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CHAPTER ONE

1.1 INTRODUCTION

Nigerian legal system is one of the legal systems based on common law. Nigeria has its own legal system which has been said to consist of each totality of laws or legal rules and machinery which operate within Nigeria as a sovereign and independent country. However, on a larger scale, sovereign countries are grouped into larger legal system classifications due to them sharing similar characteristics. This doesn’t mean that all their laws are identical but because they share certain fundamental principles they’re grouped together. One similar characteristic of common law legal system is the doctrine of judicial precedent. Under the common law system, the courts do not just decide disputes brought before them, before they do that, they have to check to see if such dispute has been settled before i.e. case law. If there is, the present court will consider the hierarchy of the court that gave the earlier decision. The court may then follow it or reject it depending on the hierarchy of the court or if the facts of the instant case is conflicting with the previous already decided[1] . The previous case being followed is called judicial precedent and if the court is bound to follow it, it is said that the precedent is binding.

The doctrine that stipulates that binding precedents must be followed is called stare decisis[2]. This feature of being bound by past precedent is one of the distinguishing elements between common law and civil law jurisdictions. The strength of the Nigerian legal system and common law in general is that it is built upon the concrete examples of case law rather than hypothetical models as civil law does. It is in view of this that American jurist Oliver Wendell Holmes once said “the life of law has not been law, it has been experience’’. However judicial precedent and its strict applicability leads to unwarranted injustice because no two case is the same and a times the law is applied wrongly even when the court is aware that the previous decision was made per incuriam or there are two conflicting decisions of the supreme court, it’s still being followed hook line and sinker. It is the aim of this work to critically consider the concept of case law and its applicability to the Nigerian legal system.

1.2 DEFINITION OF RELATED TERMS

To facilitate the comprehension of this discourse, it will be apposite to explaining the meaning of some phrases which are inherently linked to the topic under discussion.

1. Ratio Decidendi : The decision of a court may fall into two parts; the reason for the decision and that which is said by the way.

The ratio decidendi of a case is the principle of law on which the decision is based. Arthur Goodhart defined ratio decidendi (reason of deciding) of a case as the material facts of the case plus the decision thereon.

[3] It has also been defined negatively as the principle without which the court would not have reached its decision.

[4]  While every decision refers to some past event, the ratio for it serves as a norm for the future.

[5] Determining the ratio of a case has not been without difficulty. This is more so, as sometimes a judge may give more than one reason for his decision. Also it is possible for the judge to make some other statements, which in future may be argued to be the ratio.

2. Obiter Dictum (remark in passing): something said by the judge while giving judgment that was not essential to the decision in the case.[6] It does not form part of the ratio decidendi of a case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases. The judge deciding a case may speculate about what his decision would be or might have been had the facts been different. The value attached to obiter dictum depends on the court and the eruditeness of the judge who made it.

3. Per Incuriam: Per incuriam means that a court failed to take into account all the relevant and vital statutes or case authorities and that this had major effect on the decision. Per Incuriam does not simply the earlier court got things wrong. It only means there was a significant oversight, not only must there have been a failure to take into account of relevant authorities; that fault must also have been such a major defect that it seriously affected the reasoning in the case and would have affected the outcome. It is not for a lower court, to question or say that a decision of a higher court was reached per incuriam. That is the privilege of the higher court if after reconsidering its former decision, it’s satisfied that the previous decision, had been arrived at wrongly.

4. Judicial precedent: Judicial precedent is legal experience. In ordinary life, people rely on past experiences when embarking on any venture. These experiences are nothing but precedents. It is not different with law and especially under the Nigerian legal system. In effect the concept of judicial precedent is nothing but reliance by a judge deciding a case today on experience of yesterday. In Nigerian legal system, judicial precedent is a decision establishing a principle of law that any other judicial body must or may follow when called upon to decide a case with similar issues. They could be binding or persuasive. Precedent that must be applied or followed is known as binding precedent. By definition, decisions of lower courts are not binding on courts higher in hierarchy.

5. Stare decisis: In the case of Osakue v Federal College of Education (Technical) Asaba,[7] the Supreme Court per Ogbuagu J.s.c defined stare decisis thus “stare decisis means to abide by the former precedents where the same points came again in litigation. It pre supposes that the law has been solemnly declared and determined in the former case. It does preclude the judges of the subordinate courts from changing what has been determined. Thus under the doctrine of stare decisis, lower courts are bound by the theory of precedent’’ From the above definition  of the Learned Judge it is clear that stare decisis is the doctrine of Nigeria legal system laying an obligation on lower courts to stand by precedents.

1.3 PRIMARY SOURCES OF NIGERIAN LAW

To the average layman on the street, the constitution is the law, whatsoever is in the constitution is the law of the land that must be obeyed. To others, the law is just statutes enacted by the legislature. Both positions are correct but are not the full picture because we derive our laws from several other sources such as:           

a. Received English law

b. Case law

c. Legislation

d. Customary laws

e. International laws

a. Received English law. This includes the common law and laws of equity.

The common law is the default legal system of England that originated from laws made by judges. Equity on the other hand, came about as a means to lighten the strict application of the common law.

b. Legislation: This the process of making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process. The law so enacted, the whole body of enacted laws.[8]  The major types of legislation are ordinances, acts, laws, decrees, edicts, bye-laws, constitution.

c. Customary law: this is the native law operative in Nigeria before the advent of the British. In the pre-colonial period, there were numerous autonomous entities in Nigeria. The sokoto caliphate, which comprised most parts of northern Nigeria, used Islamic law. In other parts of Nigeria, the native laws of the indigenous people operated as the laws of the land.

d. International law: When it comes to the bindingness of international law, countries have two options. In some countries, the moment the country’s representative signs the treaty, it becomes binding in the country’s law courts. In other countries, a treaty does not become binding unless the legislature domesticates it which entails the country’s legislature would have to pass the treaty as a law. Nigeria belongs to the latter. S.12 of the 1999 constitution enunciates more on this. Also in the case of Abacha v Fawehinmi (2000) 4 FWLR 533 the respondent contended that the provisions of the African charter on human and people’s rights were not applicable in Nigeria. The court held otherwise because the legislature had already domesticated the African charter.

1.5 CASE LAW AS A PRIMARY SOURCE OF NIGERIAN LAW

When one thinks of the law, one of the first things that come to mind is lawyers and judges in their wig and gown. As a lawyer in Nigeria, you would have been called “the law” by other people. This nickname is an allusion to the importance of lawyers and judges in the legal system. Lawyers and judges contribute their fair share to the development of the Nigerian legal system through case law which is also a primary source of law in Nigeria. Case law is derived from the cases the court decides. In essence they are judgement of the court. Judicial precedent needs to validate a case law before it can be called a primary source of Nigerian law. It is a general proposition that judges do not have the power to legislate. So if judges cannot legislate, how then is case law a primary source of Nigerian law?

The reason why case law is a primary source of Nigerian law is that the law is what the judge says it is. Legislations have different interpretations in the law court, thus lawyers haggling about which interpretation should stand in court. The only interpretation that becomes applied is the interpretation that the court accepts and it subsequently becomes case law. There are also instances where legislation is not clear, in these instances the court uses the rules of interpretation to clarify the provision of the legislation. In essence, case law is a very important source of Nigerian law. The other primary sources of law can only operate through case law.

Foot Notes

[1] Ifediorah v ume (1988) 2 NWLR (pt.74)5

[2] An abbreviation of the Latin phrase, stare decisis et non quieta movere meaning to abide by a former decision where the same points up again in litigation.

[3] “Determining the ratio decidendi of a case’, essays in jurisprudence and the common law (1931)

[4] A.O.Sanni, ed, introduction to Nigerian legal method (2006) 180.

[5] Dais on jurisprudence, p.181.

[6] Oxford dictionary of law 5th edition.

[7] (2010) 10 NWLR (pt.1201) 1 at 34

[8] Blacks law dictionary. 9th edition

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