The practice of Judicial precedent in Nigeria

Judicial precedents may be defined as “previous judgments or decisions officially documented by the court, usually published in law reports, used as legal authorities for deciding subsequent cases in line with their rationes decidendi via the common law doctrine of stare decisis.” [1]

The decisions of Nigerian courts constitute a very important source of Nigerian law. Its importance derives from the increasing relevance of Legal Realism in the fashion of American jurisprudence. We have already seen that according to Legal Realism, the provisions of statutes are not settled law until they have received the blessing of judicial pronouncement as to their meaning, nature, and scope.
It was Gray, a prominent American Realist, who said: “it is the courts that put life into the dead words of statutes.” That obsession with case law led to the evolution of jurimetrics. Whilst we may readily appreciate the importance of case law as a source of Nigerian law, we may not be able to subscribe to the strict position of American Realists.

THE DOCTRINE OF STARE DECISIS IN NIGERIA AND ITS APPLICATION

The doctrine of binding precedent or stare decisis has been rightly described by Professor Ezejiofor [2] as “a necessary judicial practice in any system that operates the common law.” The doctrine recognises the need to have a definite hierarchy of courts in a common-law legal system, and advocates that the decisions of superior courts in the system shall be binding on lower courts within the same system.

For this doctrine to operate there must exist a settled and universally acceptable hierarchy of courts as well as easily accessible, comprehensive, regular, and reliable Law Reports containing the decisions of the courts.

Oputa JSC (one of the most articulate and respected Judges Nigeria has ever had) extolled the importance of the time-honoured doctrine of stare decisis or judicial precedent in the Supreme Court case of Eperokun v University of Lagos (1986) 4 NWLR (Part 34) 162 at 193 thus:

“Standing by a previous decision which has not been proved to be perverse, or to have been decided per incuriam or proved to be faulty legally or procedurally has a lot of advantages. It fosters stability and enhances the development of a consistent and coherent body of law. In addition, it preserves continuity and manifest respect for the past. It also assures equality of treatment for litigants similarly situated. It likewise spares the Judges the task of re-examining rules of law, or principles, with each succeeding case, and finally it affords the law a desirable measure of predictability.”

Referring to Justice Oputa’s statement above, Kalgo JSC delivering the lead judgment of the Supreme Court on Friday, 16 February 2001, in Global Transport Oceanico S. A. v Free Enterprises Nigeria Ltd  (2001) FWLR (Part 40) 1706 at 1722, declared: “I entirely agree with this statement and wish to add that it also helps to maintain some legal order within judicial systems.” See also Batalha v West African Construction Company Ltd (2002) FWLR (Part 109) 1612 at 1628 where the Court of Appeal stressed the need to uphold the time-honoured doctrine.

Hierarchy of Nigerian Courts

In Nigeria, a settled hierarchy of courts exists. Section 6 of the Constitution of the  Federal  Republic of Nigeria 1999,  treading the  path of section 6 of the Constitution of the Federal Republic of Nigeria 1979, provides for the Nigerian judicial system, which is pyramidal in shape, as follows:

(a) One Supreme Court as the highest Court of the land.

(b) Just below the Supreme Court is one Court of Appeal, having as at present ten Divisions in some States of the Federation, including locations in the following cities: Abuja, Benin, Calabar, Enugu, Ibadan, Ilorin, Kaduna, Jos, Lagos, and Port Harcourt.

(c) Below the Court of Appeal are the following courts of co-ordinate jurisdiction: Federal High Court; High Court of the Federal Capital Territory, Abuja; Customary Court of Appeal and Sharia Court of Appeal of the Federal Capital Territory, Abuja; High Court of a State; Customary Court of Appeal and Sharia Court of Appeal of a State.

(d) Below these courts are the Magistrates’ Courts and District Courts.

(e) The lowest courts are Customary and Area Courts.

Numbers (a) – (c), by virtue of section 6(3) of the Constitution of the Federal Republic of Nigeria 1999, are the only superior courts of record in Nigeria, and detailed provisions regulating their establishment, jurisdiction, constitution, and direction as to practice and procedure are contained in sections 230 – 284 of the Constitution of the Federal Republic of Nigeria 1999. All the courts listed above are the regular courts.

There are also special courts like Courts-martial, Tribunals of Inquiry, Rent Tribunals, Coroners’ Inquests, Juvenile Courts, etc. whose jurisdiction, rules, and operation are specially regulated by the Laws establishing them.

Law Reports in Nigeria

Law Reports are the authentic records of the full verbatim documentation of the decisions or judgments of courts of law in respect of matters brought before them for resolution, usually published in bound volumes for public use. [3]

According to Professor Ezejiofor, [4] the history of systematic law reporting in Nigeria dates back to 1916 when the publication of the Nigerian Law Reports (NLR) under the official sponsorship of the Judicial Department was commenced. The West African Court of Appeal Law Reports (WACA) were published between 1933 and 1955. After 1955, the Federal Supreme Court Reports (FSC) as well as the Law Reports of Lagos (LLR) and the different Regions – Western Region of Nigeria Law Reports (WRNLR), Northern Region of Nigeria Law Reports (NRNLR), and Eastern Region of Nigeria Law Reports (ENLR or ERLR) were published.

Other Law Reports in Nigeria include the following:  All Nigeria Law Reports (All NLR); Nigerian Monthly Law Reports (NMLR); Federation of Nigeria Law Reports (FNLR); University of Ife Law Reports (UILR); and The Nigerian Commercial Law Reports (NCLR) edited by Allan Milner.

Chief Gani Fawehinmi revolutionised law reporting in Nigeria by publishing several invaluable Law Reports including the Supreme Court of Nigeria Law Reports (SCNLR); Commercial Law Reports (CLR); Nigerian Constitutional Law Reports (NCLR); and of course, the epoch-making Nigerian Weekly Law Reports (NWLR) published first in 1985, which he has sustained until today. In the year 2000, two other Weekly Law Reports went into circulation: Federation Weekly Law Reports (FWLR) with Taiwo Kupolati as Editor-in-chief, and Weekly Law Reports of Nigeria (WRN) with Femi Falana, a widely-acclaimed Human Rights activist, as Editor-in-chief. Other important recent Law Reports include the Nigerian Supreme Court Cases (NSCC) in various Volumes with Deji Sasegbon, one of the leading Nigerian Law publishers, as Editor-in-chief; Supreme Court of Nigeria Judgments (SCNJ); Kings Law Reports (KLR), and a rebirth of the Judgments of the Supreme Court of Nigeria (SC). Unfortunately, two Law Reports in Nigeria share the same citation: The Nigerian Commercial Law Reports (NCLR) edited by Allan Milner, and Nigerian Constitutional Law Reports (NCLR) edited by Chief Gani Fawehinmi.

We have recorded appreciable success in law reporting in this country in recent times, compared with what obtained in the past. However, there is still a plethora of decisions that are denied their inherent right to publication, especially major decisions of our numerous High Courts, most of which never went, and will not go, on appeal to the Court of Appeal. Something has to be done about this with utmost urgency.

What constitutes Binding Precedents

It is not every decision of a court that constitutes a binding precedent which lower courts will be compelled to abide by. We may clarify what constitutes binding precedents and what does not as follows:

(a) Binding Precedent is found in the Ratio Decidendi

Binding precedent is found in the ratio decidendi of a decision – the particular principle of law on which the decision was based. On Friday, 20 April 2001, Karibi-Whyte JSC, delivering the lead judgment of the Supreme Court in Dongtoe v Civil Service Commission, Plateau State (2001) FWLR (Part 50) 1639 at 1666, said: “It is true that a decision is authority for what it actually decides; and judgments should be read in the light of the facts on which they were decided.” Unfortunately, some think that what constitutes the ratio decidendi of a judicial decision is illusory, and not settled. The problem has given rise to the assertion that the ratio decidendi of a case is in fact what later cases consider it to be. It should be noted that before the ratio decidendi of a previous decision can become judicial precedent, the facts of the present case that is in the process of being decided by a lower court must be identical with, or similar to, (i.e. in pari materia with) the facts of the previous case already decided by a higher court: Anaedobe v Ofodile (2001) FWLR (Part 45) 718; Madu v Neboh (2001) FWLR (Part 52) 2247.

(b) Decisions reached per incuriam or per ignorantium are not Binding Precedents

Decisions reached per incuriam (through lack of care) or per ignorantium (through ignorance) are not binding precedents. Such decisions may have been given without applying a binding precedent, or in ignorance of a statutory provision or a rule having statutory effect, such as a rule of court, which would have affected the decision if the court had been aware of, and applied, it: Young v Bristol Aeroplane Co. Ltd (1944) KB 718. In a recent decision of the Supreme Court delivered on Friday, 16 February 2001, Global Transport Oceanico S. A. v Free Enterprises Nigeria Ltd  (2001) FWLR (Part 40) 1706 at 1722, Kalgo JSC delivering the lead judgment declared that decisions reached per incuriam are not included in the doctrine of stare decisis for obvious reasons and a court may depart from its earlier decision if it is satisfied that the decision was wrong and there is a need to reverse or alter it in the interest of justice.

(c) Obiter Dicta are not Binding Precedents

Obiter dicta that are observations or pronouncements of law made by the way that are not part of the ratio decidendi of a case are, generally, not binding precedent. The Court of Appeal recently defined obiter dictum as “something said by the way, such as an observation or remark made by a Judge in pronouncing an opinion upon a cause, concerning some rules, principles or application of law but which is not strictly necessary for the resolution of the dispute:” Madu v Neboh (2001) FWLR (Part 52) 2247 at 2268. The Supreme Court appears to maintain that its obiter dicta cannot be ignored by lower courts in reaching decisions, thereby introducing a momentous dimension to the authority of obiter dicta. This further compounds the illusory nature of rationes decidendi, and strengthens the opinion of Professor Ezejiofor that “the weight attached to an obiter dictum depends on the position occupied in the judicial hierarchy by the court that handed it down or the erudition of the Judge who pronounced it.” [5] The Court of Appeal held in Ikyernum v Iorkumbur (2002) FWLR (Part 110) 1908 at 1926 that one fundamental thing counsel should always keep in mind is the distinction between ratio decidendi and obiter dicta. The former (ratio decidendi) has a binding effect in judgment, while the latter (obiter dicta) are mere observations which a court is entitled to make. Even if such observations were wrong or nasty, so long as miscarriage of justice does not result therefrom, they are immaterial – they have no binding effect and go to no issue at all. [6] However, comments made by a Judge that go to the root of the decision, make it perverse. The Court of Appeal held in this case that the decision of the trial Judge was influenced by his expressions: he referred to the respondent as “son of the soil” and the appellant as “a stranger” which caused miscarriage of justice on the appellant.

(d) Binding Precedent where there is more than one Presiding Judge

Where more than one Judge preside over a matter and they could not reach a unanimous decision, it is the majority decision (and not the minority decision) that constitutes the decision of the court and therefore the binding precedent. A dissenting decision or judgment is not the decision or judgment of the court.

(e) Binding Precedent where there are Conflicting Decisions

Where conflicting decisions of a particular higher court exist, a lower court is at liberty to choose one of them which it considers to be correct, with reasons for so doing: National Electric Power Authority v Onah (1997) 1 NWLR (Part 484) 680.

The Authority of Binding Precedents

Binding precedents have different degrees of authority: absolute and persuasive. Decisions of higher courts have absolute authority on lower courts, while decisions of courts of co-ordinate jurisdiction (i.e. courts at the same level in the hierarchy) have only persuasive authority on similar courts within our legal system.

It may be necessary also to mention that because of the national sovereignty of our legal system, the decisions of foreign courts (including English courts) have persuasive authority only in Nigeria. Therefore, the opinion of Park, [7] that the English “House of Lords decisions present the conclusive expositions of English law, and that being so it will not be open to the Nigerian courts to depart from them,” cannot be valid in our present circumstances. The Supreme Court of Nigeria held in Kalu v Odili (1992) 6 SCNJ (Part 1) 76 at 104 that decisions of all English courts including those of the House of Lords are treated with optimum respect by all the courts in this country, but they have only persuasive effect and not binding authority in Nigerian courts.

CONCLUSION

Judicial precedents will continue to wield greater importance as a source of Nigerian law, for without precedents the law will not be capable of prediction, judicial decisions will be subject to the whims and caprices of Judges, and the basis of legal opinion and counselling will be completely eroded.

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[1]  Definition by the author: Leesi Ebenezer Mitee.

[2]  In Introduction to Nigerian Law (1980), p. 14.

[3]  Definition by the author: Leesi Ebenezer Mitee.

[4]  Introduction to Nigerian Law (1980), p. 38.

[5]  Introduction to Nigerian Law (1980), p. 38.

[6]  Introduction to Nigerian Law (1980), p. 38.

[7]  See Odukwe v Ogunbiyi (1998) 6 SCNJ 102; Leedo Presidencial Motel Ltd v Bank of the North Ltd (1998) 7 SCNJ 328; Afro Continental Nigeria Ltd v Ayantuyi (1995) 12 SCNJ 1; Alakija v Abdullahi (1998) 5 SCNJ 1.

Okonkwo, C. O. (ed.). Introduction to Nigerian Law. London, Sweet & Maxwell, 1980.