In Professor Ali Mazrui’s epic fictional work, “The Trial of Christopher Okigbo”, an elite group of authors and writers gathered in the afterlife to try outstanding poet and foremost modernist writer, Christopher Okigbo, on charges of abandoning literature in preference for soldiering. In the end, Okigbo was found guilty of “fighting for a cause not worthy of poem!”
The cause that was allegedly not worthy of poem was the Biafra war, a vicious civil war of self-determination waged in the aftermath of the declaration of the former Eastern Region of Nigeria in May, 1967, as the sovereign Republic of Biafra. Christopher Okigbo, firmly convinced of the rightness of the cause, abandoned his mighty pen, took to arms, and perished, in the early days of the war, at the Nsukka front.
Aare Afe Babalola, Senior Advocate of Nigeria, SAN, Doctor of Laws, author, educationist and foremost lawyer, belongs in the class of the most accomplished and most decorated legal practitioners in Nigeria. In a dazzling career that has spanned almost 70 years, Aare Babalola has lawyered for the biggest corporations, captains of industry, political titans, including presidents and potentates, and has left a trail of distinction. At several fora, and in various scholarly publications, he has projected himself as upholding the highest ethical standards in the legal profession. In short, in both courtroom advocacy and scholarly erudition, the sage of Ibadan has been a reference point – until Dele Farotimi struck!
But what is the crux of the allegations of ethical misconduct against this foremost legal juggernaut? In his book, NIGERIAN CRIMINAL JUSTICE SYSTEM, Dele Farotimi , lawyer, politician and iconoclast, accuses Chief Babalola of perversion of justice. The crux of the allegation is that Chief Afe Babalola bribed justices of the Supreme Court in 2013 to secure a post-judgment variation of consequential orders contained in the judgment of the apex court in a celebrated land case. However, apart from his mere ipse dixit, Farotimi offers no proof whatsoever in his book, or in subsequent podcast interviews, in substantiation of these grievous allegations. An allegation that a legal practitioner of any rank bribed the judex to induce the exercise of judicial discretion in the practitioner’s favour is the most damaging allegation anyone can make against a legal practitioner – not least of all, a legal practitioner of Chief Babalola’s eminence. Such an allegation, touching, as it does, on the Supreme Court, also strikes at the very heart of the administration of Justice, especially at time when public confidence in the justice sector is at its lowest ebb!
But is Farotimi, the accuser, ever likely to be able to provide actionable proof of his allegations? I doubt it. The correction from 10 hectares to 254 hectares was made against clients represented, not by Dele Farotimi, but by Tokunbo Rotimi Williams, SAN, and Wole Olanipekun, SAN, and their argument in opposition to the application for variation was not that the land was actually 10 hectares. There seems to have been a concession therefore that the area in contention in the proceedings, right from the High Court to the Supreme Court, was 254 hectares! If indeed a whole 244 hectares of land were stolen from Respondents by the correction, why have the Respondents, also represented by counsel of no less renown, not complained?
In the flurry of prosecutions and civil suits that have ensued over this matter, the evidential burden borne by the prosecution and the plaintiffs will be no more than to show that Farotimi authored the book, and that the book contains the alleged words bearing a defamatory connotation, and that those words refer to Chief Afe and his associates. Thereafter, Farotimi will probably plead the defence of justification. The burden of establishing that defence rests squarely on him. And I do not see Farotimi discharging that burden!
However, that is all that can be said for Chief Babalola and his associates in the extra-legal maelstrom the situation has elicited – and will continue to elicit! But what of the trial that has arisen in the court of public opinion, and the one that will inevitably be conducted in the afterlife, when the Aare is gone?
A few incidents appear to have already marred those mythical proceedings, much to Chief Babalola’s prejudice. Ironically, none of these incidents appear to be of his making. The iconic Chief merely made a report of criminal defamation to the Commissioner of Police in Ekiti, and cannot be held responsible for how the Ekiti police proceeded to conduct its investigation!
But the manner of the effectuation of Farotimi’s arrest, gestapo-style, during which the solemnity of his law office was defiled, and lawyers and support staff brutalized, left much to be desired. Tongues will continue to wag as to why Farotimi, a lawyer, was not treated with greater temperance in the effectuation of the arrest, and in the degrading manner in which he was hurled to Ekiti, all night, to face trial. Arraigned on the 4th of December at a Chief Magistrate Court in Ado Ekiti for a mere misdemeanor, a court of summary jurisdiction bizarrely ignored an oral application for his bail, the staple in courts of summary jurisdiction, and curiously insisted on the filing of a formal application. It then remanded the lawyer and activist in prison custody, and adjourned the hearing of the formal application for bail to the 10th of December. Then, on the 10th of December, rather than rule instantly on the application, considering the nature of the offence and the primacy of the fundamental right to civil liberty, the Chief Magistrate strangely deferred the ruling to the 20th of December, meaning that for a simple demeanor, the defendant, a prominent lawyer, activist and notable politician, would be on remand in prison for almost three weeks.
It has not helped matters that during the same period, the notorious Yahya Bello, former Governor of Kogi State, accused of stealing billions from the public till, and after defying the Federal High Court for more than a year and evading arrest, has been promptly granted bail upon arraignment.
The worst optics of all was the arrival of Farotimi at the Federal High Court, Ado-Ekiti, in handcuffs. Farotimi has all his life, cultivated the image of an ascetic and stoic philosopher. And now bound in cuffs, at the premises of the Federal High Court, Ado-Ekiti, to face trial on allegations of cyber bullying of Aare Afe, Farotimi cut the very image of Socrates, the Athenian philosopher who was tried, condemned to death and executed in 399 B.C., merely for spending his time in disputation, and in teaching philosophy to the young!
In the cases presently pending in our courts against Farotimi, no reasonable judge, on the evidence, is likely to find that Aare Afe Babalola induced the Supreme Court to exercise a corrective discretion which it undoubtedly possesses, and which exercise elicited no furore from the respondents directedly impacted by the exercise of that corrective discretion. In any event, the Courts would presume that a defamatory statement is untrue, and the burden of establishing that the statement is substantially true would be on the defendant, in this case, Farotimi. It is a mountain too high to climb.
But in the larger and wider and more crucial case spun by Farotimi’s allegations, and which case is beyond the jurisdiction of municipal courts to hear, and in which Aare Afe Babalola will be a mere accessory, the principal defendant being the Nigerian judiciary, the burden of proof will be reversed, and the defendants will bear the evidential onus. The fora of the decision will be the Court of Public Opinion, and the Court of the afterlife. In both of these extraordinary courts, and because we operate in extraordinary times, the allegations will certainly be wider than Aare Babalola allegedly bribing the Supreme Court in a land matter; the allegations will be all-encompassing, focusing mainly on the outcomes of several pre, and post election litigations. Farotimi would therefore of necessity amend his claim, and make it all-embracing.
However, even with the amended claim, it will be so easy for Aare Afe to achieve exculpation: court processes, and the testimony of the actual respondents in the land case, and the concurrent decisions of the other justices of the Supreme Court, will bear the Aare out, that the size of the land litigated was actually 254 hectares, and that the reference to 10 hectares in the lead judgment of Ak’aahs, JSC, was a mere clerical error. Corroboration will easily be found from the total absence of ruckus from the actual respondents who were supposedly robbed of 244 hectares of land; it is not the natural course of events that someone so blatantly robbed would have kept quiet! That conclusion will be so easy for a celestial court to come to. The Aare would also be able to make the point that while he was at the acme of his powers as an advocate, the superior courts were still a bastion of rectitude, and that many of the decisions the populace now views with disdain had not yet been given. It was long after he had retired into the academe at Ado-Ekiti, that many of the decisions of the Courts that have rocked believability began to emerge.
It is therefore the judiciary itself, and not the Aare, that would be on the spot. If the panel trying it in the afterlife is manned by such progressively erudite jurists as Lord Denning, MR, Chief Justice Mansfield, Oputa, JSC, Eso, JSC and Idigbe, JSC, our election tribunals and appellate courts would be on the hot seat, sweating and explaining the anomaly of conflicting decisions, the absurdity of not placing the burden, in a fledgling democracy, of proving that elections that were conducted with humongous resources, were freely and fairly conducted.
It is doubtful that a Lord Mansfield, who in 1776 defied arrant legalism to hold that “a slave became a free man the moment he set foot on English soil” would endorse the slavish jurisprudence that placed 4th before 1st in Imo State. In the famous Hightree case of 1947, Lord Denning, Master of the Rolls, entrenched the doctrine of promissory estoppel in English law, for the first time in its annals, holding that a party was prevented by equity from backing out of a promise already relied on by the other party, even though not backed by consideration.
In arriving at this unprecedented doctrine in English law, prompted entirely by the overarching need for justice, Lord Denning bent over backwards and tapped into a tender stream of judicial current which had existed in Equity ever since the old English case of Hughes V. Metropolitan Railway Company. It is doubtful that such a jurist would permit Akpabio, after abjuring the APC Senatorial Primaries in preference for the Presidential Primaries, to resile from his position, and still return to his vomit to annex the same Senatorial ticket he had abjured. Lord Denning gave rationalization for his unflagging stand on the side of justice. Said the eminent Law Lord: “Were it to be otherwise, then men would no longer do the law reverence!”
When therefore the larger issues inelegantly raised in Farotimi’s book are tried in these other mythical courts, the margin of advantage will always be in his favour, and even to the untrained eye, the identity of the winner will always be obvious. Which is why it is important that in taking steps to vindicate his reputation which Farotimi has undoubtedly smeared, the Aare should emphasize those steps that will redeem his reputation without squelching Farotimi.
The criminal trials for defamation and cybercrime are an overkill, and I implore the Aare to withdraw his complaints thereon, notwithstanding the rightness of his cause. One civil suit for libel, capable of resulting in total vindication, or an eventual apology, should suffice. On the other hand, in crafting his way forward, and in consideration of whether to brace for trial or plead for remission, Farotimi should bear in mind that the ideal which has historically served his Yoruba people so well is not that which prizes the decisive clash of forces emphasizing feats of reckless heroism, but that which stresses subtlety, indirection and the patient accumulation of relative advantage!
We now return, after all said and done, to the courtroom of the afterlife, to await the verdict of the immortals, on the case instituted against the Nigerian judiciary by Dele Farotimi. What will the verdict be? Will it be the exoneration of the Nigerian Judiciary? Or will it result in the conviction of the Nigerian judiciary for serving a cause not worthy of justice?
