History of Modern Law Reporting in Nigeria

Law Reports are collections of judicial views from court cases. They are the official publications of historic appellate court decisions and well-written High Court rulings (or, other superior courts of record).

A law report is a record of a precedent-setting judicial decision. Not all court decisions set a precedent, regardless of the case’s facts or results. Law reports should include only reportable conclusions, requiring cautious and competent selection. It summarizes “major” decisions of the court. The law report series in which they publish a judicial opinion determines the case citation format.

As society advances, legislation becomes the main source of law, and judges resolve cases based on it. The Law Reports compile court decisions and judge-made or common law. Lawyers, practitioners, and the public use law reports to research the courts’ rulings on factual disputes.

History of Law Reporting in Nigeria

The idea and practice of law reporting in Nigeria came from the way they did law reporting in England. The Incorporated Council of Law Reporting for England and Wales is to put out the official and most important law reports in England. (ICLR).

In the past, the word “reporter” was used to describe the people who put together, edited, and published such opinions.

The Nigeria Law Reports, which came out in 1881, was the first “official law reporting” in Nigeria. The West Africa Court of Appeal came into being in the 1930s. The report looked at the decisions made by the West African Court of Appeal, which had jurisdiction over Nigeria, the Gold Coast, and other places (now Ghana, Sierra Leone, and The Gambia).

The Federal Supreme Court (FSC) came into being in 1950, but it didn’t last long. The All-Nigeria Law Reports (ALL NLR) started in 1961. In 1985, the Nigeria Weekly Law Report came out.

In Folabi Kuti’s article “Judgement Dissemination in the New Normal,” he traces the history of professionally published law reports in Nigeria from the beginning to the present day.

The story of how professional law reports came to be in Nigeria is often told, though there are different versions. To put it bluntly, it is a story about plans to break up a monopoly on the “hijacking” of the latest Supreme Court decisions, which was the exclusive domain of the well-known Rotimi Williams (SAN).

The more enduring story is that the late Chief Gani Fawehinmi started the Nigerian Constitutional Law Reports, which later became the Nigerian Weekly Law Reports (NWLR), as an “angry protest” against Chief Williams’ (also known as “Timi the Law”) “hijacking” of Supreme Court decisions. Gani Fawehinmi thought everyone should be able to decide, but only if it was good for business.

According to the story, Chief Williams worked with the registries of courts all over the country to get certified true copies of court rulings and judgments. Armed with a strong arsenal of up-to-date case law citations on even the smallest details, he used them to win advocacy points and argue legal points in favor of the court’s recently adopted legal positions.

They reported him to have reminded the Supreme Court of a few of its past decisions that the court seemed to have forgotten about in later cases with the same facts.

A trip through time will show that they did not publish these rulings in law reports. Save for the equally short-lived Supreme Court–SC Reports (later revived), the few attempts at institutionalized law reporting, the All-Nigeria Law Reports (begun in 1961) and the Nigeria Monthly Law Reports (began in 1964), were fast disappearing by the early 1970s. It would require a dedicated laborer, not prone to criticizing his tools, to find and employ the relevant case law to plead and represent his client’s case in court. The accounts agreed that FRA was best.

The other law reporters sparingly reported judicial judgments in hard-copy and online law reports. The editors, driven by different reporting standards, selected a few of these judgments and rulings to report, resulting in many decisions either not being reported at all or not being reported correctly. A good example was in a case where a belatedly reported Court of Appeal decision contradicted the judgment by another division of the same Court of Appeal within the same period, without reference to or citation of the associated decision/s on the subject, thus producing uniform incoherence on similar matters. But where there is provision for an online registry, this innovation will help the court find relevant case law and make correct, fast, and binding rulings.

It’s hard to get a realistic number of appellate court judgments per year. Thus, when a work-laden Supreme Court is said to have made 297 judgments in a single legal year, those judgments can only be located in the court’s tangible record. Except for the National Industrial Court of Nigeria, no other court, including the Supreme Court, Court of Appeal, Federal High Court, and state high courts, updates and uploads its rulings frequently.

Lord Neuberger, a former Chief Justice of the UK Supreme Court, described judgment-dissemination as fundamental to access to justice in his 1992 Bailii Lecture. The lecture notes titled ‘No Judgment, No Justice’ noted that ‘Access to Judgments carries with it access to law and access to justice, for attorneys, judges, academics, litigants, and all others interested in or concerned with any part of the law’ Neuberger says, “there are two forms of law reporting, on one side, there’s Judgment-dissemination: allowing quick and full access to all Judgments”.

Classic and intellectual law reporting improved judicial precedents. The Incorporated Council of Law Reporting does this through the Official Reports (LR), the Weekly Law Reports (WLR), and LexisNexis Butterworths through the All-England Law Reports (All ER). Baillie’s website, https://www.bailii.org/, provides/facilitates access to English court rulings.

The maze and technology allow choices to be posted within hours. Thus, everyone in the world can read the newest Supreme Court, Family Court, Court of Protection, Intellectual Property Enterprise Court, Court of Appeal (Civil & Criminal Divisions), High Court Administrative, Admiralty, Mercantile, Technology & Construction decisions with a click of the mouse.

The Role of Law Reporters

With multiple laws, reports on the market/legal scene, and little regulation, the current state of play is a chaotic collection of randomly picked decisions of the highest court in the land and some Court of Appeal divisions in many of these reports.

Private professional legal reporters don’t follow stare decisis or judicial precedent in their reporting. Private law reporting outfits don’t report, or report late Supreme Court and Court of Appeal decisions that they should have published promptly.

Many times, they deny appellate courts the opportunity to know what another division of the same court has said on a comparable factual question before that court, or in the case of the Supreme Court, what another panel has said on appeal to the final court. Examples: NEPA v Edegbenro and Onuoha v KRPC.

Determining the ratio

The doctrine of stare decisis is well-rooted in Nigerian jurisprudence. Consequently, it prevents judges from modifying rulings; hence, the lower courts must follow precedent under stare decisis.

The judge lays out the facts, explains the applicable laws, and then makes a ruling. A court’s decision or judgment has two parts, namely:

• The ratio decidendi (reason for the decision) and,
• Obiter dictum (something said, by the way).

A good understanding of what makes up ratio decidendi and obiter dictum is therefore very critical in determining what constitutes a precedent.

Law reporters should be able to determine the case ratio. According to the Supreme Court, anything expressed in a concurring decision that isn’t in the leading judgment is obiter dictum. Idise v. Williams International Ltd. The relevance/foresight of well-thought-out obiter comments (like Odili JSC’s here) becomes clear when subsequent decisions trace a uniformly held course/opinion on issues before the court.

Later judges used Lord Atkin’s obiter remarks in Donoghue v Stevenson (1932) UKHL 100 to create the law of negligence. According to Lord Carnwath JSC: ‘Free access of so much material does not lessen the reporter’s role, it requires a sophisticated technique’.

A lawyer shouldn’t quote case holdings or an editor’s summary. That’s what lazy counsel does; a serious counsel must study a court judgment to determine its specific holding, as this will prevent errors.

In Franchal v. Nigeria Arab Bank Ltd (2000) 6 S.C. (Pt. 1) 1, Per Uwais, CJN (as he then was), said, “It is lazy to rely on headnotes in Law Reports instead of reading the complete case.”

The law reporter must be careful to distinguish between a case’s ratio and obiter statements. In Buhari v. Obasanjo (2003) 11 S.C. 74, JSC Belgore reiterated the limit of obiter dictum (as he then was).

According to Belgore, JSC in Engineering Ent. v. A.G., Kaduna (1987), 5 S. C 20, paragraph 30, “editorial titles in law reports could be deceptive as to the context of the judgment reported and courts must be wary of relying on such heads before verifying the context.”

In Tanarewa (Nig.) Ltd. v Plastifarm Ltd. 2003 (NWLR) 14, Pt. 840, the editors said on page 364 that “contracts entered into by a corporation before the appointment of a receiver or manager are binding on him.”

Thus, a receiver or manager can’t repudiate a pre-appointment contract. The editors mis-attributed this quotation to the court’s 379-380 B-A paragraphs.

A detailed reading of the judgment shows that the court concluded that “Contracts entered before his (receiver or manager’s) appointment are binding on the company and the receiver or management should carry them through IF they enhance the company’s goodwill.”

Unfortunately, the Court of Appeal in Babington Ashaye v E.M.A.G. Enterprise (Nig.) Ltd., 2011 10 NWLR Pt. 1256 on page 479 relied on the incorrectly reported ratio in Tanarewa’s case to propagate the incorrect principle that a receiver/manager is bound by contracts entered into before his appointment. The editors of the NWLR had incorrectly reported the court’s ratio in Tanarewa’s case.

Although law reporting has improved significantly, especially with electronic law reports, there is, however, more to be desired.

Culled from a lecture delivered by Folabi Kuti (SAN).