From the inquisitive nature of man flows the desire to know what is in the mind of others. This is particularly so when the actions of those others are capable of affecting our lives in one way or the other. The judge occupies such a position as his pronouncements during adjudication affects numerous lives. The ability to predict the outcome of a case by visualising it as a judge thus becomes desirable. In a different light, knowing the mind of a judge is key to legal comprehension as the knowledge of how judges do decide, or should decide cases is of essence to understanding law itself. These have found expression in judicial reasoning, which is ‘the process by which a judge reaches a conclusion as to the appropriate result in a case and to the written explanation of that process in a published judgment’. The fact that two seemingly similar cases may not produce the same outcome and the fact that the result of legal disputes subject to adjudication is not predictable has made it necessary for subjects of the law to understand how the mind of the judge works.
Understanding the mind of the judge will involve going on a philosophical and jurisprudential voyage and this is what this book has done in twelve chapters.
Judicial Reasoningm a 12-chapter book was published by by the Nigerian Institute of Advanced Legal Studies (NAILS). It discusses the concept of judicial reasoning by exploring the thought of a judge and what influnces during judgments.
The first chapter, written by Peter Ademu Anyebe is titled: Stares Decisis: Step to Conclusion. He explains stare decisis as a step to conclusion, noting that principles established by previous cases are not inviolable. It elucidates that the doctrine to stand by a precedent is a principle of decision making and not a rule and as such needs not be applied when the precedent at issue is badly reasoned. The approaches taken by the courts in deciding whether to overrule a precedent are discussed in this chapter. The expository nature of this chapter is seen when the writer enumerates the factors that guide the courts in overruling precedents while citing some notable instances where precedents have been overruled.
The second chapter is titled: Judicial Reasoning and Personal Idiosyncrasies and is written by Dr. Adebisi Arewa. The writer argues here that the most significant responsibility of the judiciary is fidelity to the law and adjudication of cases in accordance with the law. While agreeing that the attitudes and beliefs of judges are critical determinant factors of their decisions, the writer posits that the attitudinal perspective is an element of the extra legal paradigm of judicial decision making. He writes: “All legal systems have their criteria for determining legality and or legitimacy of judicial decisions. These criteria include constitutional and statutory enactments judicial precedent and the formal and legal process for establishing them, and informal norms and social values which are indeterminate, inexact, subjective and of low justificatory value and often confined in the subconscious where they nevertheless impact on judicial reasoning and decision. Once the rules of validation are clearly stated, each factor whether formal or informal can then be ranged against such rules pursuant to determining their legitimacy ad legality, for the purpose of judicial reasoning and judicial decision making.”
This chapter reveals that contrary to the portrayal of judging as a value free, detached and dispassionate process predicated on facts and legal precedents, that extra-legal factors such as psychological, attitudinal and social background play significant role in the judicial decision making process.
Chapter three, written by Dr. Francisca E. Nlerum, is titled: Towards Substantive Justice in Nigeria. It discusses the concept of substantial justice by first positing that the court is able to provide substantive justice through stating the law, providing fair trial, acceptable outcome and ultimately, constraining and directing human behaviour. She said the structure of the substantive law, rule and procedure has direct implication on the perception and construction steps necessary to provide substantive justice. The exercise of discretion by the courts is examined in this chapter as the writer writes “… the exercise of such discretion is controlled and manipulated by the structure and function of substantive law, rule ad procedure upon which the discretion is exercised. The judge’s ability to exercise fair discretion by being impartial and objective is called to question and such burden places on him an expectation to produce consistent result …”
Addressing the extent at which extraneous conditions can be resorted to in order to qualify as judicial activism, this chapter examines landmark cases such AG Bendel State v AG Federation & Ors, AG Federation v AG Abia State & Ors, Plateau State of Nigeria & Anor v AG Federation, Amaechi v INEC among others. It concludes by acknowledging that substantive justice can only be promoted by judicial activism.
Chapter four titled: Research and Judicial Reasoning, written by Ige Adeola Olabomi, shows the nexus between legal research and judicial reasoning. It says that research plays an important role in recommending solutions to existing problems of the society particularly in judicial reasoning. The reader is informed of doctrinal legal research which is concerned with the formulation of legal doctrines through the analysis of legal rules. This chapter analyses the sources of legal research in Nigeria and the writer likens research in judicial reasoning to scientific research. According to the writer “…the more nearly we are able to predict what decision will be made by the courts on a given state of facts, the more nearly do we approach to a scientific and civilized jurisprudence… ”
Chapter five is titled: Analysis of Brief of Counsel and is written by Osatohanmwen Eruaga. The writer in this chapter x-rays the concept of brief of counsel by considering the various types of briefs there are, and when they may be used in appeal process as well as what is expected of a brief by the court. Well versed in legal history in Nigeria, the chapter traces the history of brief writing in Nigeria. The writer discusses the concept and importance of brief of argument through citing and reporting of required cases as well as the Supreme Court Rules. Going through the cases, this chapter discusses the structure and contents of briefs of arguments. The chapter is particularly enriched by rulings of learned justices explaining brief of arguments as well as the contents. One of these as quoted by the writer is on the brevity of a brief where the Supreme Court stated per Oputa JSC in Engineering Enterprise v Att. Gen. Kaduna. “As the name implies, a brief should be brief. It should be short enough to be attractive yet long enough to cover the substance …” Still on the length of briefs, the writer cautions on restrictions. She writes “… restricting the number of pages in the brief of argument as done in some jurisdictions such as the United States, would affect negatively the brief system in Nigeria by exposing the system to more “empty” or faulty briefs provided within the limits as provided.” The chapter concludes by reinforcing the need for counsel to attach the same level of seriousness the court displays when producing the brief by adhering to the general rules of brief writing.
In Chapter 6 ,which is titled: Prophesy of the Courts written by Suzzie Onyeka Oyakhire, the definition of law as the prophecies of what the courts will do is scholarly analysed. The chapter reasons that this lay the foundation for the 19th century reliance on the doctrine of judicial precedents which has influenced legal thinking and which also is the crux of the legal systems of common law jurisdiction including Nigeria. Through identifying and analyzing arguments in favour of and against the prediction premise of judicial precedents, the writer examines the idea behind the prophesies of the courts.The writer considers the binding effect of the judgments of the court which until they are appealed and reversed by a higher court, remain the law and govern the affairs of subjects. She writes “A classical example of judicial precedent which has set the foundation for the principle of negligence in the law of torts is the decision of Lord Atkins in the case of Donoghue v Stevenson. This decision has formed the crux of determining the liability of the neighbor who owes a duty of care to another and breaches that duty of care. Since the decision of the court in that case it is apt to conclude that the bad man and the society at large can predict that if he acts in a way that causes injury to his neighbor, he would be liable under the law of torts.” (p.138). The writer identifies judicial activism as one of the factors which challenge the prediction theory as judges do not only apply the law as it is but sometimes extend it and at other times create new ones. The role played by ratio decidendi in the judgment of the court is analysed in this chapter as the writer identifies that when faced with similar fact cases, a later court may give different reasons for arriving at a particular conclusion notwithstanding that the cases were tried with exactly the same law. She cites the instance of the proliferation of conflicting decisions arising from election petitions in Nigeria and cites the cases of Ugwu v Ararume and Amaechi v INEC as examples. This chapter canvasses that while the importance of ‘prophesy of the courts’ cannot be undermined, its characteristics as a tool for absolute prediction is however questionable. The chapter examines this in the light of judicial activism, contradictory and dissenting precedents and more importantly with the instrumentality of statutes which may alter the validity of previous predictions.
In Chapter 7 titled: Specialisation as a factor in Judicial Reasoning, Prof Animi Awah infers that judicial reasoning depends not only on legal imperatives but also on social philosophy, moral imperatives and political justification. This has made judges to continue being generalists even when the courts are specialised. The reason for this, according to the writer, is the fact that law is no longer restricted to the traditional issues any more but cuts across all discernible areas of human endeavours. The chapter examines the theories of judicial reasoning; it discusses specialisation and brings out the impact of specialisation to judicial reasoning. In the light of specialisation movements in the legal sector which has found its way into the court system whereby there are creations such as the National Industrial Court, specialist tribunals, and divisions specialising in different areas, the writer as a poser asks whether specialisation impacts on the quality of service and service delivery in the sector, what expertise in judicial adjudication means and whether specialisation impacts judicial reasoning process. Acknowledging the difficulty in deciphering the issue of expertise and specialisation, the writer notes “As a safe measure therefore, reference to specialisation will refer to the judge that sits over specialized cases or specialised court dealing with specified subject or related subjects while the generalist judge would refer to that judge who sits in a court of “unlimited” jurisdiction and adjudicating over any matter that comes before him irrespective of subject matter.”
The writer examines the pros and cons of judicial specialisation while citing examples of specialised adjudication. This chapter concludes that proper evaluation of the substance of cases and good use of interpretation skills and other aids to judicial reasoning can better guarantee the goal of the justice system than mere subject matter expertise.
Chapter 8 titled: Elevated Thought Process in Judicial reasoning, is written by Uchechukwu Ngwaba. Recognising that thought is a very significant factor in understanding judicial reasoning, it discusses it, stating that judicial reasoning is an elevated thought process. The chapter examines the different theories of judicial reasoning, which have arisen as a result of the disagreements about the reasoning process of judges. The writer analyses the various theories, namely the formalism, intuitionism and determinism. An important question of whether there can be any theoretical basis to explain the construction of human thought is asked. This chapter uses a philosophical approach to address the issue.
He writes: “Revisiting the postulations of the scholarship on judicial reasoning, we notice that despite their divergent claims, a common ground is the understanding that in judicial reasoning, the ultimate objective of the judge is to do justice.”
The writer says justice is not tangible or conscious. He explains that a judge’s reasoning embodies a method distinct from judicial decision making.
In Chapter 9 titled: Logicality and Clarity of Judgments, is written by Nkiruka Chidia Maduekwe, access to justice is described as being tied to access to judgments. He analyses the essence of a logical and clear judgment, discusses importance of logic in judgments, warning that the art of thinking should not be confused with logic. It analyses the importance of clarity and logic in judgments as being essential tools in producing accessible judgments. It also sufficiently explains how the absence of clarity in judgment has far-reaching consequences on adjudication. The writer proffers some recommendations which will help to improve the quality of judgments.
Chapter 10 is titled: The Judicial Doctrine of Pith and Substance and written by Adejoke O. Adediran. It examines the doctrine of pith and substance as created by the court in connection with judicial review of legislation is made. Tracing the history of the doctrine, the chapter discusses how it came about under the Canadian law by being developed by the Canadian courts.The purport of the doctrine in a federal system of government is discussed as well as what the courts usually determine in ascertaining the pith and substance of a case. Citing the purpose of the legislation and the legal effect of the law as instrumental in ascertaining the pith and substance of a case, the writer states that the court takes cognizance of both extrinsic and intrinsic evidence.
On the judicial interpretation of the doctrine in Nigeria, she writes: “ …in a federal system where the legislative powers of legislatures are different, there is likelihood of encroachment by a legislature in the legislative field of another. The courts have always examined the law examined the law enacted vis a vis the legislative power contained in the constitution in order to determine whether such encroachment is merely incidental or substantive. The courts in Nigeria have applied this rule in a number of cases, although they might not expressly indicate that the rule is being applied.” The writer cites cases whereby the courts have applied this doctrine such as Attorney-General of Federation v Attorney-General of Lagos State, Attorney-General Abia v Attorney-General Federation, Attorney- General Lagos State v Eko Hotels ltd, among others. The essence of the doctrine as an effective means of interpretation of statutes in situations where enactments prima facie seem to be ultra vires is adequately discussed in this chapter.
Chapter 11 is titled ‘Extra Legal Deductibles: A Search for the Fine Line between Law and Nuances’ and is written by Judith Chukwufumnanya Rapu. This chapter recognises the importance of the duty of the judge whose claim to power the writer claims is multi- faceted; first the nature of his office and secondly, the lives and destinies of several persons lie in the pronouncements he makes.
