Stare Decisis Assignment 2012

THE APPLICATION OF THE DOCTRINE OF STARE DECISIS. 1.0 Introduction. Stare decisis is an abbreviation of the Latin maxim stare decisis et non quieta movere which translates to stand by things decided. It is of fundament in Ugandas jurisprudence because it affects the way judicial officers decide cases. It forms the basis for what is loosely referred to as judge made law.

2.0 The Doctrine of Stare Decisis. 2.1 Justification/rationale. The rationale for stare decisis was succinctly stated by Odoki CJ in Col (Rtd) Kiiza Besigye V Electoral Commission and Yoweri Kaguta Museveni 1on pages 104105 when he observed that stare decisis was essential for promoting uniformity in judicial decisions. From the comments of Mulenga JSC on page 16 of his judgment in Attorney General v Uganda Law Society2, the justification for stare decisis is certainty, stability and predictability of the law. The uniformity of the law helps interested persons know the relevant law at a particular time so that they can arrange their affairs accordingly. This helps potential litigants to avoid unnecessary litigation; and also guards against judicial bias where judges are bound to make decisions along a particular line of reasoning. 2.2 What it is? Stare decisis has been defined to be the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise in litigation3. Precedent refers to the making of law by a court in recognizing and applying new rules while administering justice4. In Attorney General v Uganda Law Society5, Mulenga JSC (RIP) made the following observation about stare decisis:

1 2

Presidential Election Petition 1 of 2006 Supreme Court Constitutional Appeal 1 of 2006. 3 Garner. A., Blacks Law Dictionary, 8 th edition, page 1443. 4 Ibid., page 1214. 5 Constitutional Appeal 1 of 2006

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Under the doctrine of stare decisis, which is a cardinal rule in our jurisdiction, a court of law is bound to adhere to its previous decision save in exceptional circumstances where the previous decision is distinguishable or was over ruled by a higher court an appeal or was arrived at per incuriam without taking into account a law in force or binding precedent. A precedent is a decided case that furnishes a basis for determining later cases involving similar facts or issues6. It must be noted that the doctrine of judicial precedent involves the application of the principle of stare decisis, namely to stand by the decided. 2.3 What it is not. In order for the principle of stare decisis to apply, it is necessary to be able to determine what point of law arises. The legal reasoning for a judge in making a decision amounts to the ratio decidendi; the ratio decidendi forms the legal principle which becomes the binding precedent. This must be distinguished from the other remarks or comments that do not form any part of the binding legal principles of ratio decidendi; the obiter dictum. This has been defined7to be a judicial comment made while delivering a judicial opinion but one that is unnecessary to the decision in the case and therefore not precedential. Therefore the principle of stare decisis does not apply to obiter dictum. 3.0 Legal Basis. Stare decisis has been constitutionalised in Article 132 (4) which is to the effect that all other courts lower in hierarchy to the Supreme Court are bound to follow the Supreme Court decisions on points of law. Further, Article 129(1) of the Constitution spells out the hierarchy of courts in descending order to be Supreme Court, Court of Appeal, High Court and then subsequent courts established by law. 4.0 Application of the Doctrine. 4.1 Rules. 4.1.1 Original precedent.

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Supra., no 4. Garner., ibid, page 1102

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An original precedent is a precedent that creates and applies a new legal rule8. This is a new judicial decision of a court of record in which legal principles are established and applied for the first time in that particular jurisdiction. For example, for the first time in Uganda emails were held to be admissible as documentary evidence in court. Madrama J in Dian GF International Ltd v Damco Logistics Uganda Ltd & Trantac Ltd9 held that they were admissible under section 8 of the Electronic Transactions Act of 2011. 4.1.2 Binding precedent. A binding precedent is a precedent that court must follow, for example a lower court is bound by an applicable holding of a higher court in the same jurisdiction10. Article 132 (4) of the Constitution is to the effect that all other courts shall be bound by the Supreme Courts decisions on points of law. The hierarchy of courts is spelt out in Article 129(1) in descending order is the Supreme Court, Court of Appeal, High Court and then subsequent courts established by law. This means that as a matter of principle the decisions of courts higher up in the hierarchy on points of law are binding on lower courts when they decide cases with indistinguishable facts. This is what is known as the vertical application of the doctrine of precedent. It is the legal reasoning of higher courts that binds the courts lower to it in hierarchy. This was well espoused by May LJ in Ashville Investments Ltd v Elmer Contractors Ltd 11 when he held: that when a case has been decided in a court it is only the legal principle or principles on which that court has so decided that bind courts of concurrent or lower jurisdiction and require them to follow and adopt them when they are relevant to the decision in later cases before those courts. The ratio decidendi of a prior case, the reason why it was decided as it was, is only to be understood in this somewhat limited sense. It must be noted that only the matter necessary for the decision becomes binding. Thus in PennTexas Corporation v Murat Anstalt (no 2)12 Lord Denning MR held that court will not treat as absolutely binding any line in a previous case which was not necessary to the decision but will regard as at liberty to depart from it if convinced that it is wrong. He concluded by stating that an opinion
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Blacks Law Dictionary, 8th edition, page 1215. HCCS 161 of 2010. 10 Supra., no 8. 11 [1988] 2 all ER 577 12 [1964] 2 all ER 594

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given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such or contrary opinion has been broached, is no judicial opinion, nor more than a gratis dictum. Where there is no discernible ratio decidendi, court can adopt a reasoning it finds reasonable so long as it supports the actual decision of the superior court. In Harper & Others v National Coal Board13 the appellants brought their claim of statutory negligence against the respondent. The issue before the Court of Appeal was whether the period of limitation for a claim in negligence began from the date when the claimant was aware of the facts constituting negligence, or from the date on which he became aware of the cause of action being made out in law. The binding House of Lords decision on the issue was Smith (and Dodd) v. Central Asbestos Co. Ltd., [1973] A.C. 518. In that case, the two Law Lords forming the minority had held that the limitation period was to be computed from the date when the claimant became aware of all the material facts. Two of the Law Lords forming the majority held that the limitation period began from the date when the claimant became aware of his cause of action in law. Lord Pearson held that the relevant date was the date on which the claimant became aware of the material facts but held that the date was the same date on which the claimant had also discovered that he had a cause of action in law In delivering judgment for the Court of Appeal, Lord Denning MR on page 446, stated the law on the doctrine of precedent as follows: We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on which the majority based their decision, then we should accept that as binding upon us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that, if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House. He concluded by holding that the Smith House of Lords decision offered no binding precedent to the Court of Appeal because there was no discernible ratio
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[1974]2 all ER 441.

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decidendi common to the majority. Accordingly, the court was free to adopt any reasoning that appeared correct to it provided it supported the actual House of Lords decision. From the above cases it can be ascertained that a lower court is bound by an applicable holding of a higher court in the same jurisdiction. Once the higher court establishes legal principles in its holding, this forms a ratio decidendi which lower courts must follow. This phenomenon is what is known as binding precedents. 4.1.3 Persuasive precedent. A persuasive precedent is a precedent that is not binding on a court, but that is entitled to respect and careful consideration, for example if the case was decided in a neighbouring jurisdiction, the court might evaluate the earlier courts reasoning without being bound to decide the same way14. Whereas with the vertical application of the doctrine of precedent ensures that higher courts bind lower courts on applicable points of law, it is not as straight forward when it comes to courts of similar or coordinate jurisdiction. This raises the question of horizontal application of the doctrine. According to Article 132(4) of the Constitution, the Supreme Court is normally bound by its decisions but it can depart from them in limited circumstances. The Article then provides that the lower courts ought to be bound by these decisions on principles of law. It is silent on the application of stare decisis when it is the same court or a court of similar jurisdiction. So recourse is made to case law. The Court of Appeal/Constitutional Court is normally bound by its own decisions save for when it has to decide which of its own 2 conflicting decisions to follow; when its decision cannot stand with that of the Supreme Court even though not expressly over ruled and finally if it is satisfied that its own decision was given per incuriam.15 When these instances arise, then the Court of Appeal/Constitutional Courts own decision may merely be persuasive to it; it may opt to adopt a legal reasoning from another court. As for conflicting high court decisions, it appears that where the latter decision which considers an earlier decision is preferred. Thus Nourse J in Colchester Estates (Cardiff) v Carlton Industries plc16held as follows:
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Supra., no 8. Odoki CJ in Paul Ssemogerere & 2 Others v AG SC Const App 1 of 2002, page 20. 16 [1984] 2 all ER 601

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Since it is desirable that the law at whatever level should generally be certain, it follows that when a decision of a judge of the high court has been fully considered, but not followed by another judge of the high court, the 2nd decision would normally be considered as having settled the point of 1st instance, except only in the rare case where a 3rd judge is convinced that the 2nd judge was wrong in not following the 1st From this case it also appears that where there are conflicting high court decisions, they are merely persuasive on the high court say of another division deciding a case with sufficiently similar facts. Secondly, the obiter dictum of a judicial decision can become a persuasive precedent in later decisions. Thirdly, decisions of lower courts may persuade higher courts and in so doing become persuasive precedents. Fourthly, decisions from other jurisdictions can be considered and they become persuasive precedents. This is very common in Constitutional litigation. For instance in Soon Yeong Kong Kim & Another v AG17the Constitutional Court relied on Kenyan and South African cases to establish the precedent that persons charged with crimes have the right to pre trial disclosure of the nature of the case against them, though this was not an absolute right. The Court was persuaded by these authorities to recognize that right as part and parcel of the right to a fair hearing under Article 28. 4.2 When stare decisis will not apply. 4.2.1 Precedent distinguished. A judges contrasts the facts of the case before court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or reasoning of the earlier case either does not apply or will be limited in application. This was illustrated in Williams v Glasbrook Brothers Ltd18the appellants submitted that because the Court of Appeal had misinterpreted a previous House of Lords decision, its decision was per incuriam, and therefore had to be disregarded in this case. They relied on Young v Bristol Aeroplane Co Ltd in support of their submissions. Lord Greene MR held that the Young case applied to totally different circumstances like where a subsequent case in the House of Lords is found in effect to overrule an earlier decision of the Court of Appeal. The Young case was
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Constitutional Reference no 6 of 2007. [1947] 2 all ER 884.

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accordingly distinguished and not applied. The Court of Appeal was therefore bound by its previous decision. In Hon Sam Kuteesa & 2 Others v AG & Uganda19the applicants, who were all ministers, were jointly charged by the Inspector General of Government with the offences of abuse of office and causing financial loss contrary to the Anti Corruption Act. The applicants petitioned and the respondents applied for a reference to the Constitutional Court. A pertinent issue that arose was whether the Inspector General of Government can prosecute corruption related offences when not duly constituted in accordance with Article 223 (3) of the Constitution and section 3(2) of the Inspectorate of Government Act. Court distinguished the instant case from its earlier decision in Prof Gilbert Balibaseka Bukenya v AG Const Pet 30 of 2011. In that case the court considered the issue whether the deputy IGG had authority to perform IGG functions under Article 223. It held that the deputy IGG was in the position of the substantive IGG because that post had not yet been filled; he could therefore prosecute offences. It concluded that this was an internal arrangement which did not affect his capacity to perform his constitutional duties. In the instant case, the Constitutional Court observed that in the Bukenya case it was concerned with another issue for interpretation. The issue of whether the Inspector General of Government can act as the Inspectorate of Government to commence prosecution when the Inspectorate was not legally constituted. The Court held that the Inspectorate of Government is constitutionally established to consist of the IGG and 2 deputies; only when duly constituted can the Inspectorate exercise its special powers under Article 230 of investigating and prosecuting corruption related offences. So the investigation by the IGG was unconstitutional. 4.2.2 Precedent overruled by a higher court. A higher court can overrule an earlier decision made in a lower court. Overruling can occur where the earlier court did not properly apply the law or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. This may also occur when a higher court reverses the decision of a lower court on appeal. The appellate court then substitutes the decision with its own and this

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Constitutional Petition 46 of 2011 and Constitutional Reference 54 of 2011.

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then becomes the binding precedent. The decision which has been overturned on appeal no longer forms a precedent. 4.2.3 Precedent arrived at per incuriam. Per incuriam of a judicial decision means a wrongly decided decision usually because the judge or judges were illinformed about the applicable law20. This principle was illustrated by Lord Greene MR in Young v Bristol Aeroplane Co Ltd21when he observed that: where a court has construed a statute or rule having the force of a statute, its decision stands on the same footing as any decision on a question of law. But where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute on a rule having the force of a statute, the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when the provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. In Paul Ssemogerere & 2 Others v AG22 Odoki CJ on page 9 held that when courts ignore or overlook binding precedents and decide the case as if that precedent did not exist, courts decision is per incuriam. In this case, the appellants had appealed to the Supreme Court because interalia the Constitutional Court had overlooked some Supreme Court decisions which had it considered would have affected the decision. In Duke v Reliance Systems Ltd23Sir Donaldson MR held as follows: I have always understood that the doctrine of per incuriam applies only where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and in either case it has to be shown that, had the court had this material, it must have reached a different conclusion. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been presented before it or if different material had been placed before it, it might have reached a different conclusion The reasons for not following the precedent must be clearly stated in the judgment. In AG v Uganda Law Society24 the respondents cross appeal raised
Garner., ibid, page 1175. [1944] 2 all ER 293 at 300.] 22 Supreme Court Constitutional Appeal 1 of 2002 23 [1987] 2 all ER 858.
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questions about the supremacy of the General Court Martial over the High Court. The respondents contended that this was matter settled by the Supreme Court in an earlier case of AG v Tumushabe which held that the General Court Martial was surbodinate to the high court but that the Constitutional Court erred in holding the Tumushabe case was wrong, thereby refusing to follow it. In allowing the cross appeal, Mulenga JSC on page 15 held that the only apparent reason for departing from the Tumushabe decision was that per curiam was not decided on a framed issue. He added that that was no valid reason for departing from the decision. The above cases make it clear that the scope of this per incuriam principle is very limited in application: only in very clear cases where court makes decisions in ignorance of binding precedents or statutes and in so doing arrives at wrong conclusions. 4.2.4 When the Supreme Court feels it is right to do so. Article 132 (4) of the Constitution of the Republic of Uganda provides as follows: The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law. In determining the Sgt. Shaban Birumba & Another V Uganda, 25 the Supreme Court was requested to overturn its own previous decision in John Wasaja v Uganda in which the court held that a deadly weapon must be shown to deadly in the sense of capable of causing death. A full bench had to be convened to decide this matter. Wambuzi CJ held that a numerically stronger bench than a coram of 3 was preferable if court was going to overrule its own decision. In Col (Rtd) Kiiza Besigye V Electoral Commission and Yoweri Kaguta Museveni26, Odoki CJ observed on page 105 that Article 132 (4) is flexible in allowing the final court to depart from its previous decisions in exceptional cases to promote change so that the law keeps abreast with the changing social circumstances.

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Supra., no 2. S.C Cr Appeal no.32 of 1989 Supra., no 1.

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In Milangos v George Frank (Textiles) Ltd27the House of Lords had to consider whether it was bound by its previous decision to the effect that on foreign judgment claims, judgment could only be given in pound sterling to which a foreign currency must be converted as at the date it became due or whether it was bound by its latter decision to the effect whether court could give money judgment in foreign currency when the currency was the currency of the contract. It was held that it was entirely within the House of Lords duty, in the course of administering justice to give a law a new direction in a particular case where, on principle and reason, it appears right to do so. In allowing the judgment in foreign currency it further held that the changes would avoid injustice in the instant case and also enable the law to keep in step with the commercial needs and with the majority of the other countries facing a similar problem. The wisdom of the House of Lords in the Milangos case is sufficient to explain when the highest court in the land can depart from its earlier decision.

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[1975] 3 all ER 801

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