Dele Farotimi's Reckless and Odious Statements
To be frank, as a Lawyer of 33 years standing at the Bar, I was rather shocked to read some of Mr Dele Farotimi (a Lawyer of 25 years standing)'s sweeping, reckless, odious and defamatory statements about the Supreme Court, complete with unsubstantiated allegations against the court and judicial officers to the bargain, copiously pouring invectives on them, Chief Afe Babalola, CON, SAN, and others, in permanent form in his book "Nigeria and Its Criminal Justice System", read all over Nigeria and beyond our shores (as the book is available for purchase on Amazon at $17.99 in Paperback and $12.99 on Kindle), also in an online podcast Mic On on YouTube, making injurious defamatory statements broadcast throughout Nigeria and in other parts of the world. As Lawyers, we are aware that, 'he who alleges must prove'; Mr Farotimi should therefore, have accompanied the statements in his book with the requisite proof/evidence, if indeed, he had any.
Chief Babalola, SAN, lodged a Complaint against Mr Farotimi with the Commissioner of Police, Ado Ekiti, where he resides, detailing the alleged criminal defamation made against him, his firm, Emmanuel Chambers and Lawyers therein, requesting the Police to investigate the matter urgently. In his Complaint, Chief Babalola had given the background of a case Eletu & Ors v Oba Tijani Akinloye & Ors 2014 15 N.W.L.R. Part 1378, in which Emmanuel Chambers had acted for the Appellant only at the Apex Court, and won the appeal. Many believed that Mr Farotimi was a Counsel in the matter, only to discover that he wasn't, but by his own admission in his book, claimed to have been 'integrated' into the Ojomu Family that had initially sold the land, the subject-matter of the aforementioned case to Eletu. The land was acquired by Lagos State Government, but the Ojomus went to court and succeeded in having the said acquisition set aside. The Ojomus then instituted an action, claiming title to the same land that they had already sold to Eletu. They lost. Was the alleged defamation by Mr Farotimi, borne out of sour grapes of the loss of the Ojomu family Mr Farotimi had been 'integrated' into, in the Eletu case?
Criminal Defamation
Criminal Defamation is provided for in Sections 373-375 of the Criminal Code Act 1916 (CCA) and Sections 391-395 of the Penal Code Act 1960 (PCA).
In Aviomoh v C.O.P. & Anor (2021) LPELR-55203 (SC) per Helen Moronkeji Ogunwumiju, JSC, even though the Supreme Court delved into the fact that there has been a move away from the criminalisation of defamation in various jurisdictions, it held inter alia that the right of a person living in a community stops where the rights of others living in that community starts, and that Sections 391-395 of the Penal Code Law bordering on offences of defamation of character, injurious falsehood, printing or engraving such matter (that is, criminal defamation) are against public morality, health and order of society, and the offences if proved, would have injured the rights and well being of a person to his character and reputation, and are therefore, within the ambit of Section 45(1) of the Constitution, and accordingly, constitutional. The purport of this is that, the Supreme Court upheld criminal defamation as an offence under the PCA (and by extension the CCA). It remains an offence under Federal law.
The Rule in Smith v Selwyn
The rule in Smith v Selwyn (1914) 3 KB 98, is to the effect that where an action constitutes a civil wrong and a crime, the criminal aspect is dealt with first. And, while it has been argued that this rule may no longer apply in Nigeria, so that a civil suit can run simultaneously with a criminal one, it could be desirable for the criminal aspect to be initiated first, though there's absolutely nothing that prevents an offended party in an action that constitutes a civil and criminal wrong, from choosing to pursue only the criminal aspect. See the case of Veritas Insurance Co. Ltd v Citi Trust Investments Ltd 1993 3 N.W.L.R. Part 281 Page 349 per Niki Tobi, JSC. Such a Plaintiff, like Chief Afe Babalola, SAN and others allegedly criminally defamed, aren't under any compulsion to institute only civil proceedings against Mr Farotimi, nor are Mr Farotimi and his supporters in a position to choose which proceedings should be instituted against him. Defamation is a Tort, a civil wrong; but, it can also be an offence. Chief Afe Babalola, SAN, is therefore, well within his legal rights to lodge a Complaint to the Police in this matter.
Mr Farotimi's allegations have also tended to undermine and erode the integrity and credibility of the Judiciary, not just as an institution, but one that is held to be the last hope of the common man, and prosecuting such an individual for alleged criminal defamation of the Judiciary would serve the public interest. It is also a matter of criminal contempt 'ex facie curiae' (contempt outside the face of the court) against the Supreme Court and the Judiciary in general, that is, "behaviour that offends or disrespects the authority or dignity of the court". Mind you, I'm not in any way trying to assert that the Judiciary or legal profession is perfect, because it isn't. Like any other institution or profession, we have our bad eggs.
Sections 30 & 31(1) & (2) of the Legal Practitioners Act 2004 (LPA) Rules of Professional Conduct for Legal Practitioners 2023 (RPC) provides inter alia that a Lawyer is an officer of the court and shall not do anything that will adversely affect the administration of justice, and shall always treat the court with respect, dignity and honour; and that where there's a ground for complaint against a judicial officer, the complaint shall be made to the proper authorities, which I imagine would be the Head of the Court where the offending judicial officer sits, and the National Judicial Council. It appears that Mr Farotimi's actions, may have fallen short of the expectations of the RPC in this regard.
Misconceptions
I am surprised that people, including Lawyers can narrowly limit the actions of Mr Dele Farotimi to Lagos. Firstly, the allegations levelled against Mr Farotimi are not stealing a vehicle worth N1 million from a place in Yaba, Lagos, in which case a person so accused of stealing would be charged to the Magistrate Court in Yaba, Lagos or the nearest court within the jurisdiction.
Though Mr Farotimi may be domiciled in Lagos, the book written and self-published in Lagos, it is an offence at large, one that isn't restricted to where the offence may have initially been committed, because everywhere the book is read is where those who may have been maligned in it are injured, and the alleged crime has therefore, been committed. It is also a continuous offence as the book will continue to be read, and a virtual offence, in that it can be argued that the the impact has been felt beyond the shores of Lagos. See the case of Patrick Njovens & Ors v The State (1973) LPELR-2042 (SC) per George Baptist Ayodola Coker, JSC and Mbah v State (2014) LPELR-22729(SC) per Ibrahim Tanko Muhammad, JSC (later CJN), on why prosecution of the matter isn't restricted to Lagos.
Then I have heard people complain about the arrest of Mr Farotimi. That his offence qualifies as a misdemeanour. So? Section 3 of the Administration of Criminal Justice Act 2015 (ACJA) provides that "a suspect or Defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated.....". In Tabik Investment Ltd & Anor v GTB (2011) LPELR-3131(SC) per Aloma Mariam Mukhtar, JSC (later CJN) the Supreme Court held inter alia that when 'shall' is used in respect of a provision of the law, that requirement must be met. Again, ACJA does not differentiate between a felony and misdemeanour; as long as it's an offence, the suspect or Defendant can be arrested, even prior to investigation. While this sounds strange, as investigation should usually precede arrest, this is the position of the law, though it appears to require some tweaking. See Section 35(1)(c), (3) & (4) of the Constitution and Sections 31 & 32 of the Police Act 2020 (PA). The point is that, by virtue of Section 38(1)(a) of the PA, the Police can effect arrest without an order of court or a warrant, unless the law creating the offence provides that a suspect cannot be arrested without a warrant. Furthermore, this talk of the Police inviting people to be arrested for the alleged commission of offences as if they are being invited to attend a birthday party, doesn't appear to be part of any law.
Court Proceedings
However, some have argued that the Police bungled the process when they arrested Mr Farotimi and took him to Ekiti to charge him for criminal defamation under the CCA when like the Criminal Law of Lagos State (CLLS), criminal defamation is no longer an offence under the Criminal Law of Ekiti State (CLES). The question which however, arises, is whether the Ekiti Magistrate Court has the jurisdiction to try an offence that is no longer an offence under the CLES. See Section 36(8) of the Constitution and Aoko v Fagbemi (1960) ANLR 15 Page 400 - a person cannot be punished for doing act that isn't an offence under the law; Madukolu v Nkemdilim 1962 2 SCNLR 341 on jurisdiction.
However, fresh charges have been filed against Mr Farotimi at the FHC Ado Ekiti under Section 24 of the Cybercrimes (Prohibition, Prevention, etc) Act 2015 (CA), since the alleged criminal defamation was also done by means of the Mic On podcast on YouTube. For me, since the alleged offence was also committed in Abuja, FCT, as not only has the book been read there and the Supreme Court is also located there, I would probably have been minded to bring all the charges to the FCT, where criminal defamation has been upheld as a constitutional offence to be tried at the Magistrate Court that has jurisdiction to try misdemeanours, and the cybercrime offences at the FHC, to avoid the confusion that has occurred in respect of criminal defamation in Ekiti. See Aviomoh v C.O.P. & Anor (Supra) and for example, the Criminal Law of Oyo State 2000 under which criminal defamation is an offence.
Bail
However, we must not forget that by virtue of Section 36(1) & (5) of the Constitution, Mr Farotimi is entitled to a fair trial, and also enjoys the presumption of innocence until proven guilty. See INEC v Musa (2003) LPELR-24927(SC) per Niki Tobi JSC on the meaning of fair hearing and Afolalu v State (2010) LPELR-197 (SC) per Aloma Mariam Mukhtar, JSC (later CJN) on the presumption of innocence.
Even though Mr Farotimi has also been charged with offences under the CA, none of the punishments prescribed for his offences exceed three years imprisonment, and Sections 163-165 of ACJA make provisions for bail of such a Defendant. Though the offences Mr Farotimi is charged for are all bailable, the grant of bail is discretionary. See Eye v FRN (2018) LPELR-43599(SC) per Aminu Sanusi, JSC on the factors that the court considers, in exercising its discretion on the grant of bail to an accused person. Mr Farotimi was granted bail yesterday.
Pertinent Questions
Having laid out the matter so far, we must not forget to ask some pertinent questions. Does so-called human rights activism give anybody the right to disparage, disrespect, defame, abuse and bring others, including the Supreme Court, the highest court in the land into disrepute, and by extension, damage and dishonour the whole Judiciary and permanently injure their reputation? No. Such damage can also be irreversible, particularly as what goes on the internet is almost never completely erasable.
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Is activism about boiling an already hot polity, by further bashing an already much maligned Judiciary? No. This affects public order and public safety.
And, beyond that, is activism the licence to not only bring others into odium, opprobrium and hatred, but to turn society against them to such an extent that if they are recognised on the street, citizens may stone them and physically attack them, based on injurious falsehood that may have been disseminated about them, and unsubstantiated allegations levelled against them in the name of freedom of expression? I think not. Certainly, the statements of Mr Dele Farotimi appear to fail the reasonable man's test.
Is freedom of expression guaranteed by Section 39(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) absolute? No. Freedom of expression is restricted by Section 45(1)(a) & (b) of the Constitution which prohibits the invalidation of a law reasonably justifiable in a democratic society inter alia in the interest of public morality, safety, health and order, or for the purpose of protecting the rights and freedom of other persons. See Sections 373-375 of the CCA and Sections 391-395 of the PCA. See Aviomoh v C.O.P. & Anor (Supra).
Conclusion
Activism is about justice; it is not about meting out injustice to others in the quest for justice. And, as officers in the temple of justice, a higher standard is expected of Lawyers, including Mr Farotimi - not only is it the rule of our profession that we must show respect to the court, we are trained to be measured in our utterances, and certainly not make blanket, damaging statements about others without proof/evidence. Such actions may constitute an offence, as has been alleged in Mr Farotimi's case, not only against Chief Afe Babalola, SAN, Lawyers in Emmanuel Chambers, past and present, but the Supreme Court, the Judiciary, and the others mentioned in Mr Farotimi's book, who can also institute criminal/civil proceedings against him.
Of course, the prosecution will have to discharge the criminal burden of proof beyond reasonable doubt to secure any conviction against Mr Farotimi, who can defend himself from the charges by providing evidence to show that his statements are true.
Any right-thinking, self-respecting person must necessarily cherish the reputation they have built for themselves over the years. The cohorts of Mr Farotimi appear to believe that under the guise of activism they can bully their way out of this case, by continuing to instigate the public against the Judiciary - a tactic which has now been escalated to a planned Protest Against the Judiciary today. How much do they themselves, respect the rule of law they profess to uphold? Why not let the law take its course? Certainly, the handling of this case, will be a litmus test for the Judiciary.
