Judicial Precedent. Nigerian legal system is one of the legal systems based on common law. Under the common law system, the courts do not just decide dispute brought before them, before they do that they have to check to see if such dispute has been settled before i.e. case law. If there is, the present court will consider the quality of the court that gave that earlier decision.
The court may then follow it or reject it depending on the hierarchy of the court that decided that earlier case. The previous case been followed is called Judicial Precedents and if the court is bound to follow it we say that the precedent is binding.
The doctrine that stipulates that binding precedents must be followed is called stare decisis. This feature of being bound by past precedent is one of the distinguishing elements between Common Law Jurisdiction and Civil Law Jurisdiction.
This is not to say that civil law jurisdictions do not observe the judicial precedent for this is common to all developed systems. But the doctrine of stare decisis is what is lacking in Civil Law Jurisdictions.
The strength and beauty of common law is that it is built upon the concrete examples of case law rather than hypothetical models as the civil law does. It is in view of this that the American jurist Oliver Wendell Holmes once said that ‘the life of law has not been logic; it has been experience’.
To facilitate the comprehension of this discourse, it will be apposite to explaining the meaning of some phrases which are inherently linked to the topic under discussion.
Ratio Decidendi – Judicial Precedent
The decisions of a court may fall into two parts: the reason for the decision and that which is said by the way. The ratio decidendi of a case is the principle of law on which the decision is based. Goodhart defined the ratio decidendi (reason for deciding) of a case as the material facts of the case plus the decision thereon.
Furthermore, it has also been defined negatively as the principle without which the court would not have reached its decision. See Abiola Sanni, ed, Introduction to Nigerian Legal Method (2006) 180. While every decision refers to some past event, the ratio of it serves as a norm for the future. See Dais on Jurisprudence, p.181
Determining the ratio of a case has not been without difficulty. This is more so, as sometimes a Judge may give more than one reason for his decision. Also it is possible for the judge to make some other statements, which in future may be argued to be the ration. However as dais opined “no rule should be treated as ratio which does not support the ultimate order.
Oxford Dictionary of Law 5th edition, defined obiter dictum as (Latin remark in passing) something said by a judge while giving judgment that was not essential to the decision in the case.
It does not form part of the ratio decidendi of the case and therefore creates no binding precedents, but may be cited as persuasive authority in later cases. The Judge deciding a case may speculate about what his decision would be or might have been had the facts been different. The value attached to obiter dictum depends on the court that the obiter and eruditeness of the judge who made it.
Per incuriam means that a court failed to take into account all the relevant and vital statutes or case authorities and that this had a major effect on the decision. Per incuriam does not simply mean the earlier court got things wrong.
It only means that there was a significant oversight, not only must there have been a failure to take account of relevant authorities; the fault must also have been such a major defect that it seriously affected the reasoning in the case and would have affected the outcome. Decisions said to be the case and would have affected the outcome. Decisions said to be reached per incuriam were actually reached.
Ingnorantium, but it is uncomplimentary to say that the court is ignorant of the law. In the hierarchy of court even though it might believe that the decision is reached per incuriam.
It is not for a lower court, to question or say that a decision of a higher court was reached per incuriam. That is the privilege the higher court if after reconsidering it former decision, it is satisfied that the previous decision had been reached per incuriam.
In distinguishing between obiter dictum and per incuriam, the Supreme Court per Iguh J.S.C. had this to say:
“it is indisputable that in the judgment of the court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which merely consists of obiter dicta, that is to say, what is not necessary for the decision…Where however, an obiter dictum in one case has been adopted and becomes a ratio decidendi in a later case, such obiter dictum will be taken to have acquired the force of a ratio decidendi and would therefore become binding…the question whether a decision or pronouncement of this court is binding on the court of appeal depends on whether that decision or pronouncement is an obiter dictum or was made per incuriam. If the pronouncement is a mere obiter dictum then, of course it is not binding, but if it was made per incuriam, it will nevertheless be binding on the court of appeal in accordance with the principle of stare decisis until the error in the judgment has been corrected” see the case of Dairo V. U.B.N. Plc. (2007) 16 NWLR (Pt. 1059) 99 at 159.
Judicial Precedent. Judicial Precedent. Judicial Precedent. Judicial Precedent.