By Olu Fasan
Most of those who have commented or are commenting on the Dele Farotimi-Afe Babalola saga have not read the book at the heart of the story: Farotimi’s Nigeria and its Criminal Justice System. I have. I bought a digital copy from Amazon last week, and spent four hours slowly reading – more appropriately, perusing – the 115-page book on Kindle.
Why did I buy the book? Two reasons. First, column-writing is about topicality and informed commentary. A good columnist should comment on any topical issue of significant public interest and do so from an informed perspective. The Farotimi-Babalola story has gripped Nigeria and has wider implications for the principle of legality. I decided to read the book so I could offer an informed opinion. Second, I wanted to know what irked Aare Afe Babalola so much that he went for the nuclear option, seeking to crush Farotimi personally and professionally. Well, answer: the book is a dynamite!
But let me start with four general observations. First, the book is well
written, demonstrating some artistic flair. Second, the book is largely
autobiographical. Although Farotimi said: “This is not a biography”, he devoted
the first six chapters of the book’s nine chapters to his life: how his
childhood influenced his choice of a legal career (“I was born a lawyer”); his
education at LASU, where he was taught by “great legal minds” like Professor
Yemi Osinbajo, who later became Nigeria’s vice-president; how he met his future
wife in his first law firm; and how he never stayed long in any law firm.
Indeed, when Farotimi was interviewed for a job in a new law firm, the managing
partner, Babatunde Raji Fashola, later governor and minister, asked: “You don’t
appear to have stayed long in the places where you have worked before this job,
why?” Farotimi left everywhere he worked in a quarrel: he’s a maverick by
nature!
My third general observation is
that the book is not about the criminal justice system at all. If any criminal
law student or researcher bought the book to better understand the Nigerian
criminal justice system, they would be disappointed, because there’s no
scholarly or even lawyerly discussion of the operation and organs of criminal
justice in Nigeria. The two cases mentioned in the book are civil: one relating
to land disputes, the other to libel. The book is too rooted in personal
grievances to be deemed a legal or scholarly work.
Which leads to my fourth
observation: Farotimi wrote the book not as a lawyer or a scholar, but as an
activist. Scholarly or legal writing cannot be based on assertions or
conjectures: everything must be evidenced. In my view, Farotimi was bitterly
angry; he genuinely believed the legal system was rigged against him and his
clients. Thus, he wrote the book out of anger. What he felt he was wrongly denied
in the court of law, he wanted to bring to the court of public opinion by
exposing the “rot” in the justice system. “If I must self-immolate for you to
behold the extent of the rot, so be it,” Farotimi writes. “But I urge you, my
dear audience, not to allow my sacrifice to be in vain.” That’s the voice of an
activist, but emotiveness is not enough. Lawyers and scholars live and die by
evidence!
Now, let’s briefly recount the
main issue. It involved a land dispute between two Lagos families – the Eletu
and the Ojomu – over 254 hectares of land. In July 2013, the Supreme Court, in
its lead judgment, awarded 10 hectares (24.17 acres) to the Eletu family.
However, a consenting judgement mentioned 254 hectares. The Eletu family relied
on the consenting judgement and used it to obtain a warrant to possess the
whole 254 hectares. Farotimi, who represented the Ojomu family, or an
interested third party, believed the warrant was “fraudulently” procured, and
narrated how he fought tooth and nail to quash it. However, after the warrant
was quashed, Afe Babalola Chambers which represented the Eletu family at the
Supreme Court, returned to the apex court and asked it to vary the lead
judgement on the ground of clerical errors. In March 2014, the Supreme Court
reversed the first judgement that gave the Eletus 10 hectares and issued
another one that awarded them the 254 hectares.
That was the crux of the matter.
Farotimi believed there was no error in the original judgement and that Afe
Babalola Chambers “purchased” the second judgement by “corrupting” the Supreme
Court. Let’s face it: Why would a judge write 10 hectares if he meant to write
254? Is 10 not a world apart from 254? It certainly stretches credulity to say
the original judgement was based on a clerical mistake arising from an
accidental slip. Farotimi’s general thesis that the judiciary is corrupt is
unassailable. After all, earlier this year, the National Bureau of Statistics
confirmed that judges are the biggest bribe-takers in Nigeria. However, it’s a
different kettle of fish to brand any particular individual “corrupt” without
incontrovertible evidence. Yet, that’s what Farotimi did throughout his book.
Here’s how Farotimi described
Chief Babalola: “the grandmaster of judicial corruption in Nigeria, Afe Babalola”;
“Afe has been corrupting the Supreme Court from ages past.” Farotimi said he
came across a letter in which Chief Babalola “had violently libelled me and
described me in extremely disparaging terms.” He sued him for libel, saying: “I
have absolutely no interest in taking Afe Babalola’s corrupt money,” adding
that he’s “a corrupt, amoral man, devoid of any integrity”. When Farotimi’s
libel suit was dismissed without a hearing, he blamed Babalola for influencing
the judge, describing him as “the doyen of Nigerian injustice and
lawlessness.”
Now, justification – the truth –
is the only absolute defence for defamation. According to Oxford’s English Public Law,
“telling the truth can never be defamatory, however unworthy the motive.” Chief
Babalola said Farotimi “wilfully damaged” the reputation he laboured to build.
Surely, then, he should seek to establish the truth and redeem his reputation.
However, in pursuing criminal prosecution and trying to get the Legal
Practitioners Disciplinary Committee, LPDC, to disqualify Farotimi from
practising law in Nigeria, Aare Babalola appears more determined to crush him
personally and professionally than establish the truth.
Chief Babalola said Farotimi
would be free if he proved the allegations in his book. But in a criminal
procedure, it’s the prosecutor, not the accused, that must prove its case.
What’s more, while everyone subjected to criminal procedure should be treated
equally without regard to rank or wealth, the reality is that, due to power
imbalance, Farotimi’s freedom is in Aare Babalola’s gift. But keeping Farotimi
in detention for weeks, including over Christmas, breaches another principle of
criminal justice: respect for human dignity.
Having read Farotimi’s book, I believe Chief Babalola is right to be
aggrieved. But he should seek justice through civil action, not retribution
through criminal prosecution or disbarment petitions. Seek the truth, not a
pound of flesh!
*Dr. Fasan is a commentator on public
issues
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