legal action and final judgement. Should copies of The Man Died be withdrawn from Nigerian libraries in obedience to the order of the Lagos High Court? If the answer is no, would it not amount to contempt of Lagos High Court if copies of the publication should continue to be loaned to users after this order? Moulos, in a related study, has this to say:

Publication is the aspect of the law which is most likely to concern libraries. The publisher of a libel incurs liability as well as the author and “publication” includes the distribution of such material by a library to a user. This means that every time materials containing a libel is loaned by a library, there is a separate action of publication by the library for the purposes of the law and a separate cause of action. Since a book or a serial may continue to be loaned and therefore published long after it has been withdrawn from sales it can be seen that the law could present considerable difficulties for libraries. [12, p. 762]

Moulos based his contention on the fact that libraries and publishers perform similar functions in different ways. Whereas publishers usually distribute publications to dealers for sale, libraries distribute books to clientele on request free of charge. Therefore the law that binds publishers also binds libraries in this case. Glasson’s view is also illuminating:

Under the laws of defamation, every publisher or disseminator of a libel is as responsible for that publication as is the original publisher. Librarians, booksellers and newsagents are vulnerable, for, if the author of the alleged defamatory material cannot be restrained from publishing, threat of actions against distributors of the materials might well achieve the desired result. [13]

What Glasson is saying, in essence, is that these categories of people or institutions can be sued in connection with an alleged defamatory publication:

1. The author as the originator who or which is responsible for the intellectual content of any disputed publication as a first defendant.
2. Publishers and book sellers who or which are responsible for publishing and marketing the book as second defendants.
3. A librarian or library who or which loans the book out to readers as third defendant respectively.

In order to avoid any embarrassment to a library and its parent institution in Nigeria, this writer is of the opinion that any book that has been censored by law should not be allowed to take its place in the open access. Firstly, laws are made to safeguard the libraries and individuals and so any citizen whose person has been defamed has every right to seek for redress in the law courts. Secondly, inasmuch as a library will sometimes exploit constitutional provisions through the law courts to deal with cases of serious theft and mutilation of its collections by some delinquent users, so also an individual could use the same constitutional means to deal with any library which serves as an accessory to the crime of defamation against his person.

In the case of Vizetelly vs Mudee’s Select Library, Ltd. cited by Moulos, for example:

there had been a notice in well–known newspapers relating to a book which contained a libel. The court found that the library which had loaned the book had been negligent because its staff had not discovered the notices and so was liable as a publisher of the libel. [14]

This library professed to be ignorant of any notice of the court’s judgement relating to the libelous publication. This is a weak defense, because as a centre of information dissemination a library should be up to date about current events in its environment. The question of ignorance is also not tenable in law in a case of a publication which contains defamatory matter, because the librarian is sometimes expected to have read book reviews and abstracts relating to a publication before it is acquired in the first instance. Secondly, since the class mark of any publication also represents its contents, i.e., its subject matter, the classifier, who is sometimes a subject specialist, may also be aware of any particular publication that is libelous and inform appropriate sections in the library without delay.

This, however, does not mean that The Man Died should be cremated in Nigerian libraries, because any serious study of Nigerian political history is not complete without the biographical novel. The author has digressed from traditional hero worshipping of some Nigerian writers, courageously called the dog a bad name and, thereafter, hanged it. What the Lagos High Court actually banned was “further printing, circulation and selling” of copies already printed, circulated, and sold before the judgement. Like individuals, libraries must have acquired copies of this publication prior to the judgement, and since the learned judge could not ask individuals to destroy personal copies that they have bought before his ruling so also he has not said that libraries should disown copies of what they have acquired in the past with public funds. What libraries should do as disseminators of ideas that are stored in books through circulation is to withdraw such books from open access, i.e., from circulation. Librarians should also be aware of the fact that any publication that is censored automatically becomes a rare book, because newly established libraries in future will be unlikely to come across such a publication in Nigerian markets again, especially if the publication is being published locally. And in this respect the clienteles’ right to be informed will be considerably jeopardized. Therefore, since the trial judge did not proclaim The Man Died a seditious publication, any library in Nigeria that has acquired this book before it was banned should move its copies out of open access to closed stacks or either of these areas:

1. Rare books unit.
2. Special collection unit, where its circulation will be totally restricted to users within the library walls only.

Apart from this, if a librarian still wants to retain The Man Died in the open stacks, then all of its available copies should be sent to the publisher to delete some portions of the book which contains defamatory matters. But then if such amputation is successfully carried out, the author’s whole purpose of writing the book will be completely defeated. All original cards prepared and filed for The Man Died in the catalogues should also be withdrawn and replaced with others with the brief information in Figure 1.

On the question of contempt of court, what should be borne in mind is that negligence is not synonymous with willful disobedience. In Vizetelly v. Mudee’s Select Library, Ltd., for example, the library or its agents can only be penalized for contempt of court if after the court has found it negligent, it still continues to loan the disputed books out to users. This will amount to gross disobedience to the order of the court, and the library will be guilty of what has been described in Fawehinmi’s book as contempt outside the court ex facio curiae, which are:

Words spoken or otherwise published or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice. [15]

In this case the contemnor, i.e., the library (librarian), may receive one of the following sentences:

1. Committal to prison.
2. Appropriate fines.
3. An undertaking to sign a bond of good behaviour in future.

The essence of this is to make sure that orders of a legally constituted court are promptly obeyed. In the case of The Man Died, the question of contempt of court cannot arise yet, as no library has been accused of negligence. Only the author, publisher, and/or marketer of the publication can be sued for contempt of Lagos High Court if, after they have been duly served with the order banning the publication, they still continue to print, sell, and circulate it. Even if a library is eventually sued for negligence, it will be contributing more to censorship if it allows any controversial publication to disappear like that thereby eroding the confidence which different categories of readers have reposed in it as a democratic institution. Perhaps that is what Lucy Gorbey had in mind in a brief study when she wrote that:

As education and information centers, let our libraries compile books for prominent display on every controversial subject ... race problems, tax problems, transportation, pollution, to name just a few. It is our duty to keep people informed [on] both pro and con of every subject. [16]

What librarians should know is that greatness is measured in terms of exceptionality in any field. It is the greatest library that has, in its stock, all controversial publications in various human endeavours which are beyond the capabilities of other libraries in its immediate environment.

 Note

*NNDP (Nigerian National Democratic Party) is a banned political party of which Samuel Akintola, the assassinated premier of the defunct Western Region of Nigeria, and his deputy, Fanikayoye, were staunch members between 1960 and 1966.

 References

1. William F. Swindler, Problems of Law in Journalism (Westport, Conn.: Greenwood Press, 1955), p. 112.

2. S.S. Richardson, Notes on the Penal Code Law Cap. 89 Laws of Northern Nigeria 1963 (Zaria: Gaskiya Corporation, 1967), p. 225.

3. E.M. Fakayode, The Criminal Code Companion (Nigeria: Et hiope Publishing, 1977), pp. 87–88.

4. Wole Soyinka, The Man Died (Harmondsworth, England: Penguin Books, 1975), pp. 1–316.

5. Ibid., p. 36.

6. Ibid., p. 36.

7. Ibid., p. 37.

8. Ibid., p. 35.

9. Ibid., p. 36.

110. Ibid., p. 305.

11. National Concord (February 2, 1984), p. 9 (col. 5).

12. Jack Moulos, “Legal Problems in Libraries Anticipating the Worst,” Australian Library Journal 29 (August 1980): 147–148.

13. E.J. Glasson, “Libraries and the Law,” Australian Academic and Research Libraries 13 (March 1982): 30.

14. Vizetelly v. Mudee’s Select Library, Ltd. In: Moulos, “Legal Problems,” p. 148.

15. Gani Fawehinmi, The Law of Contempt in Nigeria: Case Book (Lagos, Nigeria: Nigerian Law Publications, 1980), p. 7.

16. Lucy Gorbey, "Voices of Experience," Wilson Library Bulletin (September 1970): 47.

About the Author

James Abayomi Agaja is a Senior Librarian and Head of Cataloging at the University of Maiduguri, Maiduguri, Nigeria.

©1992 James Abayomi Agaja