What is Judicial Precedent?
Judicial Precedent is a principle of common law in which previously decided cases are applied in determining current cases with similar issues and facts.
The doctrine of Judicial Precedent can also be called Judge-made law. This is because it is based on judges' reasoning in the adjudication of matters.
Judicial precedent is hinged on the Latin maxim of "stare decisis", which means stand by the decided.
In a Court hierarchy, decisions of higher courts are binding on lower courts.
In the Ugandan Court Hierarchy, decisions of the Supreme Court are binding on all lower courts and on itself. Exceptionally, the Supreme court can depart from its previous decisions.
Recommended reading: Court Hierarchy in Uganda
According to Article 132 (4) provides that "The Supreme Court may while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law."
Article 132 (4) gives the Supreme Court power to divert from its previous decisions where it appears right for it to do so.
When a case is presented to Court, courts will assess the facts (material and immaterial), analyze the issues and then resolve the issues to pass a judgement.
The judgement is passed with the reasoning backing it (ratio decedendi) also including extra or chance remarks (obiter dicta).
Facts of a Case
These are detailed events that lead to the disputes of the case.
Facts are divided into two;
- Material Facts
- Immaterial facts
Material Facts
These are facts that are essential in the determination of disputes.
Immaterial facts
These are facts that are irrelevant in the determination of disputes.
Issues
These are points of contention that need resolution.
After the resolution of Issues, the judge gives the holding or final verdict.
The holding is backed by his reasoning which explains why he reached that particular holding. The reasoning is what is called the ratio decedendi.
Ratio decedendi
This is the reasoning upon which a court's decision is based. It is the rationale for the decision.
This shows what the Judge based on in that particular matter to reach a certain decision.
The Ratio decedendi is binding. The binding force calls for other courts to apply the same reasoning where matters of a similar nature arise as is in the precedents.
Obiter dictum
These are chance remarks made by a court that are not binding in the case at hand.
These are mere sayings, by the way.
These judge remarks or comments and the remarks are not binding upon future courts.
Obiter dicta are merely stated by way of analogy or illustration.
They can be used as persuasive premises in cases to come.
Note: The ratio decedendi is binding, while the obiter dicta are persuasive.
All the above aspects are crucial in determining the application of the doctrine of Judicial Precedent.
Types of Judicial Precedent
- Binding/Authoritative Precedent
- Non-binding/Non-authoritative / Persuasive Precedent
- Original Precedent
Authoritative Precedent
This is a precedent that courts must follow where issues at hand are of sufficient similarity and apply.
Non-authoritative precedent
This is a type of precedent that the court is not bound to follow in its decisions but is rather influential.
Original Precedent
This is a form of precedent that brings about a new ruling.
Also read: Rules of Statutory Interpretation
Advantages of Judicial Precedent
Certainty
It brings about certainty and predictability in the law. Clients and lawyers are at least certain of the direction that their cases are to take.
Uniformity
This is because cases are treated the same way, thus uniformity in the law.
Consistency
The laws are applied the same way hence bringing about consistency.
Time-saving
Where the case being interpreted is of sufficient similarity with previous case law, courts will apply the principles and easily dispense justice quickly.
Case law is a rich source of law
There is plenty of case law to suit almost any matter that arises in courts today. This makes it easy to locate suitable cases to use as authorities in present cases.
Even though the Judicial precedent is of great importance in the legal process of dispensing justice, it has some shortcomings, as discussed below.
Disadvantages of Judicial Precedent
Time-consuming
A lot of time is spent searching for cases Law reports. Some cases are hard to find since they are unreported.
This can cause case backlog in courts.
Courts may carry on a harsh rule or error by applying previously decided cases.
Judicial precedent hardly considers new developments in society.
Rigidity in the law
Decisions are carried on continuously and similarly with less discretion left for judges to decide cases before them.
Although Courts must apply case law in deciding cases, is a judge bound to follow previously decided cases at all times. What happens if the precedent was decided wrongly or an error was made in reaching the judgment.
Courts can avoid following case law where it is right for them to do so.
Below are the situations,
Situations in which Courts can Avoid Applying Precedents
Where a case was decided Per Incuriam
Per Incuriam is where a decision was reached by way of carelessness. It can be that the Judge did not fully expound on the existing law to get a reasonable judgment.
For example;
See the judgment of Justice Lillian Tibatemwa in Uganda Revenue Authority V Rabbo Enterprises Uganda Ltd & Anor.
Where Statutory law Expressly Provides for an action to take
In this case, courts may avoid using Judicial precedent since the law has already provided the way to go about the matter.
Distinguishing Cases
Distinguishing cases is the process of comparing material facts and issues of a case to another to determine whether they are sufficiently similar or not.
It helps determine the applicability of a certain precedent in adjudicating the case at hand.
Where the cases are similar, the Judge will apply the same principles involved in the previous case.
Where they differ, courts will avoid using case law or precedent.
Where a decision of a Higher Court is Inconsistent with a Ruling of a Superior court
Where such a situation exists, the lower court will follow the decision of a superior court.
For example, if a decision of the High Court is inconsistent with a decision of the Court of Appeal, Magistrate Courts will be bound to follow the decision of the Court of Appeal.
Through Overruling
This is where a higher court overrides the decision of a lower court. In such an instance, overruling will avoid the application of judicial precedent.
Through Reversing
This is the overturning of a previous decision on appeal. A higher court does this.
FAQs
What is the difference between a Plaintiff and a Defendant?
In Criminal cases, the defendant can be the accused who is alleged to have committed the offence.
i.e. in Carlil V Carbolic Smoke ball Co Ms Carlil was the plaintiff, and the company was the defendant.
What is the distinction between a Judge and a Magistrate?
However, Judges are found in the high and upper courts, whereas the Magistrates are officers found in Magistrate courts.