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The ever-be adherence to precedent in Nigerian courts calls for a re-appraisal of its power place in the scheme of the Nigerian courts. Therefore, this research work titled "The doctrine of judicial precedent and its application in the Nigerian courts "argues that the doctrine of judicial precedent has fallen short of its advantages which are certainty, flexibility, convenience, freedom from bias, stability or uniformity of law. It also argues that judicial precedent having its origin from common law still make Nigerian judges fall back to common law in giving certain judgment and ruling on some issues raised before it. This work posits that the doctrine being an imported and received doctrine is not very suitable for the federal character of the country but for a unitary state, that has only one legal system and one hierarchy of court. Furthermore, this research argues that the operation of the doctrine in Nigerian courts has suppressed the better judgement of the exceptionally qualified judges, who fine their hands fettered by decision they cannot refuse to follow because of the doctrine of judicial precedent. It is the findings of this research that the attitude of the courts and that of counsels and other factors in application of the doctrine to case sometimes produces and perpetuate injustice, in that the doctrine lacks adaptability to changed circumstances.



1.1       Background of Study

Nigerian 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 being followed is called Judicial Precedent 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[1], 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 explain the meaning of some phrases, which are inherently linked to the topic under discussion.

1.2       Statement of Research Problem

Judicial precedent in its strict adherence has rather fallen short of its purposes. The continuous application of erroneous decisions, which serves as precedent has resulted in the perpetuation of injustice, as well as retarded the application of better judgment of exceptionally qualified judges. The case of Fayemi v Oni[2], and Agbije V Fashola[3] where the facts of the case were the same but the judgment contradicted each other is one example of decisions that are not ideal in the doctrine of judicial precedent and its application in the Nigerian legal system.

1.3       Objectives of Study

This research work intends to achieve the following objectives

(a)       To examine the history and development of judicial precedent

(b)      To examine factors affecting the proper operation of the doctrine in Nigeria.

(c)       To examine the attitude of court toward judicial precedent in Nigeria.

(d)      To examine the application of the doctrine of judicial precedent.

(e)       To give useful recommendations to help curtail the challenges experienced in the operation of the doctrine in Nigeria.

1.4       Significance of Study

This research is significant because it will give possible recommendations through its various findings to help curtail the challenges experienced by strict adherence to the doctrine of judicial precedent by judges and counsel in our courts. These recommendations when looked into and applied would help to put the doctrine of judicial precedent in its proper place in the administration of justice in Nigeria.

1.5       Research Questions

This research work intends to give answers to the following questions:

(a)             How is the doctrine of judicial precedent operated?

(b)            What are the factors that influence is operation?

(c)             What are the challenges occasioned by the application of the doctrine? How can these challenges be reduced?

(d)            How does the application of judicial precedent affect justice?

(e)             What will be the challenges of this application in future?

1.6       Scope of Study

The study covers the application of the principle of juridical prevail in the Nigerian judicial system.

1.7       Research Methodology

In this research work, the method to be used shall be doctrinal. I shall make use of law reports, textbooks, law dictionaries and judicial works of other authors. On the whole, recourse will be had on deskwork materials.

1.8       Conceptual Clarifications

Judicial Precedent

Judicial precedent is a legal experience. In ordinary life, people rely on past experiences when embarking on a venture, these experiences are nothing but precedents. Leaders are always conscious of their actions so as not to lay bad precedent. A client who want to cook a particular dish and wants to get the original taste of that dish, will do well to follow the recipe and the systematic 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, and deciding today, on the experience of yesterday.

In Nigerian legal system, judicial precedent is a decision establishing a principle of law that any other judicial body must or may following when call upon to decide a case with similar issues. Precedent can be binding a persuasive. Precedent that must be applied or followed is known as binding precedent. By definition, decisions of lower courts are not binding on courts that are higher in the hierarchy. Precedents are persuasive when the court is not under obligation to follow it. Persuasive precedents under Nigerian 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.

Nigeria courts and text book writers use judicial precedent and stare decisis inter changeably as if the two are synonyms.

Stare Decisis

One of the conceptual tools for ensuring certainty in the law is the doctrine of stare decisis. The doctrine simply means that when a court of law once laid down principles of law as applicable to a certain state of facts, it will adhere to the principle and apply it to all future cases, where facts are substantially the same, regardless of whether the parties and properties are the same. In Osakue v. Federal College of Education (Technical) Asaba[4] , the Nigeria Supreme Court, per Ogbuagu J.S.C. define stare decisis thus:

Stare decisis means to abide by the former precedent where the same point came again in litigation. It presupposes that the law has been 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. The doctrine is regarded with an aura of sanctity that almost borders on veneration. In its operation in Nigeria, the decision of the Supreme Court being the Apex Court in the country binds all the lower Court even when reached per incuriam. Similarly, the decision of the Court of Appeal binds the lower court. Therefore, no lower court has a right under any  guise to refuse to follow the decision of a Higher Court[5]. In Ossom v Ossom[6], the Court of Appeal stated.

I agree with the learned counsel that the doctrine of stare decisis is a well settled principle of judicial policy which is strictly to be adhered to by all lower courts. While a lower court may depart from its own decision reached per incuriam, a lower court cannot refused to be bound by the decision of a higher court even if those decision were reached per incuriam.

Obiter Dictum

To a layman, obiter dictum is the statement of law, made by the way in the judgment, which is not relevant to the issue before the court. Black’s Law Dictionary[7] defines obiter dictum as ‘words of an opinion entirely unnecessary for the decision of the case. A remark made, or opinion expressed, by a judge, in his decision upon a case, “by the way” that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the case, or introduced by way of illustration, or analogy or argument.” Goodhart looked at obiter dictum from the point of view of the fact that says that an obiter dictum is a conclusion based on a fact the existence of which has not been determined by the court. Cross[8] on the other hand, point out that there is a distinction, which can be drawn between statements based on facts the existence of which had been determined by the court and statements based on facts the existence of which has not been determined by the court. According to him, the latter may arise where the court gives a preliminary ruling on a point of law on assumed facts. In such case, the ruling can be regarded as ratio decidendi whereas in the case where the fact are denied by the courts, the statement is purely obiter.

Per Incuriam

Incuriam literary means “carelessness” but decisions described as reached per incuriam are in fact reached per ignorantium meaning reached through ignorance. The expression ‘through ignorance is however not preferred because judges are presumed to know the law and it is accordingly regarded as uncomplimentary to describe the wrong decision as having been arrived through ignorance.

The basis of regarding a decision as being reached per incuriam is where a relevant statute or rule which would have effect on the decision was not brought to the attention of the earlier court; and the earlier court’s judge failed to address his mind to such statute or rule of law in consonance with the general principle that the judge is presumed to know the law. The application is illustrated in Young v Bristol Aeroplane[9], but it has also been added in Nicholas v Penny[10] that the rule applies not only to statutes but also to overlook binding judicial precedent. No court is bound to follow a decision of its own, if it is satisfied that it has given the decision per incuriam. A lower court is bound to follow the decision of a higher court even though such decision was reached per incuriam. In Board of Customs and Excise v. Bolarinwa,[11] Thompson J. stated as follows:

A magistrate is bound by a High Court decision and has no discretion as to whether it ought to follow the decision or not. If the High Court decision is wrong, the Magistrate is still bound with it as it is not within its jurisdiction to condemn a decision of the High Court. If he has any doubt, he may express it but only as an obiter dictum.

Distinguishing a Case

Distinguishing a case means pointing out an essential difference between the present case and the earlier one[12]. Such differences are mostly of fact and not of law, though sometimes the law applicable might be the distinguishing factor. It is a device used by the court when they are not inclined to follow a particular precedent and what is reasonably distinguishable depends on the particular case and the court.


It means to overturn or set aside (a precedent) by expressly deciding that it should no longer be a controlling law.

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