In a bid to revive law writing among law students, the UNSBA media team came up with this wonderful column termed 'locus classicus' to feature articles and opinion of law students on legal issues every Monday, However to start with, What is locus classicus? to answer this question we ran to the highest authority as regards student law matters in UNN and below is an interesting exposition on the term.
Judex est lex loquens – 'a judge is the law speaking,' is a common law maxim which aptly describes the status of the judge (and by extenso the judiciary) at law. He defines the law as enacted by Parliament via the exercise of his interpretative skill and therefore may rightly be described as the alter ego of the law itself. Little wonder Oliver Wendell Holmes defined law as "the prophecies of what the Courts will do and nothing more pretentious..." Indeed, the judge is the alter ego and dignity of the Court itself; thus, his decisions in a proper proceeding brought before him determines, to a considerably large extent, the state of the law at each material time. The decisions of the courts in several cases subjected to judicial opinion coagulate over time to a source of law in general popularly referred to as case law.
The law reports which are the compilation of relevant case law are regarded as sources of law in various common law and indeed civil law jurisdictions. Case law is otherwise called judge-made law. The phrase 'judge-made law' is paradoxical as the traditional function of judges is to interpret the law and not to make law. However, one must accept the fact that judges make law in various senses. One of the senses in which judges make law is that where there is no law or indeed a previous judicial decision governing the situation before the court, the judge may create a principle of law for the situation. This principle of law, being the first of its kind, is referred to as a locus classicus.
A locus classicus, simply defined, is an authoritative final decision of a court of law which establishes a principle or rule of law that hitherto was unknown or otherwise legally unrecognized. We shall presently set out some examples of locus classicus decisions in Nigeria and elsewhere and how they have contributed immensely to the development of Nigerian case law:
In English Tort and Consumer Law, it was previously the position that there was no duty of care between persons who in law had no contractual connection or relationship. This position however changed in the much celebrated English case of Donoghue v. Stevenson (1932) AC 562, where the English House of Lords held that one must take care to avoid acts or omissions which one can foresee would be likely to injure one's neighbour. 'Neighbour' was defined as any person who is so closely and directly affected by one's acts that one ought to reasonably have them in contemplation as being so affected when one is directing his mind to the acts or omissions which are called in question, regardless of whether or not a contractual relationship existed between one and such person. This marked the establishment of the famous 'neighbour principle' in English Tort and Consumer law.
The neighbour principle has been adopted by Nigerian courts in cases like Osemebor v. Niger Biscuits Co. Ltd. (1973) 7 CCHCJ 71, where the court held that a farmer who intends his goods to be used or consumed by others is under a duty to take reasonable care in their manufacture so that they can be used and consumed in the manner intended without causing physical damage to person or property. This has helped in checking the activities of manufacturers and distributors of consumable goods in Nigeria who are so pre-occupied with the need to make a quick buck that they fail to take proper care of their goods either at the production or transit stage. Indeed, in the case of Nigerian Bottling Co. v. Ngonadi (1985) 2 NSCC 753, the court held that a duty of care is owed by a distributor to the ultimate consumer.
The locus classicus doctrine has been employed by the Nigerian courts to check the excesses of the legislature with respect to the impeachment or otherwise removal of executive officers from office. Hitherto, the Nigerian courts were reluctant to interfere in impeachment proceedings due to the political question doctrine, even where the legislature manifestly failed to religiously abide by the constitutional procedure for the removal of public officers from office. The Nigerian Supreme Court delivered a landmark decision in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, otherwise known as Ladoja's case. Before this decision, it was the general belief that the impeachment from office of prominent executive officers of government in Nigeria could not be the subject of litigation in any court of law in Nigeria because of the ouster clauses contained in sections 143(10) and 188(10) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). However, in Ladoja's case, the Supreme Court came to the final conclusion that the entire sections 188(1)-(11) must be read together and, so read, the ouster clause in section 188(10) could only be invoked after due compliance with section 188(1)-(9) that preceded it. That is, the courts would not question the reason(s) why a public officer is impeached from office, but would always assume jurisdiction to question the procedure via which the impeachment was procured. The decision was acclaimed by many legal commentators as capable of checkmating legislative rascality in State Houses of Assembly in Nigeria.
The notable locus classicus decisions of the courts as discussed above were all products of judicial activism. Judicial activism has been defined by the Black's Law Dictionary as a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions – usually with the suggestion that adherents of this philosophy do condone constitutional violations and are willing to ignore precedent.
Judicial activism has been condemned for impeding on the doctrine of separation of powers which is the foundation of any democratic system. However, the argument appears to hold little water as one would agree that in order to resolve some complex disputes, the courts must create a new rule or modify an old one, that is, judicial law creation. Judges defending themselves from accusations of judicial activism sometimes say they do not make law and that they only apply it. However, we share the views of Richard Posner that though it is true that in our system judges are not supposed to and generally do not make new law with the same freedom that legislators can and do; they are, in Oliver Wendell Holmes' phrase, 'confined from molar to molecular motions'. The qualification is important, but the fact is that judges make and do not just find and apply law.
Indeed, our intriguing view is that it is only bad and timid judges who fail to 'make law' in deserving circumstances. They are the proverbial timorous souls on the bench. We are of the firm view that all the great judges who have made their marks in the sands of time – the legendary eagles on the Bench – were basically judicial activists who 'made law' in deserving circumstances, regardless of the criticisms that came with such a stance. The revered Lord Denning is a clear testimony to the veracity of our assertion. The fact is that the legislature cannot at the time of law-making foresee all the eventualities that could come up in the future, and the special circumstances that may attach to each case. It therefore falls on the judiciary as the arm of government saddled with the realistic application of the law to not shy away from filling in the gaps when and where necessary. This would go a long way in aiding a continued and realistic growth of the law.
His Lordship,
Lord Justice Emmanuel T. Onyeabor,
The Chief Judge of the High Court; and
The Executive Chairman of the Judicial Council,
Students' Union Government,
University of Nigeria, Nsukka.n4ns
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