DOCTRINE OF PRECEDENT
Notes by B.K
1. INTRODUCTION;
The doctrine of precedent is a common law creation which underscores the principle that
emphasizes consistency and predictability in the law. This principle is rooted in the idea that
similar cases should be treated alike, promoting fairness and stability.
A precedent can be defined as a judicial decision which contains an underlying principle that has
a force of law which subsequently either binds or is persuasive to future Courts when considering
matters arising from similar facts. In other words a precedent is a set of rules/guideline for
judicial officers faced with new cases for which they can refer to past decisions to see how
similar incidents were handled.
The authoritative component of a decision is its reasoning which is sometimes referred to as the
RATIO DECIDENDI. And it’s the ratio decidendi that is important for purposes of precedent.
For a decision to qualify as precedent to matter before Court, the legal questions in issue and the
facts must be similar in material respects with those in the case before Court.
There are conditions that must be fulfilled by a decision for it to qualify as a precident, namely;
a) It must be a decision of a Court of record.
b) It must be a decision the formation of which is necessary for the decision of a particular case.
c) It must a proposition of law that is part of the legal reasoning of the case
This implies that decisions that are given by way of obiter dictum do not qualify as precedents.
2. HISTORY OF PRECEDENTS IN UGANDA;
The doctrine of precedents originates from the British colonial system and the Uganda Order in
Council of 1902 which established Uganda as a British Protectorate becoming a subject of Her
Majesty the Queen of England. So the British colonial laws were incepted in Uganda as a
protectorate. The Colonial Courts of Admiralty Act 1890 which made decisions of superior
courts from colonies appealable to the judicial committee of the Privy Council.
The Uganda Order in Council 1902 was also instrumental in establishing the doctrine of
precedent in Uganda since it formally made British law applicable in the colony from inception.
See Kiriri Cotton Ltd V R.K Dewani (1958) E.A 239 where Sir. Kenneth O’Connor held that the
Uganda Order in council provides inter-alia, that the jurisdiction of the High Court should be
exercised in conformity with the substance of the common law and doctrines of equity in force in
England on August 11, 1902. And that established decisions of superior courts in England which
declared the substance of common law or doctrines of equity which were decided before that date
are binding on the courts of Uganda.
Customarily, the doctrine of precedent can be traced in relation of the Buganda custom through
the local maxim that “omusango omukadde gwegusala omugya” literally meaning that the old
case determines the decision in the current case. At this point in time the customary courts were
bound by decisions made in previous related cases.
Worth noting is the fact that on attainment of independence, different colonies gained freedom to
exercise sovereignty in operation of their judicial systems. Thus appeals to the Privy Council
were abolished and the East African Court of Appeal became the final court of appeal for the
countries in that region. It should be noted that this Court collapsed with the fall of the East
African Community in 1977.
3. THE OPERATION OF THE DOCTRINE OF PRECEDENT;
The doctrine of precedents operates in two dimensions namely; the vertical and the horizontal.
3.1.
THE VERTICAL DIMENSION;
The vertical dimension flow from the hierarchy of courts where by higher courts bind
the lower courts See Article 129 of the 1995 Uganda Constitution and the case of Paul
Kawanga Ssemogerere, Zachary Olum and Juliet Rainer Kafire Vs Attorney general,
Constitutional Appel No.1 of 2002 where Chief Justice His Lordship Benjamin Odoki
held that the doctrine of precedent requires lower courts to follow decisions of higher
courts on questions of law thus Court of Appeal was bound to follow decisions of the
Supreme Court.
Article 132(4) provides that all courts are bound to follow the decisions of the Supreme
Court on questions of law and that the Supreme Court may, while treating its own
previous decisions as normally binding, depart from those previous decisions where it
appears right to do. See also the East African Treaty Article 33.
3.2.
THE VERTICAL DIMENSION;
The horizontal dimension requires superior courts to follow their previous decisions.
Although there is no constitutional provision that provides for the horizontal application
of precedents, Supreme Court has held in the Paul Ssemwogerere case (cited above)
that the Constitutional/Court of Appeal is generally bound by its decision except under
the circumstances that were coined in the case of Young Vs Bristol Aeroplane Co. Ltd
(1944) K.B 718 where Court of Appeal of England held that the principle of Stare
Decisis is followed is followed by Court subject to the following qualifications;
i)
ii)
iii)
Court is entitled and bound to decide which of the two conflicting decisions of its own it
will follow
Court would be bound to refuse to follow a decision of its own which though not
expressly overruled cannot stand a decision of the Privy Council or the House of Lords
Court is bound to follow a decision of its own if it is satisfied that the decision was given
per in curium.
Worth noting is the fact that the horizontal dimension of the doctrine of precedent is more
strictly applied in the higher courts than in the lower courts. To cultivate the reasons
further, read the judgement of Sir Charles Newbold.P in the case of Dodhi Vs National
Grindlays Bank Ltd. (1970) E.A 195
4. TYPES OF PRECEDENTS;
4.1.
Binding precedent;
Binding precedents find their origin in the stare decisis doctrine which means “keep to
what has been previously decided”
4.2.
Persuasive Precedent
These are decisions of Court which are not binding though they sway Court in reaching
its decisions. The extent to which a particular decision will be persuasive depends on a
number of factors such as the status of court, the country where Court is situate as well as
the reputation of the judge. Decisions made by way of obiter dictum are not binding on
other courts because they’re not part of the ratio decidendi of the case
5. AVOIDING THE DOCTRINE OF PRECEDENT;
5.1.
THROUGH DISTINGUISHING CASES;
It should be noted that even where a precedent is ordinarily binding in determining a
subsequent case with similar legal issues and facts, Courts may technically avoid
following such precedent by way of distinguishing it from the instant case. This happens
where the material facts of the earlier case are different from the material facts of the
latter one.
For example Court in South Staffordshire Water Company V Sharwood (1896)2 QB 44,
distinguished the decision of Court in Bridges V Hawkesworth (1851) LJ 21 QB 75
where a customer after picking money on the floor of a shop was held to be entitled to
keeping because in the South Staffordshire case, the founder of two gold rings in the
mud at the bottom of a reservoir was found to be not entitled to retain them since the site
where he had found the rings was not open to the public.
5.2.
PER INCURIUM DOCTRINE;
Per incurium means through want of care or inadvertently. This doctrine applies to
decisions that are given in ignorance or forgetfulness of some inconsistent statutory
provision or some authority binding on the Court concerned. The effect of the doctrine of
per incurium is that such decisions are not binding and Court is at liberty to divert from
them. See;
a) Young V Bristol Aeroplane Co. Ltd (1946) 1 AER 98, where Court of Appeal held
that it was not bound by such decisions if it was satisfied that the same had been
reached per incurium and
b) Kiriri Cotton Ltd V R.K Dewani (1958) E.A 239 where Sir. Kennethe O,Connor
cited with approval the decision of Joseph Kabui V R (1954) 21 EACA 260 where it
was held that the doctrine of stare decisis should be followed by this Court ,
UNLESS if Court is of the opinion that to follow its earlier decision which is
considered erroneous, would involve supporting an improper conviction.
In Morelle Ltd V Wakeling (1955) 1AER CA, Court as a general rule , only cases in
which decisions could be held to have been held per incurium are those decisions that are
given in ignorance or forgetfulness of some inconsistent statutory provision or of some
authority binding on the Court concerned.
5.3.
CHANGED CIRCUMSTANCE DOCTRINE;
The doctrine of changed circumstances is in legal term referred to as Cassante ratione
cessat ipsa lex” meaning “with the ceasing of the reason for the existence of a legal rule,
the legal rule itself ceases to exist. The doctrine is to the effect that Court can depart from
its own previous decisions. This doctrine is always invoked when higher courts are at
pains in deciding whether to follow or depart from their own previous decisions.
6. ROLES AND CHALLENGES OF THE PRECEDENTS;
6.1.
The doctrine of precedent is important to the judicial making process in the following
ways;
i)
ii)
The doctrine provides some degree of certainity upon which individuals can rely
when conducting their affairs. It also lays a basis for the orderly development of
legal rules.
The doctrine of precedent controls and avoids unnecessary litigation. Noticeably
if courts were not bound by previous decisions of the superior courts or their own
decisions, there would be no finality in the law since each discontented litigant
would keep suing or appealing until granted the desirable judgment which would
lead to perpetuity of litigation
iii)
The doctrine of precedent also maintains uniformity in the law and makes the
judgments/rulings of cases predictable. This is implemented by ensuring that
Court is bound by decisions of another in a similar case.
iv)
The doctrine of precedent also helps fill the gaps in absence of statutory law.
v)
6.2.
The doctrine also helps prevent importation of personal decisions or views in
Court decisions.
However the doctrine of precedent has some shortcomings which include the following;
i)
The doctrine fails to individualise the administration of justice since in any two
case, they can’t both be a 100% similar. It thus begs a question how a decision
taken in one case can be applied to another when they’re not absolutely the same
100%. This to some exten brings compromise in the law.
ii)
The doctrine as it is presumes that judges do not make mistakes. Therefore strict
adherence to the doctrine may therefore result in carrying forward a wrong rule
of law where a precedent is wrongly followed.
iii)
The doctrine of precedent is quite cumbersome since Judges have to excavate
precedents that are binding on them before delivering their decision on a matter.
List of authorities;
Statutes;
1. The Uganda Order in Council of 1902
2. The Colonial Courts of Admiralty Act 1890
3. The 1995 Uganda Constitution
4. The East African Treaty Article 33
Caselaw
i)
Dalay Vs Lees
ii)
Hedley Bryne and Co.Ltd V Heller and Pafros Ltd (1963)2 AER 575
iii)
Anderson (W.B) and Sons Ltd V Rhodes (1967) 2 AER 850
iv)
Bridges V Hawkesworth (1851) LJ 21 QB 75
v)
South Staffordshire Water Company V Sharwood (1896) 2 QB 44
vi)
Young V Bristol Aeroplane Co.Ltd (1946) 1 AER 98,
vii)
KIRIRI COTTON LTD Vs R.K DEWANI (1958) E.A 239(C.A)
viii)
R V Norman Godinho (1950) 17 EACA
ix)
Joseph Kabui V R (1954) 21 EACA 260
x)
Morelle Ltd V Wakeling (1955) 1 AER 708 CA
xi)
Langton Vs Hughes (1813)
xii)
Browning Vs Morris (1778)
xiii)
Kearley Vs Thomson (1890)
xiv)
Kiriri Cotton Ltd V R.K Dewani (1958) E,A 239
xv)
Paul Kawanga Ssemogerere, Zachary Olum
xvi)
Juliet Rainer Kafire Vs. Attorney General, Constitutional Appeal No.1 of 2002
xvii) Young Vs. Bristol Aeroplane Co. Ltd (1944) K.B. 718
xviii) Dodhi vs. National Grindlays Bank Ltd. (1970) EA 195.
THE END