Closing the Barn Gate After the Horse Has Bolted: A Review Of The Sweeping Ex Parte Order Against Dele Farotimi by Justice Kekemeke

[By Dr. Ope Banwo, Attorney and Founder of Naija Lives Matter] READ FULL TEXT AND OTHER ARTICLES ON:

The recent ex parte order issued by the Federal Capital Territory High Court in favor of Chief Afe Babalola, against author and lawyer Dele Farotimi, has become a lightning rod for legal and ethical debate in Nigeria.

This far reaching order of the High Court, which bans further distribution of Farotimi’s book and directs the seizure of all physical and digital copies globally, highlights significant issues in the judicial process, the balance of free speech and reputation, and further exposes the potential misuse of ex parte mechanisms in our judicial system

From a legal standpoint, the sweeping nature of this ex parte order, in my considered opinion, undermines fundamental principles of fairness, judicial restraint, and the proper application of interim reliefs. As a lawyer and advocate for justice, I believe this order reflects serious flaws in its issuance and execution.

1. First lets Consider The Sweeping Nature of the Ex Parte Order

The Federal Capital Territory High Court, presided over by Justice Kekemeke, granted sweeping reliefs that include:

1. An interim injunction prohibiting Dele Farotimi and any associated parties, including 100s of bookstores and platforms such as Amazon, from distributing his book, “Nigeria and Its Criminal Justice System.”

2. A directive for security agencies to seize all copies of the book globally, with compliance affidavits to be filed within 72 hours.

While the ostensible purpose of an ex parte order is to preserve the status quo, this one effectively grants judgment on the substantive matter by ordering actions that irreversibly impact the accused’s rights before he has had a chance to present his defense.

The Major Flaws in the Order

1. Perceived Misuse of the Ex Parte Mechanism In A Defamation Case

Ex parte orders are meant to address urgent situations where irreparable harm is imminent, and waiting for a full hearing could render the court’s intervention ineffective. In this case, the harm claimed—damage to reputation—is neither contingent, urgent nor irreparable. It has already happened. It would make more sense if the book has not yet been published or distributed globally .

Farotimi’s book has already been widely distributed, with over 50,000 copies alleged to have been sold already through more than 100 outlets worldwide. The alleged harm has already occurred, and no ex parte order can reverse it.

Therefore, The judicial intervention here is akin to closing the barn gate after the horse has bolted, rendering the urgency requirement for such an order moot

Furthermore for a court to issue such a wide ranting and impossible-to-comply-with order in our judicial system further opens our judiciary to national and international ridicule. It’s an elementary rule of judicial practice that a court shall not issue an order that is impossible to comply with. The Latin word for it is “Lex non cogit ad impossibilia.” (meaning a judge does not give an order in vain)

How is Chief Babalola or his lawyers  going to recall 50,000 books already in people’s hands and computers all over the world? Are they going to sue Amazon, Barnes and noble and dozens of online bookstores to withdraw what they already sold? And do it in 72 hours or before next court date?

2. The Judge Has Effectively Decided The Case Before the Trial with this Far Reaching Ex Parte Orders

The relief granted in this ex parte order goes far beyond preserving the status quo. By banning the book’s distribution and ordering the seizure of copies, and seizing all the money from the sales, the court has effectively decided the case without a trial while Dele Farotimi is handccuffs inside in an Ekiti Dungeon.

This is a substantive remedy masquerading as an interim measure and it’s so sad to see our judiciary lending itself to this abhorrent practice that even the last 3 Chief Justice of Nigeria have all condemned on several occasions.

Such overreach not only prejudices the defendant but also undermines the principle of due process. A court must be cautious not to issue orders that create a perception of bias or prematurely resolve the dispute before hearing both sides.

3. Practical Impossibility of the Orders from the Judge

The directive to seize copies of the book globally highlights the unrealistic and impractical nature of the order.

Platforms like Amazon and global bookstores operate outside the jurisdiction of Nigerian courts, making enforcement highly unlikely. This aspect of the order further undermines its credibility and exposes it as an overzealous attempt to suppress dissent.

To make matters even more ridiculous the order is asking the 100s of bookstores to swear affidavits of compliance within 3 days . Seriously? How did this judge imagine this time frame is realistic? It’s not evne possible for local bookstores to meet that ridiculous deadline much less international book stores that are 20,000 miles away and need to be served; take time to consider it with their lawyers, and then respond “, if they cared to, since our court has no jurisdiction over them

Did the judge even consider all this or just signed off on the motion papers without any consideration ? It is amazing and shocking to be honest

Conclusion

The sweeping ex parte order granted in favor of Chief Afe Babalola is a troubling example of judicial overreach that undermines due process, chills free speech, and damages public trust in the judiciary. While protecting one’s reputation is a legitimate aim, it must not come at the expense of fundamental rights and democratic principles.

As Nigeria grapples with the challenges of maintaining judicial integrity and fostering a culture of accountability, cases like this serve as a stark reminder of the need for balance, fairness, and restraint. The judiciary must remember that its duty is not only to the powerful but to the principles of justice that sustain the nation’s democracy.

The court’s handling of this case will be remembered as a test of its independence and impartiality. It is my hope, as a lawyer and advocate for justice, that the judiciary rises to this challenge and restores the public’s faith in its integrity.