Lord Edmund –Davis in his book "Judicial Activism"1975, wrote as follows "Whatever a judge does, he will most surely have his critics .If, in an effort to do justice, he appears to make new law, there will be cries that he is overweening and that he has rendered uncertain what had long been regarded as established legal principles .On the other hand ,if he sticks to the old legal rules ,an equally vocal body will charge him with being reactionary, a slave to precedent, and of failing to the mould the law to changing social needs. He cannot win ,and, if he is wise ,he will not worry ,even though at times he ruefully reflect that those who should know better seem to have little appreciation of the difficulties of his vocation. He will just direct himself to the task of doing justice in each case as it comes along. No task could be nobler."
This quote shows how difficult the task of a Judge could be. However it is a task that must be done and done very well. Not only is the judiciary an indispensable arm of Government, it is usually referred to as the last hope of the common-man.
Therefore justice must not only be done by Judges, it must be seen to be done. Justice must be transparent and predictable so that the affairs of men are ordered according to the dictates of the law.
Laws are laid down by statutes or legislation from parliamentary bodies and judicial decisions by the superior Courts of record. Judicial decisions over time form precedents which are captured in Law Reports.
Sir William Blackstone (1723 to 1780) is known for his commentaries on the laws of England which formed the foundation of the understanding of the law by English lawyers from the late 18 to early 19th century. In his treatise of the diverse set of rules and principles scattered over the mass of judicial opinions constituting the common law of England, Blackstone performed a great service to lawyers and citizens of his day. In fact Stanley Katz, in his introduction to VOLUME 1 OF BLACKSTONE'S COMMENTARIES ON THE LAWS OF ENGLAND, A FACSIMILEOF THE FIRST EDITION
1765 – 1769, UNIVERSITY OF CHICAGO PRESS 1979 (REPRINT 1992) describes Blackstone's work as the most important legal treatise ever written in the English language.
Blackstone's work is of profound importance because it emphasizes the importance of certainty in ascertaining the law and this certainty is the foundation for law Reporting and Judicial precedent.
The official and indeed most authoritative sets of law Reports published in England are published by the The Incorporated Council of Law Reporting for England and Wales. (ICLR). The ICLR was established in 1865 by members of the legal profession with the object of preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, Reports of Judicial Divisions of Superior and Appellate counts in England and Wales. By practice Direction (Judgment Form and Citation) (Supreme Court) 2001 WLR 194, Lord Woolf as Chief Justice of England directed that for the Citations of Judgments "it should be emphasized that both the High Court and the Court of Appeal require that where a case has been reported in the official law Reports published by the Incorporated Council of Law Reporting for England and Wales it must be cited from that source. Other series may only be used when a case is not reported in the law Reports".
It was W.T.S DANIEL QC in 1863 who proposed the Council of law Reporting. His proposal contained what a good law Report should include and what ought to be excluded. It was clear to him and as it should be clear to us that cases which were valueless as precedents and those which were substantially repetitions of what was reported already ought to be excluded.
However, a good law Report must necessarily include:
i) All cases which introduce, or appear to introduce, a new principle or a new rule,
ii) All cases which materially modify an existing principle or rule,
iii) All cases which settle, or materially tend to settle, a question upon which the law is doubtful, and
iv) All cases which for any reason are peculiarly instructive.
Furthermore, the reports must be accurate, contain everything material and useful and be concise. In particular, they should show the parties, the nature of the pleadings, the essential facts, the points contended and the grounds on which the Judgment was based as well as the Judgment, decree or Order actually pronounced. The above remain very essential for good law reporting till this day. While there is no official Council for law Reporting in Nigeria, a plethora of law reports have emerged over the years to serve the ever growing demands of legal practitioners in Nigeria. These include the All Federation Weekly Law Reports , All Nigeria Law Reports , Appellate Courts Landmark Cases , Commercial Law Reports, Constitutional Law Classicus, Criminal Appeal Cases, Customary Law in Nigeria through the cases, Eastern Region of Nigeria Law Reports, Election Petition Reports, Failed Banks Tribunal of Nigeria Law Reports, Federal Reporter, Federation of Nigeria Law Reports, Federation Weekly Law Reports, Investment & Securities Law Reports, Judgments of Nigerian Superior Courts (JNSC), Land Law Appeal Cases, Law Reports of Nigeria, Monthly Judgments of the Supreme Court of Nigeria, Nigeria Law Report, Nigerian Commercial Law Cases, Nigerian Constitutional Law Reports, Nigerian Monthly Law Reports, Nigerian Revenue Law Reports, Nigerian Supreme Court Cases, Nigerian Supreme Court Quarterly Law Reports, Nigerian Weekly Law Reports, Northern Region of Nigeria Law Reports, Quarterly Law Reports of Nigeria, Selected Judgments of the West African Court of Appeal (WACA), Sharia Law reports of Nigeria, Supreme Court Monthly, Supreme Court of Nigeria Judgments, Supreme Court Reports, Telecommunications Law Reports, Weekly Reports of Nigeria. There are indeed other reports such as the Law Reports of different States High Courts.
Some of the above have strived with some success to meet the essentials of a good law report, while most have adopted the print and dump formula which is to obtain and report cases with minimum editorial attention.
Other reports which feature in other Commonwealth jurisdictions include the authoritative All England Law Reports, Canadian Law Reports, Canada Supreme Court Reports, Kenya Appeal Reports, The Commonwealth Law Reports, Australian Law Reports, The Victorian Reports, Federal Court Reports, The Law Reports of Gambia and Ghana Law Reports.
It may then be necessary to look at the features and persons behind a few of the Nigerian Reports in order to further appreciate the essentials of Law Reporting and whether we can rightly claim that despite the existence of several reports, we truly can say that the standard of law reporting in Nigeria is sufficiently high to meet the expectation of the legal profession.
The All Nigeria Law Reports which were established by DR T.O. ELIAS, he was an erudite scholar and he became Attorney General of Nigeria and subsequently Chief Justice of Nigeria. In 1976, he became a member of the International Court of Justice, its Vice President in 1979 and eventually the President of the Court in February 1982. When he died on 14th August 1991, he was described in terms unprecedented in Nigeria's Legal History. The Sunday Observer of 18th August 1991 called him "Mr First". The Daily Times of 24th August 1991 called him "erudite international jurist and world acclaimed scholar" while the Guardian of 24th August 1991 said "Ellias was a brilliant star amongst legal luminaries and giant among scholars". In 1990, The All Nigeria Law Reports were repackaged, reprinted and rebranded under the editional leardership of Prince Bola Ajibola SAN KBE former President, Nigeria Bar Association, former Attorney General of Nigeria and also former Judge of the International Court of Justice at the Hague. In his preface to the reports Prince Ajibola wrote "The ANLR probably has the largest collection of cases decided in the Supreme Court of Nigeria (and, in some cases, the Court of Appeal) between 1960 and 1990" (See (1961) ALL NRL at page xi). The Reports still remain a must have for any Legal Practitioner in Nigeria.
The Late Chief Gani Fawehinmi SAN was the founder of the Nigeria Weekly Law Reports (NWLR). He needs little or no introduction. In the past 40 years, he was a focal point of the crusade for Human Rights in Nigeria. His activism was not self serving but a commitment to the use of law to challenge any perceived injustice within the polity. With an uncommon resolve which sometimes was pursued solely and with a singular frame of mind even where the mainstream of the profession disagreed with him, Gani as he was popularly known has braved all odds including
several periods of incarceration by the Authorities to hold on to his grounds and beliefs. He was the Nigerian lawyer with mass appeal to the populace and was known as a "SAM" that is "Senior Advocate of the Masses" even before he was officially elevated as a Senior Advocate of Nigeria "SAN". At the time the establishment of the NWLR the ALLNLR was in a comatose state and it was apparent that Law Reporting in Nigeria needed an injection of life. Therefore when the NWLR came to life in 1985, it was warmly received by the profession albeit with some trepidation as to its sustainability. 24 years on, the NWLR has not only proven the doubting thomases wrong, it has become a permanent feature in every lawyer's library. The NWLR is very well laid out. Every copy contains the list of Justices of the Supreme Court and Court of Appeal.
The report constantly includes practice directions, postings of Justices of the Court of Appeal, news of appointments and retirements of Justices of the Court of Appeal and Supreme Court.
The Report also contain an index of cases reported, index of subject matter, index of Cases referred to in the report, index of Statutes referred to in the report and index of Rules of Courts referred to in the report.
The main body of the reports contain the subject matter arising from every case reported, the issues arising, facts of the case and ratio or reasons for the decision which all come before cases and statutes referred to in the report and finally the full report of the case. The Report is of a peculiar mass appeal to lawyers and despite the berth of several other Law Reports in the same format and mould, it has somehow retained its position as a market leader.
The Nigerian Monthly Law Reports have recently been revived and re presented to the public. It maintained the old format and it is hoped that it will maintain and even build on the very high standard set by the founding editors. These editors include eminent jurist such as Late Justice Akinola Aguda (1923 – 2001), the first indigenous African to be appointed Chief Justice of Botswana and the Late Justice Olufemi Ayoola. Olufemi Ayoola
was High Court Judge of the Western Region between 1967 and 1975. Before his elevation to the bench, he was widely acknowledged as a brilliant advocate and he had a very successful law practice in Ibadan with his Junior brother, Olayinka Ayoola who was also one of the founding Editors of the N M L R. Olayinka Ayoola also became a judge of the High Court of the Western Region and soon after a Judge of the High Court of the Oyo State upon the creation of that state in 1976. He served as Justice of the Gambia (1983 -1992) Justice of the Court of Appeal of Nigeria (1992 – 1998) and Justice of the Supreme court of Nigeria (1998 – 2003). He presently serves as Chairman of the Independent Corruption Practices Commission.
Other founding editors include Chief Mrs Folake Solanke SAN, Nigeria's first female lawyer to take silk and who remains today one of the inspirational figures in the profession. Justice Omotayo Onalaja a former Judge of the High Court of Lagos and Justice of the Court of Appeal and Late Mrs Olabisi Ayoola were also part of this illustrious group of eminent scholars.
Chief Richard Akinjide SAN, CON, FCI ARB UK was also a founding editor of the NMLR. He was admitted to the English Bar at the Inner Temple in February 1956 and called to the Nigerian Bar in March 1956. He took silk in 1978 and he is a practicing member of the English and Gambian Bars. He has been President of Nigerian Bar Association 1970 – 1973, Pro-Chancellor and Chairman of Council, University of Jos 1976 to 1979, past member, University of Ife Council, Past Chairman and life member of the Body of Benchers, Federal Minister of Education 1964 -1965 and Attorney General and Minister for Justice 1979 -1983. He is at present the second most Senior Silk in Nigeria after the quintessential Tanimowo Bankole-Oki SAN.
Such was the calibre of the founding editors of the NMLR and this made the quality of the reports comparable to the All England Law Reports and indeed any law Report of International Standard.
The New Editorial Board of the NMLR is chaired by the indefatigable and irrepressible Dr Wale Babalakin SAN. He is ably assisted by the likes of Olawale Akoni SAN, Chuka Agbu, Adebayo Adaralegbe, Oye Tola Oshodi and Mobolaji Kuti.
These practitioners bring their diverse expertise in practice to revive and repackage the NMLR and it is widely believed that the rebirth of the NMLR would breathe a new lease of life into law Reporting in Nigeria.
Some Reports are specialised and they contain cases in a defined area of the Law. For example the institute of Bankers in the United Kingdom had published Eleven Volumes of "LEGAL DECISIONS AFFECTING BANKERS 1879 -1900". These reports were edited by Sir John R Paget Bart K.C. He was the counsel to the institute and the volumes contained Reports from many sources including the "Times". The most distinguishing factor of these reports however is that they relate solely to cases involving banks and banking law. In this genre is the Nigerian Banking Law Reports published by the Nigeria Deposit Insurance Corporation. It is a well printed report and its editorial board is chaired by Professor J.O. Anifalaje of the faculty of Law, University of Lagos.
In Volume 1 of the Report, Muhammadu Lawal Uwais formerly Chief Justice of Nigeria in the Foreward to the Reports wrote that "The doctrine of judicial precedent as a unique feature of the common law relies heavily on availability law reports".
Law Reports of this type would also include the very useful Federal High Court of Nigeria Law Reports which are published under the direction of the The Honourable The Chief Judge of the Federal High Court. The predecessor of this Report was the Federal Revenue Court Law Reports (FRCR) whose Law Reporting Committees was chaired by HON JUSTICE A.G. KARIBI-WHITE. Justice Karibi Whyte ended his judicial career at the Supreme Court of Nigeria. He is author of the most authoritative practice book of the Federal High Court "LAW AND PRACTICE OF THE FEDERAL HIGH COURT" amongst other publications.
In the preface to the Report on page(i) of 1 (FRCR) 1974, the then Chief Judge of the Federal High Court, Hon Justice F.O. Ayaegbunam said as follows: "This first publication covers some of the judgments delivered by this Court from 1973 to 1974. I hope all members of the profession will find these law Reports useful, especially, those on the commercial side of the Bar, Law Teachers and students interested in this
branch of the Law. The judgments deal more with specialized subjects like the operation of The Companies Decree 1968 or other enactments regulating the operations of companies incorporated in the Companies Decree 1968, Admiralty Causes and Matters, Foreign Exchange, Copyright Patents, Designs, Merchandise Marks, Causes and Matters relating to the revenue of the Federation into which the said company or any organization thereto is a party and other related commercial matters contained in Section 7 of the Federal High Court Decree 1973; and before long, matters relating to Bankruptcy".
The importance of this Report to the commercial Bar can not be overstated.
A recent addition to the specialized law reporting family in Nigeria is the Commercial Law Reports of Nigeria (CLRN) published by Acolex Publishing Limited. In a preface by the Editional Board in January 2005, the following was clearly identified "In establishing the Commercial Law Reports Nigeria (CLRN") the obvious objective is to meet an obligation to deliver to the legal public a contribution for posterity and the furtherance of legal expertise. The more insidious prompting is to focus on a core area of practice that has otherwise not been fully reported. Trademarks and intellectual property, contracts and other commercial obligations, shipping and maritime disputes; company law and corporate governance; revenue law and tax appeals; employment law; arbitration and banking matters all come within our contemplation. The categories remain open. It is for this reason and others that a monthly periodical is conceived. CLRN has selected only judicial decisions in commercial law to provide a ready-made tool of assistance for the practitioner, judge, scholar, researcher and author in their forage into the state of the law in Nigeria. There is no gainsaying that the business community will appreciate the development as CLRN attempts to bridge the knowledge gap and guide their advisors on the state of the law of obligations in Nigeria". Like the Federal High Court Law Reports earlier referred to in this paper, these Reports are of great significance to the commercial Bar.
It would appear that in Nigeria as in other Commonwealth jurisdictions, the appellate Courts enjoy the attention of the law reports more than Courts of first instance. The reason for this is not far fetched and it is the concept of Judicial Precedent as a doctrine of the English common law. Most cases which are very contentious have a tendency not to end at the Court of first instance. Invariably and more often, there is an appeal to the Court of Appeal and ultimately the Supreme Court. It is therefore the decision of the Appellate Court which becomes judicial precedent. The doctrine of Judicial Precedent has been likened to the killy loo bird, a rather strange bird which flies forward but looks backward. It is the principle of law on which a judicial decision is based. It is also known as the doctrine of stare decisis which literally means "stay by things decided" Precedents abound in the law Reports as Authorities to follow in determinations in Courts of Justice "or" A decided case that forms the basis for determining subsequent cases involving similar facts and issues "or" a decided case that furnishes a basis for determining later cases involving similar facts or issues (see ADVANCE LAW LEXICON BY P. RAMANATHA AIYAR 3RD EDITION, REPRINT 2009 PAGES 3671 AND 3672).
In the case of DALHATU V. TURAKI (2003) 15 NWLR (PT 843) 310, it was held that the Doctrine of Judicial precedent otherwise known as stare decisis is well rooted in Nigerian Jurisprudence. It is a well settled principle of Judicial policy which must be strictly adhered to by all lower Courts. While lower courts may depart from their own decisions reached per incuriam (that is without considering authorities on the point), they cannot refuse to be bound by decisions of higher Courts, even if those decisions are were reached per incuriam.
The implication of this is that a lower Court is bound by the decision of a higher Court even where it was given erroneously.
Furthermore in DALHATU V. TURAKI (SUPRA), The Supreme Court went ahead to state that the conduct of the trial Judge in refusing to follow and apply the decision of the Supreme Court in the case of ONOUHA V. OKAFOR (1983) 2 SCLNR 244, amounted to Judicial impertinence.
Learned Justice of the SUPREME COURT Katsina Alu JSC, pointedly referred that a refusal by a judge of a lower court below to follow and be bound by the Supreme Court's decision is gross insubordination and such a judicial officer 'a misfit in the Judiciary'. (at page 336. Paras. E-F).
It would appear that for an effective operation of the Doctrine of Judicial Precedent, the following are necessary:
1) A settled hierarchy of Courts.
2) An efficient system of law reporting.
The quality of law or bindingness, it must be pointed out, operates only from the High Courts upwards in the Judicial hierarchy. Though magistrates and Area Courts are bound by the decisions of the High Courts of their own States, the decisions of the Supreme Court are binding on all other Courts in the hierarchy. Unless they can be distinguished, The Supreme Court is bound by its own previous decisions. However in WITT AND BUSCH LTD V. DALE POWER SYSTEM PLC (2007) 17 NWLR (PT 1062) 1 SC, it was held that the Supreme Court can only depart from its previous decision based on the grounds of inconsistency with the Constitution, error in law, or where the decision was reached per incuriam, or where such decision may occasion injustice or perpetuate injustice in the instant case. Again in DAPIANLONG V. DARIYE (2007) 8 NWLR( PT 1036) 332 S.C. Per Mohammed JSC at pages 17 and 18. The Supreme Court held that although the principle of Judicial precedent is an indispensable foundation on which to decide what the law is, there may be occasions when a departure from the precedent is in the interest of Justice and proper development of the law and the Supreme Court recognises that it has power to depart from the precedent of its previous decision on point of law.
Foreign decisions on their own constitute mere persuasive authority in Nigeria, as our Courts are not bound to follow foreign decisions. Also decisions of Courts of Coordinate Jurisdiction are persuasive.
In FRA WILLIAMS V. DAILY TIMES (NIG) LTD (1990) 1 WRN1 AT P.29. It was held that Courts of Co-ordinte Jurisdiction are persuasive in nature. Also YAHAYA V. STATE (2002) 11 WRN 1 SC; It was held that English authorities are of persuasive status in Nigerian Courts.
However there is a growing school of opinion and indeed demand that Judgment of first instance, particularly at the High Courts be it Federal or States are not sufficiently reported. In her editorial to Part 1 of the Lagos High Court Reports (250) 1 LHCR, Bioye Majekodunmi as Editor wrote "Most cases do not go beyond the High Courts and several important principles are initiated at this level and remain the Law, especially where not appealed. Where these judgments are not reported a whole body of legal principles is lost from our aggregation of legal knowledge. Reporting the decision of the High Court, is therefore an imperative. Secondly, law reporting serves to highlight the tremendous industry and ingenuity of our High Court Judges, who even by the strictest standards are probably the very best of Judges anywhere on the continent. It is easy to forget that most of the English decisions that we rely on even at the Appellate Court level, King's Bench, Queen's Bench and Chancery reports, are High Court judgments faithfully recorded in that country by those who recognize that the High Courts form the backbone of the Superior Courts of Record and consequently are of fundamental importance to the development of law".
The following have been identified as the advantages of Judicial Precedent or stare decisis:
1) It helps to maintain consistency, stability, and a high degree of certainty, in the practise of the Courts
2) It saves the precious time and energy of judges since they need not trace every point of law
3) By keeping the law in view, the doctrine largely succeeds in keeping justice and fairness, ensuring within reasonable bounds, that citizens are treated as equals before the law.
4) By engendering due respect for the decisions of superior Courts in the hierarchy, it helps to maintain the ethics of the legal profession.
5) By introducing a sense of obligation in the inferior Courts to follow the decisions of the superior Courts, it enforces a welcome uniformity of standards through the hierarchy and
6) It facilitates the task of legal practitioners to find law and advise their clients properly as to what the Court's decision in a particular legal issue may be expected probably to be
The bedrock of Judicial Precedent can then safely be found in law Reporting. The Law Report provides the source of case law precedents. They are the conclave in which lawyers retreat to dig for the right law to apply in every situation that confronts their clients.
The Rt. Hon Lord Denning, Master of the Rolls (1899 – 1999) was the greatest Law making Judge of the 1900s and also the most controversial. He was called to the bar in 1923. In 1957, he was elevated to the House of Lords but in 1962, in an unprecedented move, he stepped down to the position of the Master of the Rolls, that is, the head of the Civil Division of the Court of Appeal in England. In his book Landmarks in the Law, Butterworths 1984 while describing his life in retirement, he describes his personal library at home at page 369 and wrote as follows:
"Much of my time is spent in my library. It fills the shelves of two large rooms of our Regency house. It is, I believe, the best collection of law books in private hands. All the reported cases in England for four centuries. All the Common Market cases from its beginning Thousands upon thousands of cases. The volumes increase year by year. I sometimes wonder whether our system of case law will stand the strain. The weight is not relieved by our modern research tools like "Lexis" and "Eurolex". They only aggravate it. They tell you, not only of reported cases, but also of unreported cases. So there are more to look up.
I have also a goodly collection of the classics of English history and literature. They are the source of much of what I have written here.
Here, then, are my tools of trade".
Indeed the Law Reports are the "tools of trade" of the practicing lawyer.
These "Tools" of our trade play a significant role in the development of the Rule of Law. The Rule of Law itself defiles definite definition but as a concept it is well understood and appreciated by all civilized nations.
The age of the electronic library has fully arrived and the legal profession is not left behind. Law libraries are now going more and more the digital way. Law Reports and other research material are now increasingly electronically stored and transmitted
thereby altering the face of the traditional law library. It is not out by place to see lawyers rely more on various search engines for the source of judicial precedent. The advantages of this are too numerous. The fact that your law library can move around with you in your laptop computer definitely makes life more convenient for the practitioner.
Most of the Law Reports mentioned in this paper and a host of others deserving a mention but left out for lack of space have found their ways into several electronic format in the existing search engines.
It has been said and recognized that lawyers usually use Law Reports because they are in search for support for a legal proposition whether such is positive or negative, directly on the point or just peripheral. Lawyers also read law reports when a specific or particular authority or decision has been brought to their attention and same is needed to support their case and or impair their opponents case. In Nigeria today, the Rule of Law is the mantra of the present Federal Government. The Rule of Law ensures that a country is governed by a definite set of rules and that both the governors and governed and indeed the state are all subject to Law. It ensures that no one is above the law. There is therefore certainty in the affairs of men and a most important source of that certainty is to be found in the Law Reports. The enthronement and development of the Rule of Law is very rooted in the decided cases which reside in the various Law Reports.
The flooding of the Nigerian legal space with all manner of publications being paraded as law reports is therefore worrisome. This situation has persisted because of the lack of any form of regulation. There is a clear and present danger that practitioners are unduly exposed to badly edited reports. Cases which pass without discussion or consideration are regularly reported. Cases which are substantially repetitions of what is already reported are now to be found in many of our law reports. Not only are such reported cases valueless as precedent, their continuous appearance and re-appearance in these reports tend to bring confusing interpretation of already settled principles of law. The result therefore is not only lawyers being unable to clearly state the law but the Courts will begin to give conflicting Judgments in similar cases. In its desire to make its decisions more certain, the Supreme Court of England and Wales (formerly the judicial arm of the House of Lords) now prefers to deliver single judgments except where there is a dissent.
There is no gain saying that an enterprise that is as fundamental and crucial to the law as law reporting should be left unregulated. The danger in a free for all, no set standards, no regulation law reporting regime is unacceptable and portends grave danger. The Nigerian Bar Association ought to take this up before we all become victims of bad law reporting.
The present state of Law Reporting in Nigeria is unacceptable and there is need for urgent intervention.
CHIEF BOLAJI AYORINDE SAN, PRINCIPAL PARTNER
OF MESSRS B. AYORINDE & CO LEGAL PRACTITIONERS
WITH CHAMBERS IN LAGOS, IBADAN AND ABUJA.
HE WAS PRO-CHANCELLOR AND CHAIRMAN
OF THE GOVERNING COUNCIL, LADOKE AKINTOLA
UNIVERSITY OF TECHNOLOGY, OYO STATE.
8TH JUNE 2010
JUDICIAL PRECEDENT, LAW REPORTING AND THE NEED FOR REGULATION
CHIEF BOLAJI AYORINDE SAN
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.