Despite the doctrine of precedent courts of law sometimes resort to the dissenting reasoning from previous decisions as the law in the next. Dissenting decisions are opinions that have no impact on the case from which they emerge as they are often times a lone or minority voice in the decision. Any legal argument drawn from a dissenting reasoning risks and should expect formal resistance by any court of law knowing it is a dissenting opinion. There are two such barriers, which together make dissenting reasoning a seemingly unlikely candidate for adoption or even reconsideration by a court in a later case. Both barriers stem from the notion that a dissenting opinion cannot be reconsidered because it lacks the formal properties required of it by the legal system. The first comes from the simple fact that dissenting reasoning is minority reasoning in every case. This puts dissenting reasoning squarely at a disadvantage to the majority; like in every democratic setting the majority viewpoint rules.

Only recently the decision of the Court of Appeal in SARAKI v FRN (2016) 2 NWLR pt 1496 saw a dissenting opinion of Justice Joseph Ekanem JCA who allowed the appeal and disagreed with the majority judgment- that the CCT is not a court of criminal jurisdiction stricto sensu not being established under Section 6 of the constitution, though very persuasive in my opinion, this had no real impact because the dissenting reason had no consequences within the system at the time the same was delivered, it rather represents an opinion to be looked at perhaps for the future. The writer will attempt to illustrate this in the subsequent paragraphs of this article. The second formal barrier presents
itself in the form of the doctrine of precedent. It operates in a more complicated way because its seriousness as a barrier depends on both the level of the court from which the dissenting reasoning comes, and of the future court in which that reasoning is reconsidered. These factors mean that a precedent operates either as a mandate or as a guide to prior judicial practice for a court making a current decision, in other words; precedential reasons leave a court either unable or unwilling to adopt a dissenting reasoning. The fundamental principles are that courts must follow relevant decisions of higher courts in the judicial hierarchy, but the point is that courts still feel bound to go to the effort of slipping free of precedent. The use of dissenting reasoning in these situations, in which the lower court is simply bound to follow the majority, will be most difficult if not impossible.

Another permutation of precedential reasoning should also be considered, however what about those situations where courts are able but remain unwilling to consider dissenting reasoning? Most commonly this occurs when a particular court hears a case on a point that it has already determined in some previous case(s) often times by the Apex Court. In these situations, at least in most common law countries, courts express their reluctance to depart from precedent although they are not strictly bound principally because of the concerns of certainty of the law. Suffice it to say however that the situation is slightly different with the US courts as they appear to overrule themselves within months on similar principles of law, the danger there is the uncertainty and instabilities it creates within the legal regime of that principle. Put differently, the reluctance to depart from a majority determined precedent is anchored on the court’s desire to promote aspects of the rule of law, like certainty, clarity and stability.

The legal argument based on dissenting reasons must therefore acknowledge the potentially unsettling effect on certainty and its related values. On many occasions the harm will be too great. An attempt to illustrate such great harm is clear from the recent decisions of the Nigerian Courts with respect to the interpretation and applicability of Section 138(a) of the Electoral Act 2011 (as amended) which borders on qualification of a candidate at the time of the election and forms a ground to challenge the election of the person returned. What this section actually contemplates is qualification as prescribed by the Constitution vis–a-vis Section 177 of the Constitution with respect to the governorship election and section 65 with respect to elections into the National Assembly. However, this provision (i.e section 138(a) has been construed to mean qualification in a wider context, the process of nomination by his political party before the general election, which ordinarily is a pre-election matter, to form a ground to challenge an election before the tribunal. Heavy reliance has been placed on the cases of DANGANA v USMAN 2012) 2 S.C. (Pt. III) 103 as well as ATAI IDOKO v INEC, to the effect that issues of nomination can be an election petition matter as well as a pre election matter. The Court of Appeal in the just concluded election appeals followed this line of argument recently to nullify and in fact disqualified a lot of candidates on the prompting of the petitioners who are not members of the same political party. The Supreme Court only reversed the position in January 2016 in TERVER v ORTOM (unreported) that the issue of nomination is strictly a pre-election matter and an internal affair of a political party, thus the tribunal cannot entertain same. The victims of this inconsistency are too numerous and have no chance to remedy same since the Court of Appeal has become functus officio at the time the Supreme Court gave this decision. This justifies the reluctance of the courts of law to depart from their earlier reasoning or adopt a dissenting reasoning and choose to maintain some level of consistency.

From the perspective of international jurisprudence, a dissenting proposition can most easily be adopted in the following circumstances:

  1. If it can be shown that it ‘ best ‘fits’ with the set of principles already in the legal system. Such a dissent can then be adopted as the right answer to a legal question.:
  2. if the court is persuaded that its framing of the relevant legal issues or facts is more relevant to the later litigation.
  3. A third argument is that a dissenting position should be adopted because it will lead to better practical outcomes for litigants or society.
  4. A dissenting reasoning can only be adopted if a suitably favourably wider context is present: this is a right place at the right time argument.

The writer will attempt to expand upon each of these arguments.

Best Fit
The term “Best fit” was borrowed from Ronald Dworkin’s account of law as integrity. This term is used loosely, what literature and case law reveal is that there are several arguments a lawyer can advance for the proposition that a dissenting reasoning fits well within the legal system and accordingly, that it should be adopted as law. One common approach is to argue that the dissenting reasoning explains why the majority decision does not fit well into the legal system. Whether this is due to the majority’s misapplication of facts to a law, its choice of test, or its justifications for that choice, each leaves the majority decision vulnerable in the future. The dissenting proposition may then, by contract, be seen to give the better account of the correct legal position on any or all of these grounds. One crucial feature of a dissenting judgment is that it is embedded in the law. This protects it from the court’s protestations that the dissent is out on a limb. Another dimension of the argument is that the dissenting proposition fits well as it represents current values within the legal system. Lawyers should have the least trouble arguing from this strand of fit because there is no reason to assume that the majority is more likely to be right than a minority in relation to a value judgment. Dissenting propositions should therefore be more easily adopted as law where the judicial disagreement is about value judgments, in areas like ethics and politics, the appropriate judicial use of formal and substantive reasoning, the use or non-use of prior principles, and the weighting between values. A typical example to this argument is the dissenting opinion of Oguntade JSC in ATIKU v YAR’ADUA SC/51/2008 with respect to non-serialisation of ballot papers whether it amounts to a substantial non-compliance with the Electoral Act. It is the writer’s opinion that perhaps if the Apex court is faced with a case with similar facts in issue the majority decision might be overruled,  towing the line of the dissent in that earlier decision.

A selection of famous American dissenting judgments that became the law falls squarely within this dimension of fit. In that jurisdiction, dissenting judges have rhetorically been declared to be ‘secular prophets’ according to Percival Jackson “whose heresy today becomes dogma of tomorrow”. Most famous of all is the hallowed proclamation that dissenting judgments are an appeal to the brooding spirit of the law, to the intelligence of a future day. A representative example is the first Justice Harlan’s dissent in PLESSY v FERGUSON where he alone declared the American Constitution to be colour-blind. Six decades later it was unanimously adopted as law in the famous Supreme Court decision in BROWN v BOARD OF EDUCATION OF TOPEKA. This sort of case is the hero of the idea that a dissenting opinion can become the law, as soon as society catches up with its prescient reasoning.

To be continued.