Dele Farotimi: The Trial Within a Trial 

Legal Tussle So Far

FHC: As the controversy with Dele Farotimi and his book “Nigeria and Its Criminal Justice System” rages on, last Monday, December 9th to be precise, he was arraigned on  12 counts of Cybercrime Charges contrary to and punishable under Section 24 of the Cybercrimes  (Prohibition, Prevention etc) Act 2015 (as amended) (CA) at the Federal High Court, Ado Ekiti (FHC). Mr Farotimi was arraigned and pleaded not guilty to the charges, his bail application was moved and granted, subject to certain conditions – 1) in the sum of N50 million; 2) surety resident in Ekiti; 3) surety having landed property within the jurisdiction of the court; 4) submission of Mr Farotimi’s passport to the court. I do not know whether Mr Farotimi’s bail conditions have been perfected. The FHC matter was adjourned to January 29, 2025. 

Social media was then swamped with photos of Mr Farotimi in handcuffs, and juxtaposed with that of former Governor, Yahaya Bello unrestrained. Every time I have gone to court in recent times and accused persons are brought into the court room, they are in handcuffs. The handcuffs are removed in the court room, throughout the court proceedings. They are then restrained again, when they are leaving the court room. If that is the practice, there is no reason for Yahaya Bello to have been allowed to waltz in and out of the court unrestrained. This however, is an issue that concerns the law enforcement agency in whose custody the Defendant is in, and not the Judge or the Judiciary.

Magistrate Court: As for the charges of criminal defamation before the Magistrate Court in Ado Ekiti, I thought a fresh charge bordering on the old Counts I & II may have been filed, as they had been previously brought under Section 59(1) of the Criminal Code Act 1916 (CCA)which may be similar to Section 70(1)(b) of the Criminal Law of Ekiti State 2021 (CLES)and punishable with six months imprisonment or N100,000 fine under Section 70(1)(c) thereof. They are the only two charges that appear to be able to survive the Ekiti Magistrate Court’s Charge Sheet, as criminal defamation which is an offence contrary to Sections 373-375 of the CCA has been deleted from the CLES. See Section 36(8) & (12) of the Constitution. Mr Farotimi’s book is dated 2024, long after criminal defamation was decriminalised in Ekiti State. See Aoko v Fagbemi  (1961) 1 ANLR 15 Page 400, in which adultery was held not to be an offence in Southern Nigeria as it wasn’t prescribed as such there. It was only a crime in Northern Nigeria, contrary to Section 387 of the PCA. 

In the alternative, the 16 charges filed at the Magistrate Court Ekiti, could have been withdrawn, struck out by the court and refiled at the Magistrate Court in Abuja (or Ibadan for example, where criminal defamation still remains an offence). Chief Afe Babalola, SAN who alleges criminal defamation, has a thriving practice in Ibadan and Abuja, and the injurious falsehood levelled against the Supreme Court, the headquarters of the Nigerian Judiciary, which was also brought into odium, opprobrium, hatred and disrepute in Mr Farotimi’s book, is also located in Abuja, FCT. See the case of Aviomoh v C.O.P. & Anor (2021) LPELR-55203 (SC).

Appearance of SAN in Magistrate Court: One of the issues that was raised by the Prosecution Counsel before Mr Farotimi’s Counsel, Mr Olumide-Fusika, SAN, could move the preliminary objection questioning the jurisdiction of the Magistrate Court based on the fact that the offences on the charge sheet were not offences under the CLES, was whether a Senior Advocate can appear in a Magistrate Court. The matter was adjourned to Friday, December 20th, for the court to rule on these issues. 

Section 36(6)(c) & (d) of the Constitution provides that everyone charged with a criminal offence is entitled to defend himself in person or by legal practitioners of his choice, and such person or legal practitioners can inter alia, examine any witnesses brought by the prosecution in any court or tribunal. The purport of these provisions appears to be that, any qualified legal practitioner can appear in any court or Tribunal, at least for criminal matters. However, I remember that as a new wig, there seemed to be a rule that a practitioner of 7 years standing and above couldn’t appear in a Magistrate Court, nor could one under the same 7 years appear at the Supreme Court (I’m not 100% sure); though, this was before the 1999 Constitution came into force. Also see Section 7 of the Legal Practitioners Act 2004 (LPA) on right of appearance and audience. 

The question that then arises, is whether these rules can stand in the face of Sections 36(6)(c),(d) and 1(1) & (3) of the Constitution which provide that the Constitution is supreme and binding on all persons and authorities in Nigeria, and any law that is inconsistent is void to the extent of its inconsistency. See the case of Awolowo v Sarki & Anor (1966) LPELR-25290(SC) per Adetokunbo Adegboyega Ademola, JSC (later CJN). In the recent case of Bamigboye v COP Appeal No. CA/IB/225C/2021 delivered on 16/7/24 per Ridwan Maiwada Abdullahi, JCA, which actually involved Mr Olumide-Fusika, SAN, the Court of Appeal held that a Senior Advocate of Nigeria doesn’t have a right of appearance at the Magistrate Court pursuant to Rules 2, 3, 4 & 6 of the Senior Advocate of Nigeria (Privileges and Functions) Rules. Is this decision in line with the Constitution? Can the SAN Rules stand up against Sections 36(6)(c), (d), 1(1) & (3) of the Constitution?

Mini Book Review 

However, I decided to read Dele Farotimi’s book, from start to finish. When I wrote last week, I avoided talking about its contents, because I had only seen some of the excerpts of the book. Now that I have read the book which comprises of 9 Chapters and an Annexure, though it is rather poorly edited, fraught with too many errors to recount here (right from the beginning, you have ‘Table of Content’ instead of Contents), I did enjoy the parts of the book where Mr Farotimi talked about his childhood in his grandfather’s house in Inalende, Ibadan, and his grandmother, ‘Maami’ and her adjudicatory/mediation skills. It reminded me of Tales by Moonlight, that showed in the evenings on NTA or so when we were children.

The Foreword of the book, that is, the introduction which should be written by a third party, is written by Dele Farotimi himself. This is obviously not surprising, as no right-thinking person would want to lend their name to any enterprise that could potentially land them in trouble. Or, shall I say that, it was rather considerate of Mr Farotimi not to involve any third party in the writing of such an abusive book. He states that the book is premised on one case, Gbadomosi Eletu & Ors v Oba Tijani Akinloye & Ors 2014 15 N.W.L.R. Part 1378 per Bayang Aka’ahs, JSC. He is dissatisfied with the outcome of it, as it may have been unfavourable to the Ojomu Family that he claimed to have been ‘integrated’ into, and possibly some subsequent client of his (as he wasn’t a Counsel in the case), and in Paragraph 10 of the Foreword, Mr Farotimi then proceeds to start to make his first derogatory, defamatory and illogical conclusions against the whole Nigerian justice system, indicting it and running it down completely on the basis of this single case. I do not think this is fair, making such a blanket, all-encompassing judgement of the whole Judiciary, particularly to the many judicial officers who are upstanding. On the last page of the Introduction, Mr Farotimi states that “The Nigerian Judiciary has no justice to dispense, and has evolved to become part of the putrefaction that has overtaken the land”. Imagine referring to the whole Nigerian Judiciary as decayed, rotten, based on one case? The Judiciary cannot defend itself, no matter how wild the allegations against the institution are, as it must maintain its dignity. Former US District Judge Paul Grimm wrote that “unfair vilification of Judges is undermining the US justice system, and the onus is on Lawyers to increase public confidence by standing up for the Judiciary”. I concur. Our Judiciary is also being undermined with venomous criticisms by people like Mr Farotimi, and my stand has always been that, you cannot tar everyone with the same brush of iniquity. See Section 36(5) of the Constitution.

I have noticed the rather unsettling trend these days, where Lawyers, mostly the senior ones, become filled with sour grapes, particularly when they lose a case in court, and are happy to vilify the Judiciary as the Judiciary’s punishment for their loss, and they then get the public that doesn’t possess full knowledge to run with their perverse narratives, when, in reality, they are aware that they either they didn’t prepare their case properly and/or they didn’t have good a case to start with that they could win, and should have advised their client accordingly. But, possibly because of the fees they stand to gain from conducting such futile cases, they prefer to deceive their clients to go ahead with fruitless litigation, contrary to Section 14(1) & (2)(e) of the LPA Rules of Professional Conduct for Legal Practitioners 2023 (RPC) and then turn around to blame their losses on a corrupt Judiciary! I cannot say that this negative trend of sour grapes, wasn’t present in Mr Farotimi’s book. Also see Sections 30 & 31(1) & (2) of the RPC on disrespecting the court. This must stop.

Mr Farotimi then proceeds to show how partial he is to himself, when in the Introduction of the book he narrates the story of how he stood surety for a lady Church member who had presented forged documentation to the British High Commission, in a bid to secure a visa to UK in order to probably ‘japa’, and then absconded (obviously to evade justice). He conveniently ignores the fact that not only did the lady and her travel agent commit criminal offences, and that standing surety for a person who absconds may lead to consequences for the surety (see Section 179 of Administration of Criminal Justice Act 2015 (ACJA) & Section 132 of Lagos State Administration of Criminal Justice Law (ACJL)), Mr Farotimi appears to absolve himself of any responsibility, and instead says the EFCC was persecuting him; absolves the lady by saying she had lost hope in Nigeria, and this caused her to want to flee from the country by any means, and even absolved the travel agent who was also involved in this criminal enterprise, by saying he was just trying to earn a living by any means whatsoever. Yet, he shouts from the rooftops in interviews, that there’s no accountability in Nigeria, a bug that he too may have been bitten by.

Falsehoods: In Chapter 1 Page 1 of the book, Mr Farotimi goes on about how Nigeria is founded on lies, and he, on the other hand, is a truth teller, only to lie blatantly in Chapter 2 Page 7 that “The University of Ife wouldn’t admit anyone to read law without a first degree in those days”. This is untrue, as I know many people who studied law at that University as their first degree, including past President of the NBA, OCJ Okocha, SAN; my two predecessors-in-office, Funke Aboyade, SAN and May Agbamuche-Mbu; our Columnist (My Brief by SKB), Stephen Kola-Balogun; Femi Falana, SAN; first NLNG Company Secretary, Edith Unuigbe; Prof Mike Ozekhome, SAN; Dr Bayo Adaralegbe and Olasupo Shasore, SAN, to mention but a few. In Chapter 8, Mr Farotimi also mentions a Counsel who represented a client in the Eletu case; I contacted the Counsel, who stated that they had nothing to do with the case! In Owie v State (1985) LPELR-2847 (SC) per Adolphus Godwin Karibi-Whyte, JSC, the purport of the Supreme Court’s decision is that when a witness makes contradictory statements (previous statement and oral testimony in court), neither can be relied upon; the former is unreliable and the latter cannot be acted on by the court. Relying on this authority, means that we must take Mr Farotimi’s submissions with a pinch of salt. And, therefore, because of this fact, I am unable to fully discuss the Eletu case, as I am yet to read the certified true copy of the judgement, and cannot just take the facts of the case summarised in the Annexure of Mr Farotimi’s book, without reading the full judgement and the reasoning behind it first. 

In Chapter 3 of the book, Mr Farotimi shows how he leverages on his personal relationships to be able to gain admission to the Nigerian Law School, which had a waiting list, since, as he recounts, the then Military  Head of State, General Sani Abacha, moved the institution to Abuja and it obviously couldn’t cater for all the students. Upon graduation, when Mr Farotimi needed employment, he again sought the assistance of the same Justice Ope-Agbe (as he had done to enter Law School) to speak to Dr Wale Babalakin, SAN to give him a job. He is able to make use of the ‘old boy network’ for himself, but when others leverage on their own relationships like he does, they are corrupt and nepotistic, as he has hinted in at least one of his television interviews that I have watched! Double standard! 

Mr Farotimi basically talks about his journey and love story up to Chapter 6, and then, how he and his wife partook in Ojomu land sales and obviously became close to them. His bias in favour of the Ojomu’s is clear, as he mentions his integration into the Ojomu Family in Chapter 8 Page 62. In Chapter 7, Mr Farotimi tells readers how he first met Chief Afe Babalola in person at the British Airways Lounge in London. It is from there till the end of the book that Mr Farotimi discusses the Eletu case, and makes many unsubstantiated allegations about the Judiciary, pouring invectives on all and sundry.

Conclusion 

The allegations laid by Mr Farotimi against the Supreme Court and the Judiciary generally, are unsubstantiated; they are full of suppositions and conjecture. He doesn’t appear to support his allegations of a fraudulent judgement in Eletu’s case, with any proof. As I said earlier, it is also extremely unjust to those judicial officers who are upright and honourable. See Genesis 18:26-33, where God told Abraham that He wouldn’t destroy Sodom, if He found 10 innocent people there. Similarly, the reputation of the Judiciary must be preserved, for the sake of the good members therein (hopefully, it isn’t too late for that). And, proof against the bad eggs should be provided, so that they can be weeded out.