“THE PLACE OF LAW REPORTING IN THE 21st

CENTURY LEGAL RESEARCH AND PRACTICE”

BEING A PAPER PRESENTED BY TAYO OYETIBO, SAN1 AT THE 30th

ANNIVERSARY CELEBRATION OF THE NIGERIAN WEEKLY LAW

REPORTS ON 29th OCTOBER, 20152

1 Chief Counsel at the law Firm of Tayo Oyetibo & Co2 Paper prepared by Mofesomo Tayo-Oyetibo LLB (Hons)(Leeds), BL, LLM (Commercial Law)(Bristol), Associate Counsel in the Commercial Law Practice Group at the Law Firm of Tayo Oyetibo & Co with suggestions from Tayo Oyetibo, SAN.

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INTRODUCTION

The need for law reporting derives from the fundamental doctrine of judicial

precedent, which is deeply enshrined in Nigeria’s jurisprudence. The need for

previous authorities and decisions to be applied by the courts with consistency

and certainty to present cases requires that such authorities and decisions be

assembled and documented in permanent forms so as to afford easy access and

reference by lawyers and Judges as well as other users of the law, hence law

reports play an undeniably vital role in the administration of justice in Nigeria.

Law reporting in Nigeria is as old as the country itself and as of today, law reports

are critical tools of trade for any lawyer in this country and the cornerstone of any

legal practice or academic library. In the fast paced 21st Century, law reporting

remains as critical to legal practice as it has ever been and due to the

increasingly dynamic nature of legal practice, it is essential that the practice of

law reporting is not left behind and is adequately responsive to the needs of the

21st Century lawyer.

HISTORY OF LAW REPORTING IN NIGERIA

Officially Published Law Reports

Prior to the publication of law reports in Nigeria on a commercial basis, law

reports were being published officially. The officially published law reports began

with the Nigeria Law Reports (NLR), which was published by the then Judicial

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Department from the year 19103 up until 1956, when it was discontinued as a

result of the regionalization of the Judiciary in 19544. We have also had the West

African Court of Appeal Reports (WACA), in which decisions of the now

defunct West African Court of Appeal were reported, the Federal Supreme

Court Reports (FSC) which reported decisions of the Federal Supreme Court

between 1956 and 1960 and then the All Nigeria Law Reports (ALL NLR)

which was published from the year 1961 up until the seventies. The Judgments

of the Supreme Court of Nigeria (SC Reports) was officially published by the

Supreme Court during the tenure of the noble Justice Taslim Olawale Elias as

Chief Justice of Nigeria. However the publication of the reports was discontinued

at some point in the eighties. Layi Babatunde, SAN obtained the fiat of the then

Chief Justice of Nigeria- Justice Muhammed Lawal Uwais, in 1999 to

recommence publication of the SC reports, pursuant to which the reports were

revived and continue to be published today on a private and commercial basis.

A fact that is unfortunately common to all of these aforementioned officially

published law reports is that as of today, they are all now no longer in existence.

Asides the WACA reports, which is no longer required as a result Nigeria’s

independence and departure from the West African Court of Appeal, there is no

3 Mr Jules Winterton and Professor Richard A Danner, ‘The IALL International Handbook of Legal Information Management’ 2012, Ashgate Publishing 4 Justice Emmanuel Ayoola, ‘Prologue: Emergence of law reporting in Nigeria’ in The National Mirror of 26th August, 2013

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reasonable justification for the extinction of the other officially published law

reports.

With respect to the All NLR, efforts were made by the Federal Ministry of Justice

to revive the reports, as a result of which 10 volumes of the reports were

published in 2007 to cover the backlog of cases and time gap between 1990 and

2005 when the law reports were not published at all. It must be said that this was

certainly a laudable effort to revive the only surviving officially published law

report. However, today, we find ourselves in a state of déjà vu, with respect to

the All NLR because since the reports were last published in the year 2007, they

have not been published again to report cases that have been decided between

then and now.

Commercially Published Law Reports

In terms of the privately and commercially published law reports in Nigeria, the

Nigerian Monthly Law Reports (NMLR) is the pioneer law report and was first

published in 1964. Between then and now, several law reports have followed,

some of which include the Federation of Nigeria Law Reports (FNLR),

Supreme Court of Nigeria Judgments (SCNJ), Nigerian Supreme Court

Cases (NSCC), Supreme Court Reports (SC), Federation Weekly Law

Reports (FWLR), All Federation Weekly Law Reports (All FWLR) and Weekly

Reports of Nigeria (WRN). In addition, we also have practice area specific law

reports such as the Commercial Law Reports of Nigeria (CLRN), Law Reports

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of Election Cases in Nigeria (LRECN), Nigerian Criminal Reports (NCR),

Banking and Financial Law Reports (BFLR), Nigerian Banking Law Reports

(NBLR), Investments and Securities Law Reports, Tax Law Reports of

Nigeria (TLRN), Nigerian Constitutional Law Reports (NCLR), Failed Banks

Tribunal of Nigeria Law Reports, Sharia Law Reports of Nigeria, Election

Petition Reports and Nigerian Labour Law Reports (NLLR).

You will observe that I have not mentioned the Nigerian Weekly Law Reports

(NWLR) in the list of privately published law reports in Nigeria. This is because

amongst the host of law reports that have been published in Nigeria, the NWLR

deserves special mention. For some who may know me well, it is not news that I

have a special affinity for the NWLR. The reason is simple; I was a pioneer

Assistant Editor of the NWLR when it commenced publication in 1985. It is

impossible to talk about law reporting in Nigeria today and not talk about the

NWLR, so at this point, I think it is important to give some details as to the history

of this law report.

HISTORY OF NIGERIAN WEEKLY LAW REPORTS

On 1st August, 1984, Chief Gani Fawehinmi engaged four young lawyers namely:

Abiodun Akinyemi (now Honourable Justice Abiodun Akinyemi), Wemimo

Ogunde (now Wemimo Ogunde, SAN), Dapo Abudu and Tayo Oyetibo (now

Tayo Oyetibo, SAN) who were classmates at the University of Lagos, to work in

his law Firm. Shortly after their engagement, Chief Gani Fawehinmi set up the

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editorial board of the Digest of Supreme Court Cases, 1956-1984 comprising of

the four young lawyers and another lawyer-Prince Kofi Quashigah, a Ghanaian,

to work with him on the production of ten volumes of the Digest. Work on the

Digest was completed in the first quarter of 1985 and it was subsequently

published in or about September 1985. The story of the evolution of the Nigerian

Weekly Law Reports can be likened to the creation of mankind, when God after

creating everything that he had made, saw that it was very good and then

created mankind through Adam and Eve5.

Thus, after the publication of the Digest, the Chairman of the Editorial Board

called a meeting of the Editors of the Digest and said that the Digest was very

good and that it was not good to leave the decisions of the Supreme Court of

Nigeria unreported and therefore that he had decided that a new law report to be

christened the Nigerian Weekly Law Reports be established. The pioneer

members of the Editorial Board of the NWLR were Chief Gani Fawehinmi

(Editor), Abiodun Akinyemi (Deputy Editor), Mike AA Ozekhome, OAR Ogunde,

Tayo Oyetibo, Dapo Abudu, and Hezekiah A Odetoyinbo (Assistant Editors).

The first Part of the Nigerian Weekly Law Reports was published on 1st October,

1985. The publications ran consistently till the end of 1985 when Part 13 was

published. At the inception of the Nigerian Weekly Law Reports, the Nigerian

legal profession adopted a wait and see attitude to the publication, having regard

5 See Genesis Chapters 1 and 2

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to the short-lived nature of previous law reports. However, when the first thirteen

Parts of the NWLR ran consistently without default, there arose a subterranean

grand opposition to the continued publication of the law report. The allegation

against the Publisher of the law report was that he was exposing the tool of the

trade to every Tom, Dick and Harry. This was because Chief Gani Fawehinmi

had issued a statement upon the introduction of the NWLR into the system, that

his aim was democratise the practice of law in Nigeria having regard to the

prevalent practice before the advent of the NWLR, where only a few privileged

senior legal practitioners had immediate access to unpublished judgments of the

Supreme Court of Nigeria.

The grand opposition to the continued publication of the NWLR almost

succeeded because the judgments of the Supreme Court were no longer being

made available to the Nigerian Law Publications for publication in the NWLR and

if there are no judgments, what can you publish? What then did Chief Gani

Fawehinmi do? Chief Gani Fawehinmi, in his characteristic manner of not giving

up on a good fight, wrote a strongly worded protest letter to the Chief Justice of

Nigeria and sent copies of the letter to all the Justices of the Supreme Court, the

Justices of the Court of Appeal and the Chief Judges of all the State High Courts

in the country. However, the primary addressee of the letter was the person to

receive his copy last, by which time there had been phone calls from all over the

Federation as to why the NWLR was going to be ‘killed’.

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The strategy adopted by Chief Gani Fawehinmi in the method of delivering his

protest achieved its desired result, as pressure for the release of judgments to

the Nigerian Law Publications for publication in the NWLR came from all the

Chief Judges of the High Courts of the States, Justices of the Court of Appeal as

well as Justices of the Supreme Court, whereupon the release of judgments of

the Supreme Court to the Nigerian Law Publications resumed in or about the

third week of January 1986. This was the reason why there was no publication

of the NWLR in the month of January 1986. Part 14 of the NWLR was then

published on 3rd February, 1986 and since then the report has remained

consistently in the market. I think the Publishers of the Report deserve our

applause for their singular effort of keeping the Law Report alive till today.

IMPORTANCE OF LAW REPORTS TO LEGAL RESEARCH AND PRACTICE

It has already been said that the doctrine of judicial precedent is deeply rooted in

the jurisprudence of our country, such that when any case comes up before any

court on any point of law, in order to decide the case, the court is bound to

consider the present state of the law as decided in previous cases, the authority

of which is or may be binding on the court faced with deciding the case. A

remarkable illustration of this doctrine of judicial precedent was made by Fred

Rodell in his book titled ‘Woe Unto You, Lawyers!6 when he stated that:

6 Wm. S. Hein Publishing, 1st ed. 1939

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“The Law is the killy-loo bird of the sciences. The

killy-loo, of course, was the bird that insisted on

flying backward because it didn’t care where it was

going but was mightily interested in where it had

been. And certainly The Law, when it moves at all,

does so by flapping clumsily and uncertainly along,

with its eye unswervingly glued on what lies behind.

In medicine, in mathematics, in sociology, in

psychology – in every other one of the physical and

social sciences – the accepted aim is to look ahead

and then move ahead to new truths, new techniques,

new usefulness. Only The Law, inexorably devoted to

all its most ancient principles and precedents, makes

a vice of innovation and a virtue of hoariness.”

The corollary of the foregoing is the fact that in the practice of law, the

foundations of the future rest on principles of law that have been decided in the

past. As a result, it is then critical that, law reports, which essentially serve as a

practitioner’s window to the past, must be clear of any fog and give a clear view

of the law as decided in previous cases. This point was made by Katsina-Alu,

CJN in his foreword7 to the NMLR, which was revived by Dr Wale Babalakin,

SAN in 2010, when he stated that:7 (2009) 1 NMLR page v

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“As a country whose legal tradition is shaped by

common law, case law continues to occupy an

important role as a source of law in Nigeria. For this

reason, law reporting plays an increasingly important

part in our system of administration of justice. A law

report is not merely a record of judicial decisions; it

is the greatest tool and companion of the Bench,

legal practitioners and academics in their respective

roles of dispensing justice, articulating their client’s

positions and defining legal principles and theories.”

LEGAL RESEARCH AND PRACTICE IN THE 21st CENTURY

To fully appreciate the place of law reporting in the 21st Century legal research

and practice, one must first ask, what is legal research and practice like in the

21st Century? Fred Rodell once said that “Only the law resists and resents the

notion that it should ever change its antiquated ways to meet the challenge

of a changing world”8. Whilst this assertion remains substantially true, in the

21st Century, there is no doubt that the legal profession, practice and research

have not been totally isolated from the effects of globalisation and the constantly

changing world.

8 Supra

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As a result, as the years have gone by, legal practice in Nigeria has continued to

evolve, albeit slowly, and so also has legal research. For instance, a few years

ago, for evidentiary purposes, the law did not recognise computer generated

material9 and as a result, the need for research and practice focus on computer

generated material did not exist. However, as a result of the importance and wide

use of computers in virtually every aspect of life today and the need to have a

legal framework for documents generated from these invaluable tools called

computers; it is no longer news that the position today is that computer

generated evidence is admissible in law in Nigeria, subject to certain conditions.10

The resultant effect of the foregoing is that it is now necessary for members of

the Bar, the Bench and legal academia to familiarise themselves with the law on

computer generated evidence.

Another feature of 21st Century legal research and practice is practice area

specialisation. The growth of the Nigerian economy has opened up some legal

practice areas that were hitherto arid, such that they have gradually become

fertile ground for lawyers. Practice areas such as oil and gas, tax, investments

and securities, arbitration and aviation law which in the past did not generate

substantial volume of work for lawyers now have lawyers in Nigeria who are

regarded as experts in those areas.

9 See UBA PLC V SANI ABACHA FOUNDATION FOR PEACE AND UNITY (2004) 3 NWLR (PT 861) 516 @ 541 where the Court of Appeal held that a statement of account contained in a document produced by a computer could not be admitted in evidence under the old Evidence Act until certain sections of the Act were amended by the National Assembly10 See KUBOR V DICKSON [2013] 4 NWLR (PT 1345) 534

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Having said all of these, perhaps the most basic feature of 21st Century practice

is the computerisation of legal research. These days, virtually all types of legal

resources are accessible through computers, whether reported cases, statutes or

legal commentaries and articles. In essence, in addition to physical libraries

which have always been regarded as one hallmark of a good law office, it is

becoming important for lawyers and law Firms to, in addition, equip themselves

with a virtual legal library, a classical example of which is the Law Pavilion

Electronic Law Report.

THE PLACE OF LAW REPORTS

The evolution of brief writing in our appellate courts and written addresses in the

trial courts called for greater efforts on legal research in legal practice in Nigeria.

This has made the importance of law reporting to remain as crucial as it has ever

been. It is increasingly important for law reports to carry accurate information on

decisions of courts and report important precedents, which will guide lawyers in

presenting their cases and the courts in deciding cases as they arise. Taiwo

Kupolati in his book, titled The Art and Practice of Law Reporting11, identified the

fundamentals of law reporting and reports when he stated that:

“Law reports embody or should embody only

reportable judgments; the elemental function of a law

reporter includes careful and skilful selection of

11 Renaissance Law Publishers Ltd, Lagos (2005)

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judgments which qualify for reporting. Law reporting

thus involves a dedicated process of sorting out the

judgments as well as the skilful selection of

judgments which best meet the established

requirements or settled doctrines of good law

reporting”

These fundamentals of law reporting remain constant in today’s legal research

and practice. Today, very few law reports regrettably report the decisions of the

High Courts across Nigeria, as most reports are devoted to reporting the

decisions of the Court of Appeal and the Supreme Court. Our judicial system is

structured in such a way that although Nigeria has just one Court of Appeal, the

court is comprised of seventeen judicial divisions, including the headquarters,

spread across the country. On its part, there is only one Supreme Court of

Nigeria, with no judicial divisions. A consequence of the foregoing is the fact that

the most reported decisions in this country are those of the Court of Appeal.

Now, we have had situations in which there have been substantially

irreconcilable decisions of the Court of Appeal being given by different judicial

divisions of that court, sometimes even in the face of prior Supreme Court

precedents. We know about these decisions because they have been reported in

one or more law reports and in some cases, have been cited in the lower courts

as judicial precedents of binding authority on those courts. The resultant effect of

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such irreconcilable decisions is that they introduce confusion into the state of the

law, such that it becomes even more difficult for lawyers to properly advise their

clients as to the correct state of the law and for judges to decide cases brought

before the courts. The consequences of such decisions do not end there. Further

consequences of those decisions include the escalation of costs and time spent

on litigation to have the decisions set aside and this comes against the backdrop

of severe criticisms of the delays inherent in our judicial system.

As noted before, in law reporting, it is critical to ensure that only “reportable

judgments” are reported and published. It is important that, for example, recent

decisions by the Court of Appeal, on points of law that have been very well

settled by the Supreme Court in a long line of cases, need not be reported again.

This is important for the reason that the certainty of the law as contained in those

Supreme Court decisions on settled principles of law should not be eroded by

subsequent errant decisions on those same principles. With due respect, for the

purpose of the preservation of the doctrine of judicial precedent, we have had

certain decisions which ought not to be reckoned with, but still find their way into

law reports and consequently back into the justice system by way of being cited

by lawyers or judges of lower courts as precedents.

This is not to suggest that an unreported decision of an appellate court is not

binding on lower courts. No. it is, thus, not the reportage of the decision of a court

that makes it binding on lower courts but the constitutional authority of the court

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that gave the decision. The main advantage of the non-reporting of a decision

which is patently of doubtful authority is that it reduces or curtails the potential

damage which such decision would have inflicted on the legal system because

Law Report serves as a tool of exposition of such judgments to the whole world.

There is therefore no gainsaying that law reports play a fundamental role, as an

important tool in the preservation of the principle of judicial precedent, which is a

cardinal principle of our law in this country. The corollary of this is that any glitch

in this important tool will, instead of promoting the principle of judicial precedent,

occasion harm to the effective administration of justice pursuant to the principle.

It is also important that, particularly for practice area specific law reports, the

editorial team is comprised of people who have knowledge and experience of the

area of practice that is the subject matter of the law report. As I have already

said, previously untapped areas of law are rapidly developing in Nigeria, such

that a general knowledge or no knowledge of a particular practice area

immediately becomes apparent when scrutinised by a specialist in that practice

area. As a result, practice area specific law reports must be of a high standard,

such that practitioners in the areas covered by the law reports will find them

useful in their legal research and practice. Therefore, it is essential that

members of editorial teams are carefully selected.

There cannot be a discussion about the place of law reporting in the 21st Century

without reference to electronic law reports. As I said before, computers are key

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tools in virtually every aspect of life today and have alsbeset ve very useful

purposes in legal research and practice. They are not going anywhere and

fortunately so. I must point out very quickly and crucially, that even in this digital

age, the fundamental principles that guide law reporting and physical law reports

apply, with equal force to electronic law reports. There should be no "double

standard" !

As far as legal research and practice in Nigeria is concerned, electronic law

reporting on its own is a significant innovation and most definitely a welcome

one. It is however crucial that electronic law reports meet the need of the 21st

Century legal researcher and practitioner by being adaptable to the various ways

in which these users will need to have recourse to the reports. It is important that

electronic law reports have well programmed search engines that ensure that

upon search queries, the authorities being returned will match the principles

being researched by the user.

Overall, considering the importance of law reports to today’s legal researcher and

practitioner, it is vital that, from an economic perspective, both physical and

electronic law reports are sold at prices that remain affordable for both the

budding young practitioner just beginning his career in this noble profession and

the established practitioner, on whom it is incumbent to continue to grow his

library.

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CONCLUSION

In conclusion, there is no legal researcher or practitioner in Nigeria who does not

owe a debt of gratitude to law reporters. Law reports have and will always be

potent tools in the hands of legal researchers and practitioners when discharging

their professional duties and services.

Having said this, it is important that in order to keep their heads above water in

this increasingly competitive market, law reporters ought to strive to push the

boundaries of law reporting in Nigeria by seeking constant improvement in their

publications.

TAYO OYETIBO, SAN

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