*Encourages Judges To Give Reasons Even In Concurring Judgements
*”Leading Judgement” Not “Lead Judgement” Is The Correct Legal Expression

In Nigeria’s Appellate Courts, it is regular practice for at least three Justices to sit in the determination of an appeal. In such courts (The Court of Appeal and Supreme Court) while each Justice writes his/her Judgement in the determination of the appeal, there is what has come to be known as “leading judgement” which is often considered as the principal or main judgement, with the others being either “concurring” or “dissenting” judgements.

As a fallout of this practice, legal practitioners and students of law alike often wonder how a Justice is selected to write the leading judgment in an appeal.

This persisting legal puzzle was answered by Hon. Justice Ephraim Akpata in his autobiography “Justice for All and By All” at  p.172-175, sighted by THENIGERIALAWYER. The Late Supreme Court Justice who also served as INEC Chair upon return to democracy in 1999 stated in his bestseller that the general practice on the issue is that if the Presiding Justice agrees with the majority decision or the decision is a unanimous one, then he decides who writes the leading judgement. However, if he is not in support of the majority, then the Senior Justice who supports the Majority decision assigns who to write the leading judgement.

The learned Justice went on to opine that the practice was that justices who dissented from the majority decision had to decide amongst themselves who shall convey fully their view point. According to him, the fact that there was a leading judgement did not negate the fact that every Justice is entitled to write his own judgement that can be as long or longer, detailed or more detailed than the leading judgement, and in the same vein that dissenting Justices can decide to pen down their dissenting decisions independent of each other.

The Retired Justice cited the case of Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130 which was decided when he was on the Supreme Court’s bench. According to him, he alongside Justice Olatuwara expressed their dissenting views independently.

Nevertheless, it was the reasoning of the reverend Justice that despite general practice, some judicial divisions have agreed on a system which will determine who will write the leading judgement. He cited some examples thus;

“I must state that in some Divisions of the Court of Appeal, particularly in Kaduna when Justice A.B Wali was the Presiding Justice, and in Lagos Division when Justice Babalakin and I joined the team, a modus operandi was adopted which allowed for equitable distribution of the leading judgements.

Going forward, he berated the practice adopted by some Justices who expressed their agreement with the leading judgement in one paragraph or through using the phrase “I concur”. According to the him, this did not make for the development of the law., as when a Justice has a reason why he his agreeing with the lead judgement he ought to extensively address it in a supporting judgement specially to cover rationales not expressed in the leading judgement. This according to the Hon Justice Akpata aids the ‘development of the area of law in issue’.

He also addressed the lingering question of the proper expression between ‘lead judgement’ and ‘leading judgement’.

Hon. Justice Akpata on p.174 of the book stated that before the 1979 constitution of the Federal Republic of Nigeria, considering that there was only one judgement in an appeal in the Supreme Court or the Court of Appeal, it was referred to as the ‘judgement of the Court’ which Justices could concur or dissent to (this did not preclude Justices to express their dissenting opinion). However, with the coming of the !979 Constitution, every Justice was entitled to expressing their opinions, and t could be independent of the principal judgment.

Answering properly what was the correct phrase, the learned Justice said that research had proven that leading judgement was indeed in the correct term. He reasoned since that Nigeria had a similar practice with the English courts, and that the English Courts had not at any time referred to ‘lead judgment’. Backing up his assertion, the learned Justice referred to the cases of Coldunell Ltd v. Gallon and another, Aiding Shipping Co. v. Interbulk Ltd, Mackinlay v. Author Young and Co. where the House of Lords and Other Lords of the English courts had referred to the principal judgement as the leading speeches and leading judgement respectively. In addition, Hon. Justice Akpata cited a time when in the 1983 in the case of State v. Ilori, Fatayi-Williams CJN as he then was referred to it as lead judgement, though when it the case was reported in a law report edited in Oxford England, the editor replaced ‘lead judgment’ with ‘leading judgment’, and as such this goes to confirm that leading judgement is the correct expression phrase.

In the learned Justice view, the expression ‘lead judgement’ is a Nigerian judicial English, once adopted by the Nigerian Weekly Law Report (NWLR) – though it has corrected it to ‘leading judgement’ – and even the American Court refer to their judgements as ‘opinion’ and the principal is referred to as the ‘opinion of the court’, and so they cannot be said to have influenced Nigeria towards referring it to as ‘lead judgement’.

TheNigerialawyer Editorial 

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