Friday, August 20, 2010

Understanding The Concept Of Judicial Precedent And The Doctrine Of Stare Decisis Under The Nigerian Legal System

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Understanding The Concept Of Judicial Precedent And The Doctrine Of Stare Decisis Under The Nigerian Legal System BY CHUKS MADUKA


igerian legal system is one of the legal systems based on common law. Under the common law system, the courts do not just decide dispute brought before them, before they do that they have to check to see if such dispute has been settled before i.e. case law. If there is, the present court will consider the quality of the court that gave that earlier decision. The court may then follow it or reject it depending on the hierarchy of the court that decided that earlier case. The previous case been followed is called Judicial Precedents and if the court is bound to follow it we say that the precedent is binding.

The doctrine that stipulates that binding precedents must be followed is called stare decisis. This feature of being bound by past precedent is one of the distinguishing elements between Common Law Jurisdiction and Civil Law Jurisdiction. This is not to say that civil law jurisdictions do not observe the Judicial Precedent for this is common to all developed systems. (See Dais on Jurisprudence 1976 page 164) But the doctrine of stare decisis is what is lacking in Civil Law jurisdictions.

The strength and beauty of common law is that it is built upon the concrete examples of case law rather than hypothetical models as the civil law does. It is in view of this that the American jurist Oliver Wendell Holmes once said that ‘the life of law has not been logic; it has been experience’.

To facilitate the comprehension of this discourse, it will be apposite to explaining the meaning of some phrases which are inherently linked to the topic under discussion.

The decision of a court may fall into two parts: the reason for the decision and that which is said by the way. The ratio decidendi of a case is the principle of law on which the decision is based. Goodhart defined the ratio decidendi [reason of deciding] of a case as the material facts of the case plus the decision thereon. See "Determining the Ratio Decidendi of a Case", Essays in Jurisprudence and the Common Law (1931) 1. It has also been defined negatively as the principle without which the court would not have reached its decision. See Abiola Sanni, ed, Introduction to Nigerian legal method (2006) 180. While every decision refers to some past event, the ratio of it serves as a norm for the future. See Dais on Jurisprudence, p. 181

Determining the ratio of a case has not been without difficulty. This is more so, as sometimes a Judge may give more than one reason for his decision. Also it is possible for the judge to make some other statements, which in future may be argued to be the ratio. However as Dais opined “no rule should be treated as ratio which does not support the ultimate order.      
Oxford Dictionary of Law 5th edition, defined obiter dictum as [Latin: a remark in passing) something said by a judge while giving judgment that was not essential to the decision in the case. It does not form part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases. The judge deciding a case may speculate about what his decision would be or might have been had the facts been different. The value attached to obiter dictum depends on the court that the obiter and eruditeness of the judge who made it.

Per incuriam means that a court failed to take into account all the relevant and vital statutes or case authorities and that this had a major effect on the decision. Per incuriam does not simply mean the earlier court got things wrong. It only means there was a significant oversight, not only must there have been a failure to take account of relevant authorities; that fault must also have been such a major defect that it seriously affected the reasoning in the case and would have affected the outcome. Decisions said to be reached per incuriam were actually reached per ignorantium, but it is uncomplimentary to say that the court is ignorant of the law. In the hierarchy of courts a lower court is bound to follow the decision of a higher court even though it might believe that the decision is reached per incuriam. It is not for a lower court, to question or say that a decision of a higher court was reached per incuriam. That is the privilege the higher court if after reconsidering its former decision, it is satisfied that the previous decision, had been reached per incuriam.

In distinguishing between obiter dictum and per incuriam, the Supreme Court per Iguh J.S.C. had this to say:
“it is indisputable that in the judgment of the court, the legal principle formulated by that court which is necessary  in the determination of the issues raised in the case, that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgement which merely constitute obiter dicta, that is to say, what is not necessary for the decision...Where however, an obiter dictum  in one case has been adopted and becomes a ratio decidendi in a later case, such obiter dictum will been taken to have acquired the force of a ratio decidendi and would therefore become binding...The question whether a decision or pronouncement of this court is binding on the court of appeal depends on whether that decision or pronouncement is an obiter dictum or was made per incuriam. If the pronouncement is a mere obiter dictum then, of course it is not binding, but if it was made per incuriam, it will nevertheless be binding on the court of appeal in accordance with the principle of stare decisis until the error in the judgment has been corrected”. See Dairo v. U.B.N. Plc. (2007) 16 NWLR (Pt.1059) 99 at 159

4.   Judicial Precedent
Judicial precedent is legal experience. In ordinary life, people rely on past experiences when embarking on any venture. These experiences are nothing but precedents. Leaders are always conscious of their actions so as not to lay bad precedent. A chef who wants to cook a particular dish and wants to get the original taste of that dish, he will do well to follow the recipe and the step by step procedure in cooking the dish. It is not different with law especially under the Nigerian legal system. In effect the concept of judicial precedent is nothing but reliance by a judge deciding a case today on the experience of yesterday.

In Nigeria legal system judicial precedent is a decision establishing a principle of law that any other judicial body must or may follow when called upon to decide a case with similar issues.

Precedents can be binding or persuasive. Precedent that must be applied or followed is known as binding precedent. By definition, decisions of lower courts are not binding on courts higher in the hierarchy. Precedents are persuasive when the court is not under obligation to follow it. Persuasive precedents under Nigeria legal system arise out of a number of contexts:
(a) Decisions of lower courts are not binding on higher courts. They are at best persuasive.
(b) Decisions of the High Court are persuasive authority for later cases in the High Court.
(c) Recent decisions of the Supreme Court of United Kingdom
(c) Decisions of other courts within the Common Law world.

Nigerian courts and text book writers use judicial precedents and stare decisis inter changeably as if the two are synonyms. See for example Nigeria-Arab Bank Ltd v. Barri Engineering (Nig) Ltd (1995) 8 NWLR (Pt. 413) 257 at 289, see also Abiola Sanni, Introduction to Nigerian Legal Method,  page 21. Though in a broad sense they may be so used, but technically they are not the same.

A judicial precedent may be binding or persuasive as was noted earlier, it is when judicial precedent is binding that the doctrine of stare decisis  becomes relevant. Before we go further, it may be apposite to define the doctrine of stare decisis.

In Osakue v. Federal College of Education (Technical) Asaba (2010) 10 NWLR (Pt.1201) 1 at 34 the Nigerian Supreme Court per Ogbuagu J. S. C. defined stare decisis thus:
“Stare decisis means to abide by the former precedents where the same points came again in litigation. It pre supposes that the law has been solemnly declared and determined in the former case. It does preclude the judges of the subordinate courts from changing what has been determined. Thus under the doctrine of stare decisis, lower courts, are bound by the theory of precedent”.
From what his lordship said, it is clear that stare decisis is the doctrine of Nigeria legal system laying an obligation on the courts to stand by precedent. Stare decisis is a shortened form of the legal maxim: “stare decisis et non quieta movere” meaning to stand by and adhere to decisions and not disturb what is settled. Basically, under the doctrine of stare decisis, the decision of a higher court act as binding precedent on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive precedent.
To further illustrate the difference between the concepts of judicial precedent and stare decisis there is need to look at the dictionary meaning of the two phrases. In this regard reference will be made to Jowitts Dictionary of English law, 2nd edition. Concerning precedent the dictionary says:
‘ A judicial precedent is a judgment or decision of court of law cited as an authority for deciding a similar state of facts in the same manner, or on the same principle, or by analogy. The rules of common law and equity are contained in precedents established by the courts, that is, they have to be arrived at by ascertaining the principle on which those cases were decided’.
With regards to stare decisis it says:
‘(to strand by things decided, to abide by former precedents where the same points come again in litigation as well as  to keep the scale of justice even and steady and not liable to waiver with every judge’s opinion as also because, the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent is now a permanent rule which is not in the breast of any subsequent judge to alter or swerve from according to his private sentiments, he being sworn to determine, not according to his private judgment but according to known laws and customs of the land, not delegated to pronounce a new law, but to maintain and expound the old one, jus dicere et non jus dare’.
Dais commenting on the same matter said:
“The doctrine of precedent in English law is considerable antiquity, while that of stare decisis is relatively modern. Judges in the twelfth century did listen to citations of earlier cases and were no doubt influenced by them in reaching their decisions... But there was never a suggestion that they were bound by them, nor do the early writers give such indication”. See dais on jurisprudence page 163. At page164 he continued:
“When considering the birth and continued life of stare decisis it is necessary to keep in mind the distinction between it and the broad doctrine of precedent.”
Adaramola on Jurisprudence, discussing the doctrine of stare decisis at page 221 had to say: “The doctrine of stare decisis concerns the attainment of justice through judicial precedents.” Funso Adaramola,Jurisprudence, 4th ed. LexisNexis Butterworths, Durban, 2008.
Judicial precedent as alluded earlier is not unknown to courts of civil law jurisdiction, what they do not operate is the doctrine of stare decisis. Civil law courts acknowledge the principle of Jurisprudence Constante, which is to the effect that though a judge has the right to interpret the way he understands it, he should do so in a way that will not cause confusion in the system. Jurisprudence constante admonishes the judge to decide a case in a way to show cohesion and predictable results. They are however not bound to follow past decisions of their own or of a higher court for that matter.
The elaborations above clearly show that stare decisis  is technically different from the concept of judicial precedent even though there is an umbilical cord that links them together. One cannot be discussed in isolation of the other. It may be said that stare decisis is part of the broader concept of judicial precedent. The two are not synonymous and cannot be.

Under Nigeria legal system once a court a decides matter, the doctrine of stare decisis stipulates that any court which is below that court in the hierarchy of courts must follow that previous decision if the facts of the new case before it are similar to the facts of the earlier case. Decisions of courts of coordinate jurisdiction do not bind a subsequent court of that jurisdiction. It must be noted that is the ratio decidendi that court is bound to follow, the court is not bound to follow obiter dictum.  The doctrine of stare decisis stresses the fact that it is not open to a lower court, to disagree with the decision of the higher court on any point even if the decision of the higher court was reached per incuriam. See Osakue v. Federal College of Education Asaba (supra).
The legendry Eso, (J. S. C. As he then was) in Okoniji v. Mudiaga Odge (1985) 10 S. C. 267 at 268, 289 had this to say:
In the hierarchy of courts in this country, as in all other free common law countries, one thing is clear, however, learned a lower court considers itself to be and however, contemptuous of the higher court, that lower court is still bound by the decision of the higher court...
I hope it will never happen again whereby the Court of Appeal in this country or any lower court for that matter would deliberately go against the decision of this court and in this case, even to the extent of not considering the decision when those of this court were brought to the notice of that court. This is the discipline of law. This is what makes the law certain and prevents it from being an ass”.
For the doctrine of stare decisis to be meaningful, there must be a well defined judicial hierarchy. The courts in Nigeria are stratified in the following order:
1)    The Supreme Court
2)    The Court of Appeal
3)    The High Courts (Federal and States)
4)    The Magistrates Court
Other courts include Sharia Court of Appeal, Customary Court of Appeal,  Area Courts, Sharia Courts and Customary Courts. These courts do not adhere to common law doctrine of stare decisis. There are other specialised courts like National Industrial Court, Investment and Securities Tribunal and Court Martial, however for simplicity sake these courts will not be considered. But it must be noted that National Industrial Court, Investment and Securities Tribunal and Court Martial are courts of coordinate jurisdiction with the High Court in the sense that appeal from those courts lie to the court of appeal.
The Supreme Court is in the apex position  in the hierarchy of courts in Nigeria. It derived its existence under the current dispensation via Section 230 (1) of the 1999 constitution of Nigeria.
The decision of the Supreme Court binds all other courts in Nigeria. The Supreme Court itself articulates the position lucidly in Dairo v. U.B.N. Plc. (2007) 16 NWLR (pt. 1059) 99 at 159 thus:
“... it is not proper for a lower court to defy the decided authority of a higher court otherwise it may border on or amounts to judicial impertinence. In the case, the case of Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 was referred to, to the effect that the legal position in this country, it that the Court of Appeal and other courts are bound by the decision of this court”.
 It is not unheard of for the Supreme Court to give conflicting decisions on one question of law, though this is most infrequent. This has been a controversial issue, and has generated a variety of opinion.  The question lower courts had to contend with, is which of the two conflicting decisions they are to follow.  In G.T.B. Plc. v. Fadco Ind. Ltd. (2007) 7 NWLR (Pt. 1033) 307 at the Nigerian court of Appeal held thus:
“I am being faced with two conflicting decisions of the supreme court of Nigeria, one supporting the respondent, the other supporting the position of the appellants. I am fully aware of the fact that I am bound by the decision of the Supreme Court but it is also the law that in this kind of situation I am allowed to choose which to follow between the two decisions”.
The controversy was highlighted in Mohammed v. Martins Electronics Company Ltd. (2010) 2 NWLR (Pt. 1179) 473 at 506 as follows:
“In Yusuf v. Egbe (1987) 2 NWLR (Pt. 56)341, Kolawole JCA (of Blessed Memory) reiterated that this court is bound by its previous decisions which has not been overruled by the Supreme Court. Furthermore, that this Court of Appeal must accept and apply loyally, the decisions of the Supreme Court and where the decisions manifestly conflict, it was his opinion that the later decision is binding on the court of Appeal. It was also held by Ademola JCA (of blessed memory) that where there are two conflicting decisions of a higher court, the lower court is free to choose which of the decisions to be followed. See Adegoke Motors v. Adesanya (1988) 2 NWLR (Pt. 74) 108. Both are decisions of this court-Lagos division delivered on10th February 1987 and 9th November 1987 respectively.”
This controversy seem to have been settled in Osakue v. Federal College of Education Asaba (supra), where the Supreme Court held that where the Court of Appeal is faced with two conflicting decisions of the Supreme Court, it must follow the later or last. This was emphasised in four different passages in the judgment. The court at page 37 per Ogbuagu JSC said:
For the umpteen time, where there appear to be conflicting judgments of this court, the latter or latest, will or should apply and must be followed if the circumstances are the same”
However, this case is not without its own internal inconsistency, for at page 36 the same Hon. Justice of the Supreme Court said:
“Where there is no discernable ratio decidendi common to the decisions of a superior court and this court had handed down conflicting decisions, the lower court or a court of coordinate jurisdiction is free to choose between the decisions which appear to it to be correct.”

Unlike the English House of Lords (presently United Kingdom Supreme Court) which for many years considered itself bound by its previous decision, the Nigeria Supreme Court has never considered itself not free to depart from its previous decision. The English House of Lords was not strictly bound to always follow its own decision until the case of London Tramways v. London County Council (1898) AC 375. After this case, once the law Lords had given a decision on a point of law, the matter was closed unless and until parliament made a change by statute. This is the strictest form of the doctrine of stare decisis.
This was changed by Practice Statement [Judicial Precedent] 1966 1 WLR 1234, where it was said that though the doctrine of being bound had many commendable points: “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law”.
However, the situations in which the House of Lords will overrule itself are rare. The Practice Statement stated that the Lords would be especially reluctant to overrule themselves in criminal cases because of the vital need of certainty in that area of law. In Food Corp. Of India v. Antclizo  Shipping Co. (1988) 2 All ER 513, Lord Goff stated that the House of Lords would not depart from a previous House of Lords decision unless: 
       i.            It felt free to depart from both the reasoning and the decision of the earlier case and
     ii.            Such a review would affect the resolution of the actual case before them and not be of mere academic interest.
In contrast with to the House of Lords, the Judicial Committee of the Privy Council, (the predecessor to the Nigerian Supreme Court) has in its advisory capacity to the Sovereign  of the British Empire since 19th century given repeated expression to the fact that it will not be bound by the erroneous previous of the court and that for good and compelling reason it will depart from such decisions and overrule them in   the interest of justice and the law. These previous decisions must be clearly shown to be:
       i.            Vehicles of injustice
     ii.            Given per incuriam
  iii.            Clearly erroneous in law. See Odi v. Osafile (1985) 1 NWLR (Pt. 1) 7 at 34, 35.
The Nigerian Supreme Court is entitled to depart from or overrule its previous decisions in the interest of justice, where the decisions are shown to be:
       i.            Vehicles of injustice;
     ii.            Given per incuriam;
  iii.            Clearly erroneous in law;
   iv.            Impeding the proper development of the law;
     v.            Having result which are unjust, undesirable or contrary to public policy;
   vi.            Inconsistent with the provisions of the Constitution; or
vii.            Capable of fettering the exercise of judicial discretion by a court. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116
The Nigerian Supreme Court has in a number of cases overruled its earlier decision. In Johnson v. Lawanson (1971) 1 All NLR. 57, the Supreme Court overruled the Privy Council decision of Mauria Gaulin Ltd v. Wahab Atanda Aminu (Appeal No. 17of 1957 decided on 24/7/58); in Amudipe v. Arijodi (1978) 2 LRN 128 it overruled its decision on Babajide v. Aisa (1966) 1 All NLR 254; in Oduola v. Coker (1981) 5 S.C. 197 it overruled Mobil Oil Nigeria Ltd v. Abolade Coker (1975) 3 S. C. 175.
The Supreme Court also in Bucknor-Maclean v. Inlaks Ltd. (1980) 8/11 S.C. 1 overruled shell B.P. Co. Ltd. v. Jammal Engineering Co. Nig Ltd. (1974) 1 All NLR (Pt.2) 107; in Egboghonome v. State (1993) 7 NWLR (Pt.306) 383, the court overruled Oladejo v. State (1987) 3 NWLR (Pt. 61) 419 and Asanya v. State (1991) 3 NWLR (Pt. 180) 422. Also the court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 overruled its decision in Oyeniran v. Egbetola (1997) 5 NWLR (504) 122.
There two types of overruling: retrospective and prospective overruling. When a court overrules a decision the effect may retrospective or prospective, but most times it is both.
In overruling a decision the court may adopt one of three different approaches:
       i.            The court may declare that the law has always been (x) but we did not know it until now. The effect is that the decision will operate both retrospectively and prospectively. In National Westminster Bank Plc. v. Spectrum Plus Limited [2005] 3 WLR 58,  popularly called In Re Spectrum Plus Ltd (In Liquidation), Lord Nicholls of Birkenhead explained the position thus at [7] and [8]:
“A court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively. The ruling will have a retrospective effect so far as the parties to the particular dispute are concerned, as occurred with the manufacturer of the ginger beer in Donoghue v Stevenson [1932] AC 562. When Mr Stevenson manufactured and bottled and sold his ginger beer the law on manufacturers' liability as generally understood may have been as stated by the majority of the Second Division of the Court of Session and the minority of their Lordships in that case. But in the claim Ms Donoghue brought against Mr Stevenson his legal obligations fell to be decided in accordance with Lord Atkin's famous statements. Further, because of the doctrine of precedent the same would be true of everyone else whose case thereafter came before a court. Their rights and obligations would be decided according to the law as enunciated by the majority of the House of Lords in that case even though the relevant events occurred before that decision was given.

People generally conduct their affairs on the basis of what they understand the law to be. This 'retrospective' effect of a change in the law of this nature can have disruptive and seemingly unfair consequences.”

ii.                        The court may say that the law is [x] but, because everyone has organised their affairs until now on the basis that the law was [y], the new view of the law only affects events occurring after the decision.  This approach was popular in the United states of American courts for a while. The law is said to ‘change’ only from that decision in the case onwards. Prospective overruling (sometimes described as ‘non-retroactive overruling) is therefore a judicial tool fashioned to mitigate the adverse consequences of making major changes in the law, they are designed not to have the normal retrospective effect of judicial decisions. This is what Lord Nicholls had to say at [9]:
“In its simplest form prospective overruling involves a court giving a ruling of the character sought by the bank in the present case. Overruling of this simple or 'pure' type has the effect that the court ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the court decision. All transactions entered into, or events occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling.”
It follows that the parties in that case will not be affected by the decision. But their relationship will be guided by the law as it was thought to be by the  time they entered the transactions that gave rise to the law suit.
  iii.            The court may come up with  variations of  retrospective and prospective overruling.  For instance, the decision might be held to be prospective as regards everyone not involved in the case but retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective as regards everyone not involved in the case but retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the courts. Lord Nicholls also noted at [10]:
“Other forms of prospective overruling are more limited and 'selective' in their departure from the normal effect of court decisions. The ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the courts.”

This is the court next to the Supreme Court in the hierarchy of courts in Nigeria. It was established by Section  237 of the 1999 Constitution of Nigeria. The decisions of this court are of utmost importance because of the number of cases  it handles and the effect of blocked appeals (some cases like Governorship Election Petition stops at the Court of Appeal). The Court of Appeal is bound by the decision of the Supreme Court even it if it was given per incuriam. And all other courts below the Court of Appeal must loyally abide by the decision of the court, this includes the High Courts (Federal and States), the Magistrates Court.

The vexed issue has been not whether the  court of appeal is bound by its previous decisions but where there are conflicting decisions of that court which will it follow. The basic rule is that it is bound by its previous decision. Three exceptions were, however, given in the leading case of Young v. Bristol Aeroplane Co. Ltd [1944] KB 718, 723 by Lord Greene MR. thus:
·       The Court of Appeal can choose between its own conflicting decisions
Such conflict should not arise in an ideal world, but it does, and Lord Greene MR did not explore which of the conflicting decisions should be followed. Academic and judicial debate over the years tended to indicate that a later Court of Appeal faced with this problem would probably be free to decide which authority it should follow, with the result that the one not chosen is overruled. Adaramola on jurisprudence is of the view that the earlier decision should be followed on the ground that the later court was wrong not to have followed the earlier decision. See page 234. The present writer shares the same view, and if it is argued that the decision was given per incuriam, the simple answer, is as we shall presently see, that the court of appeal is not bound by its decision given per incuriam. 
The situation in which the Court of Appeal will give conflicting decisions on an issue can occur for a number of reasons; the most usual ones are:

ü It should be noted that the Court of Appeal of Nigeria is divided into divisions sitting in different locations. These divisions hear cases simultaneously and these cases may involve similar legal principles. The various divisions may reach different conclusions which later appear contradictory.

ü It is also possible that some earlier cases may not have been reported by the time another panel or division is considering a case and where it has been reported, it may not have been cited before the subsequent court, so the decision is given per incuriam.

ü Equally, one panel of the court may distinguish an earlier case from the one it is handling and consider them distinguishable for one reason or another while another may think they are not distinguishable and should be followed.

·       The Nigerian Court of Appeal must refuse to follow its own decision which though has not been expressly overruled by the Supreme Court but which in its opinion cannot stand with a decision of the Supreme Court.

·       The Nigerian Court of Appeal is not bound by its own decisions found to have been made per incuriam.

It should be noted that the Nigerian Court of Appeal will ordinarily adhere  strictly to the principle of stare decisis, however, in criminal matters because the liberty of a citizen is involved the court will be more ready not to follow its decision which it considers to be wrong. In the application of stare decisis the court will be less rigid when the issue involved is criminal in nature. See R v. Taylor (1950) 2 K.B. 368, R. v. Newsome [1970] 2 Q.B. 711 and also the decision West African Court of Appeal the predecessor to the Court of Appeal in Motayo v. Commissioner of Police (1950) 13 W.A.C.A. 114.

In Nigeria, each state of the federation has a High Court, also there is a High Court for the Federal Capital Territory and another High Court for the Federation. The Federal High Court is established by section 249 (1) of the 1999 Nigerian Constitution, it is a court of specific jurisdiction, in the sense that matters that it can handle are enumerated in  section  251 0f the constitution. The High Court of various states and the High Court of the Federal Capital Territory cannot be said to have unlimited jurisdiction but they are by far the  trial court with the widest jurisdiction.

The High Courts are bound by the decision of the Supreme Court and the Court of Appeal. All the High Courts in Nigeria are courts of coordinate jurisdiction. Being courts of coordinate jurisdiction they are not bound by the decision of one another, though such decisions are of strong persuasive precedent. See Barclays Bank v. Hassan (1950) WNLR 293. The Magistrates’ Courts are bound by the decision of the Supreme Court, the Court of Appeal and the High Court in the normal way.

A previous case is only binding in a later case if the legal principle involved is the same and the facts are similar. Distinguishing cases means pointing out an essential difference between  the present case and the earlier one. See Abiola Sanni, Introduction to Legal Method page 186. Such differences are mostly of facts and not of law, though some times the law applicable might be the  distinguishing factor. It is a device used by courts when they are not inclined to follow a particular precedent. What is reasonably distinguishable depends on the particular cases and the particular court – some judges are more inclined to distinguish disliked precedents than others. In Jones v. Secretary of State for Social Services [1972] AC 944, Lord Reid  stated:
“It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing, they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty...”

Glanville Williams suggests that there are two kinds of "distinguishing": restrictive and non-restrictive and states (See Learning the law, sweet and Maxwell 11th ed., 1982, p.175)

Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as immaterial.

An example of restrictive distinguishing may be noted in the House of Lords decision in Peabody Fund v. Sir Lindsay Parkinson Ltd., [1984] 2 W.L.R. 953 (H.L.) where the Court restricted the application of Anns v. Merton London Borough, [1978] A.C. 728 (H.L.). The Anns case is cited as authority for the proposition that a municipality may be liable in negligence where it fails to properly inspect building plans. In the Peabody Fund case, by defining the duty of the municipality as being owed to owners and occupiers threatened with the possibility of injury to safety or health, the House of Lords specified and made less general, the scope of the municipality's responsibility as it had been defined in the Anns case. In the result, the Court did not allow a claim by the developer of a housing project who suffered damages when the municipality's drainage inspector failed to point out that the drainage system was not being installed in accordance with the approved design. Thus, in Peabody Fund the element of restrictive distinguishing is the introduction of the requirement of the possibility of injury to safety or health.

An example of non-restrictive distinguishing may be noted in the Supreme Court of Canada decision in Town of the Pas  v. Porky Packers Ltd. (1976), 65 D.L.R. 1 (S.C.C.). In this case, the Court noted that the authority of Hedley Byrne  Co. Ltd. v. Heller [1963] 2 All E.R. 575 required the plaintiff in a negligent misrepresentation claim to show that he relied on the skill and judgment of the party from whom he had received incorrect information. In the Porky Packers case the plaintiff had received incorrect zoning advice from municipal officials but the plaintiff's representative was a former municipal council member who had more expertise in planning matters than the officials. In these circumstances, there could be no reliance and the doctrine or authority of Hedley Byrne by its own criteria was not available. The plaintiff's claim was dismissed. The material fact of the plaintiff's lack of reliance provided the element for non-restrictive distinguishing of Hedley Byrne.

6.   SUPER Stare Decisis
In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations. See Landes, William & Posner, Richard. “Legal Precedent: A Theoretical and Empirical Analysis”, 19 Journal of Law and Economics 249, 251 (1976). Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision. Super-stare decisis is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place.

Under Nigeria legal ambience some precedents have acquire the  quality of super stare decisis. Examples include: Madukolu v. Nkemdilim (1962) 2 SCNLR 341on issue of jurisdiction, Idundun v. Okumagba (1976) 10 NSCC 446 on proof of title to land, Akintemi v. Onwumechili (1985) 1 NWLR (Pt.1) 68 on the impregnable jurisdiction of a University to determine who to award its degree, Falobi v. Falobi (1979) 9 & 10 SC 1 on how to resolve conflict in affidavit evidence, Pharmacists Board of Nigeria v. Adegbesote (1986) 3 NWLR  (Pt. 44) 707 on withholding of evisence.   

There has been a lot of argument on the merits and demerits of the doctrine of stare decisis. Those opposing the doctrine rely on the following points:

·       Its rigidity may lead to injustice in some particular cases. Lord Denning, the former Master of the Rolls has argued:
“If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice”. See The Rt. Hon. Lord Denning, The Discipline of the Law (London: Butterworths, 1979) at 292.

·       Also due to its rigidity it has the tendency of perpetuating bad precedents. The argument is that ‘treating a party wrongly is no justification for treating another so.’ Where a decision of the Supreme Court is decided per incuriam, lower courts are still bound to follow it, notwithstanding the fact that it will lead to injustice.

·       Another argument against the doctrine is that it is undemocratic, in the sense that it allows an ‘undemocratic’ (better put unelected) body to usurp the function of the parliament, i.e. the function of law making. It is beyond doubt that judges do make law for “the law is what the judge say it is...”

·       Difficulties can arise in deciding what the ratio decidendi is, the judge may give multiple reasons for his decision. Also in the appellate courts the justices do give separate judgments thereby compounding the problem of determining the ratio.

·       There are too many precedents and they are growing daily, surfing through these cases can be time consuming and very complex for lawyers. 

However, the advocates for retention  of the doctrine of stare decisis are not without their own argument. Some of their arguments include:

·       It promotes certainty in law. By looking at existing precedent the lawyer can reasonably advise his client.

·       Another argument is that is that it minimises the incident of bias. The doctrine restrains judges from exhibiting partiality by insisting that they decide like cases alike, it thereby promote legal equality between parties.

·       It also makes for uniformity, for like cases will be decided alike. Benjamin Cardozo stated:
‘It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.’ See Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University Press, 1921) at 33-34.
The concept of Judicial Precedent and the doctrine of stare decisis might not be perfect in its operation, but its usefulness far outweighs whatever imperfection it might possess. The object of any principle of law is the attainment justice, and so it is with the doctrine of stare decisis, for it possesses internal mechanism to correct whatever mistakes past decisions might have.