NIGERIAN LEGAL SYSTEM PUL112 Judicial Precedent, Stare Decisis and the Hierarchy of Court Lecturer - Imuekemhe Emike Jessica EUI LAW FACULTY This work is licensed under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Intended Learning Outcomes At the end of this topic students should be able to know the following: The definition of precedent in terms of law? Define and different between the ratio decidendi and obiter dicta of a case. Define and outline the differences between the three types of judicial precedents. List and explain three sources of persuasive precedent. Explain the doctrine of stare decisis? Give a detailed analysis of the hierarchy of courts and its application to judicial precedent. Answer the question: do judges make laws? EUI LAW FACULTY

In the beginning … A situation gives rise to conflict and parties become desirous of having their rights determined by a court of competent jurisdiction. EUI LAW FACULTY

What happens when parties go to court? The relevant principles of law are applied to the facts of the case and a decision or a judgment is reached by the court. EUI LAW FACULTY

WHAT THEN BECOMES OF SUCH JUDGMENT? When the case is rightly decided, the judgment then becomes a binding precedent to be applied to cases with similar facts. EUI LAW FACULTY

WHAT DOES THE TERM ‘PRECEDENT’ MEAN? In order to understand what the term judicial precedent means, let us first examine the meaning of a precedent. A precedent is an earlier event or action that is regarded as an example or guide to be considered in subsequent similar cases or circumstances. EUI LAW FACULTY

WHAT DOES PRECEDENT MEAN IN LAW? In law, precedent means the practice of following previous decisions that have been reached in courts. Judicial Precedent is based on the Latin maxim ‘stare decisis et non quieta movare’. This means to stand by what has been decided and do not unsettle the established. EUI LAW FACULTY

The practice of referring to earlier decisions and drawing similarities from them to the present case at hand is known as the application of judicial precedent. Judicial precedents can only be formed if the legal reasons for the previous decisions are stated. These are stated in the body of a judgment. EUI LAW FACULTY

THE IMPLICATION OF A JUDGMENT TO THE APPLICATION OF JUDICIAL PRECEDENT. The word “judgment” means all that the court says in disposing of a case before it. In both civil and criminal cases, judges usually state the reasons for their decisions when giving a ruling or judgment. This reason is what is referred to as the ‘ratio decidendi’ of the case. EUI LAW FACULTY

Ratio Decidendi Ratio Decidendi simply means “the reasons for the decision made”. See Wilkinson v Downton (1897) 2 QB 57, Asiemo v Abraham (1994) 8 NWLR Pt 361, p.191 CA 19 It is the legal principle or rule established in the case or on which the case was decided. The ratio decidendi is important in judicial precedent because it forms the precedent. It is the most important part of a case to grasp and remember because it is the part of a case that has authority which in appropriate instances is binding as a judicial precedent and which other courts may have to follow in similar circumstances later on. EUI LAW FACULTY

Obiter Dictum EUI LAW FACULTY

Obiter is a Latin word meaning “by the way” or “in passing”. Any other pronouncement on law made in the course of a judgment is an obiter dictum (a statement by the way) and it does not form part of the ratio decidendi. It is everything else that is said by the judge that isn’t the reason for the decision or is not necessary for the decision to be reached. EUI LAW FACULTY

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Even though an obiter is not a binding precedent, it is a persuasive opinion and is usually respected according to the reputation or eminence of the judge or the hierarchy of the court that stated the opinion or analysis, or the circumstances of the pronouncement. If the maker is luminary of high repute, his obiter dictum may in due course crystallize into good law. But if it is contrary, the dictum will sooner or later be ignored. EUI LAW FACULTY

The Doctrine of Stare Decisis Stare Decisis is a Latin phrase that literally means “to stand by a decision”. The doctrine of stare decisis is the principle of English Law that precedents are authoritative, binding and must be followed unless there is a reason to deviate. The doctrine requires that courts should stand by or apply an earlier correct decision. It expresses the common law doctrine that court decisions should be guided by precedent. The doctrine advocates that the principle of law on which a court basis its decisions in relation to the material facts of a case before it, must be followed in similar cases by courts below it in the hierarchy of courts. It may also be followed in similar cases by courts above it in hierarchy. EUI LAW FACULTY

ESSENTIALS TO THE OPERATION OF STARE DECISIS There are two fundamental things that allows for the proper application and operation of the doctrine of judicial precedent. A settled hierarchy of courts. An efficient system of law reporting. EUI LAW FACULTY

THE HIERARCHY OF COURTS AND JUDICIAL PRECEDENT The General Rule under the doctrine of stare decisis or binding precedent which is consistently observed in the Nigerian Legal System is that decisions of the higher courts bind the lower courts The bindingness of a decision, judgment or precedent is according to the hierarchy of courts that decided it. The judgments of the higher courts in Nigeria such as the Supreme Court, the Court of Appeal and the High Courts which have several divisions sitting in various parts of the country, must be followed by the lower courts in the hierarchy. C.B.N. v. Ukpong (2007) ALL FWLR (Pt. 357) 954 at 966 Paras. C - E (CA) EUI LAW FACULTY

A lower court is not bound to follow decisions of a higher court which have been overruled. Additionally, a lower court is not bound to follow a decision of a higher court where that decision is in conflict with a decision of another court which is above such higher court in the hierarchy. In principle, a lower court is entitled to choose which of two conflicting decisions of a higher court or of higher courts of equal standing it would follow. EUI LAW FACULTY

The Supreme Court EUI LAW FACULTY

The Supreme Court The decision of the Supreme Court which is the highest court in Nigeria binds all the courts in the country except the Supreme Court overrules the case or declares such a case as a case decided per incuriam. In Asanya V. State, Obaseki, JSC held that the previous decisions of the Supreme Court are binding on it until overruled or departed from. The Supreme Court can only depart from its previous decisions if: The decision is impeding the proper development of the law. The decision has led to results which are unjust or undesirable. The decision has led to results which are contrary to public policy. If such previous decision is inconsistent with the Constitution or is erroneous on point of law. If such previous decision was given per incuriam. If such previous decision is occasioning miscarriage of justice or perpetrating injustice. EUI LAW FACULTY

COURTS OF CO-ORDINATE JURISDICTION OR EQUAL POWER The Court of Appeal Each division of the Court of Appeal is of equal status with another division of the same court sitting in another part of the country. They are courts of co-ordinate jurisdiction, that is courts of equal power. Each division is not strictly bound by each other decisions, but in practice each division does pay attention to the rulings of the other and the decisions of each has a strong persuasive influence on the other divisions of the court in order to ensure certainty and uniformity of the law. EUI LAW FACULTY

State High Courts, Federal High Courts and the National Industrial Court The High Court’s whether it is a Federal High Court or a State High Court are courts of equal status or power. The decision of all the high courts are to be treated as decisions of courts of co-ordinate jurisdiction. The National Industrial Court is also a court of coordinate jurisdiction with other superior courts of record in its sphere of authority like the Federal High Court, the State High Court and the High Court of Federal Capital Territory, Abuja. EUI LAW FACULTY

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TYPES OF PRECEDENTS ORIGINAL PRECEDENT BINDING PRECEDENT PERSUASIVE PRECEDENT In doing this, because the judge will have no past cases to base his decisions on, judges often look at cases that are closest in principles and may decide to use similar rules. This is called reasoning by analogy. EUI LAW FACULTY

DISTINGUISHING CASES IN APPLYING JUDICIAL PRECEDENT The decision of a court in a case is not a binding precedent for any court in any subsequent case if the cases are different from each other in terms of the material facts. Where such difference is observed when the previous case is cited as an authority, the court would mention the difference in order to show that the principle in the previous case is not applicable. When this happens, it is said that the court has distinguished the previous case. Distinguishing a case is not the overruling of the earlier case, but a mere expression of the inapplicability of the earlier case, because of the restrictive nature of the legal principle it establishes or because the facts of the two cases are not similar and so forth. EUI LAW FACULTY

Case Law The practice of judicial precedence leads to case law, which is law developed from, decisions reached in earlier decided cases. Case law consists of law found in judicial decisions. The primary responsibility of the courts of law is to interpret and apply the laws made by the legislature or the subsidiary instruments made by other organs with the authority of the legislature. However in the process of doing so, the courts decisions become law in so far as they have formed precedent which will be followed in subsequent adjudications where the facts and circumstances are on all fours with the precedents. EUI LAW FACULTY

Differentiating Case law from Customary law and Statute law. The law so laid down in earlier decided case is called Case law. This is different from statute law, which is usually codified at the instance of the relevant lawmaker, or customary law, which usually grows over time from the custom of the people subject to the customary law. EUI LAW FACULTY

English Courts Despite the reception of the common law of England and the English doctrines of Equity into the Nigerian law, the decisions of the courts of England are not binding on our Nigerian Courts. The decisions of English courts are of persuasive authority only. Accordingly, although Nigerian courts treat the decisions of the House of Lords and those of the Court of Appeal in England with great respect, our courts are free to depart from the decision of those English Courts. See the case of Alli v. Okulaja (1970) 2 All N.L.R 35 where the High Court of the Western State held that it was not bound by the decision of the English Court of Appeal. Beckley J stated in this case that the judgment of an eminent judge in England “would certainly be of the most persuasive authority and would be followed except the court feels otherwise strongly about the ratio decidendi of such a decision. EUI LAW FACULTY

Therefore judicial legislation does not obtain in Nigeria. DO JUDGES MAKE LAW? In Nigeria, it is not the duty of judges to make law, but to interpret and apply the law as it is whether it be English law, Statute Law, Customary Law and so forth. Therefore judicial legislation does not obtain in Nigeria. EUI LAW FACULTY

REFERENCES The Nigerian Legal System, by Obilade Akintunde Olusegun, 2005 The Outline of Nigerian Legal System, Text and Cases by Ese Malemi, 3rd Edition. The Rationality of Judicial Precedent in Nigeria’s Jurisprudence by Ephraim A. Ikegbu et al, American International Journal of Contemporary Research, Vol 4. No. 5, 2014. Key Facts of English Legal System by Jacqueline Martin 4th Edition 2010 Pg. 16-19 EUI LAW FACULTY This work is licensed under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License