CHAPTER ONE

1.0 Introduction

The desire to write an essay on the doctrine of judicial precedent as

source of Nigerian law is borne out of the great significance attached to the

doctrine in all common law jurisdictions. This doctrine which has its roots deeply

embedded in the English legal system, is often regarded as the most distinctive

feature of English corpus juris. The primacy of the doctrine of judicial precedent

in legal theory, is often regarded as the most distinctive feature of English corpus

juris. The primacy of the doctrine of judicial precedent in legal theory can further

be attested to by its constitution into a distinct source of law.

At this point, one is impelled and compelled to ask: What is the origin of

the doctrine of judicial precedent in the Nigerian corpus juris of law? A doctrine

which supposedly owes its origin and development to the English legal system?

The response to these posers are not hard to find especially to many an observer

conversant with the history of colonialism in Africa, Nigeria in particular. Amongst

the implications of the British policy of colonization was the imposition of the

British mode of justice administration on her colonies, whose society norms and

values were quite at variance with those of the imperial power.

Consequently, this research work on the doctrine of judicial precedent as

applied in Nigerian law since its inception is divided into five chapters. Therefore

this research proposes, most importantly, to undertake an in-depth incursion into

the operation of the doctrine in Nigeria courts.

1.1 BACKGROUND OF THE STUDY

In Nigeria,our legal system comprised the common law, the doctrines of

equity and the statutes of general application which were in force in England on

the first day of January, 1900, as well as native law and custom. Added to them

are the statutes passed locally by the Nigerian legislatures. It is also stipulated in

the various High Court Laws applicable in all the states of Nigeria that where no

express rule applies to any particular case, the courts are mandated to apply “the

principles of natural justice, equity and good conscience”. This in effect is an

authority to the courts to devise legal rules where non exists to meet the justice

of the case before them.

1.2 STATEMENT OF THE STUDY

The desire to write an essay on the doctrine of judicial precedent as a

source of Nigerian law is borne out of the guest significance attached to the

doctrine in all common jurisdictions. This doctrine which has its roots deeply

embedded in the English legal system, is often regarded as the most distinctive

feature of English corpus juris. The primacy of the doctrine of judicial precedent

in legal theory can further be attested to by its constitution into a distinct source

of law.

1.3 OBJECTIVE OF THE STUDY

The aim of this present research work is a plea for a more creative use of

judicial precedents by all courts to ensure justice in the Nigerian society. The

study also aims to ensure the strict and proper application of the doctrine of

judicial precedent in our courts.

1.4 METHODOLOGY OF THE STUDY

The method of this work would be both analytical and critical and it shall

involve five chapters.

1.5 SIGNIFICANCE OF THE STUDY

What has greatly influenced the choice of judicial precedent as the subject

matter of the essay is the prominent role it plays in all common law jurisdictions.

The primacy of the doctrine of judicial precedent in these jurisdictions could

further be attested to by its constitution into a distinct source of law.

1.6 SCOPE AND PLAN OF THE STUDY

This essay shall as much take an in-depth incursion into the operation of

the doctrine of judicial precedent in Nigerian courts and its importance.

1.7 DEFINITION OF TERMS

In the analysis of the doctrine of judicial precedent, the word “precedent”

must first be adequately explained. Precedent has been defined as:

“The making of a law by a court in recognizing and

applying new rules while administering justice or a

decided case that furnishes a basis for determining

later cases involving similar facts on issues1

According to William M. Lile et al, “In law a precedent is an adjudged case

or decision of a court of justice, considered as furnishing a rule or authority for

1 Black’s Law Dictionary 8th Ed.

the determination of an identical or similar case afterwards arising, or of a similar

question of law. The only theory on which it is possible for one decision to be an

authority for another is that the facts are alike, or, if the facts are different, that

the principle which governed the first case is applicable to the variant facts”.2

PER INCURIAM

This means “a judicial decision wrongly decided usually because the judge

or judges were ill-informed about the applicable law”.3

Furthermore, “As a general rule the only cases in which decision should

be held to have been given “per incuriam” are those of decisions given in

ignorance or forgetfulness of some inconsistent statutory provision or of some

authority binding on the court concerned, so that in such cases some features of

the decision or some step in the reasoning on which it is based is found on that

account to be demonstrably wrong. This definition is not necessarily exhaustive,

but cases not strictly within it, which can properly be held to have been decided

“per incuriam” must in our judgment, consistently with the stare decisis rule which

is an essential part of our law, be of the rarest occurrence”4

STARE DECISIS

The rule of judicial precedent finds it expression in the doctrine of stare

decisis. This doctrine is simply that, when a point or principle of law has been

once officially decided or settled by the ruling of a competent court in a case in

2 Brief Making and the Use of Law Books 288 (3rd ed. 1914).3 Black\s Law Dictionary 8th Ed.4 Report cross and J.W. Haris, Precedent in English law 149 (4th ed. 1991)

which it is directly and necessarily involved, it will no longer be considered as

open to examination or to a new ruling by the same tribunal, or by those which

are bound to follow its adjudications, unless it will be for urgent reasons and in

exceptional cases.5

1.8 LAYOUT OF THE STUDY

The remaining part of this project will be, structured as follows, chapter

two will be an overview of the doctrine of judicial precedent as a source of law.

The chapter also examines some definitions of the doctrine of precedent as

proffered by various learned writers, legal commentators and likewise judges,

namely, Dias and Hugles, C.K Allen, Anthony Allot, Glanville Williams, Lord

Denning M.R., et al. In addition, there is a synopsis on the evolution of the

doctrine of judicial precedent in England, its importation into and application in

Nigeria and, lastly the merits and demerits inherent in the application of the

doctrine of judicial precedent.

The succeeding chapter three takes an examination of the status of

decisions by superior courts that exercise jurisdiction in Nigerian cases either as

first instance or appellate courts. These superior courts are the Supreme courts;

Federal Court of Appeal, Federal High Court and state High Courts. There is a

further examination of decisions reached per incuriam, most especially those by

superior courts of records and the burden such decisions constitute on inferior

courts as binding precedents.

5 William M. Life et al. Brief moving and Use of Law Books 321 (3rd Ed. 1914).

The fourth chapter looks at recent trends in the attitude of Nigerian courts

to the doctrine, particularly the court of appeal.

The last chapter, that is, the fifth, is largely made up of the researcher’s

general observations on the operation of the doctrine in Nigerian legal system.

Here also, the researcher made some recommendations that could serve as

panacea to the misapplication of the doctrine of judicial precedent by

contemporary Nigerian courts.

CHAPTER FIVE

FINDINGS

(i) From a survey conducted by the present writer, the doctrine of judicial

precedent lacks adaptability to changing circumstances. This fact is made even

more real in a dynamic society like ours, where, for instance, statutes are not

passed for all time, advancement in economic, educational, and socio-political

and legal spheres of the Nigerian society. Changes are brought in by the various

legislatures as circumstances offer. There may be a repeal or an amendment

whereby some provisions are deleted and others introduced. But a judicial

decision, unless overruled, remains for all time under the doctrine of judicial

precedent serving a good or an evil purpose.

(ii) Another finding of no less importance, is that a strict application of the

doctrine of judicial precedent could lead to the suppression of the better

judgment of an exceptionally qualified judge. If he is the first to decide the point

he will have laid down good law and succeeding generations of judges and the

profession will learn from him and the end justice will be served. However, the

problem arises where he comes later on the scene and finds himself fettered by

a decision he cannot, because of the doctrine, refuse to follow. The doctrine of

judicial precedent ties him to the apron-strings of a decision which is not in true

accord with what his expert knowledge in the particular field of law tell his is right.

CHAPTER FOUR

4.0 RECENT TRENDS IN THE ATTITUDE OF NIGERIAN COURTS TO THE

DOCTRINE

In the course of research into this treatise on the recent trends in the

attitude of Nigerian Courts to the doctrine of judicial precedent, the present writer

made the choice of the Court of Appeal as his case study. This is because the

writer has been able to establish from a survey carried out on the subject matter,

that the Court of Appeal judges are the dramatis personae (major) in these

recent trends.

The Court of Appeal once again treated with disdain as it did in U.T.C. v.

Pamotei,6 the judgment of the Supreme Court. The latest of such is the recent

decision in Afro Continental Nigeria Ltd. V. Ayantuyi7. In this case, Omo, J.C.A.,

(as he then was) tore apart the doctrine of stare decisis otherwise called the

doctrine of Judicial precedent as he refused to be bound by the decision of the

Supreme Court in Kotoye v. Central Bank of Nigeria.8

In Kotoye v. C.B.N (supra), one of the issues for determination was

whether a trial court should extract an undertaking from an applicant in an

interlocutory application for injunction,and if a trial court fails to do so, what

would be the effect of such failure on appeal? This same issue was the subject

matter of the appeal in the said Afro Continental case (supra).

While it was the opinion of the Supreme Court that an undertaking is a

sine quo non, the Court of Appeal thought otherwise and acted otherwise.

According to the Supreme Court in Kotoye’s case:

6 (1989) 2 N.W.L.R. (pt. 103) 244 at 293.7 (1991) 3 N.W.L.R. (pt 178) 2118 (1989) 1 N.W.L.R. (pt.. 98) 419

“Where a court of first instance fails to extract an

undertaking as to damages where it should, an

appellate court ought normally to discharge the order

of injunction on appeal”9

In response to the submission of Chief G.O.K. Ajayi (S.A.N.) that where

such an undertaking as to damages was necessary but not considered or given,

an appellate court should order that it be given, Nnaemeka – Agu, J.S.C. said “I

do not agree” and went on to explain the rationale for his so holding:

“This is for the simple reason that invariably, the

damage, if at all, is done within a few days, it will serve

no useful purpose to make an order on appeal which

will have the effect of, as it were, closing the stable after

the animal has bottled away. In my judgment, therefore,

where a court of just instance fails to extract an

undertaking as to damages where if should, an

appellate court aught normally to discharge the order of

injunction on appeal”10

This view also received reinforcement from Justice Nnaemeka (late) in the

following words:

“Chief Ajayi has submitted that rather than set aside the

orders where the first court which granted them has not

extracted an undertaking, the court of Appeal ought to

9 Ibid at 451.10 Ibid

extract the undertaking. I just suspect that the damage

may have well been suffered by the defendant before

researching the Court of Appeal. Besides, the Court of

Appeal could be accused of intervening on one side of

the dispute”.

It is, however, an irony of the deepest significance that confronted with an

identical situation in Agro continental Nigeria Ltd. V. Ayantuyi,11 the court of

Appeal chose to chart a different cause. It undid all that had been done by the

Supreme Court in Kotoyi’s case and chose to cave a niche of its own.

The anchoir to which the Court of Appeal hinged its refusal to follow the

Supreme Court’s decision in Kotoye’s case was according to Omo, J.C.A., (as he

then was) the inadvertence of the Supreme Court to consider section 16 of the

Court of Appeal Act. According to is Lordship, section 16 empowered the Court

of Appeal to extract an undertaking from an applicant who failed to do so at the

High Court. His Lordship rationalized;

“In coming to this conclusion in the face of the decision

of the Supreme Court in Kotoye’s case, I do so with the

greatest respect to the learned justices of that court, in

the belief that if their attention had been drawn

forcefully to the provisions of section 16

aforementioned, they would have survived it a different

decision. To that extent, it is my respectful conclusion

11 Supra

that the decision in Kotoye’s case was taken per

incuriam”.

The court, therefore, seceied for itself a detour from the decision of the

Supreme Court in Kotoye’s case. To many a legal commentator, this act of the

court of the Court of Appeal is wrong. This is because the principles of store

decisis or strict doctrine of judicial precedent ensured in section 251 of the 1979

constitution commends a judge to follow the decision of a judge of a court that is

higher in the hierarchy. In other words, a High Court judge is bound to follow the

decision of the court of Appeal and the Supreme Court while the Court of Appeal

is bound to follow that of the Supreme Court. The Supreme Court itself is bound

by its previus decisions subject to its right to revise them. It does not matter

whether the decision is plainly enourse12.

Thus in Ngwo v. Manye,13 the Superem Court held that a decision that is

demonstrably wrong is however still binding on subordinate courts under the

principle of staue devisis which is the foundationm on which the consistency of

our judicial decisions in this country is based. Similarly, in Ojosipe v. Ikebata,14

the supreme court stated with admirable precision that he principles of stooue

devises are part o our law by which we are enjored to follow our previous

decisions.

The strictness of this principle finds illustration in the case of Eziukwu v.

President, Ibinta Improvement Union where Nwokedi, J. (as he then was) found

himself obliged to follow the Supreme Court decision in Ijegwu v. Ota Ukaeji15

12 Chairman, L.E.D.B. v. OYEWO (1969) N.W.L.R. 332;13 Supra 14 (1972) 1 All N.L.R. 128.15 (1965) 1 All N.L.R. 68

and observed that until that case is over-inted by the Supreme Court itself, it

remains a good binding law on all inferior courts in this country.

On this basis therefore, the protogomists of the strict application of the

doctrine of judicial precedent, are strongly of the view that the judgment of Omo,

J.C.A., that the Supreme Court’s decision in Kotoye’s case was given per

incuriam does not make the decision less binding on the Coiurt of Appeal. To

them, the decision is as much binding as a decision that is not given per

incuriam. They went further to say that the obligation on the part of the

subordinate court to follow a decision that is known to have been given per

incuriam thought it may call comment, the fact remains that this subordinate court

in this context, the court of Appeal has no option but to follow it, and any attempt

to impugn its validity will meet with stem rebuke from the higher court.16

In the celebrated case of Akilu v. Fawehinmi17 the Supreme court refused

its step on the right of a pirate prosecution. Earlier in the case of Fawehinmi v.

Akilu (No. 1)18, the Supreme Court extolled the rights of a pirate prosecutor as

provided for by section 342 of the Criminal procedure Law (C.P.L.)19. In what

appeared to be a backpedal, the Court held that:

“Chief Gani Fawehinim cannot fall within the

measuring of the word “any person” in the provisions

of section 340(1) of the C.P.L. cap 32 for the

prosecution of ffences under part 31 ecept for the

offence of peiying”16 Isamiya v Bauchi N.A. (supra)17 (1989) 2 N.W.L.R. (pt. 102).18 (1987) 4 N.W.L.R. (pt. 67) 797.19 Cap 32 of Lagos state.

The Supreme Court then recapitulated:

“Since the general provision in section 340(1) is subject

to the specific provision in all other offences has been

withdrawn by the amendment of section 340(2) of the

C.P.L. Cap 32 vol. 11 Laws of Lagos state 1973… A

pirate prosecutor can now only invite prosecution for

the offence of peyway”20.

So, by and large, the Supreme Court reserved its earlier decision granting

Chief Gani Fawehinmi the right to prosecute

4.2 THE FUTURE OF THE DOCTRINE OF JUDICIAL PRECEDENT

The discause here is devoted to discussing the future of the doctrine of

judicial precedent as received from England and applied in Nigeria. In chapter

two of this research work we saw the historical evolution of the doctrine of judicial

precedent, the application of the doctrine and the merits and demerits of the

doctrine.

It is not worthy that the doctrine of judicial precedent developed in three

stages. The just stage was a period of “free law finding” when no court was

bound to precedent. The second stage witnessed an epoch in which we find the

judges listening to citations of extie cases, and no doubt being influenced by

them incoming to their decision, but not yet bound to follow those cases21

20 Pa Kaubi-Whyte, J.S.C. in Akilu v Fawehinmi (No2) (supra) 171.21 Ellis Lewis, “The History of Judicial prededent” (1930) 46 L.Q.R. 207, 212

At the third and last stage, we find judges declaring that they are bound by

previous decisions in given circumstances. It was at this stage that the doctrine

received another name – stone decisis – becaue of its strict application and was

reced in Nigeria in that form.

Also, we saw how the Nigerian Superme Court has tempered the

strictness of the doctrine beyond that previously recognized in the Court of

Appeal, Court of Criminal Appeal and House of Lords in England., We alsosaw

how the Nigerian Court of Appeal punctured the strictness of the doctrine by its

request to follow, in some cases,22 the decisionof the Supreme Court23.

All these have a bearing on the future of the doctrine of judicial precedent

in Nigeria. The question now is whether the doctrine in its present form will

continue in this country for the future or whether we fonsee circumstances that

will affect the operation of the doctrine for better or for worse.

Undoubtedly one of the major factors that will influence the future direction

of the doctrine of judicial precedent in this country is the dynamic nature of the

Nigerian society. There is no doubt that the character of the Nigerian society has

changed drastically between the reception of English law on 1st January, 1900,

and now. There have been changes in legislation, in public policy and social

values, in customs and induction and intelligence level of Nigerians. These

changes have affected in no small measure some decisions of the Nigeria

Courts. The English doctrine therefore appears to be too static for a dynamic

situation like ours.

22 U.T.C. v. Promoter (Supra) A.C.N. Ltd v. Ayantayi (supra)23 Kotoye v. C.B.N (supra)

As it has been stated above, public policy, custom and social values

change is society changes. Decisions based on these elements may some day

fall out of focus with needs of the time. There is steady a trend in this direction. In

Tijam v. Secretary, Southern Nigeria24, the pury commil recognized the principle

that notion of individual ownership of land was quite foreign to native ideas” and

that land belonged to the community. But in Lewis v Bankole25, Speed, Ag. C.J.

observed:

“… family ownership is gradually cersing to exist. In a

progressive community it is of cause inevitable that this

should be so the institution of communal ownership has

been dared for years…”

This opinion was advanced some twelve years before the pury council

decision in Tijami’s case. Although speed’s decision was reversed by the Full

court, it is indubitable that the trend from communal to individual ownership of

land has been vindicated. The result is that the concept of communal ownership

no longer monopolises Nigerian juristic thinking and that individual ownership is

steadily gaining recognition even in rural areas. Thus in the case of Nwankwo v.

Chukwueke26, Amagolu, J., (as he then was), stated inter alia:

“Where there is a predominating widence establishing

individual ownership in a community the court must

declare in favour of individual ownership, the

24 (1921) A.C. 399, 40425 (1908) 1 N.L.R. 81, at 93.26 (1972) 2 E.C.S.L.R. 96, 97.

presumption of communal ownership having, in that

case, been amply rebutted”

It has further been established that a change in the standard of education

and intelligence can make a precedent attated. This is for the simple fact that a

decision which takes account of poor education and intelligence may not be

followed when the standard of education and general intelligence improves.

The view above finds accord with that expressed by Dr. C.K. Allen

According to the federal writer:

“changes and development in human knowledge may

greatly affect the application of precedent…” It is a

matter for speculation how far judges in the distant

future will consider themselves free to disregard

precedents in the light of what they believe to be larger

and superior knowledge…27.

The present writer cannot agree less.

Lastly, with the foregoing discussion in mind, the writer ventures to submit

that in no distant future, the doctrine of judicial precedent as known in England

and imported into Nigeria, will operate for less rigidity than if less done hitherto.

This may be so because decisions then will not necessarily follow the path of

extent ones which were reached under a completely different social order.

27 Allen, Op. cit., pp. 299 – 300.