Re Femi Fani-Kayode: A Bigoted, Anti-Igbo Tribalist

A GREEK proverb warns: “don’t hear one and judge two”. This sensible aphorism  would appear to have been ignored by Mr. Femi Aribisala in his article of August  21, 2013, in which he bitterly assailed the contribution, character and person  of the late Chief R.A. Fani-Kayode in the following terms : “….Like father,  like son: That was 48 years ago.

Today, Femi Fani-Kayode, the 53-year-old son of  ‘Fani-Power,’ continues in the mischievous tradition of his father: throwing  dangerous missiles at the innocent.’ ” Furthermore, the said Mr. Aribisala also  made what I thought were wildly inaccurate and dangerous statements about the  true nature of Nigeria’s federalism.

I first had the opportunity of meeting the late Chief R.A. Fani-Kayode when I  joined the law firm of Fani-Kayode and Sowemimo sometime in 1990. I found him to  be a man of elegance and great charm. Though, he was in semi-retirement and  hardly ventured out to the law courts at the time I got to know him, it was,  nevertheless, obvious that he possessed an acute analytical mind, a profound  knowledge of the law and was very meticulousness in his approach to solving a  legal issue.

This was, without doubt, the consequence of an extremely fine  intellect which had been refined by a first-rate legal education. I thought,  however, that this superlative approach was undermined somewhat by the  belligerence and biting sarcasm of his forensic style. In the discharge of his  professional duties to his clients, he displayed a high degree of commitment,  determination and discipline, which he also expected from his juniors, to who he  made himself very accessible.

A legal scholar of Downing College, Cambridge University (like his illustrious  father before him), he took his M.A. in 1945 – barely missing a first, he was  third on the list in the law tripos – and the LL.B. (which was a masters degree  in law at Cambridge), in 1946. A prizeman of the Middle Temple, he was called to  the English Bar in 1947. He rapidly rose to become one of the great commanding  figures at the Nigerian Bar by 1960.

His contributions to the development of Nigerian law, like those of his peers such as the late Chief Oladipo Moore, the late Mr. Justice J.I.C. Taylor, the  late Chief Bode Thomas, the late Ladipo Odunsi – whom he informed me was the  lawyer he most admired and sought to emulate -  the late Chief F.R.A. Williams,  the late Chief H.O. Davies, the late Mr. Justice G.B.A. Coker, etc., was
monumental as can be gleaned from our law reports from the 1940s through to the  1960s. A few of such cases in which he appeared as leading counsel and espoused  legal principles which contributed to the development of Nigerian case law are
some of the following:

1. Olaoye v. Mandilas and Another (1949) 19 N.L.R. 59, where it was established  that letters alleged to constitute a notice to quit, and therefore, proof of determination of a tenancy, where ineffective without proof of the nature of the
tenancy.

2. Coker v. Coker (1956) I F.S.C. 16, decided that an application seeking directions as to the persons entitled to participate in the distribution of an estate can be made by a motion.

3. Amaka v. Lieutenant Governor of Western Region (1956) I F.S.C. 57, decided that the prerogative order of certiorari only lies to remove judicial acts and not administrative or executive acts.

4. T.A. Odutola v. Samuel (1956) I F.S.C. 76, decided that statutory notices are not required where there is no relationship of landlord and tenant between the parties either at common Law or under statute.

5. Adeseye v. Taiwo (1956) I F.S.C. 84, decided that under Yoruba native law and custom, the real property of a deceased person who died leaving children surviving him, goes to those children to the exclusion of other blood relations.

6. Fatoyinbo v. Williams (1956) I. F.S.C. 87, sets out the principles on which an appellate court acts in respect of an appeal on facts.

7. Idiemo v. Inspector-General of Police (1957) 2 F.S.C. 26, decided that  evidence adduced to corroborate the evidence of an accomplice must implicate the accused in the crime charged if it is to amount to corroboration in law.

8. Onitolo v. Bello (1958) 3 F.S.C. 53, decided that in determining what a suit is instituted for, it is only necessary to look at the writ and statement of claim, but not at the defence or any other pleadings.

9. Alaye of Efon v. Fasan (1958) 3 F.S.C., decided that an order made on an application to set aside an order striking out a cause for the non-appearance of the plaintiff is an interlocutory order.

10. Odunsi v. Ojora and Others (1961) I A.N.L.R. 296, decided that under Lagos native law and custom, once a White Cap Chief has been capped by the Oba, he acquires the exclusive right, subject to the usual consents, to manage and dispose of family property; it was also decided that native law and custom are questions of fact in an action in the High Court and that, therefore, findings in earlier cases are not binding as precedents.

11. Bale Adedire and Others v. The Caretaker Committee of the Ife Divisional Council and Another (1963) I A.N.L.R. 38, decided that equity would not allow a party who is in a quasi-fiduciary position to put himself in a situation in which his interest as a shareholder would, or might, be in possible conflict with that duty.

12. Johnson and Another v. Maja and Others (1951) 13 W.A.C.A. 290, decided that the onus of proof is on the party that propounds a will; this onus is discharged by establishing by evidence that prima facie the will is valid. The onus of
proof then shifts to the party who challenges its validity; and they are required to substantiate by evidence the allegations they have made. The decision must ultimately depend upon a consideration of the value of all the
evidence given by both sides.

13. Service Press Limited v. Azikiwe (1951) 13 W.A.C.A. 301, decided that the plaintiff in an action for libel must prove that he was the person libelled.

14. Oyekan v. Adele (1952) 14 W.A.C.A. 209 defined the legal status of royal estates.

15. Faloye v. Olaniyan (1954) 14 W.A.C.A. 608, decided that the nature of an accident can raise a presumption of negligence in the absence of any explanation.

16. Olowu v. Desalu (1955) 14 W.A.C.A. 662, is authority that under native law and custom, a family member cannot mortgage his own share of family property without the concurrence of other family members.

17. Zik Enterprises Limited v. Awolowo (1955) 14 W.A.C.A. 696, decided that the language employed in a libellous article could support the innuendoes alleged; furthermore, it was held that the relevant circumstance may entitle reasonable men to understand an alleged libellous article in the defamatory sense alleged by a plaintiff.

18. Khalil v. Mastronikolis (1949) 12 W.A.C.A. 462, is a case of some importance in commercial law.

His abilities were highly regarded by two of Nigeria’s first judges early in his career. Mr. Justice Rhodes, in delivering judgment in Bolajoko and Another v. Layeni (1950) 19 N.L.R. 99, said “Mr. Kayode, who did not file this amazing statement of defence and could, in my opinion, not have done so, informed me that he was only instructed by the defendant the previous day. However, I must say here, that he did his best as is expected of counsel under such a circumstance.” Sir Olumuyiwa Jibowu, desiring to take him out of politics, had offered him an appointment to the High Court Bench in 1957.

In recognition of his abilities, Chief Fani-Kayode was conferred with the rank of Queen’s Counsel in August, 1960, making him the third Nigerian to be so honoured -  Chiefs H.O. Davies and F.R.A. Williams had earlier taken silk in 1958.

While the late Chief R.A. Fani-Kayode’s legal attainments are generally regarded as incontrovertible, his political career has been the subject of some controversy. His political career can be divided into two phases: First, the period between 1954, when he first entered Parliament, and 1959, when he, as official A.G. candidate for Ife, lost his seat to the late Chief Michael Omisade, who, though he ran as an independent, had the support of the then Ooni of Ife, the late Sir Adesoji Aderemi, who, ironically, was an inveterate A.G. supporter. Sir Adesoji was at this time involved in a bitter feud with the late Chief Fani-Kayode who was also the Chairman of the Ife District Council. The quarrel arose as a result of differences over the running of the affairs in the District. Till his death, Chief Fani-Kayode believed that Chief Awolowo betrayed him and covertly worked to ensure that he lost to Omisade. Prior to this, there had been what was primarily a personality clash between both men. From this clash arose Chief Fani-Kayode’s
bitter resentment of Chief Awolowo and the A.G.; it also partially explained his political conduct from 1960.

In this period, Chief Fani-Kayode contributed immensely to the organisation and expansion of the A.G. into other regions, and the forging of its political alliances, particularly, in the then Benue and Plateau Provinces of the Northern Region. His work, and that of others, assisted in transforming the A.G. into a powerful nationalist movement which played a central role in the struggle for
independence.

At this material period, he was idealistic, a nationalist and a progressive who emphasised militant black racial pride (which culminated in the publication of his book “Blackism” in 1960), which pre-dated the Black Power Movement of the 1960s in the U.S.A. During this period, he also nurtured the Youth Wing of the A.G., which he also moulded into a militant organisation. He was arrested at least once and arraigned before Magistrate F.O. Lucas on account of the violent activities of some members of this organisation who took direct action against British businesses. He was also the Assistant Federal Secretary of the A.G., and in that respect played a pivotal role, with the Federal Secretary, the late Chief Ayo Rosiji, in the organisation and administration of the A.G.

He, along with Chiefs Awolowo, S.O. Ighodaro, E.O. Eyo, Adeyemi Lawson and S.G. Ikoku, represented the A.G. at the 1957 London Constitutional Conference. This Conference was mainly concerned with the revision of the 1954 Constitution.

Amongst their major achievements at this conference were the following:

1.The granting of self-government to Western Nigeria.

2.The increase in the membership of the House of Representatives and the introduction of direct elections on the same basis nationally.

3.The creation of the office of a federal prime minister.

4.The referral of the issue of the creation of more regions and minority rights to a special commission.

Chief Fani-Kayode also represented the A.G. as its counsel at the proceedings of the Minorities Commission, headed by Sir Henry Willink, between 1957 and 1958.

He, along with Chief F.R.A. Williams, Mr. Justice Fatayi Williams and Chief T.A.B. Oki, representing the government of Western Nigeria, employed their considerable legal abilities at the various sittings of the Commission around the country, as they vainly sought – in the face of narrow-minded and selfish opposition by the N.P.C. and N.C.N.C., which was abetted by the hostility of the
 

British colonial authorities – to argue the government of Western Nigeria and the Action Group’s brief, which advocated the creation of more regions, in order to grant the right of self-determination to the Minority ethnic nationalities; to protect Minority rights and preserve the integrity of the ethnic nationalities; and to achieve the creation of an authentic federation where one of the Regions (i.e. the Northern Region) would not be larger in area and population than the others put together, in a cynical attempt to ensure that that Region could thereby bend the federal government to its will and thus dominate the entire country in perpetuity. This enlightened brief which sought to ensure an equitable and suitable form of political association for a Nigeria of mutually distrustful and antagonistic ethnic nationalities with often divergent aspirations and interests, would, without doubt, have secured for us a finer quality of national life and prevented the past and present tragedies which continues to afflict this nation on account of the deliberate failure to address the “ethnic nationalities question.” The valiant attempt by Chief Fani-Kayode and his colleagues pre-dated the present struggle – by the Resource Control Movement and those clamouring for the creation of an authentic federation – to re-negotiate the terms of our association by about 42 years.

A fitting culmination to his political career in this period was the singular honour that was bestowed on him when he was selected to move in 1958, on the floor of the House of Representatives, the resolution which formally demanded Independence for Nigeria in 1960. This was the resolution to which the British government was favourably disposed and thus acceded to. Chief Enahoro is often wrongly assumed to have moved this motion; his own motion for self-government in 1956 was, in fact, defeated by the opposition of the Northern People’s Congress.

Chief Akintola’s 1957 motion for independence in 1959, was, like Chief Enahoro’s,  unsuccessful because the British government refused to accede to it.

The second phase of Chief Fani-Kayode’s political career commenced in 1960, when he entered the Western Nigeria legislature in August, 1960, as a member of the N.C.N.C. This phase, which lasted till the close of his political career which ended with annulment of the 1993 Presidential election results, presents greater difficulty than the pre-independence phase, and, it must be conceded, is not as glorious.

However, it started well enough when within a few months he succeeded the late Chief Osadebay as the Leader of the Opposition in the Western Nigeria legislature in November, 1960, even though, he had just joined the N.C.N.C. a few months before. This appointment was obviously in recognition of his effectiveness as a legislator and political leader. Within a short period, his dynamism and strong leadership revived the Western wing of the N.C.N.C. and restored their faltering morale. In 1962, when the pro-Awolowo faction of the A.G. sought to remove Chief Akintola as Premier, he saw this as an opportunity to bring the N.C.N.C. into the government of Western Nigeria and thus came to the assistance of the smaller embattled pro-Akintola faction of the A.G. by allying the Western wing of the N.C.N.C. to them. When the pro-Awolowo faction sought, in May, 1962, to remove Chief Akintola by means, which at the time, were legally ambiguous and had no constitutional precedent, the N.C.N.C. legislators joined the pro-Akintola A.G. legislators to forestall in the legislative chamber what appeared to them to be an unconstitutional method of removing the Premier, particularly as Chief Akintola had earlier filed a lawsuit. A vindictive, intolerant, paranoid and partisan federal government, seeing an opportunity to break the back of their bogey, the pro-Awolowo faction, rushed in with indecent haste and doubtful constitutional legality to impose a state of emergency in Western Nigeria. When the so-called emergency ended in January, 1963, Chief Akintola was asked by the federal government to form a government without the benefit of a new election which would have decided once and for all which faction really commanded a majority in the legislature. When I took Chief Fani-Kayode up on this, he informed me that as of January, 1963, when a coalition government of the pro-Akintola faction and the N.C.N.C. was formed, that alliance commanded a majority in the legislature. It is difficult to accept this as neither a vote of confidence in the Akintola government nor new regional elections were ever held.

It may be recalled , however, that Chief Akintola had pre-emptively challenged his attempted dismissal when he filed a lawsuit in May, 1962. He was successful at the Federal Supreme Court, which then occupied the intermediate position the Court of Appeal presently occupies in the judicial hierarchy. The pro-Awolowo faction appealed to the Judicial Committee of the Privy Council, which was then the final Court of Appeal for Nigeria.

A powerful Board, which included some of England’s finest jurists such as Lords Radcliffe, Devlin and Guest, held that Chief Akintola had been lawfully dismissed, as the novel procedure adopted by the pro-Awolowo faction was constitutional. It must be conceded that it was a failure of statesmanship on the part of Chiefs Akintola and Fani-Kayode that they did not immediately resign at this point, for their government had by that decision become illegal. Of course, the Balewa-led coalition government of the N.P.C. and N.C.N.C. must also even take a greater portion of the blame for committing the constitutional
abomination of nullifying this judgment by passing a law, which had retrospective effect from October 1, 1960, abolishing appeals to the Privy Council. This was done in order to sustain their allies in power. This singular action destroyed parliamentary democracy in the West, and subsequently, in Nigeria.

The primary motive which informed the actions of Chiefs Akintola and Fani-Kayode and their associates was the desire to take the Yoruba out of the cul-de-sac they believed that Chief Awolowo’s rigidity had led them into. Both men had in 1959 evinced a preference for an alliance with N.P.C. in order to prevent the political isolation of the Yoruba. Consequently, they also believed in reaching a consensus with the N.P.C. in order to establish a working relationship with them.

This involved refraining from taking actions that the North might consider inimical to its interests -  e.g. they wanted to put an end to the political activities of the A.G. in the North and thereby transform the party into a regional party.

Both men and their associates felt that as a result of the Yoruba’s political isolation in opposition, some chauvinistic Igbo leaders had seized the opportunity to completely efface the Yoruba from the public services, while at the same time establishing Igbo hegemony in the country.

The pro-Akintola faction was rabidly anti-Igbo on account of this. However, I can personally testify that Chief R. A. Fani-Kayode never harboured any ethnic prejudice and was genuinely perplexed by those who did. Nevertheless, the Western wing that he led pulled out of the N.C.N.C., as they felt that the party was no longer catering for Yoruba interests.

They thus merged with the pro-Akintola faction of the A.G. to form the N.N.D.P., which then completely out-maneuvered the N.C.N.C. and became the preferred partner of the N.P.C. The N.N.D.P. thereafter unashamedly embarked on measures designed to cater for legitimate Yoruba interests. In this sense, they were also Yoruba nationalists in no less a degree as those in the pro-Awolowo faction.

Whilst their point of view might have made much sense, their continued stay in office from 1963 was, in my opinion, unacceptable. This, I think, was the major error of Chief Fani Kayode’s political career.

It is interesting to note that though the political philosophy that brought him into alliance with the North continued to influence him through out his political career, the annulment of the June 12, 1993, presidential elections – which he publicly fought against – provoked him to inform me, when I saw him for the last time, that the present crop of Northern leaders have lost that spirit of accommodation that Balewa and
the Sardauna – who he both had an abiding affection for – had.

Because the political career of the late Chief R.A. Fani-Kayode had its glorious moments as well as its low points, like that of many men, any analysis of him ought to take a broad survey and not a selective one, as Femi Aribisala did, seeing only errors, whilst ignoring his positive achievements which do not oblige his pre-conceived prejudice.

It is only in this way that the public can get a full measure of the man and draw an informed conclusion. But then, I have never found, in all my years, that criticism is ever inhibited by ignorance.

Aribisala’s contention that “….The system of government in Nigeria is modeled after that of the United States. In the U.S., Hilary Clinton is a native of Illinois. Nevertheless, in 2000 she contested for election as Senator in New York and won. She was eligible to run for the seat simply because she and her husband moved to New York and lived there for only one year,” displays an appalling ignorance of Nigeria’s history. 

Nigeria’s historical evolution is closer to that of the former Yugoslavia, rather than the U.S.A., in the sense that Nigeria is a country of many submerged nations that have existed for centuries.

It would be extremely dangerous to gloss over this fact, as Yugoslavians found out to their cost  :  in spite of the fact that Yugoslavia (the most apt comparison to the Nigerian federation) was created at the Versailles peace conference of 1919, the ancient enemities that had endured for centuries (the Catholic Croats and Orthodox Serbs loathe each other, and both despise the Bosnian Muslims) in the end proved too strong for the ethnically diverse ragbag conjured up by idealistic and well meaning, but impractical, statesmen at the end of the First World War.

The minority ethnic nationalities, having fought so hard to secure a place in the sun [far from the dibilitating shadows of larger groups], only began having states of their own from 1967.

To now suggest to them, forty-six years later, as Aribisala appears to be doing, that they must share their right to determine their destinies with the majority ethnic nationalities (many of who already have several states they can call their own) who happen to have settled in their midst (and who may well come to exceed them in numbers, as Aribisala himself states) is the height of political insensitivity to the interests, plight, and clamour of the minority ethnic nationalities (as encapsulated by the ruthless exploitation of the resources of the Niger Delta); ignorance of, and disregard for, our historical evolution; and a sure recipe for a conflict that could [in the face of our population explosion and dwindling resources to share]  well shake the West African sub-region to its very foundation.

(Mr. Akin Ajose-Adeogun is a Lagos-based legal practitioner and a historian)