1. Legal Methods 101 Olanike Odewale David Oluwadare Adetoro
Fall Semester 2017

2. Week eleven
LEGAL REASONING IN JUDICIAL PROCESS

3. Legal Reasoning in Judicial Process
Issues for consideration
Shifting of facts and law in Court
Ratio decidendi
Stare decisis
Obiter dicta
Study Questions:
How does sifting of facts different in civil cases from criminal cases?
What are the exceptions to the rule in burden of proving facts in criminal cases?
What factors affect the weight of a precedent?
What do you understand by (a) per incur am and (b) obiter dictum?

4. What is legal reasoning in judicial process
Tips- Legal, Reasoning, Judicial and Process.
Legal reasoning in judicial process could be defined as the process of careful thinking by a judicial officer in the course of resolving legal issues presented by parties to a legal action before the court for determination.
Legal reasoning in judicial process is concerned with the administration of justice
The terms ‘law’ and ‘justice’ are not the same and often mean different things to different people
Both are key elements in judicial process

5. Shifting of facts and law in Court
What is a fact ?
Generally, a fact could be defined as anything that is done or happened as an act or deed.
According to Section 2(1) of the Evidence Act, a ‘fact’ include :
Anything, state of things, or relation of things capable of being perceived by the senses;
Any mental conditions of which any person is conscious.
See Cap E4 LFN 2004.

6. Continuation
In any judicial proceedings, certain facts would have warranted the course of action
Parties to the proceedings are expected to prove the existence or non existence of any fact in issue and facts relevant to a fact in issue
The principle of shifting of fact is based on a principle that whoever desires any court to give judgement on the existence of facts which he /she asserts , must prove that those facts exists
See S134(1) of the Evidence Act CAP 112 LFN1990
Elemo &Others v Omolade &Others (1968) NMLR 359

7. continuation
It is important to note that there is a difference between ‘shifting of fact’ and ‘burden of proof’
That is, the obligation on a party to persuade the court by preponderance of evidence is different from an obligation to persuade it beyond reasonable doubt in order to have judgement in his/her favor
Burden of proof involves two aspects- the burden or obligation to establish a case beyond reasonable doubt and the obligation to adduce evidence on a particular issue or fact (evidential burden)
Shifting of facts is concerned with evidential burden of proof.

8. Shifting of facts in civil cases
Only facts in issue that are necessary to be proved
What are facts in issue?
All such facts that a plaintiff in case must prove in order to establish his/her claim. If they are not admitted expressly or by implication by the defendant
In civil matters, the party with the burden of proof is generally , but not always, the plaintiff or claimant
According to the Latin maxim, "Affirmati Non Neganti Incumbit Probatio “ the burden of proof is upon him who affirms - not on him who denies. “The claimant (not the respondent) bears the proof.” A maxim meaning that a party asserting a claim bears the burden ...
Generally, the shifting of facts in a civil case depends on the pleadings filed by the parties

9. Shifting of facts in criminal cases
Generally, in criminal case the burden of proving the fact rest on the prosecution
This burden does not shift to the accused person or role actor
This was given a statutory backing in S. 36(5) of the CFN which says that  ’Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty’
There are exceptions to the rule
Where the accused raises a defense of exemption or qualification from the provision of the law creating the offence with which he /she is charged
Where the onus of proving certain facts is specifically imposed on the accused by statute
Where special facts are within the knowledge of the accused
Where the accused raises the defense of intoxication or insanity
Where the prosecution proves the commission of a crime beyond reasonable doubt, the burden of creating a reasonable doubt or proving his/her innocence shifts to the accused or role actor

10. Ignorantia facti excusat, ignorantia juris non excusat
Ignorantia facti excusat, ignorantia juris non excusat. - Ignorance of facts excuses, ignorance of law does not excuse
The burden of proving the existence of any law is mitigated by the latin maxim ‘juria novit curia’, which principle means, ‘it is for the court to know the law’
Shift of law occurs at the address stage of the proceedings between the counsels to the parties. Whenever there is a failure to prove any law relied upon or which they ought to have relied upon, the burden of applying such law shifts to the judge who is presumed to know the law

11. The doctrine of precedent
Judicial precedent: A judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent.
The doctrine of judicial precedent is referred to by the use of the shortened Latin phrase, stare decisis
Stare decisis = let the decision stand
Judicial precedent consists of law found in judicial decisions
A judicial precedent is the principle of law on which a judicial decision is based.
It means that a decision of a judge once given on a question of law binds both the judge himself and subsequent judges in a court of lower rank to decide the same question of law in the same way.
In England and other common law countries, a judge when deciding a case must refer to similar prior decisions of the higher courts and keep to the reasoning in those cases. If a previous case has dealt with similar facts and the same rules, then the present case has to be decided in the same way. This process is known as the doctrine of precedent. In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent.
Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). There may several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as 'obiter' because some other 'ratio' has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision.

12. Ratio decidendi
 Ratio decidendi  = the legal reasoning or ground for the judicial decision, which is binding on later courts under the system of judicial precedent.
Ratio decidendi can also be said to be the principle without which the court would not have reached its decision
It is not everything said by a judge(s) in the course of his judgement that forms a precedent, only the pronouncement on law in relation to the material facts before the judge that constitutes a precedent.
Any other statement is an obiter dictum by the way and does not form part of the ratio decidendi : it is a statement in passing
How do the courts determine the ratio decidendi ?

13. Continuation How do the courts determine the ratio decidendi ?
Reason for the decision as stated by the judge
The principle of law stated as that on which the decision is based
The actual decision in relation to the material facts
The interpretation of the case in any other later case determined before the instant case

14. Obiter dictum
Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way)

15. Per incuriam Incuriam = carelessness
Decisions reached per incuriam are not binding on the courts that made them but a lower court is bound to follow it and has no discretion whether it ought to follow it or not
See – Board of Customs and Excise v. Bolarinwa NMLR 1979

16. CHAPTER TWELVE
Rhetoric and Logic in Legal Reasoning

17. Rhetoric and Logic in Legal Reasoning
Issues for consideration:
Legal rhetoric
Legal logic: deductive reasoning versus inductive reasoning
Fallacies
Legal reasoning and practical reasoning

18. Introduction
It is believed that those in the academia and especially, professional lawyers are well skilled in the art of reasoning = they argue logically
The term ‘logical’ indicates a person who can separate the relevant from the irrelevant, and come to an objective view, based often on supposedly objective formula
Logic can be defined as the science of reasoning, thinking, proof or inference - fundamental science of thought - its root is found in the Greek word logo meaning reason
The Lawyer, like a scientist, spends time considering the importance of supporting all statements with evidence and considers how one might weigh evidence on a scale of weak to strong deal
The lawyers deals in statements expressed in words and symbols called propositions : making a statement or assertion about something
Logic is the study of propositions and how conclusions may be correctly obtained from propositions in the process of reasoned argument

19. Legal rhetoric
Reasoning can be described as a careful journey through various propositions
Movement being allowed by evidence leading to inference
Rhetoric was defined by Aristotle as the universal act of persuasion and, prior to his definition Plato called it: ‘.. Winning men’s minds by words’
A special form of rhetoric is called forensic rhetoric, this is quite different from deliberative rhetoric
While lawyers uses forensic rhetoric, judges often use deliberative rhetoric because they seek to arrive at rational decisions that are justifiable for the interests of the parties and the society at large

20. Continuation - LEGAL RHETORIC
Unlike the practice in general rhetoric, the principal rhetorical device used is the appeal to authority - existing laws ( judicial and statutory) to back up or justify the position being canvassed.
Judicial and statutory authority is known as primary sources but at times other secondary sources could be employed ( opinions, writings, commentaries etc. of jurists and learned writers)
Legal rhetoric requires having a sound knowledge of law and skills in the application of the principles
Such skills are not acquired naturally or by birth rather they are learned through conscious academic and professional training

21. Legal logic: deductive reasoning versus inductive reasoning
Two main types of logic = deductive and inductive
Analogic argument is a form of inductive reasoning and is the type of reasoning often used within our legal system where courts argue from precedent to precedent
The major difference between deductive and inductive reasoning is that deductive reasoning is a closed system of reasoning, from the general to the general or the particular, and it includes cases where the conclusion is drawn out; it is therefore analytical, whereas inductive is an open system of reasoning. It involves finding a general rule from particular cases to and is inconclusive which suggests the end process of legal judgements are inconclusive
In deductive reasoning, the argument has to follow a prescribed form
A major premise - which tends to state a generality
a minor premise - which tends to state a particularity
conclusion
This form of argument is called a syllogism
The subject in the major premise (proposition) becomes the predicate in the minor premise
And the conclusion is necessary or compelled
There are no other conclusion possible in that form of reasoning and this is of limited value for legal reasoning
The argument could be valid without being corrected or true
However, , deduction can be useful if a new legal rule is being tested to discover whether it is going to clash with existing legal rules
It can also be useful when precedent is being tested for the first time and logical consequences need to be tracked. .

22. induction
In inductive reasoning, arguments are put forward from fact or facts to provide support for the general proposition- from minor to major
this is the closest to the everyday legal arguments when decisions are made concerning which side of a dispute is accorded the privilege of their story in term’s of the law’s authority and the appropriate declaration or relief to be granted
Both inductive reasoning and deductive are similar in so far as the conclusions are based on premises
However, in inductive reasoning , the conclusion reached extend sbeyond the facts in the premise
The premise supports the conclusion, it makes it probable, therefore theer is lesss certainty and it is possible another conclusions exists
Like deductive reasoning, the logic of inductive reasoning has no business in the actual truth of the proposition that are the premises or the conclusion
Just because a logical form is correctly constructed , it does not mean that the conclusion expressed is true.

23. Fallacies What is a fallacy ?
A fallacy is an error in reasoning. A fallacious argument is one that may appear correct, but on examination proves not to be so.
 any of various types of erroneous reasoning that render arguments logically unsound.
Even if the premises and conclusion are all correct, an argument may still be fallacious if the reasoning used to reach that conclusion is not logically valid
There are two broad categories of fallacies

24. Fallacies of relevance and fallacies of ambiguity
Fallacies of relevance occur when the premises “miss the point” and fail to provide logical support for the conclusion
Fallacies of ambiguity occur when the meaning of a key word or phrase shifts and changes, so that the terms do not really “match up” within the argument

25. Study Questions Explain the term ‘syllogism’
Discuss the limitations of deductive reasoning
What do we mean by a fallacy?
What is the relevance of logic to the dispensation of justice?
Reading List:
Gidado & Shikyil, Chapter Four.
Malemi, Chapter Nine.
Oji, Chapter Four.
Sanni, Chapter Four.

26. Week thirteen

27. Judicial Precedent and Hierarchy of Courts
Issues for consideration include:
Structure and system of courts
Hierarchy, composition and jurisdiction of courts
Rules of judicial precedent

28. Study Questions & Reading List
- What is judicial precedent?
- How does the hierarchy of courts apply to judicial precedent?
- With illustration, state the hierarchy of courts in Nigeria.
- What are the differences between Federal High Court and the State High Court?
 Reading List:
Gidado & Shikyil, Chapter Six., Malemi, Chapter Eleven.
McLeod, Chapters Eight, Nine and Ten.
Odike, Chapters Seven and Fourteen.
Oji, Chapter Five
Sanni, Chapter Six.

29. Key words Hierarchy - a scheme of rank or order
Structure - the arrangement of parts that gives something its basic form
System - the means or procedure for doing something
Precedent - prior in time, order, arrangement, or significance

30. Structure and system of courts
Like in the situation in most common law countries, Nigerian courts are organized in hierarchies
A hierarchy is a structure where different levels or bodies are ranked or ordered, depending on their importance.
Higher courts are also known as superior courts
In a court hierarchy the different courts have different responsibilities
Lower courts, like the State Magistrates’ Courts, hear minor or less important cases – while the higher courts, like State and Federal High Court, adjudicate more serious cases.
Higher courts, also hear appeals against decisions made in lower courts in Nigeria

31. Judicial Precedent and Hierarchy of Courts
A common law judge when deciding a case must refer to similar prior decisions of the higher courts and keep to the reasoning in those cases. If a previous case has dealt with similar facts and the same rules, then the present case has to be decided in the same way.
This process is known as the doctrine of precedent
This process is based on established hierarchy of court system and a system of law reporting for effective operation
Section 6(5) (a-f) of the 1999 Constitution of Nigeria listed the superior court of record
Section 6(5) (g-h) of the 1999 Constitution makes provision for the establishment of other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws and other courts as may be authorized by law to exercise jurisdiction at the first instance or on appeal on matters with respects to which a House of Assembly may make laws.- Magistrate Courts, Customary Courts, Area Courts, District Courts, Juvenile Courts, and Coroners Courts. Decisions of foreign courts are only of persuasive authority in Nigeria because they are not part of the Nigerian court’s hierarchy.

32. some superior courts of record in Nigeria
In Nigeria Section 6(5) (a-f) of the 1999 Constitution of Nigeria listed the superior court of record to include the following :
(a) the Supreme Court
(b)  the Court of Appeal
(c)) a Federal Court
(d) a High Court of a State
(e) a Sharia Court of Appeal of a State
(f) a Customary Court of Appeal of a State

33. The supreme court
The Supreme Court is the highest court and court of last jurisdiction in Nigeria
This is without prejudice to the powers of the President or the Governor of a State with respect to prerogative of mercy for any person convicted of an offence under any law in Nigeria
The decisions of the Supreme Court are binding on all other courts in Nigeria
The court is not bound by its own decision - Abulkarrim v. Incar Nigeria Ltd (1992)7 SCNJ p.366
The supreme Court would not depart from its precedent unless three conditions are prayed and satisfied
there is a breach of justice
on grounds of public policy , and
a question of legal principle such that retention of the decision will amount to a perpetuation of injustice
This position is influenced by the Lord Gardener’s practice Direction of the House of Lords which was adopted in the Supreme Court’s decision in Bronik Motors Ltd. & Anor v. Wema Bank (1983) NSCC p.225

34. The court of appeal
There is no express provision in the Court of Appeal Civil Rules governing precedent
The practice adopted by the Co A is the practice in England established in the case of Young v. British Aeroplane Co. Ltd [1944] KB 718
And all other courts below the Court of Appeal must follow the decision of the court, this includes the High Courts (Federal and States), the Magistrates Court etc.
The Court of Appeal is bound by the decision of the Supreme Court even it if it was given per incuriam subject to three important exceptions

35. EXEMPTIONS WHERE THE court of appeal IS NOT BOUND BY ITS PREVIOUS DECISION
The Court of Appeal is entitled and bound to decide which of its two conflicting decisions it will follow
The Court of Appeal is bound to refuse to follow a decision of its own which though not expressly overruled cannot in its opinion stand with the a decision of the House of Lords
The Court of Appeal is not bound to follow a decision of its own which was given per incuriam
See Osamade v Audu (1948) 12 W.A.C.A. 437

36. The federal high court
The Federal High Court was formerly known as the Federal Revenue Court
The Federal High Court is established by section 249 (1) of the Nigerian Constitution and is of coordinate jurisdiction
It is of the same rank with the High Court of State though it is a court of specific jurisdiction, to wit, it has exclusive jurisdiction in specific as enumerated in  section  251 of the constitution
The decision of the Federal High Court binds all Magistrate and District Courts in Nigeria
The Federal High Court is bound by the judgement or precedent of both the Court of Appeal and the Supreme Court

37. The state high court
The High Court of various states and the High Court of the Federal Capital Territory are courts of co-ordinate jurisdiction
Thus the decision of a High Court is only of persuasive precedent for another High Court
see Barclays Bank v. Hassan (1950) WNLR 293, where it was held that that a judge of a High Court does not feel himself bound by his own decision or by those of other judges of co-ordinate jurisdiction
Where a High Court adjudicates on a matter falling within a federal legislative list, such decision is binding precedent to Magistrate and District Courts within and outside the State