For those unfamiliar with the facts, in June 2015, news broke that On-Air Personality Toke Makinwa’s husband, Maje Ayida, had gotten his mistress pregnant. While Makinwa filed for divorce from her husband, she remained largely silent about the incident until November 2016 when she published her now best-selling memoir On Becoming chronicling events that led to the end of her marriage. In the book, Makinwa alleged, among other things, that Ayida cheated on her repeatedly throughout their relationship and that he infected her with STI on at least two occasions.
In February 2017, a letter purportedly written by Ayida’s lawyers to Makinwa surfaced demanding that Makinwa stop selling and promoting the book or risk being sued by Ayida. Ayida’s lawyers alleged that Makinwa made certain misrepresentations in her memoir and defamed Ayida thereby. In support of their position, Ayida’s lawyers claimed that the couple had signed a legal separation agreement as far back as July 2014, a fact which Makinwa failed to mention in her book.
Ayida’s lawyers denied that Maje had given Makinwa an “STI in the past or at any stage in their relationship.” They also noted that it was “highly misleading” for the book to allege that Maje “did not financially contribute adequately” to the marriage.
Ayida’s professional integrity, his lawyers wrote, as one of the leading health and wellness practitioners in Nigeria, and his professional credibility built over the years through dedicated hard work was being negatively affected by the content of the memoir.
In defiance of the lawyers’ demands, Makinwa continued promoting her book and even hosted a tour in London.
Making good on his threat, Ayida through his lawyers instituted a legal action demanding N100 milliom in damages against Makinwa at the Lagos judicial division of the high court, Lagos state.
I have read Makinwa’s memoir and I have considered the issues raised by Maje in his letter (I assume the issues in the lawsuit are same as the ones in the cease and desist letter). I now wear my lawyer hat and tell you five reasons why Maje will have a difficult time winning the lawsuit against Toke.
1. Ayida First Breached His Contract With Toke and Caused Her Monetary damages
Although marriage is a religious institution in Nigeria, it is also a legal union guided by the law of contract, a breach of which has consequences. Ayida and Makinwa celebrated a monogamous marriage under the Marriage Act at the Lagos Registry. An implied term of that contract was that the parties would not have sexual relationships with third parties outside the marriage.
Ayida does not deny that he had sexual relationships with the woman who got pregnant for him thus tacitly admitting said infidelity. So it is not in dispute that Ayida breached his marriage contract with Toke.
Ayida’s breach of the contract had adverse consequences on Makinwa’s career. Makinwa wrote in her memoir that when the news of Ayida’s infidelity broke in 2015, viewership of her weekly vlogs on Toke Moments plummeted and her brand suffered. In the memoir and in the documents she filed in court for her divorce , Makinwa claimed she was days away from sealing a N20 million endorsemnt deal with a telecommunication company when the news of her husband’s pregnant mistress broke in June 2015. When the story came out, however, the company withdrew from the deal for they did not want to be associated with the negative publicity. In the book, Makinwa wrote of how she cried the night the deal was called off and how she wondered why a man she loved so much could hurt her deeply as to take food from her mouth.
While Ayida may assert that he did not intend the adverse consequences his actions had on his then wife, his knowledge that his wife gave advice on relationships in her vlogs is an indication he foresaw how his actions could harm his wife’s brand. Ayida’s actions brought shame and embarrassment to his wife.
To succeed in an action for breach of contract, a party need only prove the existence of a contract, breach by the other party, and damages to the suing party as a result of the breach. Here, there was a marriage contract between Makniwa and Ayida, satisfying the first arm. (Ayida’s reference in his cease and desist letter to a separation agreement the parties signed in 2014 is a weak defense. The said agreement, even if it exists, did not have power to end the marriage relationship. Only death or a dissolution order signed by a court can effectively bring a marriage contract to an end. Moreover, that Ayida and Makinwa coninued to live together after the alleged separation agreement negates any intentions they had towards the agreement.)
The second arm of the requirement for succeeding in a breach of contract agreement is satisfied because Ayida indisputably had sexual relations with another woman during his marriage to Makinwa.
Lastly, regarding damages, but for Ayida’s promisciuoty and infidelity, Makinwa would not have lost her contract with the telecommunication company.
Counter-suing a plaintiff is a very potent defense weapon. If Makinwa’s lawyers want to use this strategy to defend Ayida’s lawsuit, then they have all the elements they need to counter-sue Ayida for damages arising from his breach of his marriage contract with Makinwa. So even if Ayida succeeds in his defamation claim, which is very unlikely, he may still be the one signing check book based on the legal defense of Set-Off ( an equitable defence to the whole or to a portion of a plaintiff’s claim, a set-off is the right of a debtor to balance mutual debts with a creditor.)
2. Truth is a Defense to Defamation Claim
In an article she wrote shortly after Toke published her book , Ivie Omoregie, a Nigerian lawyer and columnist identified the elements necessary to prove the tort of defamation as follows:
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.
The first prong shows that truth is a defense to an action for defamation .
Thus if a statement of fact is true, then there can be no claim for defamation. As Omoregie explained:
“where the defendant alleges and can show that the statement is a reflection of the truth, then this will serve as a viable defense. 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 defense.”
Hence as Ayida has neither denied having relationship with the woman in question nor the paternity of the love child, Ayida’s claim of defamation has little basis .
Even if Ayida proves that he had no SDI, in contradiction to Makinwa’s allegation in the book, his infidelity is a far weightier allegation than the transmission of a SDI. So his reputation suffered more from his sexual indiscretion than from alleged infection. Same goes for his claim that Makinwa misrepresented the extent of his financial contribution to their family during the marriage.
3. Maje’s Reputation and Finances Were Damaged Before Makinwa Published Her Memoir
To succeed in an action for defamation, in addition to the requirement that the statement made by defendant be false, a Plaintiff must show he suffered damages. Here, Ayida must prove that he lost his reputation because of revelations Makinwa made in her memoir. But it does not seem to be the case here. As stated earlier, Makinwa published her memoir in November 2016, but well before then, in June 2015, a popular Nigerian blogger, Stella Dimoko Korkus, reported the news.
Indeed, in her book, Toke wrote that the blogger called her to give her a heads-up before the blogger published the embarrassing news. Makinwa’s account of the call was the most heartbreaking portion of the book for me. .
So in suing Makinwa, Ayida is barking up the wrong tree. Stella Dimoko Korkus who published the story first in June 2015–more than a year before Makinwa did–may be a more appropriate defendant.
Moreover, a month before Makinwa released her memoir, in October 2016, in an interview posted online on October 7, 2016 , Ayida made comments suggesting that his reputation and business had taken a hit because of the events surrounding his break-up with Makinwa.
When asked about the media attention he had the previous year, he said:
“I had a very dramatic year last year. I am kind of slowly trying to climb out of that hole. How did I deal with it? I focused on my work. I put my work forward and allowed that speak for me. A couple of the big brands I work with got a bit spooked. Business wasn’t actually kicking.”
Asked whether it was fair for him to have been in the face of the media at the time, Ayida said:
“I think it’s life. I think it happens. If you are in the media for the wrong reason, it’s going to affect you.”
4. Ayida May be Liable To Makinwa in Damages for the STI
Besides Maje being liable to Toke for breach of contract as discussed in No. I above, Ayida may also be liable to Toke in Torts (civil wrong) for infecting her with an STI.
In her memoir, Makinwa wrote that Ayida infected her with STI. She wrote of a particular time when Ayida returned from a trip and after they had sexual intercourse, she started itching a few days later. Makinwa wrote that she went to the doctors and was prescribed medication, but when she asked Ayida about the infection, he denied knowing anything about it. Toke wrote that when she went through Ayida’s phone, however, she saw a conversation Ayida had with his mistress where she complained that she had been itching. According to Toke, the conversation read like the report was not news to Ayida but more like an update from his paramour on a situation he already knew about.
The details in the account suggest that it is not a made-up story, and given the electronic communication trail, Makinwa can easily prove the allegation thus making Ayida even more liable to her in monetary damages. In some jurisdictions, women win hundreds of thousands of dollars and even millions against sexual partners who infect them with STI. Infecting someone with an STI without their consent is considered a civil wrong, and can lead to criminal prosecution in some jurisdictions. So Makinwa has a claim to counter Ayida’s.
5. Even Though Maje and Anita May Succeed in Breach of Privacy Claims as Regards the SDI Claim; This Could Easily Be Offset by Their Liability to Makinwa
Of all the claims Maje may make against Makinwa, the one that holds water is an invasion of a privacy claim.
As rightly stated by Uduak Oduok, a Nigerian practicing law in California, there are four ways to invade a person’s privacy:
a) through use of that person’s image or name for commercial advantage;
b) intruding on the person’s affairs or seclusion;
c) publishing facts that place that person in a false light; and
d) publicly disclosing private facts about that person.
Of the four ways, D, publicly disclosing private facts about a person, seems to be the most viable claim Ayida may have. So even if he did have an SDI, he and Anita had the right to privacy to not have this fact made known to the public.
Section 37 of the Nigerian constitution guarantees a person’s right to privacy including the privacy of their homes, correspondence, telephone conversations and telegraphic communications.
While by reason of her marriage to Ayida, Makinwa may not have violated the constitution when he read Ayida’s email/phone chats without his consent, making public the content of Ayida’s electronic conversation makes Makinwa vulnerable to an invasion of privacy claim from both Ayida and Anita.
That said, Ayida’s liability for breach of contract and infecting Makinwa with STI dimnishes any claim he may have for invasion of privacy.
As regards any claim Ayida’s paramour may have, Makinwa may offset such claim by counter suing her for the of tort enticement or alienation of affection for the role she played in breaking up her marriage. In some jurisdictions, these torts are maintainable against third parties who interfere with the marriage relationship.
The best form of Defense is an attack. If Makinwa’s attorneys get on the offensive and counter sues Ayida for the torts above, Makinwa would have won half the battle.
P:S. Although the above is written by a lawyer, it’s a mere opinion. Laws vary by jurisdiction and the opinion expressed may not apply to your particular case. Please consult a lawyer if you need legal advice.