Doctrine of Precedents

DOCTRINE OF PRECEDENTS
Doctrine of precedent is the rule that a legal principle that has been established by a superior
should be followed in other similar cases by that a court and other courts.
Doctrine of precedent is the custom of the courts to stand by previous decisions, so that once
a point of law is decided upon a court, then the same law must be applied to future cases with
materially similar facts.
The doctrine of precedent is often referred to as stare decisis.
The doctrine of precedent is bases on the principle of stare decisis, which requires lower
courts to take account of and follow the decisions made by the higher courts where the
material facts are the same and states that as a general rule, courts follow earlier decisions of
themselves or of other courts of the same level.
When a judge makes a decision in a case, they create a precedent which low courts are bound
to flow in future cases with similar facts.
Precedent is a decision of court which is considered as furnishing a law or authority for the
determination of a case. Precedents follow the hierarchy of courts within a given jurisdiction
of Uganda which aims at consistency and future judges to follow same decisions.
The underlined principle in a case is known as ration decidendi which is the material
principle on which the case has been decided or the reasoning behind the court’s judgement.
Decision of judges has 3 aspects.
He decides what to happen to plaintiff and defendant.
Judge will give his reasoning for his findings of fact.
He will give reason for any legal rulings.
Ug V Onegi Obee
Court’s holding
Constitutional courts considered the same issues that Mr. Onegi was seeking to interprete A.G
argued when constitutional courts interprete the constitution then the courts pronouncement
of the law and as such cannot be subject to consequent interpretation even by different
parties.
In Ug, it is only the decision of courts to record which form the basis of precedent and are
binding on courts of co-ordinate and all courts subordinate thereto.
Art 129 (2) of the Constitution of Uganda;
States that the Supreme Court of Appeal and High Court of Uganda are courts of record and
their decision can be cited as a precedent.
Res Judicata means re-litigating the same case after the judgement has been granted. Reason
of Res Judicata is to bring an end of litigation.
So a court has a judgment, parties are bound and losing party, has only a right either to
appeal, review but cannot file a fresh suit basing on the same facts.
Phrases on Res Judicata
1) Nemo Debet Bis Vezari Pro Umu et Eadem

Meaning no person should be harassed twice over the same case or cause.
2) Interest Republica At Sit Finish Litium.

Meaning – That there should be an end to law suits/litigation in the courts.
Types of precedents.
1) Binding/Authoritative Precedents.
According to Salmond, an authoritative precedent is one which judges must follow
whether they approve it or not. Authoritative precedents are the legal sources of law.
They establish law in pursuance of definite rule of law which confers upon them that
effect.
Authoritative precedents are of two kinds; Absolute

In case of absolutely authoritative precedent, they have to be followed by the judges
even if they do not approve of them. They are enabled to implicit obedience.
Conditional
In case of authoritative precedents having a conditional authority, the court can
disregard them under certain circumstances, ordinarily they are binding but under
special circumstances, they can be disregarded.
2) Persuasive Precedents/Non authoritative precedents.

A persuasive precedent is one which the judges are under no obligation to follow but
which they will take into consideration and to which they will attach great weight as it
seems to them to serve. Persuasive precedents are merely Historical. If persuasive
precedents succeed in establishing law at all, they do indirectly by serving as a
Historical ground of same later authoritative precedent. They don’t have any legal
force or effect in themselves. They can merely persuade the judge but it is up to judge
to follow them or not. An example for persuasive precedents is in the case of R v Gotta
(1992) the court of appeal followed the obiter dicta of R v Howe (1987) case as
persuasive precedent on deciding the no availability of duress as to a charge of
attempted murder
3) Original Precedents (case law)

According to Salmond, an original precedent is one which creates and applies a new
rule, in case of original precedent, it is law for the future because it is now applied.
The number of original precedents is small but their importance is very great coz they
alone develop the law of the country since they serve as good evidence of law for the
future. An example for original precedent is the case of Donoghue v Stevenson (1932)
which brought major development on negligence law
4) Declaratory Precedents
According to Salmond, a declaratory precedents one which is merely the application of
an already existing rule of law. The rule is applied because it is already law. In case of
advanced countries, it is more numerous and is good as a source of law as an original
precedent.
WAYS OF DISTINGUISHING CASES/WAYS OF AVOIDING A PRINCIPLE

IN THE CASE.
1) It can be based on facts in case and in the evidence.
E.g. for the case of A.G V General David Tinyefuza and the case of Ug V
Commissioner of Prisons Ex Parte Matovu.
Justice Kanyeihamba in his judgment
The case was very distinguishable because the matters complained of in Matovu’s case
were nearly procedural and technical whereas in the current case of Tinyefuza David,
the complaint was one of substantive law going to the root of the matter.
2) Overruling the case.

Is another way of avoiding a precedent. It arises where a court decides in a later case
that the ruling in an earlier case was not correctly applied or is no longer appropriate. It
may occur when the higher court overrules the decision of a lower court in an earlier
or when the law was not correctly applied in an earlier case.
E.g. Major General David V A.G & Opolot V Ug
In the case of Tinyefuza the decision in Opolot was that the President had a
prerogative to dismiss at will army officials and public workers was overruled.
3) Reversing
This is also a way of avoiding precedents and if the overturning the/by a higher court
of the decision of the lower court while hearing an appeal.
Appeal court then substuents its decision each there is a lower court. Reversing
occurs when a higher court in hierarchy denies the decision of the lower court on
appeal with the same case. If a judgment made by an inferior court was founded to
be incorrect and wrong, a superior court will overturn the decision on appeal
Advantages of doctrine of precedents.

It makes the law predictable
It saves time
Provides for certainty
It is detailed and flexible
Disadvantages of doctrine of precedents

Presents differences in identifying Ratio decidendi in a case.
It relies on too much case law which makes it complex.
Undermines the thinking possibility to apply the law by lower courts.

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DOCTRINE OF PRECEDENTS

1) Nemo Debet Bis Vezari Pro Umu et Eadem

2) Interest Republica At Sit Finish Litium.

Authoritative precedents are of two kinds; Absolute

2) Persuasive Precedents/Non authoritative precedents.

3) Original Precedents (case law)

WAYS OF DISTINGUISHING CASES/WAYS OF AVOIDING A PRINCIPLE

2) Overruling the case.

Advantages of doctrine of precedents.

Disadvantages of doctrine of precedents

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