Is The Law Truly What The Court Says? | Samuel Edeh
There is no authoritative definition of law and most certainly, there will never be. Any attempt at giving a universal acceptable definition of law will be akin to forcing a camel through the eye of the needle or forcing a fish to climb a tree. Consequently, theories of law are founded to establish an understanding of the nature of law. These theories allow us to attempt the question as to what is law and what the law ought to be. Now, there are schools of jurisprudence which influences the answer. These theories of jurisprudence include, but not limited to, the positivist theory, realist theory, natural law theory, historical theory etc. The positivist believes law to be nothing more pretentious than what a recognized sovereign authority has enacted. For instance, Section 4 of the 1999 Constitution of the Federal Republic of Nigeria vested the National Assembly with the powers to make laws for the Federation. It follows, therefore, that where the constitutional procedure of law making is strictly adhered to, any law emanating therefrom is valid, nothing more, nothing less. The question as to whether it is just or unjust is inconsequential. On the other hand, the realist theory is against this view. For them, what the court says in resolving disputes is the law. In other words, the decisions of courts stand as the law. Therefore, the aim and objective of this paper is simple. It is to demonstrate that the decision of the court stands as the law – and not the provisions of statutes. By so doing, this paper will also show landmark cases wherein the court took the view of the realist. As a result, this topic will be doctrinal in nature, in other words, a desk-based or library-based research. It will rely on available literature and numerous cases on the topic. The topic will also rely on secondary sources, considering that most of the materials in this area of law are secondary sources.
In order to have better understanding of law, it is apt to properly examine the concept called jurisprudence. Jurisprudence is a vibrant discourse in the study of law and its definition abounds.1 In fact, it is as big as law — and bigger.2 The term jurisprudence derives from Latin word jurisprudentia which according to the English Oxford Dictionary means knowledge of or skill in law. Juris means law and prudentia means science or a systematic body of knowledge. Thus etymologically jurisprudence means science of law, the science which treats of human laws in general i.e. philosophy of law. From the Romans, as we learn from Cicero, the study of law must be derived from the depths of philosophy and involves an examination of the human mind and of the human society from which rules of positive law are distilled.
There is no convincing definition of jurisprudence. Dias expresses the same opinion: the answer to the question, what is jurisprudence? is that it means pretty much whatever anyone wants it to mean. But Llewellyn believed jurisprudence to mean:
Any careful and sustained thinking about any phase of things legal, if the thinking seeks to reach beyond the practical solution of an immediate problem in hand. Jurisprudence thus includes any type at all of honest and thoughtful generalization in the field of the legal.
However, the study of jurisprudence in modern legal academia is imperative. It helps the judges in ascertaining the true meanings of the law passed by the legislature by providing the rules of interpretation. Jurisprudence does not teach law, but an examination of the law. This is the big fact in litigation. Armed with the knowledge of jurisprudence the lawyer can think beyond the relish of that statute. It is the critical thinking of what law ought to be that initiates law reforms in society. Otherwise, society will run into danger when we have static laws that draw no good and development.
Conclusively, this overview of jurisprudential purposes is not exhaustive. It can be extended. The conclusion from this survey is clear. Jurisprudence is not fixed. Undeniably, jurisprudential activities reflect countless purposes, they vary over time, they sometimes appear to controvert each other, they are not always possible to describe in detail, and they are occasionally completely implicit.
THE REALIST SCHOOL OF JURISPRUDENCE
An alternative theory to both positivism⁶ and naturalism is legal realism. Legal realists are more concerned with “law in action” rather than with “law in statute books. Legal realist holds the view that law is practical and pragmatic. It is based on the belief that judges neither do nor should decide cases formalistically. Law is not, as the positivist claimed, as system of rules that is clear, concise, consistent and complete. To a realist, statutes and case law are only sources of law, until a judge interprets and reaches a decision in a dispute and state what the law is. A major forerunner of this school of thought is Justice Oliver Wendell Holmes Jr. In his famous essay Holmes wrote:
The prophecies of what the courts will do in fact and nothing more pretentious, are what I mean by law… We must reject the view of text writers who tell us that law is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics and admitted axioms or what not, which may or may not coincide with decisions.
The above means that the pronouncement of the court is the law. Therefore, a law that has not be examined in a court is no law, not even the provisions in the statutes. Some proponent of this school believe that there should be no deviation from judicial precedents because it is the law, whereas the second group believe that precedents should not be worshipped and that activist judge can deviate from already made precedents.
Conclusively, for the legal realist, there is always a lacuna between what is and what ought to be. There are interested in what is as it has been pronounced by the court and nothing more pretentious. According to them certainty of the law is a myth until it is addressed in court.
IS THE LAW TRULY WHAT THE COURT SAYS?
In applying the proposition of Oliver Wendell Holmes and other realist proponents, it is my humbly view that in Nigeria and other democratic countries, like the United States, the law is truly the verdict of the court and the provisions in the statute books are just skeleton until given flesh and life-breath by the court.
In Donoghue v Stevenson 3, the Neighbour Principle was formulated by the House of Lords. Here, a manufacturer of ginger beer sold ginger beer in an opaque bottle to a retailer. A boy bought a bottle of the ginger beer from the retailer and treated his girlfriend to its contents. The girl alleged that that she suffered some injury as a result of seeing and drinking the contaminated contents of the beer manufactured by the defendant. The ginger beer, in fact, contained decomposed remains of a snail. Since she had not, herself, been in a contractual relationship with the proprietor, she could not sue him, and she was then forced to sue the respondent manufacturers of the ginger beer. The boy, on his part, could not sue anyone because he did not suffer any injury. The Scottish Court held that they could not find any legal connection between the girl and the manufactures. But when the case got to the House of Lords, a majority of the court held that the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable if that duty was broken. In holding the manufacturer liable the court made tortuous liability to exist in the absence of privity of contract. According to Lord Atkins:
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omission which are called in question.
From the above foregoing, the court propounded a new law and applied the newly propounded law to the instant case above. This newly promulgated law is that a person can be liable for tortuous act in the absence of any kind of relationship. It therefore means that a consumer of butter in Nigeria can maintain an action against a Ghanaian manufacturer for breach of the neighbour principle even when there is no contractual relationship between them. This principle has been replicated in some many Nigerian judicial decisions.
The Strict Liability Rule is not as result of legislative framework but as a pronouncement of the court in Ryland v Fletcher.4 Also this decision has been replicated in some many Nigerian judicial decisions.5 The defendant, in this case, employed independent employed independent contractors to construct a reservoir on their land. While carrying out the work, the independent contractors discovered some disused shaft beneath the site of the reservoir which connected their land with plaintiffs mine. They negligently did not block them up because the shafts appeared to be filled with sand. When the reservoir was completed and filled with water, the water escaped down the shafts and flooded the mine of the plaintiffs. The defendants were held liable under the rule of law established by Blackburn J:
We think that the true rule of law is that the person who, for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.
Further, the belief that law is the prophecies of the court was ventilated in the epoch-making judgment of the United States Supreme Court in Obergefell v Hodges6 which legalized same- sex marriage in all 50 States in America. This case marked a defining moment in the history of the United States. It successfully brought to end many years of raging debates over the legality of or otherwise of gay marriage in the United States. The Supreme Court did not base its decision on any statute/law. The Court employed the Individual Autonomy Principle to legalize gay marriage. Justice Kennedy who led the majority judgment of 5-4 has this to say:
Expanding a right suddenly and dramatically is likely to require tearing it up from its roots… This free — wheeling notion of individual autonomy echoes nothing so much as the general right of an individual to be free in his person and in his power to contract in relation to his own labour.
He further stated as follows:
If you are among the many Americans of whatever sexual orientation — who favour expanding same — sex marriage, by all means celebrate todays decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the constitution. It had nothing to do with it.
The above dicta clear shows that the decision has not nothing to do with the Constitution but enhances the view that the law is nothing more but the prophecies of the court.
Having meticulously considered the application of the realist theory in foreign cases, it is also mandatory, for the purpose of elucidation, to establish its existence in our legal jurisprudence. Under the Nigerian criminal jurisprudence, a defendant may claim that a certain set of facts or events happened which ought to exonerate him from criminal liability. And such eventualities are called defences. The law is very much settled that any defence to which an accused person is, on the evidence entitled to, should be considered for what it is worth however stupid or unreasonable it might appear to the court. However, from the clear wording of section 318 of the Criminal Code Act it is highly possible to submit that where the defence of provocation succeeds in a charge of murder, the defendant is to be convicted for manslaughter. He is not to be discharged and acquitted. This is settled law.
But, the Supreme Court in Shande v. The State7 made a u-turn. The appellant caused the death of the deceased (her husbands lover). She poured kerosene on the deceased and lit her on fire. She was charged with culpable homicide under the Penal Code Act. She pleaded provocation. She was convicted at the trial court and her conviction was upheld by the Court of Appeal, hence her appeal to the Supreme Court. After holding that the defence of provocation suffices, the Supreme Court went ahead to discharge and acquit her. This is against the position that provocation as a defence does not excuse the offence of murder. And it appears that the Supreme Court had jettisoned such laid down principles of law.
Further, the decision in Rt. Hon. Amaechi v INEC & Ors8 re-enforces our claim that the law is what the court says and nothing more. In 2007, the appellant (henceforth Amaechi) contested in the primary election for the gubernatorial candidate of Peoples Democratic Party (henceforth PDP). Amaechi emerged as the winner of the PDP primaries. His name was transmitted to the Independent National Electoral Commission (henceforth INEC) as the gubernatorial candidate of PDP. Sometime thereafter, Amaechis name was substituted with that of Omehia (who did not event participate in the primary election). Dissatisfied, Amaechi approached the Federal High Court seeking inter alia a declaration that he remained the lawful candidate of PDP for the election because no cogent and verifiable reason was given by PDP for the substitution of his name with that of Omehia as provided under 34(2) of the Electoral Act 2006. The Federal High Court upheld the substitution. Amaechi appealed to the Court of Appeal. Before the appeal was heard, Amaechi was expelled from PDP. On this note, PDP and INEC asked that the Court of Appeal to struck out the appeal on the ground that the Court no longer had the jurisdiction to her the appeal as a result of the expulsion of Amaechi from PDP. The appeal was struck out. Dissatisfied Amaechi appealed to the Supreme Court. But before the Supreme Court heard the appeal on its merit, elections have been concluded in Rivers State and Omehia was declared the winner. And having held that Amaechis name was unlawfully substituted, the Supreme Court was faced with difficulties as to reliefs entitled to Amaechi bearing in mind that election has been held and on the other hand, Amaechi never contested for the gubernatorial election. The central issue was: whether to declare a person who never contested for an election (gubernatorial) winner; which on the other hand is against the spirit of the Electoral Act, 2006. In his augment in the brief filed for PDP, J.K Gadzama SAN argued that Amaechi who had not contested the election could not be declared the winner. He stated that such a declaration would amount to a negation of democratic practice. Adesola Oguntade JSC held as follows:
Am I now to say that although Amaechi has won his case, he should go home empty- handed because elections had been conducted into the office? That is not the way of the court. A court must shy away from submitting itself to the constraining bind of technicalities… it is futile to merely declare that it was Amaechi and not Omehia that was the candidate of the PDP. What benefit will such a declaration confer on Amaechi?
From the above, it follows, therefore, that there may be circumstances where a person who never contested in an election could be declared the winner as was decided above. This led to a jurisprudential war in the Nigerian legal system. The National Assembly did not admire this trend in electoral matters. As a result, they caused an amendment to be made in 2010 to the Electoral Act of 2006. This amendment added a new provision to the Act. It added section 141. It provides as follows: An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.
Hence, if Amaechis case was to be re-litigated under the above provision, he would not have been declared the winner of the election. It is the duty of the legislature, of course, to enact laws for the country. However, it remains the duty of the courts to interpret those laws made by the legislature and a law, as least to a realist, can never by anything other than the prophecies of what the courts will do in fact and nothing more pretentious.
In Gwede v Independent National Electoral Commission9, the Supreme Court was confronted with a case having similar facts with that of Amaechis case because it involves unlawful substitution too. The 2nd respondent, Akpodiete won the primary election of DPP for Ughelli North Constituency II, Delta State. He later withdrew from the election in writing consequent upon which his two-million-naira deposit was refunded to him. DPP substituted him with the appellant and it was published by INEC. Subsequently, INEC substituted the appellant with the 2nd respondent. The appellant brought an action at the Federal High Court challenging the substitution. The Court declined jurisdiction. On appeal to the Court of Appeal, it was held that the substitution of the appellant was unlawful and dismissed all the reliefs sought by the appellant. On further appeal to the Supreme Court, the court in its considered judgment on 24 October 2014 affirmed the candidacy of the appellant but was again faced with the appropriate relief to grant. The Court escaped the handcuffs of section 141 and ordered the certificate of return be issued to the appellant.
The above clearly shows that the decision of the court on this issue is the law and not the provisions of the Act made by the lawmakers. Despite the subsequently amendment of the Electoral Act, the court still went ahead to deviate from such provision. It applied its previous decision (Amachis case) which the purported amendment has abrogated.
In property law, our court has made a significant rule of law on proof of ownership of land. Before the case of Idudun v Okomagba,10 there was dearth or no provision for proof of ownership of land in our statute books. The above case formulated the Proof of Ownership Rule. Thus, a person who is seeking declaration of title to a disputed land, can succeed by proving any or a combination of the following five ways: (1) by traditional evidence (2) by acts of selling, leasing, renting out all or part of the land or far on it or on portion of it (4) by acts of long possession and enjoyment of the land (5) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
On national security and interest, our court has made a judicial pronouncement to this effect. And which is now the law. In Dokub-Asari v Federal Republic of Nigeria, the Supreme Court per Muhammed JSC (CJN Rtd) had the following to say:
Where national security is threatened or there is real likelihood of its being threatened, human rights or individual rights of those responsible take second place. Human right or individual rights must be suspended until national security can be protected or taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizens liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual liberty or right may not even exist.
The above declaration simply means that the nations security cannot be sacrificed on the altar of individual rights and rule of law. It even appears that the legislature cannot make any law where the individual right of any individual will supersede that of national interest. It is on the basis of this verdict that the Buharis administration is unwilling to release Col. Sambo Dasuki (erstwhile National Security Adverse) and El-Zakzaky (the leader of the Shiite Islamic Movement of Nigeria). President Buhari, while speaking on the 2018 Annual General Conference of the Nigerian Bar Association (NBA) revalidated the verdict when he said:
Our apex court has had cause to adopt a position on this issue and it is now a matter of judicial recognition that; where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.
This is recognition by the executive arm, hence, the law.
There are sometimes where the law will be uncertain, contentious and controversial. It is not the legislature that will clear the contentious matter. It is the court. On the 30 June 2017, the Supreme Court of Nigeria in Skye Bank Plc v Iwu was called upon to interpret the constitutional provisions below. It relates to the appellate jurisdiction of the Court of Appeal over the decisions of the National Industrial Court which was before now shrouded in deep controversy. The constitution under section 243(3) (4) provides:
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly ….
The above simply means an appeal emanating from the decision of the National Industrial Court shall lie to the Court to Appeal as of right where it borders of fundamental human rights provisions under the constitution and an appeal shall lie from the decisions of the National Industrial Court to Court of Appeal as may be prescribed by an Act of National Assembly. But the Supreme Court disregarded these provisions. Per Mary Peter-Odili JSC has this to say: [T]he appellate jurisdiction of the Court of Appeal is not foreclosed within matters only related to fundamental right, rather, the appeals from the National Industrial Court all can go on appeal to the Court of Appeal as of right… Again, Per Clara Bata Ogunbiyi JSC, held: I hold the firm view that all decisions of the National Industrial Court are subject to the review of the Court of Appeal.
The foregoing vividly shows that the court has a choice between alternative meaning of the provisions of a law and it may choose to follow it or reach the decision it wishes.
This work has done three basic things. First, it made a critical appraisal of jurisprudence as an imperative study in law. Second, it introduced the realist approach from foreign dimension15. And third, it applied it to our contemporary Nigeria. Law is best described as a complex of rules and reactions emanating from legislative direction, native culture, executive actions and public realities, operating either jointly or independently, but they all have little effect on what judges actually do in Nigeria.
Finally, the duty of a judge is not always a pure deductive reasoning and unbending application of the law to the case he has to decide, because in many cases, the law is neither definite nor satisfactory. I shall conclude this paper by saying that law means no more than decisions of judges. Law is best depicted by what happens in court. In other words, the provision of statues does not; and cannot disclose what courts will do when actual disputes call for determination. For Llewellyn, the paper rules or the pretty playthings have little effect on what judges actually do. As replicated above, the law, in my view, is, always been restricted to and will never cease to be restricted to only judicial pronouncements.
- H.H Mensah Jurisprudential Aspects of Law and Punishment in Nigeria  (38) (184) Journal of the India Law Institute; F.S.C Northropt Contemporary Jurisprudence and International Law  (51) The Yale Law Journal 5; <https://www.marrian-webster.com/dictionary/jurisprudence> Accessed 11 May 2019;
- Karl Nickerson Llewellyn Jurisprudence (1961) 373 cited in Ese Malemi The Nigerian Legal Method: The Theories of Law (Lagos: Princeton Publishing Co Ltd) 18.
-  A.C. 562.
-  3 H.&C. 774; 159 E.R. 737 (Court of Exchequer).
- In Oladehin v Continental Textile Mills Ltd  11 SC 155, the defendants were held liable for the escape of industrial waste water which damaged the plaintiffs house. See also Shell Pet. Dev. Co (Nig) Ltd v Amaro  10 NWLR (Pt 675) 248; Machine Umudje & Anors v Shell  9-11 SC. 155 at 172; NEPA v Alli  8 NWLR (Pt 259) 279.
- 576 U.S. — (2015).
-  40 WRN 145;  12 NWLR (Pt 939) 301 (SC).
- (2008) 5 NWLR (Pt 1080) (SC).
- (2014) 18 NWLR (Pt 1438) 56 (SC).
-  9-10 SC, Page 227 at 248.
- . E. Samuel Chukwuemeka  Major Theories of Law Explained; <https://bscholarly.com/schools-of-thought-in-law/> Accessed 11 May 2021;