A defendant is entitled to rely on common law qualified privilege where the publisher has an interest or duty to communicate information to recipients who have a reciprocal...
The defence of truth (justification) requires proof that the defamatory imputations are substantially true; mere community belief, observations of the alleged victim's behaviour,...
A communication made honestly, on reasonable grounds and to persons with a reciprocal interest may be protected even if the language used is strong, provided the statements are...
Publication extent for defamation is assessed on evidence; speculative assertions of viral dissemination unsupported by documentary evidence will not establish wide publication...
Issues before the court
Whether the audio file conveyed defamatory imputations about the plaintiff
Extent of publication and whether the audio file was widely disseminated
Whether defendant proved truth/justification that plaintiff used voodoo
Plain English Summary
A member of the Victorian Nigerian Yoruba community sued an elder for an audio WhatsApp message accusing him of using voodoo to harm a woman. The court found the audio did convey defamatory imputations and that the defendant failed to prove truth. However the defendant had honestly believed the allegations and sent the recording to ten community leaders with a reciprocal interest in protecting a vulnerable person; there was no evidence of malice. The qualified privilege defence succeeded and the defamation claim was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,940 words · generated 14/06/2026
What happened
Adeniyi Ekine (plaintiff) sued Grace Oladejo (defendant) in the County Court of Victoria for defamation arising from an audio recording Mrs Oladejo produced and circulated by WhatsApp to members of the Victorian Yoruba community. The recording alleged that Mr Ekine had used voodoo (referred to in the record as "ado", "keru" or "voodoo") on a woman, TA, resulting in severe psychiatric/spiritual disturbance and near-death consequences. Both parties came to Court self-represented. The central factual disputes concerned what meaning the recording conveyed, how widely it was published, whether Mr Ekine actually practised voodoo on TA, and whether Mrs Oladejo could invoke the defences of truth or qualified privilege. Judge Clayton heard evidence from a handful of witnesses and delivered reasons on 22 June 2023. The crucial findings were: (a) the audio conveyed multiple defamatory imputations; (b) the defendant failed to prove the imputations were true; (c) the defendant did, however, establish a defence of common law qualified privilege because she honestly believed TA was under spiritual attack, the audio was sent to a small number of community elders who had a reciprocal interest in receiving the information, the statements were germane to that occasion, and there was no evidence of malice. The plaintiff's claim was dismissed.
Whether the publication was on an occasion of qualified privilege
Cited legislation
No linked legislation citations have been extracted yet.
Key factual anchors:
The audio file was recorded and sent by Mrs Oladejo before November 2019 (paragraph 4).
The audio called on specific Yoruba community elders and asked them to intervene because the speaker believed Mr Ekine had used voodoo on TA and that TA had been driven into psychotic behaviour (content outlined in the judgment at paragraphs 4–12 of the ‘The content of the audio file’ section).
The defendant admitted sending the audio to ten named people; the plaintiff alleged wider publication but could not produce documentary proof and the Court accepted only a grapevine effect beyond the immediate recipients (see 'How widely was the audio file published?').
Why the court decided this way
The court proceeded with the standard defamation framework: determine meaning, determine whether the meanings are defamatory, then assess available defences.
Meaning and defamatory quality
The Court examined the audio's plain meaning in the specific cultural and religious context of the parties (Yoruba evangelical Pentecostal community). It parsed which of the plaintiff's pleaded imputations were actually conveyed and which were not. On this textual and contextual reading the Court found that key imputations were conveyed: that Mr Ekine had evil power which he used on TA to cause serious harm, that he intentionally caused the harm, that he would harm others if not stopped, and that his professed religiosity was false (see 'What imputations are conveyed?', and the judge's synthesis at paragraph 14 of that section).
Truth defence rejected
The defendant attempted to justify the allegations by adducing TA's statements to her, observations of TA's behaviour, and circumstantial inferences. The Court emphasised the usual evidentiary standard: the defendant bears the onus of proving that the defamatory imputations are substantially true. The decisive absence was direct evidence that Mr Ekine practised voodoo on TA: TA did not give evidence, no witness saw Mr Ekine perform voodoo, and observed behavioural signs in TA did not establish causation by the plaintiff. Consequently, the truth/justification defence failed (see 'Truth: Has Mrs Oladejo proved that Mr Ekine used voodoo on TA?').
Qualified privilege accepted
The Court then turned to qualified privilege. It applied the classical Adam v Ward framework: the occasion must be privileged by virtue of the publisher having an interest or duty and the recipients having a reciprocal interest; statements must be relevant to the occasion; and malice must be absent. The Court found:
Mrs Oladejo honestly believed TA was in spiritual danger and had a moral obligation to inform her community elders who could intervene (the 'interest/duty' element).
The ten recipients were respected elders with a reciprocal interest in receiving warnings about community safety (reciprocity).
The content was germane; the language used was appropriate to the community context and the role being sought of recipients (relevance).
There was no evidence of malice; allegations of jealousy or revenge were not demonstrated and, after sending the recording, Mrs Oladejo did not pursue further publicity but followed pastoral advice (absence of malice).
Thus the common law defence of qualified privilege was made out and defeated the plaintiff's claim (see 'Is there a defence of qualified privilege?' and the finding at paragraph 18 in that subsection).
Practical considerations influencing outcome
The Court afforded procedural flexibility: allowing the defendant to rely on qualified privilege despite it not being pleaded formally, to permit the real issues to be determined fairly and efficiently (see Preliminary comments on pleadings). The Court also noted evidentiary limitations caused by the absence of TA and uncertain dates, but these did not defeat its ability to apply the privilege doctrine where the essential elements were satisfied.
Before and after state of the law
Before
The law governing qualified privilege is well-established in Australian jurisprudence and derives from Adam v Ward and subsequent authorities. The essential elements, interest/duty, reciprocity, relevance and absence of malice, were applied in this County Court decision in line with appellate authorities cited in the judgment.
This decision
Ekine v Oladejo applies these long-standing principles to a small, cohesive migrant religious community and clarifies how community-specific beliefs and duties are relevant to whether a publication occasion is privileged. The Court explicitly recognised that what counts as 'reasonable grounds' and 'germane conduct' must be judged within the particular religious-cultural context of the speakers and recipients (see 'Were the statements related to the occasion?' and the acceptance that expressions familiar to evangelical Christian communities were appropriate).
After
The decision does not change the law but demonstrates its application in community contexts where allegations rest on spiritual/paranormal beliefs rather than ordinary empirical facts. It underlines that honest belief, reasonable grounds in the actor's cultural context, and a careful selection of recipients can attract qualified privilege even where the asserted facts are false and defamatory. It also highlights evidentiary realities: absent direct evidence or testimony of the alleged victim, a truth defence will be difficult to establish.
Key passages with plain-English translation
"On an unknown date but before November 2019, Mrs Oladejo recorded a message ... She sent that audio file via WhatsApp to a number of people." [paragraph 4]
Plain English: The defendant made and circulated a WhatsApp audio message sometime before Nov 2019.
"I do not find that Mr Ekine used voodoo on TA ... Nor do I find that he caused TA to be insane ..." [Truth findings]
Plain English: The Court rejects the claim that the plaintiff actually performed voodoo or caused TA's psychiatric condition; the defendant did not prove the allegation.
"In this case, Mrs Oladejo published the audio file on an occasion of qualified privilege. She had a moral duty to inform her community about what she perceived as a genuine threat ..." [paragraph 18 under 'Was there an occasion of privilege?']
Plain English: The Court concluded the defendant had a legitimate duty to warn selected community leaders and those leaders had a right to receive that warning; this created a privileged occasion.
"I accept Mrs Oladejo acted out of a genuine desire to protect TA and out of a genuine belief that Mr Ekine posed a threat to the community." [paragraph 14 under 'Was there an occasion ...']
Plain English: The judge believed the defendant honestly thought she was protecting a friend and the community, not trying to harm the plaintiff's reputation.
"There was no evidence that Mrs Oladejo was motivated by anything other than her sincere concerns about TA." [Malice subsection conclusion]
Plain English: The Court found no proof the defendant acted from spite, revenge or other improper motive.
What fact patterns trigger this precedent
This decision will be instructive when evaluating qualified privilege in cases with the following features:
A small or close-knit community where members owe mutual duties (eg. religious elders, cultural leaders).
Publication limited to a discrete, carefully-selected group of recipients who have a practical interest in the information.
The publisher claims an honest belief, grounded in community-specific understandings (spiritual, cultural or religious), that a third party poses a threat requiring community intervention.
The alleged defamatory statements are about non-public figures and rely heavily on witness hearsay and observed behaviour rather than demonstrable acts.
The publisher does not further amplify the claim publicly after the initial communication and no evidence of ill motive exists.
In these situations, Ekine v Oladejo shows that a carefully confined warning to community leaders given in good faith can attract qualified privilege even when the substantive allegation is false.
How later courts have treated it
As of the date of the judgment (22 June 2023) the decision is a County Court single-judge decision. It cites and applies higher authority (for example Adam v Ward, Wraydeh, Bashford, Bennette v Cohen). It does not purport to change appellate authority but demonstrates a practical application of privilege principles in a culturally specific setting. Future courts will treat Ekine v Oladejo as a persuasive example of:
applying the 'duty/reciprocity' test where the community's internal leadership structure creates reciprocal interests; and
weighing subjective honesty and reasonable grounds within community norms when assessing whether the defendant acted reasonably and without malice.
Because it is not an appellate judgment, its precedential value is limited, but it can be relied upon as a detailed instance of qualified privilege in community contexts and may be cited for factual analogies or as an aid to understanding how 'reasonable grounds' are assessed contextually.
Still-open questions
Evidentiary standard where community belief substitutes for empirical proof
The judgment accepts that community belief (eg. pastoral observations) can provide reasonable grounds for honest belief, but it does not set a bright-line about how much corroboration is necessary before privilege will attach. Future cases may explore the limits of 'reasonable grounds' where beliefs involve non-empirical claims (spiritual possession, witchcraft).
Scope of dissemination that still falls within privilege
The defendant here sent the audio to ten elders. If the same message had been shared to a broader community forum (eg. a large WhatsApp group with hundreds) would privilege still apply? The judgment suggests careful selection of recipients is important; subsequent cases may be required to define thresholds for 'careful selection' versus public broadcast.
Interaction with statutory defamation regimes and s. allowances
The court relied on common law qualified privilege. Following statutory changes across jurisdictions (the judgment cites the Defamation Act), there is an open question about how statutory formulations and remedies will interface with community-based privilege claims, especially as technology makes traceable dissemination easier to prove.
Non-party victim's absence
TA did not give evidence and the Court noted possible reasons for that. The judgment declined to draw adverse inferences. Future litigants will need guidance on how a trial judge should treat the absence of the alleged victim in similar factual matrices.
Remedies and reputational remediation in community contexts
While qualified privilege defeated the action, the Court did not award costs or order any remedial measures. The practical reality that a defamatory community allegation can persist despite a legal victory leaves open questions about ancillary relief or community processes to restore reputation.
Readers should consult the full reasons (Judge Clayton, County Court of Victoria, 22 June 2023) for paragraph-level detail, particularly the judge's parsing of meaning and the reasoned application of privilege elements in community and cultural context.
Wraydeh v Fairfax Media Publications Pty Ltd; Wraydeh v Nationwide News Pty Limited[2021] NSWCA 153
[7]
The plaintiff, Adeniyi Ekine, sues the defendant, Grace Oladejo, for defamation over the publication of an audio file which he says carried defamatory imputations which have harmed his reputation.
Mr Ekine is a Nigerian man from the Yoruba community who came to Australia in 2013 as an asylum seeker. He was granted a visa in 2015 after a period in immigration detention. Since 2015, Mr Ekine has been a very active member of the Australian Nigerian community.
Mrs Oladejo is also a member of the Nigerian Yoruba community. She has been in Australia since 2006 and is a registered nurse, having completed her Bachelor of Nursing at Victoria University in 2019. She is currently employed by a disability services provider.
On an unknown date but before November 2019, Mrs Oladejo recorded a message on an electronic audio file. She sent that audio file via WhatsApp to a number of people. WhatsApp is a social media messaging application. In that audio file she made allegations that Mr Ekine had used voodoo on a woman, TA.[1] She relies on defences of truth and qualified privilege.
There is agreement about the following matters:
[8]
(a) Mrs Oladejo recorded and sent the audio file;
>
> (b) The content of the audio file;
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> (c) Mr Ekine had a romantic relationship with TA; and
>
> (d) TA had psychological issues that resulted in her being admitted as a psychiatric patient to Werribee Mercy Hospital in 2016 or 2017.
[9]
There are a number of issues in dispute that must be resolved. These are:
[10]
(a) Whether defamatory imputations are conveyed;
>
> (b) The extent of publication of the audio file;
>
> (c) Whether Mr Ekine used voodoo on TA;
>
> (d) Whether Mrs Oladejo published on an occasion of qualified privilege; and
>
> (e) Whether Mrs Oladejo was motivated by malice.
[11]
Both the plaintiff and the defendant represented themselves. Their pleadings were deficient. I gave the plaintiff leave to replead his Statement of Claim. During a number of case management hearings, it was apparent that the defendant relied on two defences, a defence of truth and a defence of common law qualified privilege, which was not pleaded, though she had pleaded defences of innocent dissemination, contextual truth and honest opinion which did not apply. Mindful of the Court's duty pursuant to the Civil Procedure Act2010 to ensure the just, efficient, timely and cost-effective resolution of the real issues in dispute,[2] I granted leave to the defendant to rely on a defence of qualified privilege without requiring her to file new pleadings. Mr Ekine consented to this course of action.
[12]
Neither the plaintiff nor the defendant were confident in the dates ascribed to various events. Where dates were not supported by external documentary evidence, neither party was able to confidently give evidence about when in any year an event occurred, or in what year an event occurred.
The plaintiff pleaded that publication occurred between November 2019 and April 2020. However, at trial it became clear that it was in this period that the plaintiff became aware of the publication. There was no documentary evidence about the date of publication, for example a screenshot from WhatsApp showing the date the audio file was uploaded.
I was unable to determine when a number of key events happened, which might have assisted in determining when publication occurred. I could not, for example, determine when TA was admitted to and discharged from hospital. On the basis of some of the evidence, it appears likely that this happened in around late 2017 or early 2018.
The audio file was published after TA was discharged from hospital but may have been around the time of that discharge. This raises the prospect that the audio file was in fact published in 2018 and that by the time the proceedings were issued, the limitation period had expired.
The defendant did not raise the expiry of the limitation period as a defence, and given that the plaintiff did not become aware of the existence of the audio file until late 2019, he would have at least reasonable prospects of being granted an extension of the time in which to bring a claim. As a result, the trial proceeded on the basis of the publication date as pleaded by the plaintiff.
[13]
A translation of the transcript of the audio file is set out in Annexure 2 to the Amended Statement of Claim.
In that audio file Mrs Oladejo says she is addressing her message to the community elders and calls for the message to be shared with all Yoruba people so that they know what is going on. She names ten people:
I understand "Mummy" and "Daddy" to be terms of respect for elders in the Yoruba community.
In the audio file Mrs Oladejo says she is seeking assistance from the community to resolve the situation. She says she has decided to speak up and requests those people to whom she is addressing her message, "Can you please ask Ekene [sic] what ... [TA] has done to him to make him go to the extent of using Vo[o]doo on her to make her abruptly pack her things and leave her husband? She is no longer in her right mind and to an extent where she is exhibiting psychotic symptoms."
She goes on to ask, "Can you please ask Ekene [sic]? I came to this forum; why will people allow an evil thing like this to happen and decide to make this particular person (Ekine) a leader within the community and put him in the position of trust, in a place where people look up to him."
She says, "Please ask Ekene [sic] what ... [TA] has done to him to make him use Voodoo on her in Australia. He made sure that voodoo works to make ... [TA] leave a happy marriage, happy home and make sure her life was destroyed, almost turn her crazy. ... [TA] is alive and well now, and we thank God. She left the hospital not too long ago. She almost went mad completely. When I first interfered in the matter, Ekene [sic] took me to the [M]agistrate[s'] [C]ourt; he claimed that I threatened to kill him."
She goes on, "If he dies now (Ekine), he will be going to Hell because wearing all the big cross on his chest is all lies and rubbish. Everyone that I've mentioned, please call Ekene [sic] and ask him what ... TA has done to him."
She says, "Ekene [sic] can't be roaming around freely in society, he can't do that when he puts ... [TA] in the darkness. That is why I called everyone to interfere in this situation because if you don't, this is just the beginning."
She says "if we allowed things like this to happen, this would keep going on. He will continue to operate in secret; before anyone finds out again, there will be no stopping him."
She says that Mr Ekine is not an easy person to deal with and she knows that people do not want to interfere because they do not want any trouble. She says that if he did this to TA, he would do it to someone else. She says "this could happen to your daughter". She says some people support him in his "evil deeds".
[16]
Mr Ekine says the publication conveys the following imputations:
[17]
(a) That he used a "charm - black magic" on TA;
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> (b) That he caused TA to be insane to the extent that she does not know what she is doing anymore;
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> (c) That he is evil and is going to Hell;
>
> (d) That his being religious is total rubbish;
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> (e) That he destroyed the life of TA;
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> (f) That he intended to make TA into a mad person;
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> (g) That he should not be roaming around freely in society;
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> (h) That if he is not controlled immediately he will not be able to be handled in the future;
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> (i) That he harmed TA;
>
> (j) That he may harm other people's children;
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> (k) That he has evil diabolical power;
>
> (l) That someone else will be a victim if he is not punished;
>
> (m) That TA might die as a result of his actions;
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> (n) That the whole world must be aware of the incident;
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> (o) That he must be punished;
>
> (p) That he will surely die because the wages of sin is death.
[18]
Imputations (a) and (b) are not disputed and are clearly conveyed by the words spoken by Mrs Oladejo.
In relation to imputation (c), the audio file does not say that Mr Ekine is going to Hell or that he is evil. Rather it says that if he was to die now he would go to Hell and that he has done evil deeds and evil things.
In the context of the evangelical Pentecostal Christianity practiced by both Mr Ekine and Mrs Oladejo, all persons are born into sin and are capable of evil deeds. This is not the same as "being evil" which would suggest a state of being incapable of redemption. It is apparent from the context that Mrs Oladejo is accusing Mr Ekine of evil deeds which, without repentance, would result in him going to Hell. When considered within the context of the whole audio file, those imputations are not conveyed.
Imputation (d) is conveyed. Wearing the "big cross" is clearly a reference to the large Christian cross Mr Ekine habitually displays as a sign of his religious faith. Saying that "wearing the big cross on his chest is all lies and rubbish" conveys a meaning that his display of piety is false and that his claim of being a religious man is untrue.
Imputation (e) and (f) are conveyed on the plain meaning of the words.
Imputation (g) arises from the words, "Ekene [sic] can't be roaming around freely in society, he can't do that when he puts ... [TA] in the darkness". It is clear, when read in the context of the whole message, that what is conveyed is that he cannot be free to continue to use voodoo without repercussions. She is not calling for him to be incarcerated. The imputation is not conveyed.
Imputation (h) is conveyed. She says if the recipients of the audio file allow this to happen, he will continue and there will be no stopping him.
Imputations (i),(j), (k) are all conveyed on the plain meaning of the words.
Imputation (l) and (o) are not conveyed. Mrs Oladejo says someone else will be a victim if he is not stopped, however, there is no mention in the audio file of punishment, or that he must be punished. Mrs Oladejo rather calls for him to be stopped.
Imputation (m) is conveyed. Mrs Oladejo does not explicitly say that TA might die because of Mr Ekine's actions. However, that meaning is implied by the words, "I don't want TA to die" followed by the words, "I'm asking all the elders in Melbourne to intervene in this matter between ... [TA], Ekene [sic] and ... [AA]". This suggests that if TA was to die, it would be as a result of Mr Ekine's actions as alleged in the message. Mrs Oladejo goes on to say, "I'm praying she won't die, but please ask again why would he do such a thing to ... [TA]?" and later, "Please help us, ... [TA] must not die". The help she is requesting is intervention with Mr Ekine, and she clearly attributes the risk that TA might die to his actions.
[19]
Words are defamatory when the imputation lowers the person's reputation in the eyes of reasonable members of the community or causes the person to be ridiculed, shunned or avoided by members of the general public.[4]
Saying that someone has used voodoo on a person and has made them so unwell that they might die would cause that person to be shunned or avoided within the Yoruba community. I understand from the evidence that voodoo, also called ado and keru, is practiced in Nigeria. Mrs Oladejo's husband, Adewali Oladejo, gave evidence that his belief is that there are two realms, the realm of God and the realm of darkness and evil. The practice of voodoo involves conjuring evil spirits to have an effect on people who are named. He explained that his understanding is that, when voodoo is practiced on a person, that person becomes "spiritually" possessed. He says that the use of dark magic confers power but that power comes at a cost. Pastor Seyi Oluwasola explained his belief that there are angelic and divine forces and there are demonic forces. He takes this understanding from the Bible. He says that using demonic forces can be termed voodoo. In his understanding of his faith, demonic forces can cause problems that might present as mental health problems.
Both Mr Ekine and Mrs Oladejo identify as evangelical Christians. There is no doubt that within that community an accusation that someone has used demonic forces to harm another would be defamatory. Saying someone's professed religious faith is rubbish is also likely to lower that person's reputation in the eyes of their peers, where their peers are members of an evangelical Christian community.
I am satisfied that the imputations conveyed are defamatory of the plaintiff.
[20]
Mr Ekine says the audio file was published on the Yoruba Heritage and Cultural Association of Victoria's ("YHCA") WhatsApp group chat between November 2019 and February 2020 and was forwarded to YHCA members, Nigerian communities in Australia, "a lot of Yoruba people home and abroad", community leaders, "Ambassadors for Peace", Christian communities, "Theatre, Television and Talents practitioners" and a number of individuals.
Mrs Oladejo says she sent the audio file via WhatsApp to ten individuals. She did not publish it on the YHCA platform.
Mr Ekine gave evidence that about 170 people were members of the WhatsApp group at the time of publication. However, he did not access the audio file from the WhatsApp group and was unable to provide evidence that it was published there. At the time, he was on the committee of the YHCA. I am not satisfied that the audio file was published in the group chat; rather, Mrs Oladejo individually messaged members of the YHCA group chat to send them the audio file.
Mr Ekine said he first became aware of the publication in 2020 or 2021. However, it is apparent from his other evidence, including evidence of text message exchanges, that he was aware of the publication in late 2019. He says he first became aware of the existence of the audio file because of "rumours" within the community. His evidence was that he was told that Mrs Oladejo was talking about him. At that time, he was not aware of the audio file.
He said Mr Abass told him that he "saw something" that suggested Mr Ekine used voodoo on his girlfriend. Mr Abass told Mr Ekine that an audio recording was circulating about him. Mr Ekine understood this audio recording to be the publication in question.
Mrs Oladejo admits that Mr Abass was one of the people to whom she sent the audio file.
Mr Ekine said he spoke with Mr Kiyode Adediran, who told him about the recording. Mrs Oladejo admits that Mr Adediran was one of the people to whom she sent the recording.
Mr Ekine says he had a conversation with Dr Moses Adepoju in November 2019 who told Mr Ekine not take the audio file seriously. Mrs Oladejo admits she sent the audio file to Dr Moses Adepoju.
Mr Ekine says he spoke with Mr Adeolu Abioye and followed this up with a text message exchange. There is nothing in the text message exchange that establishes that Mr Abioye has heard the audio file. Mrs Oladejo denies she sent the audio file to Mr Abioye. Mr Abioye did not give evidence. I am not satisfied that Mr Abioye heard the audio file.
[21]
Truth: Has Mrs Oladejo proved that Mr Ekine used voodoo on TA?
[22]
Mrs Oladejo relies on defences of truth, contextual truth and justification.
I heard evidence from Mr Ekine, Mrs Oladejo, Mr Oladejo, Pastor Oluwasola, Mrs Ogunsola, and Mrs Eva Calera.
[23]
Mr Ekine was released from immigration detention on 1 April 2015. He says he met TA at a YHCA event for Yoruba Day in 2015. He gave evidence that he had suffered from depression and other mental health issues arising from a workplace injury.
Mr Ekine and Mrs Oladejo agree that they first met at the shop of a community member, Mrs Fatima Mamoola. Both agree that they discussed their common background in theatre but otherwise disagree about the content of that meeting. This encounter happened in either 2015 or early 2016.
At some point in 2016, Mr Ekine and TA began a romantic relationship. Mr Ekine was married but was separated from his wife, who was not living in Australia. TA had children but Mr Ekine says he was not aware that she was married. He understood that she had been in an abusive relationship with a boyfriend. There was much discussion during the trial about whether TA had a traditional or legal marriage, but for the purposes of this case, I do not consider that is relevant. In the absence of clear evidence about the timing of the relationship between Mr Ekine and TA and the absence of evidence from TA about the status of her relationship with her husband during the time of her relationship with Mr Ekine, I am not satisfied that Mr Ekine was aware that TA was married. I accept that Mrs Oladejo believed TA was married.
There was a meeting at TA's house at which both Mr Ekine and Mrs Oladejo were present. It is not clear whether Mr Ekine and TA were in a relationship at this time. Mrs Oladejo alleges that Mr Ekine made certain comments at that meeting that resulted in her deciding to keep her distance from Mr Ekine. She had no further contact with him until about July 2016.
After the meeting at TA's house, Mrs Oladejo says she did not see TA for a period. She did not know TA was in a relationship with Mr Ekine. Mrs Oladejo's mother came to visit and brought gifts for TA. Because of this, TA came to Mrs Oladejo's house. During that visit, TA told Mrs Oladejo that she was having an affair with Mr Ekine.
Mrs Oladejo gave evidence that she was shocked by this revelation. She did not know that there was any issue in TA's marriage and could not understand why TA was having an affair with Mr Ekine. She asked TA to give her seven days to pray for her.
Mrs Oladejo says that about five days later, TA told her that the affair was over and that Mr Ekine was not who she thought he was. On several occasions Mrs Oladejo went to TA's house to provide support. She spoke with TA's mother. Mrs Oladejo says TA told her Mr Ekine was "stalking her" by coming to her house and place of work.
[24]
"Hi Mr Ekene [sic]. I[']ve been trying to contact you via phone but to no avail. Pls note that all contact with - must stop because the hold has been broken. Also note that if you contact her by any means you will be putting your life in the line as the host of heaven will respond by fire. Pls be aware. This is not a threat but the Truth. Stay blessed as you obey and have a pleasant night."[5]
[25]
Mr Ekine said he viewed this text as a threat from Mrs Oladejo. He thought Mrs Oladejo may have been jealous because she had wanted Mr Ekine to marry her younger sister. After he received the message, he contacted his pastor, who told him that TA had been behaving abnormally, ringing the pastor late at night and asking him to perform a wedding with Mr Ekine. His pastor's wife told him TA was behaving abnormally.
Against his pastor's advice, he went to the police that night, and sought a personal safety intervention order ("PSIO") against Mrs Oladejo. An interim order was granted.
Mr Ekine says that TA's husband also came to his house and threatened him. He also sought a PSIO against TA's husband.
On 23 August 2016, TA sent an email to Mr Ekine, Mr John Bellavance and Mrs Anne Bellavance. Mr Bellavance is the vice president of an organisation called the Universal Peace Federation. On 2 September 2016, TA forwarded the same email to Mr Oladejo. In that email, TA says Mr Ekine used "African dark herbalist medicine called KERU" during sex. She said "once it is used for a female, you will lose your comprehension and not until you end up with the person who used it for you, you don't stop".
Mr Ekine said that as a result of this email, Mr Bellavance removed him from his work as an "ambassador for peace".
At the contested hearing, the magistrate dismissed Mr Ekine's application for the PSIO. The reasons for the magistrate's refusal are not before me. Mr Ekine and Mrs Oladejo gave different accounts of what occurred at the hearing.
Mrs Oladejo says that after the magistrate dismissed the PSIO application, Mr Ekine said to her and TA outside the Court, words to the effect, "You are making jest of me. I will make sure to make you a laughing stock in Melbourne. There is no one that I have had something to do with that will not return to me, that has not gone mad." I shall refer to this as "the laughing stock remark".
Mr Ekine also sought and obtained an interim PSIO against TA. The date of this intervention order is not before the Court.
After this, it appears TA reconciled with her husband. Pastor Oluwasola gave evidence he first met TA in July 2016 when she attended his church with her husband. He said she was distressed and "not in a good state". He provided them with counselling over a period of time, and this eventually led to a renewal of their vows. He said they continued to attend his church after the renewal of vows for about two or three months. He said that he prayed for TA and she got better. This led him to conclude that when she first attended his church, she had been under a "spiritual attack".
[26]
At some point after the breakdown of her relationship with Mr Ekine in about July 2016, it appears TA became quite unwell. TA did not give evidence at the hearing and there was no medical material about her condition.
Mrs Calera gave evidence. She said she knew TA as a member of the congregation of her church for a period. Whilst attending her church, Mrs Calera witnessed TA "manifest", which she described as someone being full of the spirit of God or possessed by a demon. She describes TA falling down to the ground and repeatedly saying, "Why don't you love me? I love you so much. Why don't you love me back?" She said TA was unkempt and distressed. She said she did not know what the cause of the manifestation was but that she believed in the spiritual world. She believed that this had happened in 2017 or 2018. She subsequently visited TA in a psychiatric hospital.
Pastor Olumasola gave evidence that in 2017, Mrs Oladejo brought TA to his house in a distressed state. TA ran out onto the road. He tried to calm her down and called her husband. He felt she was under "spiritual attack". She later called him and said she was in a psychiatric hospital.
Mrs Bolanle Ogunsola gave evidence that she had met TA towards the end of 2017. She said at that time, TA was not in a good state at all. She believed TA had a boyfriend, and the boyfriend was Mr Ekine. Mrs Ogunsola said TA did not appear mentally well and she felt scared for her. She knew Mr Ekine also had mental health problems with depression and that "two people with a mental issue is not good". She told Mr Ekine that TA was married with two children and that he was committing bigamy by being with her. She said TA became very sick in 2018, and she did not see her during that time. In 2020, TA contacted her again and said she had "found love again" and moved to Dandenong.
Mrs Oladejo says that, at some point after the magistrate dismissed the PSIO against her, she started to notice "signs of madness" in TA. TA told her that Mr Ekine kept coming to her house, so Mrs Oladejo encouraged TA to move to Point Cook, where she could provide better support to TA. TA did so.
At some point TA stopped coming to church and things started to deteriorate. Eventually TA turned up at Mrs Oladejo's house wearing a transparent nightgown, with nothing on underneath. Mrs Oladejo said her eyes were red and her mouth was smelly and that was when Mrs Oladejo "saw the fullness of her manifestation". TA repeatedly asked to be taken to the pastor. On the way to Pastor Oluwasola TA was screaming, "I am going to be delivered today!" On arrival she ran through the front door and onto the street screaming, "Help me, help me!" She ran in front of a car and began banging on the bonnet. She ran into the garage of a house as the garage door was coming down and was hit her the head. Mrs Oladejo says TA did not recognise her and kept saying, "Help me. I don't know her." TA's husband then came and took her home.
[27]
Neither party called TA to give evidence. There are obvious reasons why TA might not want to come to Court. It is not clear to me that TA is obviously in one or the other camp.
Mr Ekine gave evidence that his relationship with TA is, at least, cordial. She joined ACTap, albeit for a short period, and corresponded with him in relation to the audio file in a civil fashion after the end of their relationship. Mrs Oladejo says she is no longer in touch with TA. When she asked TA whether she would be willing give evidence, TA said she could not because it would be too distressing. Neither side asked me to draw an adverse inference in relation to TA's non-attendance. I am not satisfied the failure to call TA leaves open an inference that her evidence would not have assisted either of the parties.[8]
I cannot determine the nature or cause of TA's ailment.
Even if TA's ailment derived from a spiritual cause, I cannot be satisfied that it arose as a result of any conduct by Mr Ekine, specifically that he had used voodoo on TA. TA did not give evidence that Mr Ekine had used voodoo. Mr Ekine denies it happened. No one else gave evidence that they had witnessed Mr Ekine use voodoo. Evidence from the witnesses about the behaviour they saw TA exhibit does not prove Mr Ekine was the cause of that behaviour. Even if I was to accept Mr Ekine made the laughing stock remark, it does not amount to voodoo, and does not prove that Mr Ekine used voodoo.
I do not find that Mr Ekine used voodoo on TA, or otherwise used or uses voodoo, African black magic or any variation of demonic, evil diabolical power. It follows that I therefore do not find that Mr Ekine caused TA to be insane, intentionally made her a mad person, destroyed her life, harmed her or that she might die as a result of his actions. Nor do I find that he must be controlled or he will not be able to be handled in the future, that he might harm others, or that he has evil diabolical power.
There is no evidence that he stalked or harassed TA, and he denies having done so. There is no basis upon which I could conclude that TA's psychiatric condition was caused by stalking or harassment. There is no basis upon which I could conclude that Mr Ekine engaged in these activities.
As to the imputation that his being religious is "total rubbish", no evidence was led in relation to this, other than by inference that a person who professes to be a Christian while using voodoo would not be a true Christian. There is no evidence that Mr Ekine being religious is total rubbish. I further note that Mr Ekine is the pastor of an evangelical church he founded and has undertaken a diploma in theology in Nigeria. It was not put to him that his evidence about his involvement with the church or his qualifications was false.
[28]
Mrs Oladejo further pleads a defence of contextual truth.
A defence of contextual truth is made out where the defendant proves that a defamatory publication carried one or more imputations that are substantially true (the contextual imputations) and the defamatory imputations of which the plaintiff complains do no further harm to the plaintiff's reputation because of the substantial truth of the contextual imputations.
Mrs Oladejo did not put on any evidence that would support a defence of contextual truth. She made no submissions that other imputations were conveyed by the publication which are substantially true.
The defence of contextual truth is not made out.
[29]
Generally, and certainly before the changes to the Defamation Act2005, if a person published statements which were false and injured the character of another person, the law considered that the injured person had a claim for damages. However, the law makes an exception for statements fairly and honestly made by a person in the discharge of some public or private duty. This exception, known as qualified privilege, provides a qualified defence to a claim in defamation.[9] The defence of qualified privilege depends on a number of factors.[10]
First, there must be a privileged occasion. A privileged occasion requires the publisher to have an interest, or duty or obligation to publish the statements to persons who have a reciprocal interest in receiving that information.
Second, the statements must be related to the occasion. Statements published on an occasion of privilege that go beyond the occasion are not protected.
Third, there must be no malice in the publication.
In deciding whether there is an occasion of privilege, the important question is whether there is reciprocity or community of interest. If the communication was made "in pursuance of a duty or on a matter in which there was a common interest on the party making and the party receiving it, the occasion is said to be privileged".[11]
The Court must assess whether "it is in the public interest that a person should be free to make the type of statement in the type of circumstances where the particular statement in question was made".[12]
This requires an analysis of the public interest in allowing the type of communication made by Mrs Oladejo in the circumstances in which that communication was made.
[30]
Mrs Oladejo first met TA in around 2008 and they became close friends. She knew TA's husband and children and witnessed their relationship. In her opinion, prior to 2016, there was no problem with the marriage.
Mrs Oladejo also did not see any signs of mental illness or spiritual issues in TA prior to 2016. From her perspective, TA appeared happily married, she was working and raising three children.
Then TA met Mr Ekine. From that point, in Mrs Oladejo's view, things changed. Mrs Oladejo had decided, after a second meeting with Mr Ekine, not to have much to do with him. This was because of some unrelated issues to do with the Nigerian Society of Victoria. But TA appeared to support Mr Ekine and stopped contacting Mrs Oladejo. When they resumed contact at the time of Mrs Oladejo's mother's visit, TA told her she was having an affair with Mr Ekine. Mrs Oladejo said, "My spirit told me something was going on". She was worried. She said, "There was no issue in the marriage. There is no problem, so where does this come from that she has an affair?"
She prayed for her friend. TA told her that Mr Ekine was stalking her and harassing her. On several occasions Mrs Oladejo left her own children and work to go to TA's house to provide her with support. Sometimes TA's mother would ring Mrs Oladejo from America, asking Mrs Oladejo to go over to TA's house because TA had locked herself in the toilet and would not come out. TA told Mrs Oladejo that Mr Ekine had used "ado" on her. It was in this context that Mrs Oladejo sent Mr Ekine the July text message. She believed what TA had told her and felt she had to get Mr Ekine to stop.
Mrs Oladejo was pleased when the magistrate dismissed Mr Ekine's application for a PSIO. I suspect she felt vindicated. She admitted that she and TA laughed at Mr Ekine outside court. She interpreted the laughing stock remark as a threat to ensure that TA would not leave him. Mr Ekine has denied he responded as Mrs Oladejo claims.
Mr Ekine took TA and her husband to court to seek a PSIO. During the course of that hearing there was some discussion about whether TA was pregnant with Mr Ekine's child. The parties are in dispute about what was said on that occasion and it is not necessary for me to make a finding. However, Mrs Oladejo was present in court to support her friend, and believed that the court case was another way in which Mr Ekine was trying to harm TA.
[31]
Not all statements made on an occasion of privilege will be protected. The statements must be germane to the occasion.[14] They must be honestly made,[15] though this does not mean they must be true. The person making the statements must conduct themselves "fairly and properly".[16] It is not a licence to defame.
The privilege does not extend to extraneous matters but can encompass statements that are wrong. The objective truth of the statements is not relevant to the defence but the publisher will usually need to prove that they believed the imputation that was conveyed, or at the very least, did not know it to be false, or act with such reckless disregard as to whether it was true or false as to amount to malice.
A person making a privileged statement is not restricted to the use of such language merely as is reasonably necessary to discharge the duty, but will still be protected, even if the language is "violent or excessively strong" provided that the publisher acted honestly and believed on reasonable grounds what was said.[17]
"Reasonable grounds" must also be viewed within the context of an evangelical Christian community where there is a strong belief in possession by the devil and the power of voodoo.
I accept that Mrs Oladejo honestly believed what she was saying and had reasonable grounds for her belief. I accept that she had been told by TA that Mr Ekine used "ado" on her, and her own observations of TA confirmed her belief that she was under the influence of voodoo. The evidence of other witnesses confirms that TA was acting unusually and was clearly distressed prior to her hospitalisation. This supports my conclusion that Mrs Oladejo held an honest belief.
As a result, I find that the statements were appropriate to the occasion and used expressions and contexts familiar to people in the evangelical Christian community.
[32]
A defendant cannot rely on qualified privilege if they were motivated by malice or an improper motive. Conduct that is particularly reckless or unreasonable can amount to malice.
Mr Ekine raised the prospect that Mrs Oladejo may have been motivated by jealousy because she had hoped he would marry her sister. This was not put to Mrs Oladejo and no evidence was called to establish that Mrs Oladejo had such a wish, or that this resulted in her being jealous of Mr Ekine's relationship with TA.
Both sides relied on evidence of other issues that Mr Ekine has had within the community, some of which have resulted in him commencing legal action. Mr Ekine relied on some of these issues, including his discrimination claims against the YHCA and the Nigerian Society of Victoria, as evidence of the damage to his reputation as a result of the publication of the audio file. Those matters do not demonstrate malice or any improper motive by Mrs Oladejo.
Mrs Oladejo gave evidence that Mr Ekine had had an issue with another community member and that because of things Mr Ekine said about that person, she made a decision in about 2016 not to support Mr Ekine. Mr Ekine agreed that he had had an issue with this person, which had subsequently resolved, and disputed he had said the things Mrs Oladejo alleged. It is not necessary for me to make any findings as to what was said in relation to this other person, save that it was the catalyst for Mrs Oladejo to decide not to be friends with Mr Ekine. I do not find, however, that this prompted the publication, or that it caused Mrs Oladejo to harbour such ill will toward Mr Ekine that she can be assumed to have acted with malice.
No doubt Mrs Oladejo was not pleased to be taken to the Magistrates' Court by Mr Ekine; however, I formed the impression that she felt vindicated by the dismissal of Mr Ekine's application. There is no evidence she had a desire for revenge. There is no evidence that Mrs Oladejo and Mr Ekine had any dealings with each other after the Magistrates' Court case, and the subsequent case in which she attended in support of TA, until these proceedings.
There was no evidence that Mrs Oladejo was motivated by anything other than her sincere concerns about TA.
After sending the audio file she was advised by her pastor that voodoo can be undone by prayer. She felt that the best way forward was through prayer, and did not pursue the matters raised in the audio file any further.
[33]
(a) The imputations are conveyed;
>
> (b) The imputations are defamatory;
>
> (c) Mrs Oladejo's defence of truth is not successful;
>
> (d) Mrs Oladejo has proved her defence of qualified privilege,
[34]
As a result of my findings, Mrs Oladejo has established a defence and Mr Ekine's claim is dismissed.
[16]Bashford v Information Australia (Newsletters) Pty Ltd[2004] HCA 5, paragraph [22], citations omitted.
Parties
Applicant/Plaintiff:
Ekine
Respondent/Defendant:
Oladejo [2023] VCC 965
Cases Cited (1)
(1959) 101 CLR 298
AI Analysis
Outcomedefendant
Disposition:
The proceeding is dismissed.
She says she is speaking up because some people are not aware of what has happened and that if no one speaks to Mr Ekine about the issue, "you don't know who else he will use his voodoo on".
She says Mr Ekine "destroyed ... [TA's] home and life and made her crazy". She says she has brought the matter forward because Mr Ekine is "walking around and not remorseful".
Imputation (n) is not conveyed. Nowhere does Mrs Oladejo call for the whole world to know about the incident. Rather, she says she is bringing a message to all the "children of Yoruba people in Melbourne", she is addressing the community elders and wants every Yoruba person in Melbourne to hear this and be aware of what is going on.
Imputation (p) is not conveyed. Mrs Oladejo mentions death in relation to TA and, in a general sense, people's fear of death and that she does not fear death because of her faith in God. She says that if Mr Ekine was to die now, he would go to Hell. However, she does not say he will surely die, nor that the wages of sin are death. Nor is the imputation that he will die because of his sin conveyed by the context or by other words.
I find that, in broad terms, the imputations conveyed are that Mr Ekine has evil power which he used on TA to cause her serious harm, that he caused this harm intentionally, that he will cause harm to others if he is not stopped and that he is not religious as he purports to be.
Mrs Oladejo admitted that she had also sent the audio file to TA's mother. Mr Ekine said TA had sent him "snippets" of the audio
Mrs Bolanle Ogunsola gave evidence that she had received the audio file from Mrs Temi Ajayi. She listened to it but never discussed it with Mr Ekine or Mrs Oladejo.
Mr Ekine says that in addition to these identified people, he believes that the audio file was widely shared through social media and had "gone viral". He said he had conversations with various people who indicated they were aware of the contents of the audio file, but he had not retained the details of those conversations.
There was no evidence that the audio file had been widely shared on social media, or had "gone viral". I accept that, by virtue of the grapevine effect, the allegations that Mr Ekine had used voodoo on TA were known beyond the group of people Mrs Oladejo sent the recording to. Mr Ekine did not call any witnesses other than himself. He gave evidence of a number of conversations he had with people who told him that they had either heard or were aware of the audio file.
I accept that allegations of this kind are likely to be discussed within a community, and therefore that there would, on the balance of probabilities, be a "grapevine" effect as a result of the publication. The extent of that grapevine effect is unknowable. Given that the publication was an audio file, it seems likely that the general content of the publication would have been more widely shared than the audio file itself. Mr Ekine had some difficulty obtaining a copy of the audio file himself, though a number of people told him about the general allegations it contained. Listening to an audio file, particularly one which was quite long, would also take longer than quickly reading a text or post on a social media platform. How many people opened the audio file and listened it to the end is unknown and unknowable. I accept that it is more than the number of people identified as having received it from Mrs Oladejo, but I am not satisfied on the evidence that the audio file itself "went viral" or that it was widely disseminated within the Yoruba community.
Mrs Oladejo says TA told her that Mr Ekine used "ado" to rub from her "belly button down to her private parts" when she was naked, and that TA had asked why he was doing this and that he told her it was to check whether TA's husband had "put something on her" that would cause Mr Ekine a problem if he had sex with TA.
Mrs Oladejo says she understood this to mean that Mr Ekine was using voodoo on TA. TA asked her not to call the police because they would not understand voodoo. Mrs Oladejo explained to the Court that she believes voodoo does not cause physical harm but does cause spiritual harm. She says she could tell that there was a "spiritual battle" going on in TA.
Mrs Oladejo was concerned about what she had been told by TA. On 29 July 2016, she sent Mr Ekine the following text message ("the July text message"):
On 13 September 2018, Mr Ekine sought a variation of the interim PSIO against TA to allow TA to contact and communicate with him. He gave evidence that this was because he had established a number of organisations that arranged events that TA may attend. They were also both peace ambassadors and "ambassadors for Christ". His pastor and other community members, including Mr Bellavance, had also requested that he remove or vary the terms of the Order.
On 13 September 2018, he sent an email to TA and a number of other people including Mr and Mrs Bellavance, informing them that he had obtained a variation of the PSIO to allow TA to have contact with him.
One of the organisations Mr Ekine established was the Australia Community Theatre and Talent Practitioners ("ACTap"). According to the ACTap minutes of meeting dated 28 October 2018, TA became secretary of ACTap at that meeting;[6] however, on 12 November 2018, TA resigned as secretary.[7]
Mr Ekine says that during this period of time, from the variation of the PSIO until she resigned as secretary of ACTap, they had renewed a friendship but were not romantically involved. He said from time to time they would go out, but always accompanied by others. He says one day she told him she wanted to marry him. He said he was not interested and was trying to repair his relationship with his ex-wife, who was then in South Africa. After that conversation, she resigned her position as secretary. He did not see her again until she attended the official launch of ACTap in 2019.
Mrs Oladejo says TA would not let her enter her house and accused Mrs Oladejo of calling the police. Mrs Oladejo felt that there was a "spiritual battle" occurring and that TA needed her whole family to pray for her. However, TA's husband and mother were Muslim and did not want to go to a Christian church to pray. Mrs Oladejo said TA would say things to her like, "Have you seen the cameras? The professor is watching me." At some point, the timing of which is unclear, TA was admitted to the psychiatric unit at the Werribee Mercy Hospital. At the request of her pastor, Mrs Oladejo visited TA and provided care to her.
Mrs Oladejo gave evidence that TA was in hospital for about two or three months. After her discharge, Mrs Oladejo assisted her with medication. She says TA was initially on a psychotropic medication, Quetiapine. She eventually went off that medication and improved. Mrs Oladejo considered this proved the cause of TA's psychiatric problem was spiritual rather than due to mental illness.
Mrs Oladejo says TA then moved again. She stopped coming to church but she was looking better, dressing well and said she did not want to remember everything. She did not tell Mrs Oladejo where she was moving to. Mrs Oladejo was scared for TA's safety. Mrs Oladejo was worried she might have resumed a relationship with Mr Ekine. It was in this context that she sent the audio file. She believes that was in 2018 or 2019.
Mrs Oladejo believed TA was under spiritual possession and believed this was caused by Mr Ekine. She formed this belief on the basis of Mr Ekine's laughing stock remark, what TA had told Mrs Oladejo about Mr Ekine using ado on her, and TA's behaviour prior to her hospitalisation.
Mr Ekine denies he used voodoo on TA. He denies that he stalked her by going to her house or place of work. He says TA would turn up at his house and declare her love for him. He says TA's attention was so overwhelming he had to move house so she did not know where he lived. He said he tried to set boundaries but also wanted to keep seeing her. Mr Ekine denies making the laughing stock remark.
For those reasons, the defence of truth or justification is not made out.
However, by 2017 things seemed to be getting back on track for TA. She started coming to church and renewed her vows with her husband. She was not, as far as Mrs Oladejo knew, seeing Mr Ekine and the magistrate had ordered that TA stay away from Mr Ekine and Mr Ekine stay away from TA.
At some point TA stopped coming to church and things started to go downhill again, resulting in TA being admitted to psychiatric hospital. This probably happened towards the end of 2017 or in 2018.
Mrs Oladejo thought this was all caused by a spiritual battle within TA as a result of Mr Ekine's actions. Mrs Oladejo supported her friend through her period in hospital. She was nominated as TA's legal next of kin. She said TA would say things about Mr Ekine like, "I love him. I don't know why he is not loving me back." Mrs Oladejo thought this was a sign that Mr Ekine had used voodoo on TA. Mrs Oladejo was strengthened in her belief that TA's mental ailment was caused by voodoo rather than a mental health issue because she appeared to improve when she ceased using Quetiapine. She said, "When on medication, you should get better. [It was the] opposite for her. This was why I drew [the] conclusion [that it was] for spiritual issues."
At some point, and the timing is very unclear, TA moved out of her house and stopped coming to church. She did not tell Mrs Oladejo where she was living. She left her husband and her children, including her disabled child. She did not want to talk about what had happened or her mental health. She said she did not want to remember. Mrs Oladejo became very concerned for TA's safety. She worried that TA had gone back to Mr Ekine. She worried that if TA returned to Mr Ekine, she would be seriously at risk due to her fragile mental health.
Mrs Oladejo said she was concerned that TA had left her husband and children and was mentally unwell because of spiritual possession. She felt that no one in the community was really addressing what she saw as the core issue and that people in the community were unwilling to confront what she thought was self-evident. She said another community member, "Mama Grace", had discretely alluded to the situation with Mr Ekine and TA online and YHCA had asked her to take the post down. This confirmed in Mrs Oladejo's mind that the community was not aware of what was going on and was not taking appropriate action.
Mrs Oladejo said she wanted the matter to be resolved. She felt there was urgency in the matter and that TA needed to be protected. She wanted the elders in her community who knew both TA and Mr Ekine to know what was going on, so they could decide what should be done about it. She believed the elders would be able to investigate whether Mr Ekine had done what TA said and what Mrs Oladejo believed he had done. She thought the elders would be able to stop him. She believed TA's life was at risk and that Mr Ekine posed a danger to the community if he was able to use voodoo and the community did not stop him.
Her belief that she had to do something led her to record the audio file and distribute it to ten elders within the community. These were people who were respected leaders.
I accept Mrs Oladejo acted out of a genuine desire to protect TA and out of a genuine belief that Mr Ekine posed a threat to the community. This is quite different from a finding that Mr Ekine was an actual threat to the community or that TA's condition was actually caused by Mr Ekine. For clarity, while I find that Mrs Oladejo was acting out of a genuine belief, I do not find that Mr Ekine had actually practiced voodoo or was a threat to TA or to anyone else in the community.
Mrs Oladejo is an evangelical Christian and believed a close friend was at risk from a spiritual possession caused by another member of the community. I accept that, in that context, she had a moral obligation to inform those people in her community who had an interest or duty to receive that information. On her evidence, the ten people she sent the audio file to were all respected elders who she felt could take action to resolve the situation. There was no evidence that the people to whom she sent the audio file were not persons with a relevant interest in receiving the matter. Mr Ekine also considered at least some of those recipients to be respected community elders. On his evidence, he approached some of those people about the audio file and sought their advice. I accept the evidence that the people to whom Mrs Oladejo sent the audio file were people with the requisite interest in receiving the information.
In Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited[13] a collision occurred between two vehicles, resulting in the death of a passenger. The driver of the vehicle in which the passenger died left the scene. The police published a media release in which they named the plaintiff as a person who might have relevant information. The defendants, Fairfax Media and Nationwide News, published various articles in which they identified the plaintiff, not as a person who may have useful information, but as the driver of the vehicle. In fact, the plaintiff was the brother of the driver of the vehicle. Although the articles published by the defendants were plainly incorrect in identifying the plaintiff as the driver (and thereby implicating him in the commission of a criminal offence), the trial judge found that the articles were published on an occasion of qualified privilege.
On appeal, the Court upheld the trial judge's finding that there was a privileged occasion. It was found to be clearly in the public interest for the police to communicate with the public at large via the media to inform the public that the driver had likely stolen a car and was still at large, and to enlist the public assistance in identifying, locating and apprehending the driver.
In this case, Mrs Oladejo published the audio file on an occasion of qualified privilege. She had a moral duty to inform her community about what she perceived as a genuine threat, and those persons to whom she published had a reciprocal interest in receiving that information. She did not publish to the world at large, but rather to a carefully selected group of people who each had a leadership role in the community.
The evidence about the extent of publication does not establish that the audio file was distributed beyond the people identified by Mrs Oladejo as having received the audio file.
People in the community who might have become aware of the allegations might have obtained that information from the audio file, from TA or from others TA had told. She wrote to at least Mr Oladejo, Mr Ekine, Mr Bellavance and Mrs Bellavance making similar allegations. I am not able to determine whether the allegations were disseminated solely from Mrs Oladejo's publication or from other sources as well.
The date of publication of the audio file is unknown. Mrs Oladejo thought she might have sent it in 2018 or 2019. The reference in it to TA being recently out of hospital suggests it was shortly after her psychiatric issues; however, I am unable to determine on the evidence when TA was admitted to hospital.
I accept that Mr Ekine first became aware of the audio file in late 2019 and obtained it in April 2020. There was at least some gap, perhaps as long as a year, between Mrs Oladejo sending the audio file and Mr Ekine becoming aware of it.
Had Mrs Oladejo been motivated by malice and a desire to damage Mr Ekine's reputation, I would expect her to have further broadcast her allegations about him. Instead, it appears she accepted her pastor's advice and did not pursue the matter further, resorting instead to prayer.
I do not find that Mrs Oladejo was motivated by malice.
Therefore, Mrs Oladejo's defence of qualified privilege is made out.