Case Law

Case law refers to the interpretation which has been given to laws, rules and principles over the years and can be applied by courts subsequently. This might seem to run contrary to the belief that judges do not make law, but only interpret laws made by the legislature. Case law often comprises the interpretation which has been given to laws made by the legislature and which are now followed subsequently. Case law may also include some principles formulated by the courts, which are often unwritten, except they have become written in law reports.

Case law is made up of precedents. Precedents are earlier decisions of courts which are applied in later cases, and they are applied through the principle of stare decisis. The principle of stare decisis means “let it stand”, i.e. the previous judicial decision should be allowed to stand. Case law helps to ensure certainty in law and saves the time and effort that may otherwise be spent in interpreting laws every time a new case comes up. The use of case law, being a feature of the common law legal system, is also in force in the Nigerian legal system.

Judicial precedents were not so rigidly followed as they are now. Courts used to be free to depart from previous decisions in England until the passing of the Judicature Acts, 1873-1875, which established the hierarchy of courts and therefore made decisions of courts binding on lower courts. The tradition of law reporting which developed through time also helped in improving the culture of case law as law reports help to keep track of previous decisions. In the past, courts would depart from their previous decisions under absolutely no condition even if the decision caused injustice. However, this is not the position anymore.

It is important in the application of the doctrine of stare decisis that the case being urged as authority for a particular principle or rule of law should agree on legally material facts even if the cases do not agree on point of detail. For example, if it has been established in case A that the punishment for stealing is a year imprisonment, the decision may be adopted in case B even though the item stolen was different from that stolen in case A.

Statements made in cases may either be obiter dicta or ratio decidendi. An obiter dictum, the singular of an obiter dicta, is a statement made in passing and not of direct consequence to the decision in a case. A ratio decidendi, on the other hand, is the reasoning behind a decision. Ratio decidendi generally carry more authority than obiter dicta. While ratio decidendi are binding on lower courts, obiter dicta may only be persuasive in nature.

Types of precedents.

Precedents may be grouped according to the extent of the court’s involvement in the formulation and application of the precedent or according to how much weight the precedent carries. A precedent may be original, derivative or declaratory, and it may also be binding or persuasive.

An original precedent is one which establishes a new rule of law where no previous precedent exists. Of course this is not so common, as there is usually case law available on almost every topic of law from decisions given over time. An example of a case where an original precedent was created is Zaidan v. Mohosen.

A derivative precedent is one which extends the limit of an already existing precedent. This is usually done in cases where there is no direct authority on the subject, and so the judgment in a relatively similar case is extended to the scenario. In Chairman L.E.D.B. v. Olopinkwu, the court, in disallowing a claim for conveyancing expenses, adapted an earlier rule in respect of outlay equipping a salt factory that turned out to be a wasteful venture.

A declaratory precedent is one which adopts and restates a precedent which already exists. This contributes very little to the development of case law and may only help to strengthen a rule since it may be said that it has been followed in more than one case.

Precedents may also be classified into persuasive precedents and binding precedents. Persuasive precedents are precedents which the court may choose to follow, or choose not to follow. Binding precedents are precedents which the court is obligated to follow. Obiter dicta, which are statements made in passing, are only persuasive in nature and cannot be binding. Decisions of foreign courts and decisions given by a court not higher than the court considering whether to follow the precedent or not are only persuasive in nature and not binding. Ratio decidendi, the reasoning of decisions, given by upper courts serve as binding precedents on lower courts.

The doctrine of stare decisis has been criticized for making courts slaves to past decisions, sometimes even when such decisions cause injustice. However, it should be noted that the doctrine of stare decisis helps in certainty of the law. Also, laws do not become invalid just because they are old as stated by the Supreme Court in Okpala v. Okpu.

Application of the doctrine of stare decisis.

Just as it has been previously stated, one of the requirements before judicial precedents can be in force is that there must be a working judicial hierarchy. This is necessary in order to know which decisions are binding on which courts, which decisions are only persuasive, and the right courts and situations when decisions shall be overruled. The present court structure consists of the following.

1. The Supreme Court, which has been the highest court in the federation since 1963. It has appellate jurisdiction from the Court of Appeal and the decisions of the Legal Practitioners’ Disciplinary Committee and it has original jurisdiction in decisions between the federal and state executive, two state executives, or any of the executives and the national assembly.
2. The Court of Appeal is an appellate court with original jurisdiction in determining matters as regards the election and tenure of the president, vice-president, governor and deputy governor.
3. The Customary or Sharia Courts of Appeals in the Federal Capital Territory or as may be created by a state, the Federal High Court, State High Courts and High Court of the Federal Capital Territories. These courts are of co-ordinate jurisdictions.
4. Magistrates’ and District courts.
5. Customary and Area Courts.

The Supreme Court.

The Supreme Court is the court of last resort in Nigeria as it is the highest court in the nation. It entertains appeals from the Court of Appeal and also has exclusive jurisdiction in any dispute between the Federal Government and State Government, between two state governments, between the National Assembly and the President or between the National Assembly and a State House of Assembly. The Supreme Court is not absolutely bound by the decisions of any courts and its decisions are on the same level as the decisions of the Privy Council before independence. The court is loosely bound by its own previous decisions for the sake of certainty of the law. However, it is not absolutely bound and it may depart from its previous decisions in the interest of justice as it did in Bucknor-Maclean v. inlaks Ltd. where the court overruled its decisions in Shell B. P. v. Jammal Engineering (Nig.) Ltd. and Owunmi v. P. Z. (Nig.) Ltd. to prevent the doing of injustice.

Situations in which the court would depart from its previous decisions are as follows.

• Where the decision was given per incuriam as in Ngwo v. Monye.
• Where the decision is found to be simply erroneous as in Johnson v. Lawanson.
• Where the decision is capable of perpetrating injustice as in Aqua Ltd. v. Ondo State Sports Council.
• Where it would curtail constitutional rights as in Oduola v. Coker and Mobil oil v. Coker.
• Where the court is of the view that it would be in the interest of justice and the proper development of the law to do so. This was so in the case of Bucknor-Maclean v. inlaks Ltd.

It would indeed be very bad if the highest court in the land is absolutely bound by its previous decisions. In reality, the Supreme Court is usually unwilling to overrule its previous decisions and only does so when it is convinced to. The Supreme Court may adopt the decisions of lower courts as persuasive precedents, although they become binding on all lower courts once adopted by the Supreme Court.

The Court of Appeal.

The Court of Appeal is the court directly below the Supreme Court. Although it has its original jurisdiction, it also entertains appeals from the Federal High Court, the High Court of the Federal Capital Territory, the State High Courts, the Sharia Court of Appeal of the Federal Capital Territory, the Sharia Court of Appeal of States, the Customary Court of Appeal of the Federal Capital Territory and the Customary Court of Appeal of States. The Court of Appeal decisions are equal to the defunct West African Court of Appeal and Federal Supreme Court decisions. The conditions under which the Court of Appeal may depart from its previous decisions were given in the case of Young v. Bristol Aeroplane Co. Ltd., at least in civil cases, and they are as follows.

• If the decision was given per incuriam.
• If the court has to choose between two or more of its own decisions and overrule the others.
• If a decision of the court is incompatible with a decision by the Supreme Cour

However, it seems possible that injustice may arise if the court is not allowed to depart from its own previous decisions.

The decisions of the Supreme Court are absolutely binding on the Court of Appeal even when they are delivered per incuriam. There is conflict over what should be done where there exists more than one decision of the Supreme Court on the subject and none of them were overruled or the later judgment took no notice of the earlier judgment. It has been suggested that the court should be at liberty to choose which decision to follow and this was the view held in Yusuf v. Egbe. Some others are of the view that the more recent decision should be followed. And still, some others are of the view that such conflicts should be referred to the Supreme Court for a solution as following one decision would mean that the lower court is ignoring the other decision of the higher court which should ordinarily not be done.

The Customary and Sharia Courts of Appeal.

The Customary and Sharia Courts of Appeal apply customary law and appeals from these courts lie to the Court of Appeal. The decisions of the Supreme court and the Court of Appeal are absolutely binding on them while they may depart from their own past decisions in situations where justice dictates so.

The Federal and State High Courts.

The Federal High Court, the State High Court and the High Court of the Federal Capital Territory are all absolutely bound by the decisions of the Supreme Court and the Court of Appeal. In Dalhatu v. Turaki, a judge of the High Court of the Federal Capital Territory refused to follow the Supreme Court’s decision in Onuoha v. Okafor and the judge went as far as asking the Supreme Court to re-amend its position. This was thoroughly criticized by the Supreme Court when it came before it, with the court referring to it as “gross insubordination” amongst other things. The High Court usually would not depart from their previous decisions unless they have good reason to do so, either because it was delivered per incuriam or it would be in the interest of justice to do so.

Decisions of State High Courts are only binding on lower courts in the state. They may serve as persuasive precedents for lower courts in other states.

Magistrates’ and District Courts.

Magistrates’ and District Courts are bound by the decisions of superior courts. They are not absolutely bound by their own decisions.

Foreign decisions.

Nigerian courts are free to adopt the decisions of foreign courts that practice common law as long as they do not contradict the decisions of Nigerian courts. While it is good to consider other common law precedents on similar provisions of law, the slavish following of such laws by Nigerian courts has been criticized. Karibi-Whyte, J.S.C. stated that the Supreme court shall not regard its decisions as wrong only because it is in conflict with the decision of a foreign court. In Alli v. Okulaja, the court found no reason to be bound by the English Court of Appeal decision in Edmeades v. Thames Board Mills Ltd. The only foreign decisions which may be binding are decisions by the English courts before independence when they were still a part of the Nigerian legal system. Decisions of the Privy Council before 1963 are binding on all courts below the Supreme Court and decisions of the West African Court of Appeal before 1954 are binding on all courts below the Court of Appeal.

Decisions reached per incuriam.

Decisions reached per incuriam are decisions which are reached by courts without consideration of a statute or a case law which would have influenced its decision otherwise. The word incuria means in carelessness, and per ignorantia which means judgments delivered in ignorance would most probably be more fitting. However, it is almost heresy to say that a judge is ignorant of the law.

Even when decisions are given per incuriam, they are still binding on lower courts and only the courts that gave such decisions or a higher court may overrule it. The best that may be done is to call attention to the need for the higher court to amend the position while noting its lack of authority to change the rule as the Court of Appeal stated in Warner and Warner International Associates (Nig.) Ltd. v. Federal Housing Authority.