Remission of the obvious criminal libel contained in his new book is the only viable way forward for Mr Farotimi. And it is even only a counsel of Chief Afe Babalola’s towering eminence that can help Mr Farotimi ward off the other graver and more ominous charge of bringing the Supreme Court to disrepute, that lurks ahead, and which can potentially result in Farotimi’s name being struck off the roll of legal practitioners!
I like Mr Dele Farotimi, his courage, forthrightness and pan-Nigerian views. But anyone with a basic understanding of the principles of the law of libel will concede that Mr Farotimi is in hot soup, and that there might be nothing untoward in his arraignment in a Magistrate Court in Ekiti State on charges of criminally defaming foremost lawyer, Chief Afe Babalola (SAN)!
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The courts in Ekiti State have jurisdiction to try criminal defamation, and all that the prosecution has to do to secure a conviction is to field one witness who will testify that the defamatory matter in the book was “published” to him in Ekiti, and that he read it in Ekiti, and thought the least of the eminent lawyer afterwards. Publication in this instance occurs when the book, put out for sale by Farotimi or his agents, is bought and read by the buyer in Ekiti! It would matter not that Mr Farotimi resides in Lagos, where defamation is only a civil wrong, and not a crime. In Ekiti State, defamation is both a crime and a civil wrong. Once Farotimi enters Ekiti, whether voluntarily or by force, the criminal courts in Ekiti are automatically seized of jurisdiction to try him. That has been our law ever since the old Supreme Court case of Patrick Njovens V. State! That principle was recently reaffirmed by the Supreme Court in Nnamdi Kanu’s case, in which the Court emphasised that the fact of Kanu’s rendition into the country does not vitiate the jurisdiction of the criminal courts in Nigeria to try him.
But there is a way out for Farotimi, to which I shall return later.
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There is no doubt that to allege, as Farotimi did in his book, that Chief Afe Babalola compromised the justices of the Supreme Court to obtain favourable judgment in a land case, is defamatory of the eminent lawyer, unless it can be substantiated. At least, the allegation has discredited the eminent Silk in his office, trade and profession, and has lowered him in the estimation of right-thinking members of society!
There is a possibility that what Mr Farotimi alleged in his book is true, but in the law of defamation, there is an initial presumption that a defamatory statement is untrue, and the burden of proving that the allegation is substantially true is on Mr Farotimi. To discharge this evidential onus against Chief Afe Babalola in Ekiti, or anywhere else, might be a mountain too high to climb.
Several years ago, I found myself in somewhat similar circumstances against the same iconic chief! Chief Afe Babalola had sued a certain Dr Usoro, a maritime shipping magnate, at the High Court of the Federal Capital Territory, Abuja, to recover professional fees amounting to $1 million for representing his company in an oil and gas matter, at the Federal High Court in Port Harcourt. According to the pleadings, Chief Afe Babalola was contracted by Dr Usoro at his Emmanuel Chambers in Ibadan.
Doctor Usoro hired me to represent him in the suit brought by Chief Babalola at the High Court of the Federal Capital Territory. After reviewing the facts, I came to the conclusion, along with my colleagues in Chambers, that the High Court of the FCT had no jurisdiction to hear the matter. We therefore filed a preliminary objection, protesting jurisdiction. The High Court of the FCT took arguments on the preliminary objection, agreed with us, and struck out Chief Afe Babalola’s suit, meaning that Chief was now free to re-commence the suit in Ibadan, or Port Harcourt!
I recognised there and then that our victory was only a pyrrhic one. I at once reached out to Chief Babalola’s counsel in the Abuja matter, after consulting Dr Usoro, my client, that I wanted to go to Ibadan to beg the Chief. So, I drove to Ibadan to the Chief’s iconic “Emmanuel Chambers”, where I was received by one of the his protégés, Chief Adenipekun (SAN). This was circa 2011.
After explaining my mission, an extremely delighted Chief Adenipekun, after informing me that Chief Afe Babalola was away in Ado-Ekiti, put a call across to the eminent chief, and informed him of my presence and mission. Chief Babalola asked that the phone should be handed over to me. He began by extolling my humility, saying that “because of what you have done, you will be greater than me.” I responded that “Chief, Sir, you know that that can never be possible”.
The Chief laughed heartily and said, in that sonorous Yoruba accent of his, “I want you to come to Ado-Ekiti tomorrow to see what the Lord has used me to do for humanity!” Very early the following day, my driver and I, accompanied by a staff of Emmanuel Chambers who led the way in his own car, proceeded to Ado-Ekiti, arriving the premises of the magnificent Afe Babalola University after 2 p.m. I was shortly ushered into the Chief’s sprawling office, where I came face-to-face with the living legend. He rose to his feet to receive me, and I made straight for the floor, prostrating. I then gently explained to him once again why I had sojourned all the way from Abuja to see him. The visibly elated Chief enthused that that was the way “law was practiced in the days of yore.” I could see that my humility had disarmed the nimble law master.
After exhausting his outrage at Dr Usoro, and bemoaning how cavalierly Usoro had discarded their solemn understanding, the Chief then assured me, in a very moving tone, that “your journey to Ado-Ekiti shall not be in vain. No one comes to see me in Ado-Ekiti and goes home empty-handed. For your sake, I will forgive the $1 million. But my worry now is that Dr Usoro, whom I know very well, will treat you exactly the same way he has treated me.”
Chief Afe Babalola then asked that I be taken to a guest house within the campus for lunch, and perhaps some rest, after which, later in the evening, “they will take you round to see what the Lord has used me to do for humanity.”
I passed the night at the University guest house, and just when we were about to leave the following morning, an emissary from the Chief arrived to inform me that the Chief left that morning on a journey, but had asked him to give me a parcel to enable me “buy petrol” for the journey home. Inside the parcel was the sum of N1 million; a princely sum back in 2011.
In my humble view, moving frontally against Chief Afe will not aid Dele Farotimi’s cause. The facts and the law are skewed against him. But Farotimi has one thing going for him: his close relationship with Peter Obi, who has a close relationship with former President Obasanjo, who in turn has a close relationship with Chief Afe Babalola.
Once Dele Farotimi is granted bail, he must move swiftly to see Peter Obi, who should take him to plead with Chief Obasanjo, after which he must then undertake that trip to Ado Ekiti, like I did back in 2011, to see what the Lord God has used Chief Afe “to do for humanity.” Remission of the obvious criminal libel contained in his new book is the only viable way forward for Mr Farotimi. And it is even only a counsel of Chief Afe Babalola’s towering eminence that can help Mr Farotimi ward off the other graver and more ominous charge of bringing the Supreme Court to disrepute, that lurks ahead, and which can potentially result in Farotimi’s name being struck off the roll of legal practitioners!
After all, the Chief himself did assure me, back in 2011, that no one comes to see him in Ado Ekiti and leaves empty-handed!
Kenneth Ikonne, a Senior Advocate of Nigeria, writes from Abuja.
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