CHAPTER ONE GENERAL INTRODUCTION
1.0.0. INTRODUCTION By virtue of the legal and judicial legacy bestowed on Nigeria by colonial masters, common law principles, rules and doctrines have tremendous influence on administration of justice system in the country. Particularly as an offshoot of that influence, the common law doctrine of stare decisis, translated as judicial precedent or simply as precedent,1 has come to be regarded as a source of law in the country.2
Simply put, stare decisis is a practice in the administration of justice in common law jurisdictions,3 whereby a court is bound to follow decisions of a higher court in the hierarchy of the court structure put in place in the state.4 It has also been explained as “a judgment or decision of a court of law cited as an authority for deciding a similar set of facts”5 and as “a case which serves as an authority for the legal principle embodied in its
Some writers referred to it as “Case Law”. See for example, Park, A. E. W. The Sources of Nigerian Law (African University Press, Lagos; Sweet and Maxwell, London: 1963) p.54; Asien, J. O. Introduction to the Nigerian Legal System (Sam Bookman Publishers, Ibdan: 1997) p67; Olaosebikan F. and Olowu, D. “Sources of Law” in Sanni, A. O. (Ed.), Introduction to Nigerian Legal Method (Faculty of Law, O. A. U. Ile-Ife: nd) p128; and Glanville Williams, Learning the Law, Eleventh Edition (Sweet and Maxwell/Stevens and Sons, London: 1982) p. 67. It has also been referred to as “Decisions of Courts”. On this, see David, Rene and Brierley, John E. C. Major Legal Systems in the World Today, Third Edition (Stevens and Sons, London: 1985) p. 367. 2 Olaosebikan and Olowu, n. 1, p.128 3 Common law jurisdictions are countries where common law has influence on their legal systems. They are usually countries formerly colonised by Britain. Common law originated from Britain. Thus, common law as a source of law is not peculiar to Nigeria alone. For example, under the Application of Laws Act, Common Law constitutes one of the sources of law in Brunnei Darussalam. For a general study on Common law as one of the leading legal systems in the world, see Brierley, David and n. 1, pp307-439. 4 Obilade, Akintunde Olusegun, The Nigerian Legal System (Spetru Books Limited, Ibadan: 1990) p115. 5 Rutherford, Leslie and Bone, Sheila (Edts), Osborn‟s Concise Law Dictionary, Eight Edition (Sweet and Maxwell, London: 1993) p256
decision”.6 Thus, for the doctrine to have relevance in any nation, the practice of hierarchy of courts structure must be in place.7
But contrary-wise, existence of hierarchy of courts in place where Islamic law applies may not make the doctrine to apply automatically for Islamic law has a different perspective in the doctrine. In Nigeria, hierarchy of courts and Islamic legal system, administered by Shariah courts are in operation. This therefore calls for a balance to be struck in the circumstance to put the doctrine in its proper Islamic point view. This is what is done in this research work.
1.1.0. BACKGROUND TO THE STUDY In Nigeria, by the combined effects of the provisions of Sections 68 and Chapter VII9 of the 1999 Constitution of the Federal Republic of Nigeria (hereinafter the Constitution),10 ground is well prepared for an effective operation of precedent through the hierarchical judicial structure so institutionalised thereby. The general impression is that, hierarchical court system in the country is patterned to cater for and have relevance in all courts applying any of the three major legal systems of common law, customary law and Islamic law that constitute the Nigerian law.11 This impression was come about without due regard to the respective legal positions of both Islamic law and customary law on the 6 7
Rutherford and Bone, n.5, p. 256 See David and Brierley, n.1, p. 367 8 This section is on the delineation and distribution of judicial powers in the country 9 This is the Chapter on...