Stare Decisis- Prof Olaniyan Flashcards
What is a precedent?
It is the decision of a higher court or a court of coordinate jurisdiction considered as an authority on a similar case arising afterwards on a similar question of law.
The doctrine of judicial precedents involves which ideas?
It involves 2 ideas. The first is that a judge can examine a previous decision in a given set of circumstances and choose whether or not to follow it . The other idea involves the strictness of the precedent, stating that the judge is bound to follow the previous decision whether he likes it or not.
What is stare decisis?
It is the principle of English law that states that precedents are binding, authoritative and must be followed unless there is a reason to deviate.
Briefly compare precedents in common and civil law legal systems.
Under civil law legal systems, notoriety of a decision on identical facts holds sway without prejudice to the court pronouncing it.
Under a common law legal system, stare decisis is a function of judicial authority and not notoriety. An apex court decision can overrule the decisions of several lower courts that were believed to have settled the law on a particular matter.
What are the essential requirements for stare decisis?
- An established judicial hierarchy
- An efficient law reporting system
What are the advantages of stare decisis?
- It ensures the certainty and predictability of the law.
- It also ensures equality before the law
- It aids the scientific development of the law.
- It guides the judges and makes it very convenient for them to make decisions
- It prevents partiality or prejudice on the part of the judge.
What are the disadvantages of stare decisis?
- It stifles the discretion of the courts
- It creates rigidity because they are often in place for a long period of time
- It doesn’t allow the Nigerian legal environment to develop a home grown legal logic
What are the techniques and terminology of stare decisis?
Decisions made in per incuriam and decisions made in error
Binding and persuasive precedents
Distinguishing
Ratio decidendi and obiter dictum
Original, declerative and derivative precedent
Affirmation, reversal and overruling
Describe binding and persuasive precedents.
According to Niki Tobi, a precedent is binding upon an inferior court when it has to, as a matter of law, follow the precedent of the superior court.
A precedent is of persuasive authority when the court has an option in the hierarchy of the court structure either to follow or reject it. In other words, a court can depart from the decision because it is not binding on it.
What are some examples of persuasive precedents in the same court hierarchy?
- When the decision of an inferior court is cited to a superior court.
- When the decision of a court of coordinate jurisdiction is cited.
- Precedents from other courts jurisdictions are persuasive
Discuss ratio decidendi
It is the material facts of the case and the decision thereon.
It is the ‘reason for the decision’
It is any rule of law treated expressly or impliedly by the judge as necessary in the reaching of his decision.
The ratio decidendi is either
1. The rule the judge who decided the case lays out to apply to the facts
2. The rule that a later court concedes to the judge of the superior court to have had the power to lay down
In a court manned by a panel of judges the rule is to follow what the majority decided.
It is sometimes so complicated, especially in the situation of dissenting views. Even in the majority decision it is difficult to ascertain the majority opinion on many of the several reasons given for that final decision. In this case the majority decision cannot be cited as binding authority for any of the several given reasons.
What is an obiter dictum?
It can be simply described as a comment made in passing, a passing remark.
If it were expunged from the case, as if it were never made makes no difference to the case. (As opposed to a ratio)
But sometimes an obiter may be a deliberate effort by the apex court to decide for the future and so must be followed. See Buhari v Obasanjo; Ifediorah v Umeh
What is Distinguishing?
Distinguishing is the differentiation of cases, of one from another (an earlier case) so as not to follow it.
When the judge has reason not to follow a judicial precedent, he distinguishes the case at hand from the judicial precedent. This leaves him free to reach a decision in accordance with the circumstances of the case before him.
Distinguishing can be one of 2:
- Non restrictive or genuine distinguishing: This is when the court agrees that the material facts as prior decided are the material facts and then proves that these facts are absent in the present case or that the present case includes some additional facts which are not covered by the ratio.
- Restrictive distinguishing: This is when the present judge cuts down on the ratio decidendi and decides that a fact previously decided to be immaterial, material.
OR
the present judge introduces an exception (a qualification) to the rule laid down in the precedent
Discuss cases decided per incuriam or in error
Cases decided per incuriam are cases decided without considering and applying existing judicial precedents or legislations.
If a deciding court has the discretion to overrule the previous decision, it may do so on the ground that it was given in error though not per incuriam
An inferior court cannot declare a superior court’s decision as per incuriam or in error
A superior court can declare a lower court’s decision as per incuriam or in error
The Supreme Court and Court of Appeal can declare their previous decisions as per incuriam or in error.
Without declaring it per incuriam or in error, a court can depart from the decision of another court of coordinate jurisdiction.
Discuss affirming, overruling and reversals
When a party to a case exercise his right to appeal, the higher court can either affirm or reverse the lower court’s decision.
The right terminology in this scenario is that the higher court affirmed the decision of the lower court and not that it followed the precedent of the lower court.
When the higher court reverses the judgement in the same case, the proper terminology is not overrule. The only instance overrule can be used is in a future case with different parties. This case is different from the case in which the precedent was established.
What is an original, declarative or derivative precedent?
An original precedent is the first case in which a principle or ratio was adopted. Or the first case where the apex court adopted it.
A declerative precedent is the decision of a court which states the principle of law established in the original precedent without narrowing or broadening it.
Derivative precedent refers to the present court extending the application of an established rule to fit an infinite varieties of facts in future similar cases.
Describe stare decisis in English type courts.
Supreme Court is modelled after the English apex court. Court of Appeal, Federal and State High Courts, National Industrial Court, and District/Magistrate courts which operate close to how those in England do all operate the doctrine of stare decisis
Discuss stare decisis in non English type courts.
The customary/area courts and customary/sharia courts of appeal are not ordinarily empowered to practice common law. So it is understandable that the common law doctrine doesn’t apply to them.
But since the Nigerian Legal System puts the appellate system in place, they are still to follow the decisions of higher courts.
For example the area courts are bound to follow the decisions of State High Courts in addition to the Sharia Court of Appeal that seat on appeal cases from them.
The Sharia Court of Appeal is bound to follow the Court of Appeal and Supreme Court decisions.
Discuss stare decisis in the Supreme Court
As the apex court, its decisions are binding on all other courts
The SC is bound by its own decisions unless it overrules itself in a future decision.
Pursuant to Order 6 Rule 5(4) of the Supreme Court Rules 1999 (as amended) the SC can overrule and depart from its decision in any and or the combination of these circumstances:
1. If the decision was a vehicle for injustice
2. If the decision was an error in law
3. If the decision was inconsistent with the provisions of the constitution Section 1(3) 1999 CFRN
4. The decision was giving per incuriam
5. If recent developments have rendered the decision no longer a good law or oppressive FBN v Maiwada
Johnson v Lawanson was the first case in which the SC overruled its previous decision which was given per incuriam
Discuss Stare decisis in the Court of Appeal
Its decisions binds itself and lower courts unless overruled by itself or the SC.
Pursuant to English Court of Appeal practice and Young v Bristol Aeroplane:
1. It is bound to decide which of its conflicting decisions it would follow
2. Its decision cannot stand with the Supreme Court’s and thus it can refuse to follow such a decision.
3. It is not bound by its previous decision if it is satisfied that it was given per incuriam
4. It is not bound by its decision in criminal appeals but must reserve good reasons for departing from them
Discuss stare decisis in high courts.
The Federal High Courts, State High Courts, FCT High Court and the National Industrial Court are courts of coordinate jurisdiction.
They are all bound to follow the decisions of the Supreme Court and the Court of Appeal in both criminal and civil cases.
Their decisions are of persuasive precedents unto themselves and the courts of coordinate jurisdiction. Aka their decisions are not binding
Discuss stare decisis in magistrate and high courts
They are bound by the decisions of their respective State High Courts as well as the Supreme Court and Court of Appeal.
They are not bound by the decisions of State High Courts in other States except those pronounced as exercising federal jurisdiction
As inferior courts they establish no precedents.
List all the defunct courts
The Judicial Committee of the Privy Court
West African Court of Appeal
Federal Supreme Court
Western Nigeria Court of Appeal
Defunct Supreme Court
Talk about JCPC
It sat on appeals from Nigeria till 1963. Its decisions are treated like SC decisions. See Johnson v Lawanson
