By Ibe Ikwechegh
Hans Christian Anderson’s famous story of the Emperor’s new clothes is about a vain emperor who cares about nothing except wearing and displaying clothes. The emperor had hired the services of two weavers who promised him the finest, best suit of clothes from a fabric which would only be invisible to ones unfit for their position. The weavers mimed making him a cloth and also mimed dressing him in the clothes. His ministers could not see the clothes as indeed there was none, but pretended that they could see the clothes for the fear of appearing ‘unfit for their positions’. The Emperor then marched in procession before his subjects. The townsfolk play along with the pretence, not wanting to appear unfit for their positions. Then a child in the crowd, too young to understand the desirability of keeping up the pretence, shouts out that the Emperor is wearing nothing at all and the cry is taken up by others. The Emperor cringes, suspects the assertion is true but continues the procession.
Every once in a while, the superior courts pass what we may call iconoclastic decisions. Very recently, the Supreme Court is said to have installed a governor who was alleged not to be anywhere near winning the election. Some years ago it also reversed a decision of the Court of Appeal which said that the electoral commission had powers and authority to remove the name of any candidate that failed to meet the criteria set out by the Constitution without recourse to the Court. Also in another ‘bombshell decision’, it had to nullify the position of an elected Governor and in his place ‘appointed’ another who did not participate in the election. In all of these celebrated cases, the public likes to find out why the court decided so. The legal society also likes to know why. That why is what they call ‘ratio decidendi’; the reason for deciding.
But it is very possible that Hans Anderson’s amusing tale may sometimes be equally true of ratio decidendi, which we assume must cloth every superior courts’ decision, and so not finding it, we are more intent on keeping up the pretences that it is there.
Law students, working lawyers, and judges have mastered the chant that ratio decidendi is that reason given for the judgement. But is it always true that judges set out in clear terms that which is the reason that formed their opinion and or decision?
We are told that judges are asked to stand by previous decisions, which means that each time a case comes before a judge he tries, in solving the present problems, to see how those before him solved similar problems. They even have a beautiful term for it; stare-decisis. This rule of judicial precedent is almost compulsory for judges. It seems that much the same way as the world in their daily transactions want to treat like cases alike, judges too want to treat like cases alike. Hence, if a court is dealing with a case which shares material facts with a previously decided case, the court is generally bound by the previous decision and should arrive at the same conclusion.
The legal system points to very many beautiful reasons why judges must have to consult with the wisdom or even the mistakes of previous decisions. One of our great judges in the land, Justice Chukwudifu Oputa, said that ‘it fosters stability and enhances the development of a consistent and coherent body of law. In addition, it preserves continuity and manifests respect for the past. It also assures equality of treatment for litigants similarly situated. It likewise spares the judges the task of re-examining rules of law, or principles, with each succeeding case and finally, it affords the law a desirable measure of predictability.”
Another famous judge, Sir Udo Udoma said that it eliminates crystal guessing. He said, “Realising as we must do that in this imperfect world of mortal beings, certainty is but an illusion and repose is not the destiny of man, we think not the less, that in law there ought to be not only an element of certainty and consistency of construction and application”
And so we have heard it from these great minds, that consistency, stability, coherence continuity, certainty, and more are all the recondite charms in this effort to always ascertain what might have been said on any given question and why it was so said. But come to think of it, why would each individual judge amid scarce judicial time begin to travel anew each dusty highway of dispute resolution to ferret a solution, if he can take respite in other’s previous efforts? Lord Lloyd of Hampstead says that ‘to take the same course as has been taken previously, or has usually been adopted in the past, not only confers the advantage of the accumulated experience of the past but also saves the effort of having to think out a problem anew each time it arises’
So if precedent and stare-decisis are the talismanic remedies for similar cases coming before our judges, and if any advantage could be taken of the previous decision, the later judge must understand what the previous judge was saying. They have to understand the reason for that prior decision. For instance, they have to understand why the Supreme Court ordered the fourth runner-up in an election to be sworn in as a state’s governor when dealing with a similar case. And so it means that for stare-decisis to be beneficial two things must happen; the judge in the previous case must have set out his reasoning clearly enough to have any precedential value and the subsequent judge must have ‘the eyes’ to see it.
Since what the judge in the subsequent case is looking for is the real reason for the way the case was decided, it would mean that the manner in which the previous Judge ‘argued’ his judgment becomes irrelevant. Also, it is known that judges sometimes speculate about what their decisions would have been had the facts been different. And again lawyers say that this is irrelevant and would not bind in subsequent cases, even if such a hypothesis manifests in them. They say that at best it would persuade a subsequent judge.
Obiter dicta as the lawyers and judges call it becomes, therefore, completely excluded from the realm of what they accept would bind the judge in a subsequent case. And so not part of what he should look out for. All that will be cognate is the principle put forth in the previous decision and so the real challenge is to find that ratio-decidendi.; the reason for deciding.
But modesty here is to accept that ascertaining this ‘reason for deciding’ in a decision could be an ardours task. Judges, especially of the apex court may be more inclined to give judgment to meet what they perceive as the ends of justice and in which they may not be able to express in any form of legislative proposition what their ratio-decidendi was.
Helps have been offered on how to find these rations. There is the traditional theory that the ratio-decidendi is the legal principle formulated by the court in relation to the matter actually decided. Yet there are cases which may be decided without any enunciation of any rule at all or where it is enunciated but in very wide terms. Courts’ judgments are becoming longer and more elaborate making the rationes lost in the web of lengthy judgment, and invariably hard to ‘find the wood for the trees’.
Some law teachers in trying to help us find these ‘reasons for deciding’, say that there should be what they call an ‘inversion test’. So what they are asking is that the later judge should invert every statement in the previous judgement and ask whether the decision would have been different were the statement omitted. But the problem with this type of method is that if the previous court gave alternative reasons to its decision, when inverted, only one ratio would survive and so alternative rationes-decidedi would be weeded out. No justification can ever be offered for regarding as obiter-dictum a reason given by a court for its decision because it has given another reason also.
Yet others say that there should be a factual analysis theory. That is to say, placing the facts in issue vis-à-vis the principle and seeing which statements in the previous decisions spoke to the facts at the time. This seems simple but very convoluted in practice.
Some judges feel simply more comfortable ‘to seek for the flip side of the coin’ which is the obiter dictum. Hence, if they are able to sort out the obiter dictum in the previous decision, then what is left becomes clearer to them as the picture of the ratio. So all the later judge needs to do in order to disqualify the statement as a mere obter-dictum is to see that it does not speak to crucial facts in the case or is hypothetical or is illustrative or analogous or that it is nondeterminative. But this is not without its difficulties. Reasoning is like brickwork. When the judge draws an analogy from the non-determinative point, that is just the base brick, then upon it, he lays another which we consider determinative. But it is not hard to see that once you separate the later statement from the former statement from which it draws the strength of syllogism, it will cease to make meaning.
It seems that Judges and working lawyers desperate to run away from this murky waters of finding the ratio-decidendi very randomly throw in the towel and capitulate to whatever the law reports pen down as what the previous decisions held to be the authentic version of the ratio-decidendi. Of course, we know that the use of precedent depends so much on the efficiency of law reporting. But quite unfortunately, most of our law reporters merely underline legal statements made in the body of a judgment and set them out as what the court held. To this end, much of what were obiter are recited in subsequent cases as binding statements of the law. This is the kind of head note practice that has fostered malignant growth in our laws.
By and large, all formulas proffered for ascertaining the ratio-decidendi of a case including the beacon lights of crucial facts, hypothetical facts, illustrations, and determinative points are merely for guidance and admittedly, none is full proof. None of the indications and signposts erected on the road to discovering the rationes-decidendi, of courts’ decisions have proved so satisfactory and infallible.
Judges perhaps believe, much like the ‘Emperor’s new clothes’, which must be visible to anyone except those unfit for their position, that they must find or at least pretend to find the ratio of a judgment for fear or appearing ‘unfit for their station’ as judges. In his struggle, he would cull randomly, statements from a previous decision, but with no clear demonstration of the principle enunciated therein. His judgments are punctuated with several ‘see the case of this or that’ with nothing to tie them to the case at bar. At times, they embark upon the most miserable and unsatisfactory analysis of a previous decision.
Indeed, judgments may be completely naked of ratio-decidendi or contain rationes which might have been so discreetly issued or which are blurred in the web of lengthy and intricate opinion, wherefore they are rendered unascertainable. And the other truth is that there are judgments whose rationes, though present, may be difficult to articulate.
It is often advised that when a case has no discernible ratio, it is best to avoid its use altogether. In 1972, an English court once gave such advice. This avoidance saves the judicial process from unnecessary crystal guessing. It does not impact the present Judge negatively because he is unable to discern a ratio of the previous court, especially of a judge higher than he; neither does it cast aspersion on the previous judge that his ratio is not discernible. It is just what it is that the ratio could not be found and there are fluctuating good reasons why such does happen.
Chief Ibe Ikwechegh, is a Lawyer, Consultant at Indent and Law & Society Magazine Columnist
