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RE FEMI FANI-KAYODE : A BIGOTED, ANTI-IGBO TRIBALIST

By Akin Ajose-Adeogun
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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)