Stare Decisis- Prof Olaniyan

Question 1

What is a precedent?

Answer 1

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.

Question 2

The doctrine of judicial precedents involves which ideas?

Answer 2

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.

Question 3

What is stare decisis?

Answer 3

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.

Question 4

Briefly compare precedents in common and civil law legal systems.

Answer 4

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.

Question 5

What are the essential requirements for stare decisis?

Answer 5

1. An established judicial hierarchy
2. An efficient law reporting system

Question 6

What are the advantages of stare decisis?

Answer 6

1. It ensures the certainty and predictability of the law.
2. It also ensures equality before the law
3. It aids the scientific development of the law.
4. It guides the judges and makes it very convenient for them to make decisions
5. It prevents partiality or prejudice on the part of the judge.

Question 7

What are the disadvantages of stare decisis?

Answer 7

1. It stifles the discretion of the courts
2. It creates rigidity because they are often in place for a long period of time
3. It doesn’t allow the Nigerian legal environment to develop a home grown legal logic

Question 8

What are the techniques and terminology of stare decisis?

Answer 8

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

Question 9

Describe binding and persuasive precedents.

Answer 9

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.

Question 10

What are some examples of persuasive precedents in the same court hierarchy?

Answer 10

1. When the decision of an inferior court is cited to a superior court.
2. When the decision of a court of coordinate jurisdiction is cited.
3. Precedents from other courts jurisdictions are persuasive

Question 11

Discuss ratio decidendi

Answer 11

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.

Question 12

What is an obiter dictum?

Answer 12

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

Question 13

What is Distinguishing?

Answer 13

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:

1. 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.
2. 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

Question 14

Discuss cases decided per incuriam or in error

Answer 14

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.

Question 15

Discuss affirming, overruling and reversals

Answer 15

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.

Question 16

What is an original, declarative or derivative precedent?

Answer 16

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.

Question 17

Describe stare decisis in English type courts.

Answer 17

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

Question 18

Discuss stare decisis in non English type courts.

Answer 18

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.

Question 19

Discuss stare decisis in the Supreme Court

Answer 19

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

Question 20

Discuss Stare decisis in the Court of Appeal

Answer 20

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

Question 21

Discuss stare decisis in high courts.

Answer 21

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

Question 22

Discuss stare decisis in magistrate and high courts

Answer 22

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.

Question 23

List all the defunct courts

Answer 23

The Judicial Committee of the Privy Court

West African Court of Appeal

Federal Supreme Court

Western Nigeria Court of Appeal

Defunct Supreme Court

Question 24

Talk about JCPC

Answer 24

It sat on appeals from Nigeria till 1963. Its decisions are treated like SC decisions. See Johnson v Lawanson

Question 25

How about WACA?

Answer 25

It sat on appeals from the High Courts until 1954.

Its decisions are treated as court of appeal decisions.

Question 26

Now WNCA?

Answer 26

It was created by the defunct Western Region in 1967 and functioned until 1976 when the states were created.

It ranks equal to decisions made by State High Courts.

This is so when cited in High Courts of states that comprised of the former Western Region.

Question 27

How about FSC?

Answer 27

It was the penultimate court from 1954-1963.

Ranks equal to the Court of Appeal.

The SC that existed before the FSC operated as High Courts and therefore their decisions operated and ranked equal to those of High Courts.

Question 28

Discuss the constitution of the courts and status of precedents

Answer 28

In the same hierarchy, regardless of the constitution, a precedent established by the apex court is binding. And their decisions are ranked equally. The main point is that the decisions of superior courts in the same hierarchy rank equally.

The first exception is that in the North, a court made up of 2 judges to sit on appeals ranks higher than a court of first instance constituted of 1 judge.

When the CA or SC constitutes a full court for the specific purpose of overruling a precedent, their decision ranks higher than the overruled precedent and all others on the same line.

Question 29

What happens when the SC and CA have conflicting decisions?

Answer 29

1. The lower court would be tasked with resolving the conflicting decisions.
2. The court will be tasked with resolving its own conflicting decisions.

Question 30

When the lower courts are tasked with resolving the conflict…

Answer 30

There are three options:

1. It has the discretion to pick and choose
2. It can follow the later decision: the overriding current admonition of the SC. See Osakue v FCE
3. It can reference the CA or SC as the case may be: This option is most preferred by academic opinions because the following the later option is as inconsistent as the pick and choose option. This is because the lower court is being endowed with the power it doesn’t have because it can declare a decision per incuriam for the purpose of not following it.

Question 31

When the same court is tasked with resolving its conflicting decisions…

Answer 31

There are 2 instances:
1. When the CA is tasked with it
2. When the SC is tasked with it

Question 32

When the CA is tasked with resolving its own conflicting decisions…

Answer 32

There is no controversy regarding this as the 3 rationes have been clearly put down in Young v Bristol Aeroplane and it has been well received by the CA and the SC.

Question 33

When the SC is tasked with resolving its own conflicting decisions…

Answer 33

It is becoming irresistible to conclude that the same suggestion to lower courts to follow the latest of conflicting SC decisions still applies.

This is because when the opportunity was open for the SC to resolve its conflicting decisions, it always settled on the later of its decisions without rigorous discussions and even chastised the lower courts for not doing the same.

Question 34

Why should the later decision option not be followed by the S.C in resolving conflict in its previous decisions

Answer 34

1. This approach appears to deny an apex court invested with the discretion to overrule itself, the same latitude given to the Court of Appeal to either declare its own decision as having been given per
   incuriam or to pick and choose between its conflicting decisions.
2. Only an error in the so called later case can bring it into conflict with an earlier one. This is even more so because in theory, the Supreme Court can only knowingly overrule itself. See Order 6 Rule 4(4) of S.C (2002) Rules
3. The weight to be attached to a precedent by any court that is not absolutely bound to follow its precedent should be downgraded if it is shown that counsel had failed to cite any inconsistent case to the court that established the precedent. Nigerian apex court by seemingly binding itself to follow the later of its conflicting decisions does not see any wisdom in this counsel.