CASE LAW – PRECEDENTS AND FOREIGN COURTS

Nonso Robert Attoh

Faculty of Law,

University of Nigeria,

Enugu State, Nigeria (2015/2016 Session)

INTRODUCTION

• We will divide foreign courts into English Courts and other foreigncourts in recognition of Nigeria’s historical colonial ties with England.

• The Judicial Committee of the Privy Council was once the highestcourt in the Nigerian Hierarchy and appeals once went from theFederal Supreme Court to the Committee in England. This stopped in1963 when the Federal Supreme Court was replaced by the SupremeCourt and the Constitution abolished appeals to the Privy Council

DECISIONS OF ENGLISH COURTS

• Various authors have argued that the decisions of English Courtsshould be binding on Nigerian Courts

• A.E.W. Park argued that they should be binding as long as NigerianCourts are directed to apply the Common Law and Equity of Englandand the decisions of the Court of Appeal in England should bebinding on all other courts apart from the Supreme Court becausethose courts are not of a higher standing than the COA in England

• E.M Asomugha argued that decisions of the Judicial Committee of thePrivy Council given up to 1st October, 1963 are binding on theSupreme Court but decisions given after that date when appeals tothe Committee was abolished are not binding but merely persuasive

DECISIONS OF ENGLISH COURTS (Contd.)

• Professor Obilade’s response to this issue is that no English courtforms part of any Nigerian court hierarchy and as such no NigerianCourt is bound by a decision of any English Court. In further responseto Park, he asserts that the reception clauses of English law does notstipulate that the Nigerian Courts are to apply the common law ofEngland or the English doctrines of equity as stated by the Englishcourts.

• However, Niki Tobi’s response to this issue on the basis of thesovereign equality of states recognized in the United Nations CharterArticle 2(1), perfectly put paid to this issue. In his “Sources of NigerianLaw” at page 94 he states

NIKI TOBI ON BINDINGNESS OF ENGLISH DECISIONS ON NIGERIAN COURTS• "Certainly, it will not only be ridiculous but an abuse of

statehood with all its attendant ramifications in international law, forcourts of a sovereign country operating an equally sovereign andindependent legal system to be bound by decisions of courts of anothercountry having the same status in international law and practice. TheUnited Nations Charter clearlyrecognizes the equality of States as subjects of international law, eventhe smallest States, and so the question of one sovereign nationsuccumbing to the judicial decisions of another sovereign nation shouldnot arise at all no matter the historical tie or connection. Viewed fromthis angle, it is submitted thatdecisions of English courts, whether by the House of Lords or the Courtof Appeal, should be persuasive authorities in Nigeria, and this applies toall Nigerian courts.“- Sources of Nigerian Law”, page 94:

ATTITUDE OF NIGERIAN COURTS TO THE ISSUE OF BINDINGNESS OF FOREIGN DECISIONS

• Nigerian courts have maintained this position consistently as can be seen inthe following holdings from the courts

• “The learned Chief Judge being aware of the decision in Chief OdofinBello’s case yet ventured to follow the House of Lord’s decision inKilbournes’s case. We think this is a serious misdirection” Per Uwais JSc inDada v State 1977 NCLR 135

• “Wherever it is clear that, there are binding authorities or decisions by theappellate courts in Nigeria, by the way of stare decisis, the trial court orsimply lower courts, are bound to follow, and the trial court will not rely onforeign decided authorities except for the purposes of persuasion only PERISTIFANUS THOMAS, J.C.A in Nigeria Breweries Plc v. Pabod Breweries Ltd v.Anor. (2010) LPELR-4609(CA)

ATTITUDE OF NIGERIAN COURTS TO THE ISSUE OF BINDINGNESS OF FOREIGN DECISIONS (contd.)

• "This Court has reached the stage when it does not regard differencesfrom, the highest English or the Commonwealth Court or other courtsof common law jurisdiction as necessarily suggesting that it iswrong.“- per Karibi-Whyte, JSC, in Adigun v. The Attorney-Generalof Oyo State (No. 2) (1987) 2 NWLR (Pt. 55) 197, at page 230

• Gone are also the days when differences between judgments of thiscourt and foreign judgments implied that the judgments ofthis court could be wrong. Let those days not come back and theywill not come back.“ – Per Niki Tobi in Olafisove v. Federal Republic ofNigeria (2004) 4 NWLR (Pt. 864) 580, at page 674:

ATTITUDE OF NIGERIAN COURTS TO THE ISSUE OF BINDINGNESS OF FOREIGN DECISIONS (contd.)

• What is relevant however is whether this court should make use ofthe cases cited by learned Senior Advocate of Nigeria? it is the lawthat decisions of foreign courts, however learned they are or may be,are of persuasive authority and not binding on this court. The courtshave held that decisions of English courts are of persuasive authorityas they lack binding effect in our principles of stare decisis.See Alli v. Okulaja(1972) 2 All NLR 35; Dada v. The State(1977) NCLR 135 per Niki Tobi in INAKOJU VS. ADELEKE. (2007) 4NWLR (Pt 1025) 423

ATTITUDE OF NIGERIAN COURTS TO THE ISSUE OF BINDINGNESS OF FOREIGN DECISIONS (contd.)

• And that takes me to the issue whether the rule and the decisionin Hadley v. Baxendale has a binding effect in Nigerian court. Thestraightforward answer is that decisions of English courts or anyforeign court are not binding on Nigerian courts. They are merely ofpersuasive authority. See Dada v. The State (1977) NCLR 135; EliochinNig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14).

Although this court is not bound by the decision in Hadley v.Baxendale, I will persuade myself any day to use the beautifulprinciple stated therein. – per Niki Tobi in ADETOUN OLADEJI (NIG)LTD V. NIGERIAN BREWERIES PLC (2007) LPELR-160(SC)

ATTITUDE OF NIGERIAN COURTS TO THE ISSUE OF BINDINGNESS OF FOREIGN DECISIONS (contd.)• ''The other point I will like to deal with is the controversy as to whether or not the principles of

law laid down in Hadley v. Baxendale (1854) 9 Ex.341 - is applicable in Nigeria and binding on thecourts in Nigeria. I agree with the view expressed in the lead judgment that generally speaking,decisions of English courts or any foreign courts are not binding on Nigerian courts but they aremerely persuasive. I will, however, like to add that where Nigerian courts have followed aparticular principle adopted from a foreign decision over the years, such as the one in the Hadleyv. Baxendale case, it will be totally erroneous to hold that such principle still remains foreign innature. Thus, in the Hadley v. Baxendale case, supra, the principle of law relating to remoteness ofdamages in breach of contracts enunciated in that case have been cited with approval andfollowed by this court in numerous decisions of this court for example, Imana v. Robinson (1979)3-4 S.C. (Reprint) 1;… I believe and hold that the said principle has ceased to be regarded asforeign in Nigeria. It has, no doubt, become part and parcel of our case law of contract. This isbecause mere statement of the principles and citing any of the numerous decisions of this courtwhere the principle had been adopted, some of which I have cited above, as authority to back upthe principle, will be sufficient to make it binding on all courts in Nigeria." Per Akintan, JSC. In inADETOUN OLADEJI (NIG) LTD V. NIGERIAN BREWERIES PLC (2007) LPELR-160(SC)

ATTITUDE OF NIGERIAN COURTS TO THE ISSUE OF BINDINGNESS OF FOREIGN DECISIONS (contd.)

• Omega Bank Plc v. Government of Ekiti State (2007) All FWLR (pt. 386)658 - "Where there are no known Nigerian decisions on a principle of law,the court should be persuaded to apply the decisions of foreign courts,especially where the issue involved is common law, i.e. tort of libel." PerAbdullahi, JCA.

• "Foreign authorities of the greatest learning cannot supplant the Nigeriancase law which is rightly decided on issues coming before Nigerian courts.Nigerian laws have developed to a large extent beyond the neccesity ofalways having to cross the ocean in a voyage of discovery to findcompelling authorities for the adjudication of Nigerian courts. Decisions offoreign courts are no longer binding but only persuasive to Nigerian courts.See Araka v. Egbue (2003) 17 NWLR (Pt.848) 1; Per Denton-West JCA inPfizer Specialities Ltd v. Chyzob pharmacy Ltd (2008) ALL FWLR (Pt.414)1455 at 1489, paras. E-G

DECISIONS OF OTHER FOREIGN COURTS

• The decisions of other foreign Courts be they civil or common lawcountries are also merely of persuasive authority and are not binding onNigerian courts. Nigerian courts therefore make use of these decisions toguide them especially where the legal systems are similar. Take for exampleour Criminal Code which was fashioned after the Queensland CriminalCode necessitated that for interpretation of its provision the decisions ofthe Queensland courts were often relied upon by the Nigerian Courts

• In Senator Adesanya v. President of the Federal Republic of Nigeria andAnother, (1982) 2 N.C.L.R. 358 the court stated “In conclusion, I will refer totwo cases not binding on us but of strong persuasive authority. They aredecisions of the United States Supreme Court Per Bello JSC.

CONCLUSION

• In view of globalization and the gradual whittling down of sovereigntyby human rights considerations and emergence of crimes withuniversal jurisdiction, the intermingling of legal systems is currentlyrampant. Even though this does not make the decisions of foreigncourts binding on Nigerian Courts, it makes it imperative to beconversant with decisions of foreign courts on vexatious universalissues. Consideration also has to be given to the existence of supra-national courts like the ECOWAS COURT, The African Court of HumanRights, The African Commission etc and their effect on domesticcourts. Be that as it may Niki Tobi’s answer to the issue of bindingnessof decision of foreign courts answers the query sufficiently and weagree with his position.

PRACTICE QUESTION

• In the case of Amaka v Aboki, before the court of appeal on theapplication of GPS satellites in tracking an individual, Amaka pointedout to the court that there is no Nigerian authority whether statutoryor case law on that matter and submitted that the court wastherefore bound by a decision of the House of Lords in England on thematter. Aboki on his part argued that the Nigerian courts areforbidden from considering or applying any foreign decision and thatthe court should adjourn and wait for the National Assembly to makea law on the matter. As an amicus curie you are required to file a briefon the question of the attitude of the Nigerian courts to thebindingness or otherwise of foreign decisions and what a judge willdo whenfaced with a dilemma of not having any authority to rely on.