JUSTICE KESSINGTON VERSUS AFE BABALOLA SAN: A TALE OF THE MOST CONTROVERSIAL JUDICIAL DIALOGUE
By Toheeb Mustapha Babalola.
Happy new month, ladies and gentlemen. I welcome you to another monthly edition of the Law History Series which is aimed at promoting and unearthing the history, unknown facts and celebrating the heroes of our beloved legal profession.
In this edition, we will be discussing an infamous encounter between the legendary Afe Babalola SAN and Justice Kessington in one of the cases the learned Silk handled on behalf of Leventis Limited.
Chief Afe Babalola was a lawyer for Leventis Limited. At that time, he was having retainership with the company. Because of the depression in the economy, the company decided to retrench about 300 of its employees. The affected employees were given letters of termination and their entitlements as provided by each employee’s terms of service. The retrenched workers rushed to court and filed an ex-parte application for an order restraining the company from retrenching them and from being re-absorbed by the company, pending the determination of the case. The case went before Justice Kessington, now late, then of the Lagos High Court, who granted the application.
The reliefs and orders prayed for in the application offended all known laws. Firstly, it was a private contract, and any person whose appointment was wrongfully terminated was entitled to damages and not injunctive orders. Secondly, it was wrong to grant an order to restrain when the act had already been completed. Again the orders that were sought in the application were the same reliefs they sought in the substantive suit, so a grant of the orders meant a grant of the reliefs in the substantive matter. The former counsel to Leventis Limited filed an application before the judge to discharge the ex-parte orders. His Lordship refused and ordered that the Directors of Leventis Limited must comply with the order before the court could hear their application. He threatened to jail the Directors of Leventis Limited unless they re-absorbed all the sacked employees. At that stage, the company briefed Chief Afe Babalola to take over the case. He filed an application that the court did not have the jurisdiction to make the orders it made.
On the day the matter came up, the judge refused to hear the application. He insisted that Chief Afe Babalola must bring the Directors to court before the application could be heard. In his anger, he said:
“These directors are the people spoiling Nigeria, and you lawyers are the ones spoiling the judiciary. I made an order, and you are saying it should be varied. You must obey the order first.”
That was on a Tuesday. Both the Judge and Chief Afe Babalola engaged in a long and heated argument, and when Afe saw that the Judge was not going to hear the application, he tactically applied for an adjournment. He cited the need to comply with the earlier order to bring the Directors before the court as the reason for the adjournment motion. After much persuasion, the Judge agreed to adjourn the case to Thursday.
Afe rushed to his office and prepared a motion for a stay of proceedings at the Court of Appeal. The Court of Appeal granted the application and restrained Justice Kessington from proceeding with the hearing pending the determination of the appeal.
The next hearing of the case before Justice Kessington was Thursday of the same week. Chief Afe Babalola got to the court early and served the Court of Appeal’s order on His Lordship’s Registrar. When the court sat, Afe told His Lordship that he could not go on with the case in view of the order of the Court of Appeal, staying further proceedings by him on the matter. The Judge said he had not seen the order, and Afe told him that the order had been served on his Registrar. That really made Justice Kessington angry. He descended on Afe. He called him a liar, that when he asked for time to comply with his order to bring the Directors of the Company to court, his intention was to go and restrain him. He said he did not know Afe could ‘run faster than Ben Johnson’. He said that Afe ran 100 yards to the Court of Appeal. (Ben Johnson, the Canadian, was at that time the reigning Olympics Champion in 100 metres.) He said he was lucky not to be a Nigerian, that his wife and his children were not Nigerians, and he did not beg to become a Judge.
He narrated the story of how he became a Judge. It was because, according to him, no one wanted to take the case against Chief Gani Fawehinmi. He said he told General Abacha that he would take it. He prosecuted Chief Gani Fawehinmi. Hence he was made a Judge. He said he did not intend to go to the Court of Appeal anyway, so the higher courts could make any order they liked, but we shall show the press that they were wrong, he concluded.
Then he continued his vituperations at Chief Afe Babalola S.A.N. thus: “Look at this Ilu Oke man, I will tell Isale Eko boys not to let you come to Lagos again, and if you come they will beat you up. It was because I respected you that I adjourned the case; little did I know that you would run like Ben Johnson to the Court of Appeal to get an order against me from dealing with the directors. I will take your clients to Benin Republic.”
At this point, Chief Babalola asked the Judge where Benin Republic was. He replied:
“Look at this Ilu Oke man; he does not even know Benin Republic. It is Alagbon, and we will give them (those at Alagbon) money for “fun” (perhaps to smoke). They will barb their (directors of Leventis) heads, and they will know that there is a court order.”
The above-chronicled proceedings were recorded.
Chief Afe Babalola felt that Justice Kessington’s vituperations and comments were not said in the course of the Judge’s official duty and were not protected by the Judge’s immunity. In his words: “A Judge’s immunity extends only to when he acts as a Judge, in the course of his adjudicatory role as a Judge, not when he goes beyond his judicial duties”. Having found support in a Bahamas, West Indian case, Chief Afe Babalola sued Justice Kessington to court. Chief Richard Akinjide had just returned from England, having left Nigeria in the wake of the military take over in 1983. He appeared for Chief Afe Babalola.
But while the case was pending, some well-meaning people appealed to Afe to withdraw the case because the Judge was already due for retirement. The pressure was so much that he eventually withdrew it. However, when Justice Kessington was getting, some journalists wanted his views about Chief Afe Babalola. His response was that those were matters for the past and that they had become good friends.
That was how the whole issue ended, but what caught my attention was the humility and tolerating behaviour of Chief Afe Babalola SAN, who did not argue with the judge, neither did he exchange words with the judge.
It is my humble opinion that lawyers and law students are expected to emulate such act of humility as displayed by the Learned Silk, and in all circumstances, respect should be given to judges at all times. I wish to thank our readers for taking their time to read and digest our stories, and I hope we learn one or two things from the stories.
1. The Living Legend by Basirat Fawehinmi
ABOUT THE AUTHOR
Toheeb Mustapha Babalola is a Pupil of Law, a content creator, a blogger & a student of Faculty of Law, Bayero University, Kano. He is the Founder of Lex Updates Publications, and the Zonal Director, Directorate of Programs, Policies and Projects, North West Zone, Law Students Association of Nigeria.
He is interested in advocacy, academic writing, legal writing/history, activism and positivism. To reach him,email: firstname.lastname@example.org or contact/WhatsApp: 08106244073.