Judicial Precedent 2

Judicial Precedent 2 is a legal experience. In ordinary life, people rely on past experiences when embarking on any venture. These experiences are nothing but precedents. Leaders are always conscious of their actions so as not to lay bad precedent. A chef who wants to cook a particular dish and wants to get the original taste of that dish, he will do well to follow the receipt and the step by step procedure in cooking the dish. It is not different with law especially under the Nigerian Legal System. In effect the concept of judicial precedent is nothing but reliance by a judge deciding a case today on the experience of yesterday.

In Nigeria legal system judicial precedent is a decision establishing a principle of law that any other judicial body must or may follow when called upon to decide a case with similar issues.

Stare Decisis – Judicial Precedent 2

In Osakue V. Federal College of education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1 at 34 the Nigerian Supreme Court per Ogbuagu J.S.C. defined stare decisis thus:

Stare decisis means to abide by the former precedents where the same points came again in litigation. It pre supposes that the law has been solemnly declared and determined in the former case. It does preclude the judges of the subordinate courts from changing what has been determined. Thus, under the doctrine of stare decisis, lower courts, are bound by the theory of precedent”.

From what his Lordship said, it is clear that stare decisis is the doctrine of Nigerian legal system laying an obligation on the courts to stand by precedent.

Stare decisis is a shortened form of the legal maxim: “stare decisis et non movere quieta” meaning to stand by and adhere to decisions and not disturb what is settled. Basically, under the doctrine of stare decisis, the decision of a higher court act as binding precedent on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive precedent.

To further illustrate the difference between the concepts of judicial precedent and stare decisis there is need to look at the dictionary meaning of the two phrases. In this regard reference will be made to Jowitts Dictionary of English Law, 2nd edition. Concerning precedent the dictionary says:

A judicial precedent is a judgment or decision od court of law cited as an authority for deciding a similar state of facts in the same manner, or on the same principle, or by analogy. The rules of common law and equity are contained in precedents established by the courts, that is, they have to be arrived at by ascertaining the principle on which those cases were decided’.

With regards to stare decisis it says:
‘to stand by things decided, to abide by former precedents where the same points come again in litigation as well as to keep the scale of justice even and steady and not liable to waiver with every judge’s opinion as also because, the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent is not a permanent rule which is not in the breast of any subsequent judge to alter or swerve from according to his private sentiments, he being sworn to determine, not according to his private judgment but according to known precedents can be binding or persuasive. Precedent that must be applied or followed is known as binding precedent.

By definition, decisions of lower courts are not binding on courts higher in the hierarchy. Precedents are persuasive when the court is not under obligation to follow it. Persuasive precedents under Nigeria Legal System arise out of a number of contexts:

  1. Decisions of lower courts are not binding on higher courts. They are at best persuasive.
  2. Decisions of the higher Court are persuasive authority for later cases in the High Court.
  3. Recent decisions of the Supreme Court of United Kingdom.
  4. Decisions of other courts within the Common Law world.

Nigerian courts and text book writers use judicial precedents and stare decisis inter changeably as if the two are synonymous. See for example Nigeria – Arab Bank Ltd V. Barri Engineering (Nig) Ltd (1995) 8 NWLR (Pt. 413) 257 at 289. Though in a broad sense they may be so used, but technically they are not the same.

A judicial precedent may be binding or persuasive as was noted earlier, it is when judicial precedent is binding that the doctrine of stare decisis becomes relevant. Before we go further, it may be apposite to define the doctrine of stare decisis.

Operation of Stare Decisis in Nigeria

Under Nigeria legal system once a court decides matter, the doctrine of stare decisis stipulates that any court which is below that court in the hierarchy of courts must follow that previous decision if the facts of the new case before it are similar to the facts of the earlier case.

Decisions of courts of coordinate jurisdictions do not bind a subsequent court of that jurisdiction. It must be noted that is the ratio decidendi that court is bound to follow, the court is not bound to follow obiter dictum. The doctrine of stare decisis stresses the fact that it is not open to a lower court, to disagree with the decision of the higher court on any point even, if the decision of the higher court was reached per incuriam.

See Osakue V. Federal College of Education Asaba (supra)
My Lord Eso, J.S.C.
(as he then was) in Okonji V. Mudiaga Odge (1985) 10 S. C. 267, at 268, 289 had this to say:

“In the hierarchy of courts in this country, as in all other free common law countries, one thing is clear, however, when a lower court considers itself to be and however, contemptuous of the higher court, that lower court is still bound by the decision of the higher court…

I hope it will never happen again whereby the Court of Appeal in this country or any lower court for that matter would deliberately go against the decision of this court and in this case, even to the extent of not considering the decision when those of this court were brought to the notice of that court. This is the discipline of law. This is what makes the law certain and prevents it from being an ass”.

Judicial Precedent 2. Judicial Precedent 2. Judicial Precedent 2.

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