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19.04.2016
THE CANVASS MICHAEL NUMA
michaelnuma@thecanvasscolumn.com
Dissenting Decisions and Future Relevance (Part II)
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art 1 of this Article considered an overview of the subject matter and arguments for the possible use of dissenting decisions beginning with the “best fit” standpoint. This part of the article will consider other perspectives (such as issue reframing and best practical outcomes) earlier stated for the use of dissenting decisions and their potency in future cases.
which, if correct, would preclude the Supreme Court from intervening. The power of reframing therefore lies in its provision of a different account of the issue before the court. Of course, legal reasoning in countries without a federal system (such as the UK) is not amendable to reframing so as to turn the dispute into one about the right balance between state and federal power. Nonetheless, arguing in terms of reframing is possible in those jurisdictions, too; concepts like Federal and State just need to be replaced with other legal content.
Issues Reframing Apart from the “best fit” approach, there are other arguments in support of the use of dissenting decisions as a way of persuading a court that the dissent should be adopted as law. One of such arguments includes the “proper framing” of legal issues. Dissenting reasons can be adopted as law where the account of legal issues are different – and in future cases, more relevant or appealing – than the majority’s account. It is inevitable that this kind of dissent exist, because perceptions of the material facts (and law) can differ subtly but crucially between judges both at the trial court and appellate courts alike. These differences translate into differing descriptions of legal tests and the rationale behind them. The dissenting description then leaves available alternative ways of looking at a particular legal issue so that in a future case they may be deployed as a different way of deciding the case. Notably, the American legal realists have long recognised this technique, with accounts of ‘rule-skepticism’. This applies all the more forcefully with respect to past dissenting propositions, because the past dissent is a ready-made reclassification, a different way of looking at things, waiting for counsel to pick up and argue from. In the United States, and indeed in any federal nation, it has been shown that reframing facts and arguments in terms of the balance of state and federal power is a common way in which dissent becomes the law. A good illustration is the decision in VANESSA BAIRD v TONJA JACOBI (2009) 59 Duke LJ 183 at 189. US Supreme Court, wherein a Senator in his will, donated land to the State of Georgia to be used as a park for white people only. When challenged in the United States Supreme Court, the majority held that the case was about racial discrimination and was therefore within the court’s ambit. The minority reframed it as a case about states’ powers to enforce wills and trust
In Nigeria, the Supreme Court decision in OGUEBEGO v PDP (2016) 4 NWLR pt 1503 received a favourable verdict due to reframing of the issues and the reliefs sought by the appellants. Though there was no dissent from the lower court’s decision, but some pronouncements in the passing by the unanimous decision perhaps informed the appellant to reframe their issues, which then attracted a favourable verdict. Also the case of MARWA v NYAKO (2012) 6 NWLR (pt 1296) 199, the decision of the Nigerian Supreme Court which decided the computation of tenure of state governors (pursuant to Section 180(2) of the Constitution) whose elections have been nullified and were subsequently returned in the re-run election. . The trial Court’s decision by Adamu Bello J. (Retired) of the Federal High Court sitting in Abuja agreed with the plaintiff and stated in passing that this case brought forth by the plaintiff was not a case of tenure elongation but tenure completion. However, on getting to the Supreme Court the issues were varied by the appellant within the context of the same judgment of the lower court as to whether or not those governors under reference could stay in office more that the constitutionally prescribed four year term under any guise. Interestingly, the Apex Court found in favour of the appellant and upturned the concurrent finding of the two lower courts after acceding to a clever tweaking of the issues for determination. Although this technique is rarely used outside Federal legal systems, the US cases show its potential as a powerful, legitimate form of legal reasoning. Legal reframing takes advantage of the fact that the legal landscape, which is to be mapped, is always flooded with new material to be digested and new problems to be solved. The only challenge is that issues cannot be reframed outside the records of proceedings. Best Practical Outcomes
In determining tricky legal questions, where logic leads down a path beset with practical difficulties, the courts have not been frightened to seek the pragmatic solution. Therefore arguments for the use of dissent must address the consequences of adopting the dissent, in practical terms. The dissent will more likely be adopted where the court accepts that it will result in better practical outcomes for the parties or the community at large. See the dissent of Katsina Alu JSC (retired) in MOBIL PROD (NIG) UNLTD v MONOKPO (2003) 18 NWLR pt 852 which now represents the law in several cases before the Superior Courts because it holds the most practical situation in recent circumstances. Another good example is the New Zealand case of WILSON v WHITE (2005) 3 NZLR 619, where the court of appeal considered the scope of the evidential “limited use rule’. One legal outcome open to the court was that an undertaking as to the limited use of evidence discovered in litigation applied unless the court discharged or modified that undertaking. The Court in WILSON v WHITE (Supra) rejected this approach, however, in favour of the dissenting view in the English decision, this being that the undertaking lapses once the information has been put in evidence. A major reason for favouring the dissent was the better practical outcome flowing from its account. The court was persuaded that it would mean information surfacing during litigation would be treated consistently in each case. This was contrasted against the consequences of adopting the Lords’ Majority position, which was said to depend on accidents as to the way in which documents are referred to in open court. The court also accepted it was important that the dissenting view was already the prevailing view (and indeed practice) in the legal profession in New Zealand. Conceivably, arguing that a dissent represents the better practical outcome is best done in combination with other arguments, such as those from the best fit or reframing. Its complementary role does not, however diminish the power of practical arguments in persuading a court to adopt a dissent. Courts will always be attracted to practical reasoning and it is all the more persuasive when it comes from a past (dissenting) judgment rather than counsel’s own musings. Considerations for Use of a Dissent Firstly, before citing a dissenting decision to the court in a bid to sway them to adopt the dissent, it is worth considering whether
the judge dissented alone or with others. The relevance of doing so has been explained in terms both boldly rhetorical and meticulously empirical. In the former, a major proponent is late Justice Antonin Scalia of the US Supreme Court, extra-judicially declaring that the dissent most likely to be rewarded with later vindication is, of course, a dissent that is joined by three other Justices. Empirical studies make the same point, and are most commonly backed by statistics from US appeal Courts. It therefore pays to double check whether the dissent that a lawyer seeks to rely on as law was a close call in its original context. Secondly, is the dissenter(s) still on the bench? This is an important consideration because, at first glance, if the dissenter is on the bench the second time round, it looks as if the lawyer advancing the argument is more likely to have at least one sympathetic vote. On the other hand, it has been suggested that judges have not infrequently sublimated their judicial egos, suppressed their individual voices, and voted against themselves, in the name of upholding the rule of law and in deference to the doctrine of precedent. The reason in the writer’s opinion is not far-fetched, the fact that nearly every common law judge began as an advocate, trained to push one side of an argument, we can see why they might be reluctant to abandon their own position and overrule themselves. Lastly, the lawyer using a dissent should consider whether the justices making up the majority in the original case are still on the bench when the dissent is reconsidered. If they are, the dissenting reasoning is of course unlikely to be adopted. This is due to the simple fact that majority judges, like dissenting ones do not seem to enjoy overruling themselves their own perspective. If the judges comprising the majority are set to hear the case in which counsel wishes to advance the dissenting view, he may simply have to wait until that majority is absent. After all, as Justice Dyson Heydon aptly puts it “ the absent are always wrong, timing is important. Conclusion Dissent and assent, minority and majority are concepts that only make sense in a relational way. And, over time, there can be a shifting sea of majority and minority voting blocs’ contributing to whether any opinion is in dissent. In the same way, the wider context –the human element-contributes to whether a dissent is adoptable at a future time.
“Putting Our House in Order”– Re-Organisation of NNPC Ola Alokolaro
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he GMD of NNPC and Minister of State for Petroleum Dr. Ibe Kachikwu recently announced that the state oil company -the Nigerian National Petroleum Corporation (“NNPC”) is to be restructured into units to include upstream, downstream, refineries, gas and power, ventures, finance and corporate services. Five of these seven units are to be profit oriented whilst two are to focus on service delivery. The raison d’être for the restructuring is premised on the renowned inefficiency of the National Oil Company and its use as a vehicle for corruption by past administrations. The restructuring is seen as the commencement of the long awaited reform in the oil and gas sector which hopefully, will lead to the eventual unbundling and sale of segments
of the oil and gas value chain. Whilst the aim of the restructuring is indeed laudable, there is perhaps some need for caution. This need is borne out of the predicament Petrobras, the Brazilian state oil company presently finds itself. It would be recalled that Petrobras’s monopoly status was broken in 1997 with the part sale of shares in the company to the public, though the government remained a majority shareholder with 64% shareholding. The restructuring of Petrobras was initially hailed as a success but has in recent times come under scrutiny. Apart from the corruption scandal presently engulfing the company, it is chronically in debt and with the current decline in oil prices, it is struggling to service its debts. The majority view is that Petrobras finds itself in this quagmire as a result of its over optimistic planning, persistent political interference, impunity and greed of its officers; and consequently finds itself contemplating the
unbundling and spinning off of companies within its value chain. The divestment if approved, would see the introduction of value chain specialists in Petrobras’s non-core businesses such gas transportation and distribution, effectively opening up the multi-billion dollar gas & power industry in Brazil. Given Petrobras’s experience above and the possibility of continued government interference in the affairs of NNPC, it may be prudent once the enabling law (Petroleum Industry Bill) is passed, to immediately unbundle NNPC and hive off its none core businesses particularly gas transportation and distribution, given the lack of critical gas to power infrastructure in Nigeria. The benefits of this process would be multiple. Firstly, there is the possibility of attracting private investors to the gas subsector with the necessary funds required for the development of the much needed gas to power infrastructure; secondly, the diversification of the economy being sought by the Federal
Government would be achieved far more rapidly than is presently being realised through the creation of vibrant agriculture and solid minerals sectors. A robust private sector led gas market would see to the creation of gas hubs across the country as contemplated under the Nigerian Gas Master Plan. This would drive the growth of petrochemical plants for the production of fertilizers as well as ammonia which would help accelerate agricultural growth and create an efficient electricity market,that in turn would help with industrial growth. The passage of the Petroleum Industry Bill in whatever name, is central to attaining the unbundling and sale of the gas assets of NNPC. It is imperative that the Government sensitises the National Assembly and the populace on the gains of the early passage of the Bill. Ola Alokolaro is a Partner at Advocaat Law Practice.