On judicial precedent 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.
Furthermore, 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’.
Precedent 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
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 advantages and disadvantages
- Consistency and predictability: it offers a basis for consistent and predictable decision-making, as similar cases are decided similarly.
- Authority and respect for the law: decisions made by higher courts are binding on lower courts, creating a hierarchy that enhances the credibility and respect for the legal process.
- Efficiency in legal processes: judicial precedent helps in the process of streamlining legal principles that can be applied to new cases, reducing the need to reinvent legal reasoning for every situation.
Disadvantages:
- Stare decisis issues: while it promotes stability in the legal system, it also stops the correction of past mistakes or obsolete decisions.
- Rigidity: applying precedents precisely can lead to unyielding stiffness. It will might not account for changing societal norms or potential issues ahead resulting in unjust outcomes.
Types of judicial precedent
- Ordinary precedent
- Declaratory precedent
- Persuasive precedent
- Precedent that is binding
Judicial precedent as a source of law
There are circumstances in which judges makes law. In the sense that when a judgment is passed or handed down; it is binding on all courts below it on the hierarchy.
Thus, such a judgement remains binding until set aside on appeal or a higher court. The basis for the bindingness of judgement is the rule of precedents of judgement. A precedent simply means an earlier decision taken as a rule for later decisions.
However, precedents are important because it ensures that justice is not to be based on the whims and caprices of a judge. Courts are obliged to follow precedents unless they are good reasons not to follow it. In the case of Saloko v. Saloko. G.O. Adefarasin J (as he then was) did not approve of the yoruba custom of idi-Igi he nevertheless ordered its application because the Supreme Court has earlier upheld the custom in the case of Danmole v. Dawodu.
Furthermore, precedents are rendered as stare decisis et non quieta movare which means “stand by your decisions and the decisions of your superiors no matter how wrong they are.
