DELE FAROTIMI: Original Sin

Make no mistake… it is equally important that decisions of court are not only made in accordance with the law, but that there is equally a determination to ensure that they are not only enforced but obeyed without any form of interference.¹

When THISDAY Newspaper carried those words on the 21st of February, 2023, the writer could not have known that they would have bearing in the questionable remand of an activist lawyer at Afao Road in Ado Ekiti in December of the following year, nor did anyone seem to have seen at the time how they relate to a past cover-up and a future exposé.

Make no mistake, those words were penned in response to President Buhari’s “variation of a Supreme Court order” in the matter of the new Naira notes. The Supreme Court (hereafter referred to as SC) had held that the Central Bank of Nigeria and the Federal Government maintain status quo on the tenability of the old Naira notes pending the determination of a suit before it but President Buhari had given a national broadcast the very next day that the old ₦500 and ₦1000 continued to be held at owner’s risk! This was months before the old national anthem became new, and the new national anthem became old, and years after Baba had sanctioned the violation of the residence of some officers of the Supreme Court and the confiscation of their stash to general applause. (That applause was reversed this year.²) We tend to forget that when a big matter floors one, the smaller ones take a climb! More on this in Part III of this series where we will examine the emancipation of the SC and its consequent susceptibility to vulnerabilities.

That THISDAY writer had asked, Can the President, by Executive Order, Vary a Supreme Court Decision? He answered himself No, but what he seems to have done is use an executive order to make the Supreme Court order or ruling become ineffective…¹ What he could never have known at the time was that the legendary Aare Afe Babalola SAN CON would write the following year to the Ekiti State Commissioner of Police that the Lagos State Government (LASG) “compromised” a Supreme Court judgement two years before Buhari: …The Lagos State Government invited us for several meetings with respect to compromising the judgement of the Supreme Court. The said judgement was eventually compromised…³ This he wrote under the heading INTERVENTION BY LAGOS STATE GOVERNMENT and that allegation was dwarfed unfortunately by the allegation of criminal defamation against Dele Farotimi Esq.

For some reason, nobody screamed that in the 9th-November-2024 letter were words that should never be written about the stance of a state government on the decision of the highest court of the land. More painful however is the continued stance of the accused Solicitor General of Lagos State that he compromised the judgement of the supreme court and ‘would do the same should such situation arise again’⁴. No remorse because no lesson was learnt. At the same press conference he mentioned that he, Mr Lawal Pedro SAN, had gone to Baba (ten years earlier) to explain to him his role in resolution of the matter. Despite all the explanation and adulation to ‘his father’, Baba continued to describe the act as a COMPROMISE of the Supreme Court judgement.

Baba is a lawyer of some 65 years experience who chooses, or is expected to choose, his words carefully. Baba in that same letter went on to tell us that by the time the SC would give judgment, the land in dispute was already developed into “several residential estates… among which were Pinnock Estate, Beach Resort, NICON Estate, Friends’ Colony Estate and Victory Park Estate, etc.”³ Mr Solicitor General on the other hand told us that the LASG had continued to issue CofOs, Governor’s Consents, Building Plan Approvals, on a land that was originally acquired on the basis of “overriding public interest” and subsequently became the subject of numerous litigations⁵ even involving the LASG itself (Suit No. ID/1883/89: Alhaji Fatai Ajetunmobi & Ors v the Attorney General of Lagos State) with the compulsory acquisition revoked resulting in a settlement offer⁶ — making the land a cautionary asset. But because officers of the LASG did not do their due diligence, they did not discover that some of the land in question had been rightfully disposed to the Eletu who then took the Ojomu all the way to the SC as a direct fallout of the LASG settlement. Without any hint of blame, Mr Pedro told us what would have happened had he not stepped in was that ‘the whole of Osapa London would have been bulldozed and nobody would say anything’.⁴ I am forced to ask, Should anybody have said anything when there is an explicit SC judgment to enforce?

To answer, the question comes back to us: Which authority can vary, overrule, or summarily compromise a SC judgement? In an attempt to answer, I am compelled to repeat my opening statement with added emphasis: Make no mistake… it is equally important that decisions of court are not only made in accordance with the law, but that there is equally a determination to ensure that they are not only enforced but obeyed WITHOUT A-N-Y form of interference or substitution. One interference usually leads to another which was why I went back (or is it forward?) to the Onnoghen saga of 2016. Our SC is supreme in name, but is otherwise at the mercy of lesser entities: The Eletu went to the SC knowing fully well that some things were wrong. The SC sided with them knowing fully well that some things were wrong, and proceeded to give judgement knowing that two sets of people should be punished IF we desire to uphold the sanctity of the courts. The two sets of people circumvented that punishment successfully and nobody said anything — EXCEPT DELE FAROTIMI Esq. who insists they conspired to compromise the punishment.

Let me explain:

LASG took over some people’s land “in view of overriding public interest”⁵. Somehow that land ended up being bought by individuals and corporate bodies with the same LASG issuing Certificates of Occupancy, etc⁴, on land that was the subject of numerous litigations, once involving the LASG itself! People were buying and developing acquired land knowing the risks since there was at least one case in court, or, ignoring the risks by not doing thorough investigation on the history of the land. Having bought land myself a few times, I cannot imagine what was in the land agreements as to the History of Ownership: Whereas, the land originally belonged to the ADELEYE family from time immemorial and has stayed in the family by way of inheritance from ancestral times, they sold it to Lagbaja on so-so date, who then sold it to Tamedu, and it eventually got to Lakasegbe who for a consideration of ₦Xm is willing to dispose the land. If people feared the sanctity of court judgements, and by that I mean, if people did not imagine they can get away with anything in this country, then they would have taken pause for the matter to reach its logical conclusion. But it would seem that there was always a backup plan, what I choose to call the “Farotimi Conspiracy” in honour of the person who summoned courage to challenge the ignominious status quo.

The SC had set out to punish in one master stroke the irreverent land speculators (who could not wait for final judgement in a matter under appeal) and the LASG (whose errant officials feigned ignorance or played along without circumspection) but the same LASG short-circuited the SC’s intention by boycotting, or as Baba chose to put it, compromising a SC judgement: The law that says you cannot acquire land in the name of public interest and let it end up in private hands, also said whoever owns the land owns what is on it and under it and can choose to occupy, abandon or demolish his property. We cannot cherry pick the part of our laws to follow and to not follow. What would have happened is that the buyers of the land would have lost their properties to demolition or alien occupation (or, more probably, negotiate with the “new” owners of the land for a reprieve), and would in turn sue the Ojomu or whoever sold the land to them while the matter was in court, and (it would seem) the LASG for issuing CofO and Governor’s Consent on a disputed land, and everybody involved would have been punished for their willful wrongdoing with adequate lessons given for progeny; and of course “nobody would have said anything”⁴! It was therefore to avoid being held responsible for their scandal — or to shield paying principalities as Dele Farotimi alleged — that they devised what they now call a COMPROMISE of the SC judgement so that heads would not roll as they should.

Attorney general of LASG on Dele Farotimi and the Eletu case

It should be pointed out at this juncture that the Eletu did not just come from the SC and move to demolish Osapa London. No, they understood the law enough to stop by Justice Atilade’s court to obtain a writ of possession based on the SC judgment, a writ that was subsequently quashed by ex parte order on the basis of ‘documentary irregularities’⁷ — another scandal wept underneath the carpet by the compromise of the SC so nobody could say anything. I listened to the Solicitor General and missed where he said LASG approached the courts to sanction ‘a substitution of substance over form’ AND LASG constituted a panel to investigate how acquired land under repeated litigation ended up in private estates, and to recommend punitive measures as well as preventive strategies for the future. I missed it because whatever they did, their own summary is as they put it, and to say they COMPROMISED the SC judgement should leave a bad taste in the mouth of right-thinking people. You cannot have been found wanting in your duty, be sanctioned by the SC, AND then be gallivanting around like you did nothing wrong with a promise to do the same again. But this is Nigeria where if you know the right people you can get away with just about anything; and this is the crux of Dele Farotimi’s Nigeria And Its Criminal Justice System.

To be sure that LASG is the guilty causative rat in this imbroglio, that LASG in fact committed the ORIGINAL SIN, let us go back to that auspicious THISDAY article as it quotes precedent on who cannot vary, adjust, or compromise, the order of court:

Perhaps, we should remind ourselves of the locus classicus on this subject, which was best illustrated in Governor of Lagos State v Ojukwu (1986) 1 NWLR (Pt. 18) Page 622.

The Court of Appeal had earlier granted an ex parte application of an interim injunction to stop the ejection of Chief Ojukwu, pending the determination of the motion on notice. While the case was still pending in Court, the Lagos State Government without an order of court forcibly ejected Chief Ojukwu from the property in dispute. On application to the Court of Appeal, the Court gave an order of mandatory injunction restoring Chief Ojukwu to his residence at No. 29 Queens Drive, Ikoyi, Lagos. The Lagos State Government and the Commissioner of Police, Lagos Command, without carrying out the order of the Court of Appeal to restore Chief Ojukwu into his house, sought an order staying the execution of the decision of the Court of Appeal, pending the determination of the appeal in the Supreme Court.

The Supreme Court held per Oputa J.S.C. (dismissing the application) thus:

“(i) It is a very serious matter for anyone to flout a positive order of a Court, and proceed to insult the Court further by seeking a remedy in a higher Court while still in contempt of the lower Court.

(ii) It is more serious contempt, when the act of flouting the order of the Court is by the Executive.

(iii) Once the Court is seized of a matter, no party has a right to take the matter into his own hands.

(iv) To use force to effect an act, and while under the Marshall of that force, seek the court’s equity, is an attempt to infuse timidity into Court, and operate a sabotage of the cherished rule of law.

(v) The government should be conducted within the framework of recognised rules and principles which restrict discretionary power.

(vi) Thwat disputes as to the legality of acts of government, are to be decided by Judges who are wholly independent of the Executive.

(vii) The Judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the Government and all in Nigeria.”

Do you see any similarities? LASG, occupancy matters, impatience vis-a-vis intolerance of due process, impunity, etc. The underlying fact is that while a matter is still in the judiciary complex, going from one court to the next, all parties need to calm down, stay hands, and see which way the pendulum will swing — unless of course they plan to compromise the final judgement. That fact was reiterated in 1986. By 2013/4 LASG had mastered the art of “infusing timidity into court” least of all the SC and “operating a sabotage of the cherished rule of law” — and I say this based on the quiet that the revelation of LASG compromising a SC judgement has been welcomed with and the ‘I will do it again’ stance of Mr Pedro. It goes without saying that this assertion is only my opinion which can be corrected by further clarification from the LASG and punitive measures to erring officials…

I know that times have changed

I know that we now tolerate evil

I know that we rationalise wrongdoing

I know that the lines between wrong and right have been eroded and now we judge matters on practicality and not morality, substance over form. But when we celebrate the COMPROMISE of SC judgements we open the door to anarchy!

Let us consider an example:

The SC once gave a judgment that the 4th place holder in a gubernatorial election was in fact the winner. Because that judgement supported the power brokers, it was enforced. Based on this recent revelation we now know that if the judgement did not favour them they could — I am careful not to say would, I dare not — they could have COMPROMISED it without repercussion. I say this because it turned out that that particular SC judgment was based on flawed numbers (where the number of votes cast exceeded the total number of accredited votes in the election⁸) and the SC was approached to admit error and recant. The SC refused to compromise its earlier judgement. Should the power brokers have been at the receiving end of that error, would they not have compromised the judgement of the SC with their executive privileges leading invariably to a state of anarchy? We do not know for sure. But feel free to ask, how many decisions of the courts have been “compromised” either before or after judgement was pronounced? Dele Farotimi claims to know, I do NOT.

What I do know however is this: Back when the courts were revered, a judgement to remove a sitting governor would not be “compromised” be it Anambra or Oyo to prevent rioting, mass casualty, and ‘mass displacement of persons and business interests’ — or to prioritise substance over form. Now we “compromise”, or ‘adjust’ I believe should have been the word, SC judgment so that justice will not take its most evident natural course; yet what is wrong is wrong! We rather need to adjust our view of the courts and their perceived weakness. Justice not only needs to be done, it also needs to be SEEN TO HAVE BEEN DONE!

Needless to say, court judgment CANNOT favour everybody, and should NOT favour the majority or the stronger, richer, or more influential party, or even the government. No, court judgement should follow agreed law and favour whoever is RIGHT even if it is a neophyte and even if the stronger party had made daring preparations to compromise judgement. We cannot choose which constitutional provision to follow or which judgment to compromise! When we begin to compromise judgement because of “the common good” or because of the people in power, when we begin to choose which law to follow and which to not, we will end up pardoning all crimes and releasing unreformed criminals to the detriment of society and our common doom! The SC had been right when it said in 1986 that it is in all our interest, even the government’s, that the judiciary not shirk its responsibility to maintain the rule of law! Our civilisation would never have come this far if our ancestors rationalised evil. In fact, the slave trade and our colonisation were the results of our shifting stance on right and wrong. May we not be the final generation of our lineage. Amen.

The THISDAY writer summarises our discourse: The dignity, integrity and authority of the Courts, are the pillars that underpin our legal system and the rule of law. Any judicial system that does not uphold standards or maintain its integrity, cannot hold or retain public trust. Disputes as to the legality of the acts of government are to be decided by Judges who are wholly independent of the Executive,¹ and not by the executive compromising SC judgements to prevent mass displacement, to cover up a scandal, to reward loyalists with reprieve, etc!

But why is the Supreme Court so vulnerable? Watch out for the third part of this series!

ADELEYE AO

20 Dec 2024

adelayok@gmail.com