The Dying Art of Identifying and Applying the Ratio Decidendi of a Case – Revisiting the Case of Edibo v. The State

Introduction

It is not often that a lawyer gets the opportunity to disagree with the views of a judge. Indeed by the nature of the legal profession which we inherited from the English, apart from the avenue of appeal against unfavourable decisions of judicial officers provided by the Constitution, all lawyers are required to respond to the views and decisions of judges by chorusing the customary, ‘as the court pleases'. But as they say, sometimes Christmas comes early. A report I read in Thisday Newspaper of Sunday 17th May 2020, has provided me a channel to express my dissent not just from the views of several judges but also from those of a very senior lawyer!

 The Thisday Newspaper Report

In the report titled, ‘Judges Oppose Virtual Court Sitting, Say it’s Unconstitutional’ by Tobi Soniyi, the writer reportedly interviewed certain judges on conditions of anonymity to get their Lordships’ views on the introduction of virtual hearings in the wake of the COVID-19 global pandemic. The summary of the report is that these judges concluded that, just like the Supreme Court recently nullified the conviction of Ude Udeogu on grounds that Justice M. B. Idris was no longer a judge of the Federal High Court and the trial was therefore unconstitutional and a nullity, the apex court was also likely to set aside trials that were conducted via virtual platforms, on grounds that they were not held in public, and therefore unconstitutional and a nullity. For the reasons stated below, I fundamentally disagree with this characterisation.

The writer referred to the provisions of Section 36 (3) and (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which prescribes that all trials must be held in public, and expressed the view, on the strength of the feedback from the judges, that the proposed virtual court hearings via Zoom or Skype for instance, would in all likelihood contravene the Constitution. More interesting is the fact that the writer referred to a previous decision of the Supreme Court in support of the position, the case of Edibo v. The State (2007) 13 NWLR (Pt. 1051) p. 306 where the Court set aside a conviction of a defendant by a trial court because the arraignment of the Appellant was not done in a public place.

The above report, especially its reliance on this case, has finally given me an avenue to discuss the near complete erosion of the concept of ratio decidendi in Nigerian law, which is symptomatic of an alarming deterioration of legal scholarship in Nigeria among law students, lawyers, law teachers, Law Report editors and, sometimes, even judges.

The Concept of Ratio Decidendi

For the sake of the uninitiated, Nigeria belongs to the legal clan of countries that practice the Common Law system, and the bulk of the law practiced in Nigeria was received from England. A chief feature of this Common Law system is the doctrine of stare decisis [or judicial precedent] which literally translates as let the decision stand. For this doctrine to be effectively applied, every judgment is typically divided into two parts: obiter dictum and ratio decidendi. The former constitutes the non-binding part of the judgment while the latter, which literally interprets as the reason for the decision; the reasoning behind arriving at a particular verdict by a Judge, is the part that has binding effect. This is the law which we inherited.

In recent times however, it appears to have been completely forgotten that not all parts of a judgment of a court are of binding effect on lower courts. Indeed arguments began to emerge in the past decade that the obiter dictum of the Supreme Court is binding. That was of dubious provenance. Thankfully the Supreme Court quashed such reasoning in the case of Adebayo & ORS. v. PDP & ORS (2013) LPELR-20342(SC).

In the places where we copied our laws from, and indeed here in Nigeria [in time past], when a judgment is delivered, the judgment would be studied to determine what is the ratio. Law reporters for instance would distil the ratio from the decision and report it for future use. This is admittedly no mean exercise. An illustrative example is the recent article by Aaron Taylor, ‘In Search of the Ratio Decidendi' LQR 2019 135 (Oct) 556 – 561 where the author traced the efforts of the English Court of Appeal in defining what constituted the ratio decidendi in the case of R. (on the application of Youngsam) v Parole Board [2019] EWCA Civ 229; [2019] 3 W.L.R. 33.

The point being made is that what ought to be cited to a court as authority or judicial precedent is only the binding part of the judgment, the ratio. Regrettably, what transpires in Nigeria today is that once a court delivers a judgment, no one is interested in finding out what the ratio is, the law reports will simply reproduce the judgment and release what they term “holding” or “held”. No analysis and no attempt is made to distil the ratio. Lawyers on their part wantonly single out phrases in a judgment and cite before a court under the stare decisis doctrine. Ultimately, some judges, for obvious reasons, make no attempt to distil the ratio but swallow hook, line & sinker, both the ratio decidendi and the obiter of decisions referred to them.

Practise has persisted despite judicial warning

Incidentally a warning against this practice was issued almost thirty years ago by the venerable Chukwudifu Oputa, JSC in Adegoke Motors vs. Adesanya (1989) 3 NWLR (Pt. 109) 250 at pages 274 – 275 when His Lordship issued the following immortal words: 

It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.

Regrettably, this warning has gone largely unheeded. This is despite the fact that the Supreme Court has consistently reaffirmed that position of the law. In the more recent case of Akeredolu v Abraham (2018) LPELR-44067(SC), the apex court restated that, “it is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case.” The Court referenced its earlier decision in Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 55 where it was stated that a judgment should always be read in the light of the facts on which it was decided and that the rules of stare decisis do not allow courts to apply the ratio of a case across board and with little regard to the facts of the case before them. The Court further placed reliance on Okafor v Nnaife (1987) 4 NWLR (pt 64) 129, Udo v The State (2016) LPELR - 40721 (SC). 

Similarly it is a trite principle in both English and Nigerian laws that each case remains authority for what it decided. Therefore, an earlier decision will only bind subordinate courts in a subsequent case if the facts and/or the law which informed the earlier decision are the same or similar to those in the subsequent case. Where the facts and/or the legislation which are to inform the decision in the subsequent case differ from those which informed the court's earlier decision, the earlier decision cannot serve as a precedent to the subsequent one.

There is a plethora of Nigerian decisions that support this principle including Godwin Ugwuanyi v NICON Insurance Plc (2013) 11 NWLR (pt 1366) 546, Clement v Iwuanyanwu (1989) 3 NWLR (pt 107) 39 and Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (pt 864) 580, Fawehinmi v NBA (No. 2) (1989) 2 NWLR (pt 105) 558, Western Steel Works Ltd & Anor v Iron Steel Workers Union of Nigeria & Anor (1987) 1 NWLR (Pt. 49) 284, Skye Bank Plc & Anor v Chief Moses Bolanle Akinpelu (2010) 9 NWIR (pt 1198) 170. 

It is against this backdrop that I invite you to embark on this journey with me to dispassionately consider the facts and circumstances of the case of Edibo v. The State using Section 36 (3) and (4) of the Constitution as the prism. In the end I hope to convince you that the decision of the Supreme Court in that case is not good authority for the contention by the judges or some other senior lawyers that virtual trials do not come within the meaning of trials in public; or that they are unconstitutional and therefore constitute a nullity under Nigerian law. Let us begin with a look at the constitutional provisions at issue.

The Constitutional requirement for Trials in Public

Section 36 (3) and (4) of the Constitution are reproduced in all their glory below:

36“(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.

(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal…” emphasis supplied.

In view of the employment of the peremptory word ‘shall’ by the drafters of the Constitution, the judges, according to the report, argued that the requirement for public hearing and determination of cases in Nigeria is mandatory. That is beyond disputation. The bone of contention is, what constitutes a hearing conducted in public?

The case of Edibo v. The State

In Edibo v. The State the appellant, then a police officer, Insp. Simon Edibo, was one of ten persons charged before the Benue State High Court in Makurdi, with the commission of the offence of culpable homicide arising from a case of mistaken identity which happened in 1997. It was not disputed that the plea of the appellant, who was the 5th accused person at the trial, was taken on the 19th of January 1998 in the Chambers of the Honourable Justice A. J. Ikongbeh. At the end of the trial, the appellant and the 4th accused person, A.S.P. David Joshua (who subsequently died) were each found guilty and convicted of culpable homicide and sentenced to death. The appellant appealed to the Court of Appeal which promptly dismissed his appeal, culminating in his ultimate appeal to the Supreme Court. Thus, one of the issues posed to the Supreme Court was whether the Court of Appeal was right when it held that taking the plea of the appellant in the Chambers of the learned trial Judge was not unconstitutional.

In its consideration of this issue, the Supreme Court in the lead judgment delivered by Tabai, JSC admirably analysed some of its previous decisions on the question of trials in public, including Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; Oviasu v. Oviasu (1973) 11 SC 187; N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt. 413) 257 at 273; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 and came to the conclusion that the taking of the appellant’s plea in the Chambers of Ikongbeh J. was unconstitutional.

In Oyeyipo v. Oyinloye what transpired was that the Supreme Court acted pursuant to its powers under the Rules of the Supreme Court, heard and granted in Chambers, an uncontested application to dismiss an appeal for want of diligent prosecution, owing to the appellant’s failure to file the appellant's brief of argument within the period prescribed by the Supreme Court Rules. Similarly, in Chime v. Ude, the Supreme Court suo motu and sitting in Chambers dismissed an appeal pursuant to its powers under Order 6 rule 5(2) of the Rules of the Supreme Court, once again due to the failure of the appellants to file their brief of argument as and when due. When the appellants thereafter filed an application seeking to set aside the dismissal of their appeal, the Supreme Court dismissed the appeal.

On the other hand, what transpired in Oviasu v. Oviasu, a matrimonial cause, was that the trial took place in the Chambers of the trial Judge. Neither the parties nor their counsel requested for the hearing in Chambers. At the conclusion of the hearing, the learned trial Judge dissolved the marriage. On appeal the Supreme Court allowed the appeal, set aside the judgment and ordered a trial de novo. The basis for the decision was that the trial, having not taken place in public, was fundamentally irregular. In N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd, the trial was conducted in public, however at the end of trial, the court for inexplicable reasons invited both counsel into his chambers and delivered the judgment wherein he granted all the reliefs claimed by the plaintiff.

Aggrieved with this procedure and the judgment, the appellant appealed to the Court of Appeal which dismissed appeal. On ultimate appeal to the Supreme Court, the judgment was set aside on the ground of constituting a nullity and a retrial was ordered. The Court in particular held that the learned trial Judge committed a fundamental breach of the provisions of section 33(3) and (4) of the 1979 Constitution [which is in pari materia with provisions of Section 36 (3) and (4) of the 1999 Constitution] and that the said breach vitiated the entire proceedings at the trial court.

The Ratio Decidendi of Edibo v. The State

On the strength of the above analysis, the Supreme Court in Edibo v. The State then proceeded to issue what must be accepted as the ratio decidendi for its decision. The court held that in view of the fact that the arraignment of an accused person is the very commencement of a criminal trial; in light of the fact that any criminal trial, no matter how well conducted, without the plea of the accused person first and properly taken is a nullity; and since the proceeding of the 19th of January 1998, wherein the plea of the appellant and others were taken in the Judge's chambers was not only irregular, but also fundamentally defective in the absence of any rule of court authorising Ikongbeh J. to take the plea of the appellant in his Chambers; the inevitable conclusion was that the entire proceedings were rendered null and void and the Court of Appeal was therefore wrong to have upheld the trial and conviction of the appellant.

It is instructive that in the case, the definition of public within the meaning of the constitutional provision at issue is contained in the concurring judgment of Tobi JSC where his Lordship stated thus, “[p]ublic means, for the use of everyone without discrimination. Anything, gathering or audience which is not private is public.”

Further, in a contributing judgment, Ogbuagu JSC while deciding that a Judge's Chambers does not qualify as a public place stated that; “[s]urely and certainly, a Judge's Chambers, is not and cannot be equated to a hall in a public building that is used for formal meetings.”

What the Supreme Court did not decide in Edibo v. The State

As the above referenced decisions of the Supreme Court have shown, it is neither the law that all proceedings of court must be held in open court nor is it correct that no proceedings can validly take place in the Chambers of a Judge. It all depends on the peculiar facts and circumstances of each individual case.

Further, the various dicta of the Supreme Court Justices are not sufficient to state that Edibo v. The State is authority for the proposition that all court hearings or trials must take place in a physical hall or building. The question of whether all trials must take place in a physical building was certainly not one of the issues formulated for the court’s determination in that case. Accordingly, the reference to “a hall in a public building” in the judgment of Ogbuagu JSC was a classic obiter dictum contained in a concurring judgment which was merely uttered in the process of distinguishing between a Judge’s Chambers and a courtroom to enable the court arrive at its decision that the trial was a nullity.

In light of these, a number of questions become pertinent in determining whether virtual trials conform with the constitutional requirement that trials must be held in public, to wit: what constitutes hearing conducted in public? Are hearings conducted via virtual platforms, conducted in public? Must hearings take place in a physical building to be deemed as having been conducted in public? Must the public have physical access to the location of the hearing for it to conform with constitutional standards?

Of all these questions, only the first was considered and answered by the Supreme Court in Edibo v. The State and that answer was given in the specific context of whether a hearing which took place in the Chambers of a Judge ought to be deemed a hearing in public. Nothing more, nothing less.

Having shown that the Supreme Court did not decide that all trials must take place in a physical building in Edibo v. The State it appears to me that the writer and the [anonymous] judges fell into the error of reading into the word public found in section 36(3) & (6) of the Constitution, the requirements of a physical building which is clearly not contained in that section.

Chief Adegboyega Awomolo, SAN's intervention

While writing this article, I came across a commentary by a very distinguished member of the bar, Chief Adegboyega Awomolo, SAN on this pressing issue titled, ‘Virtual Court Hearing Does Not Pass the Test For Proceedings Conducted in Public; There is Need for Constitutional Amendment’ where the learned Silk contended that virtual court hearings do not pass the constitutional tests of proceedings conducted in public. The surprising thing is that he relied in part on the same Edibo v. The State as well as the above referenced cases highlighted therein in arriving at his conclusion. It is once again submitted for the reasons already provided that the various dicta of the Supreme Court Justices in Edibo v. The State are not determinative of issue of whether virtual hearings pass the constitutional test for hearings in public.

Academic Writings on Hearing in Public

Additionally the learned Silk referred to the views of some learned authors on the meaning of hearing in public. The first was Fidelis Nwadialo who in his book, Civil Procedure in Nigeria, 2nd Edition, posited at page 674 thereof that, “hearing in public entails a situation where the public is not barred… A trial is sufficiently public if members of the public may have access to where it is taking place. The actual presence of the public is, however, not necessary.” The second was those expressed by J. A Agaba at page 524 of his book, Practical Approach to Criminal Litigation in Nigeria, to the effect that, “the “public” here refers not only to a formal courtroom but it must be a place where there is access by the public.”

It appears to me that the views of these distinguished authors, which constitute a secondary but nevertheless important source of law in Nigeria, do not support the conclusion reached by the learned Silk. On the contrary, in addition to the questions I posed above, all these writers have said is that a trial would conform with constitutional standards so long as members of the public have access to where it is taking place and such place needs not be a formal courtroom! There is no valid reason why a trial conducted virtually cannot comply with this requirement.

It is gratifying that Chief Awomolo SAN concedes that “public place” does not necessarily entail a proceeding conducted within the four walls of a courtroom. His main grouse is that virtual court proceedings do not have the feature of being accessible to everyone without any hindrance of any sort, a well founded concern but which can be, and indeed has been, addressed as will be demonstrated presently.

This concern accords with the view of the aforementioned judges that since many Nigerians do not have access to smart phones and data to access the virtual court hearings, then it cannot be said that the hearings are without hindrance. In response, I have to ask whether all Nigerians have the financial means to physically attend court hearings especially those that take place at the Supreme Court in Abuja? If the answer is in the negative, can it then be contended that the Supreme Court hearings are unconstitutional? The answer is in the question.

It has been argued, and rightly too in my opinion, by the likes of Mr. Tunde Fagbohunlu, SAN that virtual court hearings [especially those without password requirements and which can be streamed to the general public] are more “public” than any physical court hearing, having regard to the well-known limited capacity of all courtrooms in Nigeria.

The correct approach to constitutional interpretation

One other argument by the writer of the Thisday report is that the judges expressed the view that the Supreme Court is known to be illiberal and inflexible in the interpretation of the Constitution. With respect that position is at best uncharitable, having regard to a long line of Supreme Court decisions to the effect that the Constitution must be given an expansive interpretation, and at worst, patently wrong.

There is a long line of authorities of the Supreme Court where the Apex Court in no unclear terms outlined what constitutes the Nigerian judicial approach to the interpretation of constitutional provisions. Perhaps the most profound of these can be found in the prescient words of Udo Udoma JSC in Nafiu Rabiu v. The State (1981) 2 N.C.L.R. 293, 326 where His Lordship held thus:

“My Lords, in my opinion, it is the duty of this court to bear constantly in mind the fact that the present Constitution ... is a written organic instrument meant to serve not only the present generation, but also several generations yet unborn … that the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrow sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, ...”

The constitutionality of the Guidelines and Practice Directions

The final and perhaps most important basis on which this writer fundamentally disagrees with the views of the judges and that of the distinguished learned Silk is that inadequate consideration was accorded to the existence of the Guidelines and Practice Directions authorising the courts to conduct hearings virtually.

Indeed the National Judicial Council on 7 May 2020, issued Guidelines for Court Sittings and Related Matters in the COVID-19 Period which authorised virtual or remote sittings. Before then, the Chief Judge of Lagos State had signed the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” which came into effect on 4 May 2020. There is also the Federal High Court Practice Directions 2020 For the COVID-19 Period which came into force on 18 May 2020 and a host of other Practice Directions.

In the case of the Thisday report, the judges consistent with their view [albeit an erroneous one in my opinion] that virtual hearings are unconstitutional, proceeded to posit that the heads of courts have no powers to make Practice Directions that contravene constitutional provisions. On his part, Chief Awomolo, SAN merely referred to the Lagos State Practice Direction, particularly Articles 14, 15, 16, 17 and 18 thereto, which provide that virtual court proceedings will be open to the Judge, respective litigants and their counsel, and concluded that same was unconstitutional to the extent that they purport to exclude the general public.

It is instructive to note that the said Lagos State Practice Direction did not expressly exclude the right of the general public to access its virtual Court hearings and even if it did, such provision (and not the entire Practice Direction) shall to the extent of its inconsistency with section 36(3) and (4) CFRN 1999 be null and void using the blue pencil rule. In the absence of any provision purporting to exclude the rights of the general public, the Practice Direction must be interpreted to recognise the general public’s right to observe the proceedings.

Further, and for the avoidance of doubt, the National Judicial Council Guidelines for Court Sittings and Related Matters in the COVID-19 Period expressly recognise the right of the general public to access virtual Court hearings by providing in Item E 12 (a) and (b) that Heads of courts shall ensure that there is live streaming of all virtual court proceedings through a publicized Uniform Resource Locator (“url” or “web address”) or the court’s or any other social media channel so that members of the public can observe the proceedings; and that the details of the virtual court sittings shall be published in the usual manner that the court generally publishes its regular sittings provided that such publications shall specify the nature of the sitting and shall indicate the web address or social media channel where there would be live streaming of the proceedings.

In view of the above and considering the fact that part of the ratio decidendi of the decision of the Supreme Court in arriving at its decision in Edibo v. The State was the difference between the two lines of cases, I am confident that the Supreme Court will also uphold the constitutionality of virtual hearings conducted pursuant to the NJC Guidelines and the Practice Directions. As earlier highlighted, the Supreme Court relied in part on the fact that the Rules of its Court authorised it to sit and hear uncontested applications in chamber in arriving at its decision to uphold the proceedings in Oyeyipo v. Oyinloye and Chime v. Ude.

On the flipside the Supreme Court also relied on the fact that there were no rules of court authorising the judges in Oviasu v. Oviasu, and N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd to hear a matrimonial cause in chambers and deliver a judgment in chambers respectively, in arriving at its decision to nullify the proceedings as being unconstitutional.

I therefore make bold to say that the NJC Guidelines and the Practice Directions issued by the National Judicial Council and the heads of the various courts respectively, authorising courts to conduct trials and hearings virtually will serve to ensure that these trials scale the constitutional hurdle of conducting trials in public. On a lighter note I am curious to see the panel of the Court of Appeal that will set aside a virtual trial conducted by a High Court under the new Practice Directions and the NJC Guidelines issued under the hand of the Chief Justice of Nigeria.

Conclusion

The summary of all that has been said is that I strongly disagree with the view that virtual court proceedings as contemplated by the NJC Guidelines and various court Practice Directions, offend the extant provisions of the 1999 Constitution. In particular I have given reasons why the case of Edibo v The State should not be bandied as authority for that view. In the final analysis, this writer posits that there is need for lawyers, law reports and indeed judges to revert to the mentally exhausting but ultimately beneficial exercise of x-raying judgments to determine the ratio decidendi. This is only way we can prevent the disappearance one of the fundamental tenets of the law which we practice.

Orji Agwu Uka

A Legal Practitioner who writes from Lagos

And tweets from @OrjiUka