Ben Oloko (University of Nigeria) has posted Judicial Roulette: The Political Economy of Doctrinal Uncertainty in the Recent Jurisprudence of The Supreme Court of Nigeria on SSRN. Here is the abstract:
Public confidence in the Supreme Court of Nigeria is presently strained by a pattern this article calls doctrinal somersaulting: the tendency of coordinate or near-identical panels of the Court to hand down, within a short interval and often without express acknowledgment, decisions that point in opposite normative directions on the same point of law. Using three recurring and representative fault lines: locus standi in public interest litigation, dismissal from employment and the admissibility of unregistered registrable land instrument; this article traces the doctrinal history of each principle through the Supreme Court’s jurisprudence, with particular attention to the last decade, and interrogates the most recent cases in each line for what they reveal about the health of stare decisis in Nigeria. It integrates and engages directly with four recent contributions to this debate: Ubani, Odunaike and Ekundayo’s account of an oscillating locus standi jurisprudence; a rejoinder to that account, which recharacterised Okonjo-Iweala v Fawehinmi as a calibrating rather than a regressive decision; Idigbe and Ogunbadewa’s case note on the Supreme Court’s “unsettled verdicts” on employment rights; and Professor Osita Nnamani Ogbu’s lecture on the crisis in the application of the doctrine of judicial precedent. The article shows that the Supreme Court’s decision in Chief Nduka Edede v Attorney-General of the Federation, delivered three months after Okonjo-Iweala, complicates the taxonomy the rejoinder proposed, by denying standing even in what was clearly a facial challenge to the constitutionality of section 84(12) of the Electoral Act 2022—precisely the category of case the rejoinder’s taxonomy had assumed remained open to every citizen. The article then turns to the economic consequences of this pattern of doctrinal instability, drawing on the new institutional economics of Douglass North and its progeny to argue that unpredictability at the apex of the judicial hierarchy is not merely a professional irritant but a measurable drag on investment, contracting and capital formation; compounded in Nigeria’s case by the long lag between the commencement of litigation and its resolution at the Supreme Court, which means litigants and firms frequently plan and act on legal positions that have silently changed by the time their own matters are decided. The article concludes by adopting Ubani, Odunaike and Ekundayo’s call for doctrinal consistency, endorsing Professor Ogbu’s proposal that the Supreme Court should sit as a full panel before overruling itself and should renounce the practice of implied overruling. It finally proposes a concrete institutional mechanism—a standing Certainty Protocol; by which the Court might discipline its own departures from precedent.
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