WHAT IS THE DOCTRINE OF STARE DECISIS AND ITS OPERATION IN THE GHANA LEGAL SYSTEM?
In many legal systems there is a practice by which adjudicators in determining disputes that come before them generally take the view that like cases should be treated alike. This is found both in civil and common law systems. Stare decisis means to follow a previous decision. This a reference to a peculiarly common law concept by which decision making has to follow previous decisions by superior courts whether they agree with the decision or not.
At common law, it is not just a matter of treating like cases alike but a system of binding precedent. A system which in certain circumstances, a decision has to be followed whether the latter court agrees with the decision or not. The English court of appeal cases of Re Scwepps Ltd Agreement (1965) 1 ALLER 195, and Re Atomatic Telephone and Electric Co. Ltd Agreement, 1965 1 ALLER 206 illustrates the application of judicial precedent.
In the first case, the court of appeal by a majority of two to one (Whilmer LJ dissenting) ordered discovery of documents in a case which involved restrictive trade. Few hours after judgment, the same panel had to consider another case with similar facts and this time the decision was unanimous . Whilmer LJ who read the opinion of the court indicated that although he did not agree with the majority in the previous case, he is now bound in the circumstances.
WHAT IS THE DIFFERENCE BETWEEN JUDICIAL PRECEDENT AND RES JUDICATA?
Res judicata is a latin maxim which simply means litigation must end. Parties to a litigated dispute cannot reopen the same subject matter of the previous litigation after the process of appeal has been exhausted or after the time set for an appeal has been expired. Where parties or their agents have litigated a particular dispute before and have finished the process of appeal, the doctrine is that het parties or their agent to that litigation or anybody who has interest in the case cannot sometime after go and attempt to re-litigate the same issue again. And if one of them attempts to we say the person is estopped from re-litigating the matter. Hence Res Judicata operates as between the parties to the dispute or their agents.
Judicial precedent on the other hand and is the effect of the decision in the legal system generally on all parties. For res judicata, the party relying on it has to show that the person who has brought the second action is the same person in the previous case and secondly also that the subject matter of the litigation or the issues in controversy were the same issues determined by the court.
The first requirement for the operation of judicial precedent is a system of courts whereas with res judicata, the requirement is that the parties which include privies thus people who have the same interest or whose interest or title is derived from the original parties.
WHAT IS THE HIERARCHY OF CORUTS AND THE DOCTRINE OF BINDING OF PRECEDENT?
THE SUPREME COURT: Decisions of the SC on questions of law are binding on all courts lower than the SC. Article 129(3) and Section 2 of the Courts Act, 1993 Act 459. “The SC 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 SC on questions of law.” It should be noted that the Supreme Court is the only court given the power to depart from its earlier decision where it deems it fit. This is the language of Article 293(3) supra.
THE COURT OF APPEAL: The decisions of the Court of Appeal are binding on the lower courts. The court of Appeal is also bound by its decisions. See Article 136(5) of the 1929 Constitution as well as section 10(5) of Act 459. It should be noted however that the Court of Appeal is only bound by its decisions that are not contrary to the decision of the Supreme Court. It is not bound by its decision where that decision is inconsistent with the decision of the Supreme Court.
THE HIGH COURT: The High Court is bound by the decisions of the Supreme Court and Court of Appeal however, the High Court is not bound by its previous decision but courts lower than the high court are bound by the decisions of the High Court. Hence the magistrate and Circuit courts are bound by the decisions of the High Court but the High court is not bound by its previous decision. This is primarily because of the several high courts in Ghana and each High Court judge has obviously the same powers and jurisdiction thus they are not court of coordinate jurisdiction.
In Asare v Dzeny (1976) 1 GLR 473-481, in delivering the judgement of the Court of Appeal (full bench), Azu Crabbe CJ, said: “A judge of the High Court is not bound to follow the decision of another judge of co-equal jurisdiction; he may do so as a matter of judicial comity. This position of the High Court with regard to stare decisis was clearly expressed by Lord Goddard C.J. in Police Authority for Huddersfied v. Watson [1947] KB 842 at p. 848, DC: “I think the modern practice , and the modern view of the subject, is that a judge of firs instance, though he would always follow the decision of another judge of firs instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions which are binding on him, which in the case of a judge of first instance, are the decisions of the Court of Appeal…”
INFERIOR COURTS: CIRCUIT & MAGISTRATE COURTS: The decisions of these courts are not binding but they are bound by the decisions of the higher courts.
Judicial precedent and stare decisis is concerned with the binding authority of the decision. However this is not the only way decisions are important. Thus decisions of courts may persuade other courts.
WHAT IS THE PERSUASIVE NATURE OF DECISIONS OR AUTHORITY?
Generally, decisions which are not binging may be only persuasive. Thus if we take for instance the Supreme Court, the decision of the court of Appeal is not binding on the SC, but it is possible that in the SC, there may be previous decision of a court of appeal or even by a High Court on that legal issue. The SC may be persuaded by the reasoning of the High Court or the CA. For instance on a land matter, the decision of the SC may be lying on the decision by Ollennu when he was a high court judge though that decision is not binding.
Again, it should be noted that decisions of foreign courts are not binding on Ghanaian courts but are only persuasive.
Under section 115(1) of Act 459 in relation of succession of courts, the decision of the SC under the 1979 Constitution is of the same standing as the decision of the Supreme Court in 1992.
An interesting question that has arisen is : The status of the court of appeal when it was the highest court or the court of last resort some time ago? The answer is in two folds: First, the decision is binding on the court of appeal now and it is only persuasive in relation to the SC.
WHAT IS BINDING IN A DECISION?
Note the language of Article 129(3) “…QUESTIONS ON LAW…”. Under Article 136(5) too in relation to the CA, it says “…all courts lower than the CA shall follow the decision of the CA on questions of law.” But even on the questions of law, a decision may contain different kinds of statements :
Ratio Decidendi; Dictum ; Obiter Dictum/dicta
The ratio is about the same as the holding of the court. Before or in the course of arriving at the holding and stating the decision, there is analyses of whatever, the law, previous decisions etc. This is what is called dictum and if it is one ‘dicta’ where it is one.
There may be the situation where the judges may talk about things which are of no relevance to the matter before him, thus it is not the holding in the case, so when we say that a decision is real, it is only the ratio or the holding which is binding and not everything else the court says. Thus the ratio is the proposition of law which decides the case on the line of the context and the material facts.
The legal practitioner, judges and the academic should be able to determine what the court decided or what the ratio or rationes is which is the legal answer to the legal issue which is arising from the facts of the law in a particular case.
IS THE PRECEDENT DISTINGUISHABLE?
So having determined what the ratio or holding in the case is, the other thing that lawyers and courts do is to determine whether the facts and the circumstances in the previous case are the same and similar in the subsequent case and therefore the previous decision is binding or whether there are significant material and legal differences such that the decision is not binding. Thus, is the subsequent case distinguishable from the previous decision, and if it is so, then the previous decision is not binding. It can be distinguished because there is a certain material fact in the present decision which is not in the previous one and so need not to be followed and thus the cases can be distinguished.
Distinguishing cases is therefore pointing out material facts which existed in the previous decision and which did not exist in the current case, or material facts which existed in the current decision and did not exist in the previous one and urging the court sufficiently to make a different result or explain a different result which has arrived.
WHAT IS THE WEIGHT OF THE AUTHORITY?
At the level particularly of persuasive authority and in the context of determining the ration and whether eth case is distinguishable you must determine what is the wait of the authority. Thus what power the authority has.
First, you have to determine whether it is a unanimous decision or a majority decision. Clearly a unanimous decision has more wait than the majority. If it is a majority decision, you have to examine the nature of the majority is it 5-2 or 6-1, the higher the majority the more powerful the decision. For instance the decision of 4-3 is not as powerful as the 7-0.
The question of which judges or a judge is involved in the decision is another crucial matter involved in the decision. For instance if you are dealing with a decision of Ollenu J in a land matter in the Supreme court. Or Lord Atkin’s dissent in Liverside v Anderson which was later accepted.
It should be noted that the power of the SC to depart from its decision is different from the power of review (same parties, same case, same court, same judge(s)). An example is that of Tsikata v Ag. This is totally different from what Article 129(3) talks about. Thus , where there is different case, different parties, similar facts, this is not review but a totally new case. So the power of the court to depart from its previous decision is totally different form the power to depart from the decision. In this circumstance, the court is composed of the same number of judges and would not increase the number of the judges since this is not review.
WHEN WAS THE CASE DECIDED?
Was it a long time ago or fairly recently. For instance if the case was decided a long time ago, it may have a lot of weight since it is old, and has not been challenged. On the other hand if learning has changed and situations as well it may not be considered.
Another factor is the reputation of the authority: Has it been criticized by writers, has it been approved or disapproved in dicta or obiter?
This second part of this is where you as a lawyer begin to acquire the skills to use these authorities to back up a position. it could be a little difficult. Unlike the first one which is the hierarchy of courts and is straight forward stated.
WHAT ARE THE ADVANTAGES OF THE SYSTEM OF STARE DECISIS?
In summary, the advantage is that it makes the system stable and more predictable. The disadvantages are that it makes the system rigid and less effective, thus inflexibility.
ADVANTAGES
1. The first advantage is that a system of precedent promotes the private ordering of legal matters or affairs. So promoting the private ordering means for example that if you are a lawyer in one of the many spheres you can find yourself, you can advice your client with reasonable certainty what the law on a particular issue is and the client can advice himself accordingly and the client can then proceed to act on this advice. This will be same in a constitutional dispute about the appointment of ministers and you are aware of J H Mensah v. Attorney General, so this advice that you are giving to various people both private and public enables all this to arrange , organize their legal affairs in a way consistent with the law and so as not to break the law. no where there is a dispute , you can advice the client where there is a dispute, search put your case brief together or your opinion or as an academic your can write on topics , issues etc. with reasonable certainty of what the law is . Flowing from this, it promotes alternative dispute resolution. Thus it encourages the private settlement of dispute.
2. The second group of advantage is the fair and efficient adjudicating of disputes. The application of judicial precedent promotes fair and efficient adjudicating of disputes in the courts. This is seen in a number of ways. First, it helps in the areas where there is dispute and the areas where there is no dispute . So if the supreme court says this is what the law is on a particular matter, there is no point in re-litigating the matter. It promotes fairness. This is done by reducing the personal element and reducing the area of discretion and there by ensuring uniformity which is a very important feature of the judicial precedent that like cases are treated alike. It also reduces the possibility of expectations, public expectations particularly, the expectations of parties to litigations being better managed. A good lawyer when you advice your lawyer , you will be indicating to your client what the chances are so that the client will take an informed decision
3. The third advantage is that it promotes public confidence in the judiciary and the administration of justice. One, it is easier for the public to accept that the decision is fair. For the public to have confidence in the system if judges are bound by a certain order. It is not because the Jude so wishes but this is what the Supreme Court has decided. The system is also a restraining mechanism on the judge. This endangered more public confidence than one in which each judge and each court is doing its own thing.
4. In Nana Addo Dankwa Akuffo ado and ors vrs. John Dramani Mahama and ors , Justice Jones Dotse made this wonderful remark : “there is no known local precedent in this aspect of the law that we are requested to enforce and or interpret”. This shows how judicial precedent is pertinent as it assists the judges in their judgments
WHAT ARE THE DISADVANTAGES OF THE SYSTEM OF STARE DECISIS?
1. First is that a judicial system based on a system of precedent tends to be backward looking rather than forward looking. It tends to perpetuate what has been done already rather than changes in the society.
2. The second one is that changes in the law then tends to depend on the accident of litigation. How does a case props up? So if you have a decision in 1989 unless another case come another time which goes to the Supreme Court for it to change the decision on the matter for it will be the law.
3. A third one is that it becomes very technical. And so what cause the decision in this case etc. Will become more interest than broader national issues. and also how to get to know how to get to know what the ration is . how does the system respond to predictability and stability of the system and the other one.