Is Chief Afe Babalola Contradicting His Own Previous Legal Arguments By Seeking To Prosecute Dele Farotimi For Criminal Libel? _ [ Dr Ope Banwo, Founder, Naija Lives Matter and self-styled Mayor of Fadeyi examines the legal positions on when Criminla libel should be invoked as previously postulated by Chief Babalola himself before his current spat with dele farotimi]
Chief Afe Babalola, one of Nigeria’s most revered legal minds, is currently pursuing criminal libel charges against human rights activist and lawyer Dele Farotimi. The case arises from allegations made in Farotimi’s recently published book, ‘NIGERIA’S CRIMINAL JUSTICE SYSTEM’, where he directly accused Chief Babalola of manipulating the judiciary to secure favorable outcomes in court cases and claimed he has the facts to prove it.
While the charges are serious and the allegations contentious, the decision by Chief Babalola to pursue a criminal prosecution rather than civil libel against him, raises troubling contradictions with Chief Afe Babalola’s own previously stated legal principles and actions.
1. EXAMINING CHIEF BABALOLA’S OWN PREVIOUS LEGAL ARGUMENTS ON CRIMINAL LIBEL
In his own self published article “When False Publications May Amount to Criminal Libel,” (PUBLISHED IN 1999 AT https://www.abuad.edu.ng/when-false-publications-may-amount-to-criminal-libel/), Chief Afe Babalola had laid out a thoughtful framework for determining when criminal libel should be pursued.
In the well received article years ago, Chief Ae Babalola had emphasized several principles:
The Public Interest Test: Criminal defamation should only be pursued when there is a clear public interest, such as a threat to public peace or societal harm.
The Severity Test: The defamatory statement must be so egregious that civil remedies are inadequate.
The Abuse of Judicial Process Test: The criminal justice system should not be used to settle personal disputes or silence critics.
The Preference for Civil Remedies: In most cases, civil defamation suits are the appropriate mechanism for resolving disputes.
In his own words, Babalola argued that “personal squabbles between individuals should not find their way into the criminal docket of any court.”
Chief Afe Babalola in his own article published on his university website (see it here: https://www.abuad.edu.ng/when-false-publications-may-amount-to-criminal-libel/) quoted what the highly respected Lord Coleridge CJ had this to say on public interest; “ There ought to be some public interest concerned, something affecting the Crown or the guardians of the public peace (likely to be broken by the alleged libel), to justify the recourse by a private person to a criminal remedy by way of indictment. If, either by reason of the continued repetition or infamous character of the libel, breach of the peace is likely to ensure, then the l ibeler should be indicted; but, in the absence of any such conditions, a personal squabble between two private individuals ought not to be permitted by grand juries, as indeed, it is not permitted by sound law, to b the subject of a criminal indictment”.
So, in this article I want to ask ‘Is Chief Afe Babalola violating the timeless legal latin maxim “”Nemo potest venire contra factum proprium.” Which loosely translates to “No one can go against their own previous act” or “No one can contradict their own established position.” Though I concede that this maxim is typically applied in the case of estoppel, not libel, I just cant shake the feeling that we are dealing with a violation of the spirit of this legal maxim, even if not a strict legal application of it, in the instant species of a case. SO lets take a look of why i think so:
2. CONTRADICTIONS OF CHIEF BABALOLA’S PREVIOUS POSITONS WITH THE CURRENT CASE
So examining his own self published article, Chief Babalola’s pursuit of criminal libel charges against Dele Farotimi appears to contradict the principles he so forcefully espoused many years ago, namely:
Lack of Public Interest:
In my humble and respectful opinion, The dispute between Farotimi and Babalola is a personal matter, with no evident public interest implications. The accusations, while inflammatory, do not appear to endanger public peace or provoke societal unrest. So why is Chief Afe Babalola nowdeciding ot invoke Criminal prosecution rather than go the normal route of civil law suit?
Disproportionate Use of Criminal Law:
Farotimi’s allegations of judicial corruption—however baseless or valid—are quintessentially matters of reputation. Civil litigation, not criminal prosecution, is the traditional and appropriate forum for addressing such issues. Why must an attack on the reputation of CHief Afe Babalola, evne if he feels were unwarranted now all of a sudden a matter of criminal prosecution contrary ot his own previous arguments as a thoguht leader in our jurisprudence? We hoppe these questions must be asked without us risking being arrested too and taken to Ekiti to face the law.
The Questionable Venue of Ekiti State:
By choosing to file his petition in Ekiti State, Chief Babalola has effectively determined both the forum and the manner in which Farotimi will answer the charges. Ekiti is a state where Babalola is not only an influential figure but also a mentor to some members of the judiciary. He himself in his petiton admitted that with his chambers in Ekiti he has ‘trained and mentored lots of lawyers, judges and SANs’ presumably many still in that state. This choice raises legitimate concerns about whether Farotimi can receive a fair trial. Given that the entire matter—including the alleged defamation, the Supreme Court case, the land dispute, and all involved parties—is rooted in Lagos, the move to Ekiti appears strategically designed to favor the complainant. This is also something that Chief Afe Babalola has spent an illustirous career fighting against. So why abandon the need for transparent fairness for hte defendnts in this case just becasue your are the complainant? This is a bit confusing to me and I say it with profound respect, sir.
Inconsistent Advocacy:
Chief Babalola’s earlier writings strongly discouraged the use of criminal libel as a tool for silencing critics or resolving private disputes. Yet, his actions in this case seem to contradict some of those ideals, undermining the principles he previously championed. Or am I wrong in imagining a double standard here? If so, then my apologies in advance, sir. I have no intention of further adding to your pain at defamation by much younger lawyers. We all just want some clarity since we hold you in the highest esteem based on your past records in developing our jurisprudence in Nigeria
3. A CASE ROOTED IN LAGOS, TRIED IN EKITI
One of the most concerning aspects of this case is the decision to prosecute Farotimi in Ekiti State, a jurisdiction where Chief Babalola wields unparalleled influence. Both Dele Farotimi and Chief Afe Babalola reside in Lagos. The Supreme Court case that allegedly provoked Farotimi’s accusations also took place in Lagos. The land dispute that formed the crux of that case involved litigants who reside in Lagos. Yet, Chief Babalola chose to file his petition for criminal prosecution in Ekiti State—a location where he is not only the most influential lawyer but also a mentor to some judges and a figure of extreme deference, even from the state governor.
This raises the question: Why was Ekiti State chosen as the venue? The decision to remove the case from Lagos, where all key parties and events are situated, to a jurisdiction dominated by Chief Babalola’s influence appears to stack the odds against Farotimi, depriving him of a level playing field. We must respectfully also point this seeming unfairness out, pending when we are educated as to the justifiable reasons for taking the man to the ekiti stornghold of his adversary.
4. A NEED FOR FAIRNESS
While no one disputes Chief Babalola’s right to defend his reputation, [in fact, if truth be told, Dele Faortimi all but dared him to defend his reputation], the methods employed in this case raise serious ethical and procedural concerns .
Farotimi, a vocal but relatively powerless human rights lawyer compared to the legal collosus, faces prosecution in a jurisdiction dominated by his accuser’s influence. This dynamic creates a significant power imbalance, eroding confidence in the fairness of the process. Justice should not only be done but must be seen to have been done is what Chief Afe Babalola and our other heros of the law have taught us over the years. Why abandon that maxim now? why?
While Chief Afe is admittedly not a ‘judge’ in this case, but by having his alleged defamer esconced in a state where he is reverred by not just the citizens but by all areas of the judiciary whom he rightfully has some influence over because of his years in practice and in helping many of them achieve breakthough in law, one must feel like he is being a kind of CONSTRUCTIVE ‘judge’ in his own cause thus violating the spirit, if not the letter, of the timeless latin maxim “Nemo judex in causa sua” which prevents someone from being a judge in his own cause.
Furthermore, the principles outlined by Chief Babalola in his earlier article make clear that criminal defamation should be reserved for the most severe and publicly impactful cases. Applying this standard, it is difficult to justify invoking the criminal law in what is essentially a private dispute.
CONCLUSION
So, with most respect and defence to the legal colossus and real OG of the law, and who has probably forgotten more law than i can ever learn, Chief Afe Babalola’s decision to pursue criminal libel charges against Dele Farotimi in Ekiti State, despite the Lagos-centric nature of the case, undermines the values of fairness and proportionality that he has long advocated. I believe, in all sincerity, that as one of Nigeria’s most respected legal figures, Chief Babalola has a responsibility to lead by example, ensuring that his actions align with the principles of justice and equity.
In the interest of preserving public confidence in the judiciary and the rule of law, it is worth reconsidering whether this case should proceed in its current form—or whether it would be more appropriately resolved through civil litigation in Lagos, where the events in question occurred. While i cannot pretend i do not appreciate the depth of anger of our father in the Law, I sincerely hope our Chief Afe Babalola would reconsider dropping criminal charges and go after Dele Farotimi in civil court OR/and before the nigerian bar disciplinary committee which i consider more appropriate venues to resolve these serious issues affecting his reputation.
Yes, All NIGERIAN LIVES MUST MATTER IN ALL THINGS – whether they live in Ikoyi or in fadeyi side of life.
Ope Banwo
Mayor of Fadeyi
Founder, Naija Lives Matter
