SOURCES OF LAW III: JUDICIAL PRECEDENTS
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
The doctrine of judicial precedent
The hierarchy of court and stare decisis
Ratio decidendi and how to isolate the ratio of cases
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment (4)
7.0 References/Further Readings
INTRODUCTION
The defects of slowness and uncertainty which often affect customs can be overcome if a society comes to accept judicial decisions as a source of law. Wherever there is a doctrine of precedent when a new issue is brought before the courts the decision reached will become binding for later similar cases and in this way will achieve the status of a legal rule without having to wait for the much slower development of a common practice among the population at large. Again, in so far as courts explain and justify their decisions, they make them clearer thus avoiding to a certain extent the problems of uncertainty which can plague purely customary rules. This is the concept of precedent at work and it is what we shall be exploring in this unit.
OBJECTIVES
A judicial precedent is one of the lawyers’ tools; and distinguishing one case law from another in terms of fact or ratio differences is crucial. Judicial precedent being a distinguishing characteristic of English law will be treated with specific reference to its influence in Nigeria in terms of its understanding, stare decisis, hierarchy of courts, ratio decidendi and how a ratio of a case can be isolated.
MAIN BODY
- The doctrine of judicial precedent
The doctrine of judicial precedent simply means law found in judicial decisions. It is the principle of law on which a judicial decision is based, and it consists in what is often referred to as the ‘ratio decidendi’ meaning ‘the reason for the decision’.
The origin of judicial precedent is traceable to the common law, a period when itinerary judges appointed by the Queen went out into the various localities to administer their local customs. With time, the judges soon discovered that some customs were similar in the different localities they had been to for the purpose of adjudication on their disputes. The judges would then take note of this and as the time went on, it got to a point when there emerged what was referred to as the common law of the realm.
The doctrine of precedent developed with the above system. Thus, instead of applying the local or general customs of a particular locality, the judges would conveniently refer to an earlier similar case and adopted their decisions in that earlier case to the case at hand.
The most important requirement for the application of the doctrine then, and now, is that the cases in question must be largely of the same/similar factual situations.
It is important that you know that there are two aspects of precedents: they possess law-quality and they are binding. The distinction between the two must be properly understood.
Quotability(as ‘law’ applies to the principle of a case, its ratio decidendi, while bindingness depends on the hierarchy of courts, for generally decisions of higher courts bind lower courts, but not vice versa. For instance, a decision of the High Court is ‘law’ although it is not binding on any court other than those below it in the hierarchy.
It is important for you also to know that there are cases where the decisions established in an earlier case will not be applied in a later one despite the fact that it ought to have been caught by the judicial precedent’s rule. This happens where either of the lawyers in the cases is able to successfully distinguish his case from the earlier one.
There are several merits and demerits of judicial precedents such as predictability of judicial decisions (an advantage) and rigidity (a disadvantage), among others. You are to read up the other advantages and disadvantages of judicial precedents.
Salmond states that the doctrine of precedent is known also as stare decisis. The import of precedent is that judicial decisions have binding force and enjoy law- quality per se. the bindingness of precedent depends on the hierarchy of courts and accordingly higher courts bind lower courts and never the other way round. The aspect of decisions which enjoy law-quality is its ratio decidendii.e the principle behind a decision.
Salmond opines that for stare decisis to be established two conditions must be satisfied. (1) There had to be a settled judicial hierarchy before there could be any clear-cut doctrine of binding authority, for until then it could not be known whose decisions bound whom. (2) There had to be a reliable report of cases. This is because if cases are to be authoritative as law, there should be precise records of what they lay down.
According to Salmond, stare decisismust be distinguished from res judicata. Res judicata means that the final judgment of a competent court may not be disputed by the parties or their successors or any third parties in any subsequent legal proceeding. The main differences between the two doctrines are as follows:
- Res judicata applies to the decision in the dispute while stare decisis operates as to the ruling of law
- Res judicata normally binds only the parties and their successors. Stare decisis relating as it does to the ruling of law, binds everyone, including those who come before the court on other
- Res judicata applies to all courts. Stare decisis is brought into operation only by decisions of the High Court and higher
- Res judicata takes effect after the time for appealing against a decision is past. Stare decisis operates at
Self-Assessment Exercise (SAE) 1
Critically examine the doctrine of judicial precedent.
- The Hierarchy of Court and stare decisis
The correct application of the doctrine of judicial precedent is dependent on the availability of a well-defined hierarchy of court and an up-to-date law reporting. The decisions of higher courts are binding on lower courts within the hierarchy.
In Nigeria, the hierarchy of court is as provided for in the 1999 Constitution (as amended) in which the Supreme Court is at the apex, followed by the Court of Appeal, by the High Courts of States/Federal High Courts and by Magistrate Courts. What this implies is that the decisions of the Supreme Court will be binding on all the courts below it. In the same manner, the decisions of the Court of Appeal will be binding on High Courts up to the courts at the lowest rung of the ladder.
The decision of a court will either be binding or persuasive. It is binding where the court before which it is being cited has no option as to whether to apply it or not; it must be applied and obeyed. On the other hand, where a decision urged before their lordships only have a persuasive effect, this means that their lordships are at liberty to either rely on it or not. The concept of persuasiveness is brought about where the decision in question is either that of a court of coordinate jurisdiction, such as the effect of the decision of a division of Court of Appeal on another division or the effect of the decision of a Federal High Court on a State High Court. All these decisions shall have a persuasive effect only on the courts before which they are being sought to be applied. The same effect is accruable to foreign authorities such as those of the English or American or Australian courts of justice. Where a well- stratified hierarchy has been established, the courts within the hierarchy, knowing where they stand, must obey all the decisions binding on them in handing down their own decisions. This is to make for predictability of court processes. However, there are certain instances where a court can deviate from its earlier decisions and refuse to be bound by it. One of such cases is where its earlier decision is reached per incuriam. A decision is reached per incuriam where it is reached by a court in error. In such a case, if that court has the opportunity, it can correct the earlier error. Also, where there are conflicting decisions of the court of appeal, an appellate court may overrule any of such conflicting decisions to set the law straight; and finally, where a decision has been impliedly overruled by the Supreme Court, the Court of Appeal can overrule its earlier decision on such issue.
Stare decisis on the other hand means ‘following previous decisions’/‘stand by the decision and not disturb the undisturbed.’ It is a doctrine that complements that of judicial precedents.
Refer to the further reading section below to develop on what has been given to you herein.
Self-Assessment Exercise (SAE) 2
Discuss the importance of hierarchy of court to the doctrine of judicial precedent.
- Ratio decidendi and how to isolate the ratio of cases
Your primary concern here is how to identify the ratio of a case. Even though this may appear a less onerous task, in actual fact, it is a difficult task.
To start with, ratio decidendi as we have already stated means ‘the reason for the decision’.
It is important because it is what is binding on the courts below the hierarchy. There are several things that a judge says in the course of delivering his judgment. The basic reasons he gave for so doing in his judgment constitutes the ratio while other things said by the side are regarded as obiter dicta and have no binding effect.
Where the court in a previous case clearly stated the legal principle on which it based its decision, the task before the court in a later case would have been simplified as he would only need to regard those legal principles as the ratio. But it is not always easy to determine the ratio as the decision-giving court would usually have gone in a long circle before coming down to its decision.
In determining the ratio of a case, the courts usually consider any one or more of the following factors: the reason for the decision as stated by the judge; the principle of law stated by the judge as that on which the decision was based; and the actual decision in relation to the material facts. In addition to these three, the court may also consider the interpretation of the case in any later case determined before the instant case.
In order to easily determine the ratio decidendi of a case, some scholars have suggested the adoption of several theories such as the classical theory, Prof. A.L. Goodhart’s theory, Prof J. Stone’s theory, among others. Whatever approach is adopted, the fact remains that determining the actual ratio in a case is not an easy task
Self-Assessment Exercise (SAE) 3
It has been said that identifying the ratio decidendi of any case is not an easy task. Do you agree? If yes, explain the various methods/theories of determining the ratio of any given judgment.
CONCLUSION
We have shown in this unit the invaluable importance of the doctrine of judicial precedent because it makes for predictability and certainty in the course of justice. It enables lawyers to know the weaknesses and strength of their cases even before they go to court. Hence, it is of great necessity for a lawyer to know how to decipher the ratio from a mere obiter.
SUMMARY
This unit covers the following areas:
- The doctrine of judicial precedent
- The hierarchy of courts and stare decisis
- Ratio decidendi and how to isolate the ratio of a case
TUTOR-MARKED ASSIGNMENT (4)
With case law examples, enumerate the circumstances when the Supreme Court may overrule itself.
REFERENCES
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston) p. 162 – 217
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 252 – 266 Lon L. Fuller, Anatomy of the Law, Greenwood Press Publishers, Westpoint, 1968, p. 43 – 117
Michael Zander, The Lawmaking Process, Widenfield and Nicolson, London 1980, 102 – 131
Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) p. 55 – 68