The battle cry of the 1789 French Revolution was liberty, equality and fraternity. At the cusp of that revolution, France was divided into the First Estate, made up of high ranking members of the Church and privileged class;

the Second Estate, comprising the Nobility and lesser privileged class, and the Third Estate, which was the aggregation of peasants in the countryside, as well as the wealthy bourgeoisie merchants in the cities, plus the unprivileged class. The First Estate was answerable only to God, they paid no tax, and their words were law, however unreasonable.

Some commentators have tried to frame the ongoing legal dispute, between a doyen of the legal profession and educationist, Chief Afe Babalola, SAN, and human rights activist and politician, Dele Farotimi, as akin to a fight, between a member of the privileged class, and the unprivileged class, respectively. Because of that framing, majority of Nigerians have extended their sympathy to Farotimi, who is seen as the underdog in the fight. Even with the efforts by Chief Babalola’s legal team to redirect the deluge of sympathy, this column doubts if success has been achieved.

At the beginning, many had thought that it was a government official that came after Farotimi, the widely acclaimed spokesperson of the Labour Party and her presidential candidate, in 2023, Peter Obi, (Okwute). Those who had political and economic grievances against the Tinubu led administration, post-haste took up arms, ready to storm the ‘Bastille’, on the belief that the regime had overreached itself. Piles of press releases, calling for the immediate and unconditional release of the human rights activist, became a tome, before the reason for the arrest was made public.

Alas, it turned out, the fight was between a citizen seeking to protect his reputation from being battered and shattered and another citizen who believed he exercised his liberty to fullest limit. Since no government official was involved, some sheathed their swords, while a significant number refused to be placated. For some, since police was used by the privileged citizen to arrest in Lagos, transport and detain the less privileged person in Ekiti, the hand of government must be involved, one way or another. The argument that both parties are lawyers, and as such belong to the same class does not cut ice, with that trenchant group.

While the argument rages on in the court of public opinion, whether the offence of criminal libel, is still in the statute books of Ekiti State, there is the likelihood, that those asking Chief Babalola to sue for the Tort of Defamation, simpliciter, may well get what they are asking for. While this writer has not read, and does not intend to read Farotimi’s book, the snippets quoted extensively by social media pundits and public commentators, have done enough damages to the sense of propriety.

Taking extreme and conclusive positions, or deductions that may not be beyond mere speculation, is an alchemy I do not want to share with Farotimi. When he is quoted to have written, some of the unprintable words against the integrity of the Supreme Court, Chief Babalola, his firm and other lawyers, as alleged, in cold prints, this writer fears that Farotimi could be defending himself in court for the rest of his life, over plethora of self-inflicted defamatory suits.

If not that Farotimi appears regularly on television where he uses extremely vile words to describe those who hold opposing views from his convictions, before the release of his book, I would have disregarded the quotes ascribed to him, as totally unbecoming. But there the quotes are, and those strenuously defending him, unfortunately spare no sympathy, for the reputation Chief Babalola has spent nearly a double lifetime, by Nigeria’s life span standard, to build. If it was a street urchin that uttered words similar to what was allegedly written by Farotimi, many would have questioned the mental state of the utterer.

There is also the likelihood that Chief Babalola would spend the rest of his life ruing over having anything to do with Farotimi and even the law suit, the casus belli of the entire imbroglio. According to public record, in the petition by Chief Babalola, his firm claimed their client undermined them over their fees and now an opposing counsel, who lost the legal battle, had chosen the slippery court of public opinion to exert his pound of flesh. And for the most loquacious traducers of Chief Babalola, including lawyers, the old man should be hanged for all that is wrong with our criminal justice system. I don’t agree.

In the Law of Tort by Ese Malemi, Libel is defined as a defamatory statement made in a visible or permanent form, such as written or printed statements, for instance in books, newspapers, notes … and so forth. Clearly, in criminal law, defamation is also a crime, and it is outlawed, because “it tends to incite breaches of peace.” In Beauharnais v Illinois 343 US 250, referenced by Malemi, the defendant had called upon the “one million self-respecting white people in Chicago to unite …” so as to halt the invasion of white neighbourhoods by Negroes.

According to the majority decision of the U.S. Supreme Court, such talk played “significant part” in creating tensions between the races, and on some occasion had resulted in race riots. The court held that such libellous statements were not “within the area of constitutionally protected speech.” Whether Farotimi, who allegedly published defamatory statements for which he has been charged for criminal libel amongst other charges, meet the threshold of the necessary ingredients of a criminal libel, will be determined by the courts. So, also is whether the courts have the jurisdiction to hear the suits.

Interestingly, there are many defences to a claim of defamation. They include justification or truth. If the words authored by Farotimi against the reputation of Chief Babalola are justifiable or true, he will be set free, and may even take out an action for malicious prosecution against the legal giant. If he raises the defence of fair comment, and the court agrees with him, Farotimi will be a free man. Of course there are other potential defence which can set him free, from the vice grip, of one of the best legal minds in the country, even though age may have caught up with him.

For most laymen, in the court of public opinion, Chief Babalola falls within the rank of the privileged Nigerians, who like the First Estate of the pre-revolution France, are the casus belli of all the problems in our country. If they can have their way, Farotimi, should have his liberty immediately so he can luxuriate in the touted proceeds from the book that allegedly decapitated Chief Babalola’s reputation.

The Nation