Factors for the development of a new or extinguish existing precedents in any legal system. by Johnson Yesaya

INTRODUCTION

A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts[1]. English legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained[2]. Judges are bound to follow  precedents under a doctrine of stare decisis (a Latin phrase with the literal meaning of "Let the decision stand"). Common law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and subordinate legislation (that is, regulations promulgated by executive branch agencies, in the form of delegated legislation)[3].

CATEGORIES OF PRECEDENT

Binding precedent or ‘mandatory precedent’ in some court systems. A binding precedent requires all subordinate courts to follow the ratio decidendi of superior courts when the facts of a case are the same or similar[4]. Precedents only binds in the same jurisdiction, such as state court hierarchies. Precedents established in courts of Kenya, for example, are not binding on court hierarchies in Tanzania rather than being persuasive. In Tanzania, High Court precedents binds all subordinate courts in judicial hierarchy, RMs courts and District Courts in Tanzania are bound to follow rules established by High Court in previous cases with the same material facts with cases before subordinate courts. Precedents established in the Court of Appeal are not necessarily binding on other Court of Appeal cases, however, they are generally followed by convention. This means that Court of Appeal judges can establish a new precedent if they believe there is a pressing reason to do so.

Persuasive precedent. While the decisions of subordinate courts or courts in other jurisdictions can never be binding, they can certainly influence the decision of a court. Judges can examine the precedents established in these courts for guidance and information[5]. They may study the precedent of a subordinate court or a court in another hierarchy (the ratio decidendi of a District Court, for example, may provide a persuasive precedent for a judge in the High Court of Tanzania). Or they may develop a new precedent that is informed or shaped by these persuasive precedents. There may be no scope for a persuasive precedent if there is a binding precedent that must be applied. A court can only choose to follow a persuasive precedent if no relevant binding precedent exists in its own hierarchy.

MAIN FACTOR FOR THE DEVELOPMENT OF NEW PRECEDENT IN ANY LEGAL SYSTEM

Lacuna in law[6].This is among factors for the development of new Precedents in various jurisdictions, lacuna in law is a legal gap, where there is no any law which cover a particular offence/act in statutes, the situation is called lacuna in law. Legal gap can be solved either by parliamentary legislation or by judicial legislation (Precedents). So, in circumstances that court think there is a need to fill gap in law, precedent is a proper measure to be taken.

Example there was a case in Massachusetts where a person took mobile phone photographs of women's underwear when they were sitting opposite him on public trolley cars. The court found that his behavior was improper, but it was not illegal because the existing laws (written before people had mobile phones with cameras) did not cover this activity. (The law was amended within 48 hours of the court decision.)

MAIN FACTORS WHICH EXTINGUISH EXISTING PRECEDENTS IN ANY LEGAL SYSTEM

Overruling is among factors which put an end to any precedent, overruling is authoritative declaration that the principle in a previous case never existed at all[7]. A precedent loses its authority when overruled, that is, it becomes null and void and a new principle is authoritatively substituted for the old one.  Overruling of a precedent is an act of superior jurisdiction and can only be done by a court of higher authority. A precedent can be overruled on the following grounds;

Workability of a precedent. Court may consider workability of a precedent when determining whether to overrule a precedent or not. When precedent’s rules or standards are too difficult for subordinate courts or other interpreters to apply and are thus “unworkable. ”When court satisfy itself that, the existing precedent is hard to apply or creates confusion, a court with authority may declare it in-applicable.

Inconsistency with related decisions or existing laws[8]. Another factor that court may consider before overruling a precedent is whether the precedent departs from the Court’s other decisions on similar material facts, laws expected to be consistency, the same facts of several cases expected to be decided in the same manner, difference in decision creates inconsistency and question of the law. A precedent can be quashed for being inconsistent to the laws and to the common decision previously passed by the courts in the same hierarchy..

When a precedent is not merely wrong but so clearly and seriously wrong that its reversal is demanded by the interests of sound administration of justice. The court therefore authoritatively denies that the supposed rule of law has ever existed and not the abolition of an established rule, that is, in reality it has never made any law at all and not because it has made bad law[9].

The effect of overruling can be either prospective or retrospective. Otherwise the effect of overruling is retrospective expect that it does not unsettle matters which are res judicator as between the parties to the overruled decision and accounts stated. The court of Appeal of Tanzania has such powers[10]

Dis-regarding. Disregarding is when one court reject to be bound by precedent of another court with the same power to rejecting court.. The High Court of Tanzania Mainland can refuse to follow a precedent by the High Court of Zanzibar because the two high courts are courts with co-ordinate jurisdiction. If a precedent is not followed it does not 'altogether disappear, it exists side by side with the latter authority conflicting with each other till one of them is set aside by a higher court, and the latter declared as good law.

Distinguishing or Explaining. Under this technique the court limits the facts of a case by saying that the principle sought to govern the present case was formulated too widely. The process involves the identification of factual difference and using it as justification for departing-from the ruling in the earlier case. When a court depart from earlier ruling of a case, a said ruling continue to be valid, but it cannot be used in a case said to of having different material facts.

CONCLUSION

In Tanzania, High Court and Court of Appeal are courts of records, subordinates courts to High Court (RMs courts and District Courts) are bound to follow decision of the High Court, likewise, High Court is bound to follow decisions of court of appeal. Court of Appeal of Tanzania is not bound to follow decision of any court subordinate to it, but such decisions may be used as persuasive. Court of Appeal is bound to follow its own decision unless it decide to depart or set aside the earlier decision.

Precedents plays a big role in court system in administration of Justice, Precedents save courts time and speedy dispensation of Justice since Precedents can be applied in cases with same facts as earlier decided cases. Precedents reduce time of a case because Judges may quickly make reference to previous decided cases to get supporting provisions of the law for the decision of cases on hands

. REFERENCE

BOOKS

Terence Ingman, The English Legal Process, 8th Edn.  Blackstone Press Ltd 2000 pp 237-242

Morris & Read, The British Commonwealth:  The Development of Its Laws and Constitution- Uganda chapter 10

Cole & Dennison, Tanganyika:  The Development of Its Laws and Constitution, Steven Sons London 1964 chs 2 & 5

Moris& Read, Indirect Rule and Search for Justice Essays in African Legal History, Clarendon Press Oxford, 1972

ONLINE SOURCES

https://www.dictionary.com/browse/precedent

https://www.ldoceonline.com/dictionary/precedent

https://en.m.wikipedia.org/wiki/Precedent

https://lawgovpol.com/types-precedent/

---

[1]https://www.dictionary.com/browse/precedent

[2]https://www.ldoceonline.com/dictionary/precedent

[3]https://en.m.wikipedia.org/wiki/Precedent

[4]https://lawgovpol.com/types-precedent/

[5]Ibid

[6]https://legal-dictionary.thefreedictionary.com/lacuna

[7]https://definitions.uslegal.com/o/overruling-precedent/

[8]https://www.everycrsreport.com/reports/R45319.html

[9] Ibid

[10] Ibid