case law and judicial precedent

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In deciding cases or disputes, judges of lower courts follow the decision of higher court if a case involving similar facts and points of law comes before them.

The principle of stare decisis (Latin meaning to stand on decided cases) or judicial precedent is a legal rule that inquires a judge hearing a case to refer to earlier cases decided by his predecessors in order to find out if the material facts of any of those cases before him and, in the event of such finding, to decide the case before him in the same way as the earlier case had been decided.

Thus principle was developed by the English courts as a mechanism for the administration of justice which will enable judges to make decisions in an objective or standard manner instead of subjectively and in a personalized manner. The material facts of a case and the decision made by the judge on the basis of those facts are known as ratio decidendi of the case.

The ratio decidendi of a decided case constitutes the legal rule or principle for the future case with similar material facts i.e. the decision is precedent to be followed when deciding such cases (We shall come to this aspect at a later stage – the Administration of the Law)

Precedents may be classified in various ways:
1. Binding and persuasive precedents
2. Original and declaratory precedents
3. Distinguishing precedents

Original precedents
This is a principle or proposition of law as formulated by the court. It is the law-creating precedent.

Declaratory Precedent
This is the application of an existing principle of law in a subsequent similar case.

Binding precedent
This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of the Court of Appeal used in the High Court.

Persuasive Precedent
This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in the same manner e.g. a High Court decision used in a Court of Appeal, or a decision handed down by a court in another country.

Distinguishing precedent
This is a subsequent decision of a court which effectively distinguishes the earlier precedents.
It is a precedent in its own right.

However, in certain circumstances, a court may refrain from a binding precedent. In such circumstances, the earlier decision is ignored. This is done in the following circumstances:

1. Distinguishing; This is the art of showing that the earlier decision and the subsequent case relate to different material facts. This enables a judge to ignore the precedent.
2. Change in circumstances: A judge may refrain from an earlier decision of a brother judge if circumstances have changed so much so that its application would be ineffectual i.e. the decision no longer reflects the prevailing circumstances.
3. Per incurium: It literally means ignorance or forgetfulness. An earlier decision maybe departed from it if the judge demonstrates that it was arrived at in ignorance or forgetfulness of law, i.e the court did not consider all the law as it existed at the time.
4. Over-rule by statures: If a precedent has been over-ruled by an Act of Parliament. It ceases to have any legal effect as statute law prevails over case law.
5. The earlier decision is inconsistent with a fundamental principle of law
6. If the ratio decidendi of the previous decision is too wide or obscure.
7. If the ratio decidendi relied upon is one of the many conflicting decisions of a court of co-ordinate jurisdiction.
8. Improper Conviction: In Kagwe v R. (1950) it was held that a court could refrain from a binding precedent if its application was likely to perpetuate an incorrect, erroneous or improper conviction in a criminal case.

Advantages of case law (importance of stare decisis)

1. Certainty and predictability; Stare Decisis promotes certainty in law and renders a legal system predictable. In Dodhia’s Case 1970, the Court of Appeal was emphatic that „a system of law requires a considerable degree of certainty.‟
2. Uniformity and consistency: Case law enhances uniformity in the administration of justice as like cases are decided alike.
3. Rich in detail: stare decisisis rich in detail in that many decisions which are precedent shave been made by courts of law.
4. Practical: Principles or propositions of law are formulated by superior courts on the basis of prevailing circumstances hence the law manifests such circumstances.
5. Convenience: Case law is convenient in application in that judges in subsequent cases are not obliged to formulate the law but to apply the established principles.
6. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish earlier decisions as to justify departing from them, this in itself renders the legal system flexible.

Disadvantages of case law

1. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and this generally interferes with the development of law.
2. Bulk and complexity: Since stare decisisis based on judicial decisions and many decisions have been made, it tends to be bulky and there is no index as to which of these decisions are precedent. Extraction of the ratio decidendi is a complex task.
3. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature. It is incidental. Principles or propositions of law are made in bits and pieces.
4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish indistinguishable cases, they develop technical distractions or distinctions without a difference. This makes law artificial and renders the legal system uncertain.
5. Backward looking: Judges or courts are persuaded / urged to decide all cases before them in a manner similar to past decisions. It is contended that this practice interferes with the ability of a judge to determine cases uninfluenced by previous decisions.

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