Legal Process Unit 6 Judicial Precedent
Legal Process Unit 6 Judicial Precedent
LUSAKA
SCHOOL OF LAW
UNIT 6:
JUDICIAL
PRECEDENT
INTRODUCTION :
RATIO DECIDENDI OF A CASE
What is regarded as precedent and therefore to be
followed is the ratio decidendi of a case.
The ratio decidendi of a case is simply the reason or
ground for a decision.
Eg: in the case of Christine Mulundika & 7 Others v
The People (1995) the Supreme Court held that: section
5(4) of the Public Order Act Cap 104 contravenes arts 20
and 21 of the Constitution and is null and void. Thus the
ratio decidendi / reason for this decision is based on
constitutional supremacy.
The important part of each judgement is the principle
of law the judge is using to come to his decision. The
ratio decidendi is the part of the judgement that creates
law (or a precedent) for future judges to follow.
INTRODUCTION : RATIO RATIO DECIDENDI
OF A CASE (CONT’D)
A general formula for determining the ratio decidendi of a case has been
suggested in the following ways:
“Suppose that in a certain case facts A, B and C exist and suppose that the court
finds that facts B and C are material and fact A immaterial, and then reaches
conclusion X (for example judgement for the Claimant, or judgement for the
defendant), then the doctrine of precedent enables us to say that in any future case
in which facts B and C exist, or in which facts A, B and C exist, the conclusion must
be X. If in any future case facts A, B, C and D exist and fact D is held to be material,
the first case will not be direct authority, though it may be of value as an analogy”.
What facts are legally material? That depends on the particular case but take as an
illustration a “running down” action, that is to say an action for injuries sustained
through the defendant’s negligent driving of a vehicle. The fact that the Claimant
had red hair and freckles, that her name was Smith, and that the accident happened
on a Friday are immaterial, for the rule of law upon which the decision proceeds will
apply equally to persons who do not possess these characteristics and to
accidents that happen on other days. On the other hand, the fact that the defendant
drove negligently, and the fact that in consequence the Claimant was injured, are
material, and a decision in the Claimant’s favour on such facts will be an authority
for the proposition that a person is liable for causing damage through the negligent
driving of a vehicle”. [Glanville William’s Learning the Law, p 93]
OBITER DICTUM OF A CASE
An obiter dictum refers to ‘things said by
the way’ or ‘things said in passing’. It is an
observation by a judge on a legal question
suggested by a case before him, but not
arising in such a manner as to require a
decision on it. Thus, the concept of obiter
dictum embraces all those parts of a
judgement which are capable of law but
which do not fall within the definition of ratio
decidendi. Unlike the ratio decidendi of a
case, the obiter dictum is not binding.
OBITER DICTUM OF A CASE
(CONT’D)
It is important to note that although obiter dictum is not
binding, it does not follow that it is worthless in terms of the
doctrine of precedent: dicta may, in practice, be so persuasive
that a judge may feel compelled to follow it. In this regard, a
distinction must be made between gratis dicta and judicial
dicta. The former are mere throwaways (sayings which are
given away, as it were, free) and so of very little, if any, value or
persuasive force. They are considered as not having been
given much thought by the judge before saying them. Judicial
dicta, on the other hand, are preceded not only by a great deal
of careful thought, but also by extensive argument on the point
in question. It is this careful thought and extensive argument
that makes judicial dicta so strongly persuasive as to be
practically indistinguishable from ratio decidendi.
THE CONCEPT OF RES JUDICATA
This term res judicata, is a latin phrase which means “the
matter has been decided”.
This is another important concept worthy of
consideration.
It stems from the fact that the practical administration of
justice in any legal system requires that once a case has
been decided the parties should be bound by the decision
because endless re-opening of cases is wasteful of
resources as well as creating injustice to those who have
to defend themselves repeatedly in respect of the same
matter.
The point at which finality is imposed depends on the
detail of the appeal system that may be available, but at
some stage the appeals must run out and finality has to be
imposed.
DOCTRINE OF JUDICIAL PRECEDENT
The doctrine of judicial precedent is one of the
characteristic features of not only the English legal
system but also all legal systems founded upon the
English common law like Zambia.
Judicial precedent may be defined as “a
judgement or decision of a court of law cited as an
authority for deciding a case with similar set of
facts as one already decided” or as “a case which
serves as an authority for the legal principle
embodied in its decision”. The doctrine of
precedent declares that cases must be decided the
same way when their material facts are the same.
THE WIDER AND NARROWER
VIEW OF JUDICIAL
PRECEDENT
The doctrine of precedent may be formulated in both a wider
sense and a narrower sense.
When formulated in its wider sense, the doctrine of precedent
simply states that it is desirable that similar cases should be
decided in a similar manner.
This wide view of precedent is based:
partly on the proposition that consistency is an important element
of justice;
partly on the fact that the practice of following previous decisions
results in improved efficiency because points of law which have
once been decided can simply be applied in latter cases without
being subjected to repeated re-arguments; and
partly on judicial comity i.e. the mutual respect which judges have
for their colleagues.
THE WIDER AND NARROWER
VIEW OF JUDICIAL
PRECEDENT
The use of precedent in this wider
sense is not peculiar to legal
systems founded on English
common law: the courts in any
developed country do, to some
extent, follow and make use of
precedent in this sense.
THE WIDER AND NARROWER
VIEW OF JUDICIAL
PRECEDENT
On the other hand, the doctrine of precedent,
when formulated in a narrow sense, simply states
that courts are bound to follow earlier decisions. It
is the idea of precedent in this narrow sense
which is largely peculiar to legal systems founded
on English common law and is embodied in the
doctrine of Stare decisis which simply means ‘to
stand by decisions’. Under this doctrine, all courts
bind all lower courts and some courts, at least to
some extent, bind themselves. The hierarch of the
courts, which is discussed in UNIT 7, is relevant in
this context.
TYPES OF JUDICIAL PRECEDENT
1. Original precedent:
This is a type of precedent which is created when a
point of law has never been decided on before e.g.
the ‘neighbour principle’ was first created and applied
in Donoghue v Stevenson (1932) AC, 562.
2. Binding precedent:
A binding precedent is a decided case which a court
must follow whatever the result of its application e.g.
in Zambia every decision of the Supreme Court is
binding on all lower courts regardless of its merits,
provided there is a similarity in facts. Binding
precedents are sometimes called ‘authoritative’
precedents.
TYPES OF JUDICIAL
PRECEDENT
3. Persuasive precedent
A persuasive precedent is one which is not
absolutely binding but which may be applied.
That is to say, a judge may consider it and
decide that it is the correct principle. He is
thus persuaded to follow the precedent. In
Zambia, the following precedents are
persuasive:
EXAMPLES OF PERSUASIVE
PRECEDENT
(a) All English decisions and decisions made by
courts of other legal systems founded on the English
common law
(b) Judgments of courts that are lower in the
hierarchy
(c) Obiter dictum statements that are made in in
courts that are higher in the hierarchy (superior
courts)
(d) Dissenting judgements of appellate courts (E.g.
The Court of Appeal and the Supreme court).
(See the definition of a dissenting judgement below)
TERMINOLOGY IN RELATION TO THE
HANDLING OF JUDICIAL PRECEDENT