Judicial precedent – otherwise known as stare decisis ("stand on the decision") – is a settled principle of law in Nigeria and other common law legal systems worldwide, by which judges are expected to respect and abide by the decisions of courts higher than theirs in the judicial hierarchy.
The aim of judicial precedent is to ensure the consistency, fairness and certainty of law in the judicial system. According to this principle, courts are bound to abide by the decisions of higher courts, regardless of whether they think the decision is erroneous, in order to ensure consistency and certainty. Further, a court cannot declare a decision of a higher court to be per incuriam (ie, made through lack of care) or question it.(1)
Under Nigerian civil procedure, a litigant that wishes to commence proceedings against an adverse party that is resident in another jurisdiction must seek leave of a judge at the place of issuance to issue and serve the originating processes on the respondent in the jurisdiction where it is resident or carries on business. Other requirements stipulated by law are:
- endorsement of the originating processes to the effect that it is to be served in another state;(2)
- marking of concurrent writs as such;(3) and
- the minimum 30-day period for the appearance of a party that is outside jurisdiction.(4)
However, the effect of non-compliance with these mandatory requirements has been the subject of much controversy and uncertainty (for further details please see "Service of originating processes – to seek leave or not?"). This update examines the effect of this controversy on the doctrine of judicial precedent.
Under the doctrine of stare decisis, courts are expected to abide by the decisions of higher courts within the judicial hierarchy. However, recent decisions of the Court of Appeal – which is supposed to be subordinate to the Supreme Court – have demonstrated defiance of the Supreme Court decision in Owners of the MV Arabella v Nigeria Agricultural Insurance Corporation. In MV Arabella, the Supreme Court held the following:
- Under Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service outside the state of issuance must include a notice indicating that the summons is to be served out of the state and the state in which it is to be served;
- Failure to endorse the required notice on a writ of summons for service outside the state of issuance is a fundamental defect that renders the writ invalid, and goes to the root of the jurisdiction and affects the competence of the court; and
- Section 97 of the Sheriffs and Civil Process Act applies in all high courts, including the Federal High Court.
In Central Bank of Nigeria v Interstella Communications Limited(5) the respondents instituted garnishee proceedings against the appellant at the Federal High Court in Umuahia. The garnishee order form (Form 26) was issued and served on the appellant, whose office was in the Federal Capital Territory, without the endorsement required by Section 97 of the Sheriffs and Civil Process Act. The appellant and the third and fourth respondents filed a preliminary objection challenging the jurisdiction of the court to entertain the garnishee proceedings without filing an affidavit to show why the order nisi should not be made absolute. One of the grounds for the preliminary objection was that the garnishee order form was not endorsed in accordance with Section 97 of the Sheriffs and Civil Process Act. The Federal High Court in Umuahia heard and dismissed the preliminary objection and proceeded thereafter to make the garnishee order nisi absolute. The case was appealed to the Court of Appeal, which held as follows:
"The effect of non-compliance for service outside jurisdiction is not nullity, what is affected is the service which is irregular and liable to be set aside. But where the defendant has entered appearance on the strength of the irregular service, there is then a waiver."(6)
As if the above contradiction with the Supreme Court decision in MV Arabella were not enough, the Court of Appeal went on to hold that since the Federal High Court has only one territorial jurisdiction, the service of a writ of summons in any state in Nigeria is within its territorial jurisdiction and does not require the endorsement specified in Section 97 of the Sheriffs and Civil Processes Act.
Although the Court of Appeal decision in Interstella appears to represent popular sentiment on this issue – especially in view of the clear provisions of Section 249(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 19 of the Federal High Court Act (which establishes one Federal High Court in Nigeria with one uniform jurisdiction) – the Supreme Court decision in MV Arabella still binds the Court of Appeal and it was manifestly wrong for the Court of Appeal to departed threrefrom. There is also a notable divergence of practice within the Federal High Court; some judges grant leave to serve originating processes in other states, while others direct litigants to withdraw applications seeking leave and refuse to grant such leave when it is sought on the grounds that it is unnecessary. This is arguably wrong.
The Supreme Court has expressed its displeasure at the lower courts' refusal to abide by its decision in unmistakable terms. In Dalhatu v Turaki(7) the High Court of the Federal Capital Territory not only failed to abide by the Supreme Court decision, but called on the Supreme Court to amend its position – even though the trial judge's attention was drawn to the Supreme Court's decision in Onuoha v Okafor(8) (the facts of which corresponded to the facts of the case at hand). The Supreme Court berated the trial judge for insubordination in harsh words and took the opportunity to reiterate the importance of adhering to the principle of stare decisis in order to ensure certainty in the practice and application of the law.
The Supreme Court is arguably correct in its admonition to adhere to judicial precedent no matter how erroneous it may appear. The only instance in which a lower court may depart from the decision of a higher court is where it can distinguish the case that was before the higher court from the case before it.(9) As aptly put by the Court of Appeal in Noble Drilling v NIMASA(10) when it restated the law as laid down by the Supreme Court in MV Arabella:
"The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously: See Emerah & Sons Ltd v Attorney-General Plateau State (1999) 4 NWLR (Part 147) 788; Global Trans Occeanico S A v Free Ent (Nig) Ltd (2001) 5 NWLR (Part 706) 426 @ 441."
The only court that can adjudicate on the well-articulated arguments on either side of the debate is the Supreme Court. Hopefully, one day these issues will be put before the Supreme Court as part of a reassessment of its decision in MV Arabella.
Noble is on appeal to the Supreme Court and it is hoped that the court will take the opportunity to clarify its position on this issue again.
For further information on this topic please contact Olugbenga Bello or Jamiu Akolade at ACAS – LAW by telephone (+234 1 462 2094) or email ([email protected] or [email protected]). The ACAS – LAW website can be accessed at www.acas-law.com.
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