Are foreign billionaires immune to Nigerian law?

When it was reported recently that the revered Justice Atinuke Ipaye of the Lagos State judiciary(Ikeja Criminal Division) admonished the state’s Department of Public Prosecution for sending an inexperienced lawyer to handle a major case in her court, eyebrows were raised by leading lawyers and observers of the Nigerian legal scene. Today many of them are closely monitoring a relatively unknown case in Justice Ipaye’s court; Lagos State versus Deepak Khilnani and Sushil Chandra, which is posing unusual challenges to the enviable record of diligent public prosecution in the public interest, which was established by the incumbent Vice President, Yemi Osinbajo, SAN, during his tenure as the Attorney General of Lagos State from 1999–2007.

Coincidentally, in March this year at a national dialogue organised by the Office of the Vice President and that of the Presidential Advisory Committee Against Corruption (PACAC), the same Vice-President Yemi Osinbajo SAN, who is also  a Professor of Law, had reason to recall how at the time he first assumed office as Attorney-General, “89% of regular practitioners at Lagos courts said that the judiciary in Lagos State was notoriously corrupt, and that the corruption went beyond judges to include clerks and lawyers.” The VP said his team at the Lagos State Ministry of Justice (MoJ) had taken bold steps to strengthen legal procedural rules such as High Court of Lagos State (Civil Procedure) Rules 2004 and to improve the terms of service of judicial officers including the provision of housing for judges.

Consequently, by the time Osinbajo left office as Attorney-General in 2007, his ministry had totally reversed the impression of being notoriously corrupt, and had become renowned for a Department of Public Prosecution that handled its cases robustly and courts that dispensed justice firmly and in good time. In the intervening years after Osinbajo left office, the Lagos State MoJ under his successors, Olasupo Shasore SAN and Rahman Ade Ipaye Esq, earned even more accolades for protecting the public interest in public prosecutions while diligently pursuing many high profile landmark cases.

Given this reputation, why is the matter of Lagos State versus Deepak Khilnani and Sushil Chandra being handled sloppily?

The displeasure expressed by Justice Atinuke Ipaye was about the seeming lackadaisical attitude of the Lagos State prosecution team in their case against Deepak Khilnani and Sushil Chandra. It seems that the MoJ prosecution team had failed to file a counter affidavit to the defence lawyer’s application to vacate a bench warrant that the prosecution team had, just one month earlier, asked for and obtained from the same Justice Ipaye in that very same Ikeja court. The MoJ had then sent a very junior lawyer to represent the state prosecution team at the scheduled hearing. Indeed their action gave the general impression of a near contemptuous volte face, as the bench warrant was to bring Deepak Khilnani and Sushil Chandra to court for arraignment, something the two men had diligently avoided since the case commenced in 2015.

Further checks of court records revealed that the case, which the Nigeria Police at Zone 2 HQ Lagos investigated in 2013/14, found evidence that Khilnani, a Briton of Indian descent and a billionaire businessman, together with Chandra, an Indian, forged documents and used a UK company to deprive their Nigerian partners of $8.8million. In April 2015 the Lagos DPP approved the prosecution of the two men at the Lagos High Court, Ikeja Criminal Division as Case No ID/1544C/2015 before Justice Ipaye. Both of them consistently failed to appear for arraignment and generally remained out of the country although there have been reports of Khilnani visiting Nigeria at various intervals. But the Lagos prosecution team persisted, and argued diligently for the men to be served by various means.

It was under these circumstances that on April 3, 2017, Justice Ipaye, at the request of the MoJ prosecution team, issued a bench warrant for the Inspector General of Police to arrest the two men and produce them in her court on May 22 for arraignment some two years after the case first started. The two men did not appear on the day but instead, the prosecution team informed the judge of the request of the Attorney General, Adeniji Kazeem Esq, for four weeks adjournment to enable him review the case. But observers have expressed concerns that it is highly unusual for an Attorney-General to review the decision to prosecute a criminal case in the middle of its prosecution or even the conduct of the prosecution for any operational reason. They further indicate that the Attorney-General may normally only intervene if such a prosecution is deemed by him not to be in public interest.

What then caused the Lagos MoJ, between April 3 and May 23, a period of less than two months, to go from vigorously arguing for a bench warrant to arraign the two men, to asking for four weeks adjournment to review the case? Have Khilnani and Chandra purged themselves of the contempt of court of not appearing for arraignment? Have the facts of the case radically changed since the DPP’s 2015 advice to charge the two men to court? Or is the Lagos judiciary simply losing its sheen?

These are questions that urgently need to be answered. Government institutions must not shirk their responsibility to protect the interests of Nigerian citizens. If Nigerians cannot get justice in their own country how can they be sure that they will get it elsewhere? Our quest to incentivise foreign investors should not be interpreted as a disincentive to Nigerian businessmen, otherwise what we gain from one end would be lost through another.