Stare Decisis: Conflict of Precedents.

I woke up this morning greeted by a message from a learned friend of mine whom I always share ideas and thoughts with. The message read thus:

"Reading Old Cases is interesting but the danger in doing them is that most of the touted Locus Classicus, the old cases poignant on interesting areas of law have been modified by new authorities. Most new case laws have modified the principles in the old case laws. The thing that surprises me is that in most of these new cases where there are radical departure from the old cases the old cases are not referred to and there is no express decision that it has been overruled or set aside. Thus the principle in the old case of the court e.g. Supreme Court exist with the new case of the Supreme Court. I now ask in the light of these scenario and you want to cite the SC authority which prevails; the old one or the new one?Are there cases that has settled this issue? What are your views? Good morning.
Ifeanyi Agwuncha."

Below is my response, which I humbly thought would be worth sharing, to stimulate thoughts and responses from legal minds alike:

Agwuncha Esq., I must say I envy your ingenuity in dusting up issues that are very important aspect of law and our practice but may otherwise be given little attention.

My response to your exposition and question this morning is on the theme: Stare Decisis

It is stated in full as 'stare decisis et non quita movere' otherwise tagged 'Judicial Precedent'. The meaning and import is to abide by former precedent where same points come up again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does not however preclude judges of subordinate court from changing what has been determined. Per Adekeye, J.S.C. in Dingyadi & Anor v INEC & Ors. (2011) LPELR-950 (SC)

It is however not everything stated in the decision that constitutes stare decisis. What is binding is the enunciation of the principles or the reasons upon which the question before the court was decided. Any other thing said by way of arriving at that decision is usually referred to as 'obiter dicta' which is not binding, though they may have persuasive efficacy. But where however, an obita dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding. Per Onnoghen, J.S.C. in Adedayo & Ors. v PDP & Ors. (2013) LPELR-20342(SC) ; see also Clement v Iwuanyanwu (1989) 3 NWLR (PT.107) 39

Stare decisis does not only mean an inferior court being bound by the decisions of a superior court, it also means a superior court following its previous decision when the facts and circumstances are similar.
It was Nnaemeka Agu, J.S.C. who noted that 'this court [Supreme Court] respects precedent, even though it is not a court bound by precedent. It is essential for the certainty of the law that it should generally follow its previous decisions.

The Superior courts are only allowed to DEPART (note depart for emphasis) from their previous decision when the interest of justice will not be served. As Nnaemeka Agu, J.S.C. further stated that,  the Supreme Court as a court of ultimate resort, will not be held hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. See Asanya v The State (1991) 3 NWLR (PT180) 422; (1991) LPELR-574 (SC) pp.18-19, paras. G-B.

The late sage, Oputa, J.S.C. in Eperokun v UNILAG  (1986) NWLR (PT. 34) 162 noted that, "the question as to whether the Supreme Court should reconsider a previous decision... is a question of judicial policy rather than a question of law. It involves a balancing of the need for certainty in the law with the need for the judges to see that they faithfully apply the law as it is and not the law as they would like it to be or as it was wrongly conceived to be in a previous case. The first need compels the judges to be very slow in reversing or altering previous pronouncements as to what the law is. The second need compels them to correct their previous pronouncement if satisfied that those pronouncements were wrong. The balancing of these two fundamental objectives is of far greater importance in the court of last resort."

Tobi, J.S.C.  put paid the issue when in Veepee Ind. Ltd v Cocoa Ind. Ltd (2008) NWLR (PT.1105) 486, he magisterially proclaimed thus: "The position of the law is that ordinarily this court [Supreme Court of course] adheres to the principle of stare decisis. It will therefore hold itself bound by its previous decisions. But where it is satisfied that any previous decision is errornous or was reached per in curiam and will amount to injustice to perpetuate error by following such decision, it will overrule it or depart from it. This power of the Supreme court is predicated on the fact that it is better to admit an error than persevere in error."

This implies that a superior court departing from or not following its previous decision must be a deliberate act, which must call into question the said previous decision. Thus, when a relevant prior decision is not cited before the court, or mentioned in the judgement of the court, it must be assumed that the court acted in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per in curiam and not binding on a later court. See Badau & Anor v INEC & Ors. (2008) LPELR-3841(CA) p.26, paras. A-B.; (2008) All FWLR (PT.435) 1794.

This becomes pertinent in view of the fact that it is trite that, where an inferior court is faced with two conflicting decisions of the superior court on an issue, it is bound to follow the latest. See Osakue v Federal College of Education, Asaba (2010) 10 NWLR (PT. 1201) 1.

Therefore, a previous decision reached per in curiam cannot be binding, so also, a latter decision reached without overruling a previous decision on the same issue cannot be preferred in a situation of conflict between the two. Because it must be assumed that the court acted in ignorance or forgetfulness of such previous decision, and if the new decision is in conflict with the old decision, it is given per in curiam and not binding on a later court. See Badau & Anor v INEC & Ors., supra.

Regards,
Reggie A. Uzoechi.

On Tambuwal: May the Rule of Law Prevail.

I blame our courts that have abdicated their responsibilities through judicial laziness & 'delay syndrome.' I blame the lawyers who engage in all sort of delay tactics to frustrate justice. I blame a society where everything (including the Rule of Law) has been politicised. The impact is more felt when the lay ones become interpreters of our constitution, while the "learned ones" engage in 'game theory' of interpretation.

Rt. Hon. Aminu Tambuwal, the Speaker of Federal House of Representative, Abuja, Nigeria is no doubt a shrewd politician. Recall that he contested and won the speakership position against the wish and aspiration of his then political party, PDP. Apparently, the opposition legislators gave him the winning vote. His anti-PDP propensities are as old as the present House.

Tambuwal is not the speaker of the PDP caucus, he is that of the entire House. Smart enough, he timed his defection at a time when the PDP must have lost the numerical strength to oust him from his primus inter pares position.
And a recess was declared. It was never reported that the Speaker imposed the recess in the House. It was a recess OKed & approved by the entire House. It is not on record that any member of the House objected to or opposed the recess. They all welcomed it because it will afford them the chance to go run errand for the forthcoming election... And so there was recess.

Tambuwal acted like our 'men of god' who know what the congregation wants to hear and that they say to the congregation.
Now the PDP saw the recess as a ploy to shortchange them and all that could happen is for the power that be to strip the Speaker of his security details. Citing s. 68 (1) (g). They said the speaker has lost his seat having defected to another political party. The police claim they have a duty to uphold the constitution. Pity!

Who has the duty to give effect to s.68 (1) (g) of the Constitution of Nigeria 1999 (as amended)?
That is the question the "game theorists" and the lay interpreters of our Supreme Constitution have deliberately refused to avert their minds to.
By that same s.68, subsection (2) precisely, the Senate President or the Speaker of the House is empowered to give effect to the provision of s. 68 (1) after a satisfactory evidence is first presented to the House concerning that any of the provisions of the subsection has become applicable in respect of that member.

On the other hand, s. 6 (6) (a) & (b) give the courts inherent powers which the constitution says extends to all matters between persons, or between government and authorities and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person....

If the PDP caucus feel the need for the House to reconvene, the House Rules enables that. They can compel the Deputy Speaker to write the Speaker to reconvene the House; the Speaker failing, they get a signature of 1/3 members of the House (which they have and can get) to reconvene the House. And if the Speaker absents himself, the Deputy Speaker can preside. It could even be an opportunity for the Deputy Speaker to declare the Speaker's seat vacant, if not that matter relating to the issue as to whether a member who defects to another political party loses his seat, is before the court and noting the House Rules which say that the House shall not take decisions on any matter before that court until the court finally decides. This was the position the Senate President, Sen. David Mark in his characteristic maturity took when he was called upon to declare the seats of defected Senators vacant.

Alternatively, the PDP would have to be patient to wait for the Court decision on the matter, since it's already before the court... Let the court decide whether Tambuwal and other members lose their seat or not by defecting.

On a political note and as an aside, after all, the PDP have been aware of Tambuwal's anti-party activities and they condoned it. He has been attending APC meetings and scarcely attended PDP's. Why haven't they sanctioned him? Amaechi and his co-travelers that were suspended from the PDP didn't even engage in more anti-party activities than Tambuwal did. Yet PDP afforded him the chance to maneuver.

The swift politician has approached the court to seek redress which he would sure get as the courts are wont to ask parties to maintain status quo till final determination of the matters before the court. (Which is likely to last beyond February, 2014, by which time Tambuwal may have won the Sokoto guber election.)
The same way they almost mishandled Sanusi Lamido Sanusi.

There have been series of defections and counter-defections. I am not unaware that some members of other political parties have defected to PDP as well. Has anyone declared their seats vacant?
What trash then is the police talking about defending the constitution?

And to the PDP, lets hope the court rules that a member who defects loses his seat, until then, the addition and subtraction will be done and then the majority and minority will be determined.

Until then let it be borne in mind that Nigeria is not practicing a Parliamentary System of Government where the political party with the highest number of seats in the Legislative House forms the government.

LET'S ALLOW THE RULE OF LAW TO THRIVE IN OUR DEAR COUNTRY NIGERIA.

Reginald A. Uzoechi.
November 1, 2014.