The whereabouts of reason in judgments and rulings of courts in Sierra Leone
Introduction: A recent judgment of the high court of Sierra Leone has compelled me to write this piece. In any given year, several hundred actions are commenced in the high court on issues ranging from title to land to breaches of various kinds of contracts. In the majority of cases these matters are not concluded in the same year or even the subsequent year and in some very notorious cases, it was only the death of one or both of the parties or the irrecoverable misplacement of files that brought matters to an end. While one understands that the decade-long civil war virtually destroyed justice mechanisms in the country, one must also bear in mind that another decade has almost elapsed since the official end of the war and perceptions of the justice sector among ordinary individuals are still dispiriting notwithstanding huge levels of investments in the sector. The purpose of this article is not to bemoan the excessive delay in concluding matters in court, which of itself deserves a lot of attention, but rather to spotlight a somewhat distressing trend which seems to be gathering pace in the judiciary- the conspicuous absence of reason in judgments and rulings. While this may not be the practice of every judge or magistrate, its occurrence is becoming a tad too frequent to not provoke a response.
The doctrine of binding precedent
I still recall, sometimes fondly, my first year law classes at the university, full of the usual fresh student keenness and appetite to soak up every detail that came from the lecturer no matter how trivial. One of my more enjoyable subjects was ‘introduction to law’ and a fascinating topic which I thoroughly liked was ‘the doctrine of binding precedents’. I was taught that precedent was one of the most powerful tools available to a lawyer and that in analysing a judgment or ruling I had to look for the ‘ratio decidendi’ or put simply the reason for the decision- i.e. the rationale of that particular judgment. I was assured by my tutor that the ‘ratio’ would always be there, sometimes more than one, and that it would be impossible to have a doctrine of binding precedents in the absence of a ratio. However, my tutor was wrong many times over as I have come to find out that in very many cases, judges and magistrates do not give reasons for their decisions.
Ratio-less judgments and rulings
A major challenge faced by the judiciary, I have been told, is that there are too many cases and too few courts to deal with them. As a result judges and magistrates are inundated with cases and are unable to speedily dispose of them. While this may be a valid point, the reality tells a different story and the actual culprit may well be poor case and time management practices within the judiciary. I completely agree that many matters which are submitted for adjudication can be satisfactorily dealt with through alternative dispute resolution mechanisms and endorse any move towards realising this. However, assuming that an overloaded caseload is a major problem, this is still no reason or excuse for judges and magistrates to deliver vacant judgments or rulings on any matter that is before them. These vacant judgments or rulings do not contain any rationale, are bereft even of the slightest reference to laws, rules, regulations or legal principles, containing only in some instances a restatement of the facts of the case and an abrupt conclusion. There is absolutely no ‘ratio’ in them. A particular high court summary judgment delivered a couple of days ago against a non-governmental organisation necessitated my putting pen to paper. After stating who was present and by which method the application was made, the judgment proceeded as follows: ‘…having considered the submissions made by both counsel and authorities cited, I hereby order as follows….’. The honourable judge then went on to award various sums of money totalling nearly forty million leones (about $10,000). Not even half a reason was advanced by the judge for the awards and orders made and oddly enough there was no mention even cursorily of any statute, case law, legal principle or rules of procedure pursuant to which the orders were made. There was no sense of how the judge applied the law to the facts of the case and then came to a conclusion- she just jumped to a conclusion. Another earlier judgment I saw from a magistrates’ court simply stated, ‘I believe the plaintiff and her witnesses, I don’t believe the defendant and his witnesses, I therefore find for the plaintiff’. A point of concern is that magistrates and judges continue to deliver these vacuous judgments and rulings even in very substantial matters causing severe, sometimes irreparable damage to litigants and leaving lawyers with the headache of formulating appeals against virtually nothing. Perhaps the common saying that ‘the law is in the bosom of the judge’ is being interpreted too literally by our judges. If the law is indeed there it should come out in judgments and rulings and not just remain in the judge’s bosom as there is not much use for it there. Judgments and rulings must at all times be reasoned, no matter how minor the issue is. It is in very poor taste for anyone to make a decision without reason, much less a judge.
Quality of legal practice
Vacuous judgments are a threat to the principle of binding precedents in the practice of law in Sierra Leone especially when they emanate from superior courts. Strangely, legal practitioners do not seem to be up in arms against these vacant judgments. Often, those who are on the wrong end of the stick just put their faith or what is left of it in the appeals process and hope to secure a reversal. This is often dependent on whether their clients have the stomach (translate time and resources) for such a process. In most cases after such judgments or rulings, execution normally follows very quickly and an appeal becomes a mere academic exercise. Those lawyers who happen to be the beneficiaries of such judgments or rulings tend not to question them at all. For them, they have obtained a result for their clients, at least for the present, no matter how imperfect or objectionable it might be. One very pleased beneficiary with a wicked sense of humour, in a slight distortion of Crompton J in R v Leatham 1861 remarked that ‘it matters not how it is written, even if there is no reason, it is still a judgment’. I think it does matter how a judgment or ruling is written and legal practitioners need to be united on this one at least for the sake of good legal practice or the potentially bad image this might paint of the country’s legal system internationally.
Global legal village
Globalisation has connected societies at various levels and improved communication has guaranteed access to information across countries and continents at unprecedented scales. In 1992 the free access to law movement took shape with the aim of providing free online access to legal information (including case law and statute) across several common law countries. Today, the legal information institute is a collection of exciting projects that collect legal materials globally aggregated by country and continent. The existence of such projects now means that judicial decisions of countries are no longer restricted to their territories but can now be scrutinised by a global audience. Perceptions of a country and its systems may be positively or negatively influenced by the quality of information (legal, economic or political) that flows from it. Sierra Leone is still in the process of rebuilding its institutions and its image and every sector within the state has to make a contribution towards this end. The judiciary particularly has to be mindful of the quality of information (in the form of judgments and rulings) that emanate from it as its integrity both locally and internationally depends on it. This caution comes in the wake of plans to establish a Sierra Leone Legal Information Institute which would make judgments and rulings of courts as well as other types of legal information available online, free of charge.
Need for training
Perhaps, one key factor for these vacuous judgments and rulings could be the absence of a training institute for judges and magistrates. Judges and magistrates are appointed without any formal induction training and in a country where continuous legal education is non-existent assuring constant quality is problematic. In contrast, Ghana has had judicial education since 1965 and the institution has evolved over time to respond to prevailing judicial needs. The Judicial Training Institute of Ghana provides initial training for new magistrates and judges as well as continuing judicial education to keep them abreast with legal developments. It is no surprise therefore that case law from Ghana is highly regarded in many countries including Sierra Leone. Plans for a judicial training institute for Sierra Leone are, I am told, far advanced. It is hoped that this will come to fruition sooner rather than later as there is clearly a desperate need for judicial training and maybe a fully functional judicial training institute might encourage the legal profession to introduce some form of continuing legal development training for its members.
Conclusion
Judicial decisions constitute one of the sources of law. The doctrine of binding precedent will collapse if ‘law’ is omitted from judicial decisions. Judges are meant to judge by reference to a standard- the law, and if a judicial decision, no matter how minor, contains no ratio or reference to law, it cannot be properly called a judgment or ruling. In addition to establishing a training institute to build the capacity of judges and magistrates, promotion within the judiciary should be dependent among others on how properly a judge or magistrate writes judgments. Understandably, there is an appeals process, but many of these vacuous judgments and rulings are not appealed against maybe because of litigation fatigue and therefore stand unchallenged. If an appeal is lodged against such judgments and rulings, they should be automatically set aside and a judge who persistently writes vacuous judgments and rulings should be open to impeachment on the basis of being unable to perform the functions of the office of a judge. As Sierra Leone joins the free access to law movement through the establishment of the Sierra Leone Legal Information Institute, the judiciary needs to be mindful of the impression it wants to create for the outside world. While Sierra Leone may not have the most efficient judicial system on the continent, judges can, by delivering well reasoned judgments and rulings, help refashion a good impression of Sierra Leone’s judiciary- as a work in progress.
Sonkita Conteh, LLM, LLB (Hons), BL, Barrister and Solicitor of the High Court of Sierra Leone Stay with Sierra Express Media, for your trusted place in news!© 2010, https:. All rights reserved.
