INTRODUCTION

The apex court in National Electric Power Authority v Onah (1997) 1 NWLR (Pt. 484) Page 680 at 688 has defined stare decisis to mean, stand by your decision and the decisions of your predecessors, however wrong they are and whatever injustice they inflict. – (Emphasis Mine).

As asservated by the apex court, when the Supreme Court ex cathedra formulates a principle called precedent, it and all other courts of subordinate jurisdiction must kowtow, no matter the injustice inflicted by such precedent, when faced with a similar situation. Apparently, the Supreme Court and all other courts have slavishly paid obeisance to the doctrine. A higher court would even reverse any decision of a lower court that defies this inveterate doctrine as this would be tantamount to judicial rascality, gross insubordination and judicial inappropriateness. Vide DALHATU v TURAKI (2003) 15 NWLR (Pt. 843) 310 @ 323; ISAAC MADUBUAGO v DR MUDIAGA ODJE & ORS (1985) 10 SC 267 at pages 268 – 269, per Eso, JSC.

Heretofore, Nigerian courts have strictly adhered to the doctrine, notwithstanding suspicions about its wrongness, on the notion that certainty to the practice and application of the law is of utmost importance. Apropos the foregoing, this article explicates the application of this doctrine, circumstances when the Supreme Court and the Court of Appeal would depart from or overrule its previous decision, and the ills associated with strictly adhering to the doctrine.

MEANING AND APPLICATION OF THE DOCTRINE
The term ‘stare decisis’ is derived from the full Latin maxim ‘stare decisis et non quietamovare’ which literally means to stand by a decision and not to disturb that which is settled.According to the Black’s Law Dictionary 9thEdition at page 1214, stare decisis means to stand by things decided.

It is a well rooted doctrine in the Nigerian jurisprudence. By this doctrine once a point of law has been solemnly and necessarily settled by the decision of a competent court, it will no longer be considered open to examination, or to a new ruling, by the same tribunal or those which are bound to follow its adjudications. The recognition of the doctrine has been affirmed in a spate of filed, appealed and decided cases. Vide NATIONAL ELECTRIC POWER AUTHORITY vONAH (1997) 1 NWLR (Pt. 484) 680 at 688; OSAKUE v FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA & ORS (2002) 10 NWLR (Pt. 1201) 1 at 34, per Ogbuagu, JSC; OKONIJI v MUDIAGA ODGE (1985) 10 S.C 267, at pages 268, 289, per Eso, JSC (as he then was).

In applying the doctrine of stare decisis, what is required is that the case under consideration and the one being urged as authority for a particular principle should agree on legally material facts. Vide ABU v ADEGBO (2001) 41 W.R.N. 1; ADETOUN OLADEJI (NIG) v NIGERIAN BREWERIES PLC (2007) 5 NWLR (Pt. 1027) 415, per Niki Tobi, JSC. What constitutes legally material facts can be identified by general legal categories and issues. This may require a foray into previously decided cases. These decided cases provide analogical templates, because in them, the fit between specific fact and legal category has already been established. Whether a legal claim can be established in the new case vel non will depend in part on whether the facts in the case under consideration are arguably similar to those in previous cases were legal claims were upheld. Vide OSCAR & ANOR v ISAH (2014) LPELR – 23620 (CA); DALHATU v TURAKI & ORS (2003) 15 NWLR (Pt. 843) 310.

According to Professor Osita Nnamani Ogbu in his book Modern Nigeria Legal System (Enugu, CIDJAP press, 2007), ‘What is required is not necessarily that the facts of the previous and the subsequent cases should be the same or similar, it is sufficient if the same question decided in previous case arises in a subsequent case.’ Inasmuch as the same legal issue is in question, the doctrine of stare decisis becomes unmistakably applicable. See also UBA v GMBH & CO (1989) NWLR (Pt. 110) 374 @ 402, per Karibi – Whyte, JSC.

The legal principlesat issue must be gleaned, which facts from previous cases were most pertinent, which facts in the instant case are most pertinent, and exactly what the court has decided regarding the issue on these facts, id est, the principle formulated, known in the legal lexiconas the ratio decidendi— Latin for the ‘rationale for the decision,’ the substratum of stare decisis.

DEPARTURE FROM LAID DOWN DECISIONS: THE SUPREME COURT AND THE COURT OF APPEAL IN CONTEXT
Departure from a previously decided case would only occur when: (y) the court being urged to follow a particular authority is able to successfully distinguish same from the case at hand by pointing out an essential difference; (z) the court outrightly overrules a previous decision.

Whilst the concept of distinguishing has to do with whether the facts or issues decided upon in the previous case are the same orat least relatively the same with the facts and issues trending in the present case whereof a lower court or court of coordinate jurisdiction is urged to follow in arriving at its judgment, over rulingis a procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case.

The Supreme Court has iterated that it is loosely bound by its previous decisions. Vide ASANYA v STATE (1991) 3 NWLR 422 @ 448, per Nnaemeka-Agu, JSC. Accordingly, the Supreme Court may in appropriate circumstances depart or overrule a previously decided casein the interest of justice. A classical example of this is the case of Bucknor-Maclean v Inlaks Ltd (1980) ALL NLR 184 where the apex court departed from its previous decision in Shell B. P. v Jammal Engineering (Nig.) Ltd (1974) 1 All NLR 542.

Although the Supreme Court is loosely bound to follow a previously made decision, over the years, it has rather remained rigid and skeptical towards overruling previously decided cases no longer fit for the contemporary era. Itis strange that, within the system of stare decisis, precedents gain increased authority with the passage of time. As a consequence, the apex court tends to be reluctant to overrule longstanding authorities even though they may no longer accurately reflect contemporary practices or morals, ergo, slavishly upholding the doctrine of stare decisis. Could it be that the judges avoid deciding cases?Perhaps they avoid establishing new precedents because in some cases, society does better by muddling through without establishing a clear rule. Perhaps they do so because if they decided, it would come out the ‘wrong’ way from a public policy perspective. Perhaps they do so because they wish implicitly to refer the matter to the legislature, which can decide the issue with greater analytical resources and greater political legitimacy. Perhaps the aphorism, ‘if it isn’t broken, don’t fix it’ informs their disposition. Hence, they feel existing circumstances may be superior to alternatives that we are unable to observe without extensive analysis.

On the other hand, the Court of Appeal is strictly hamstrung, kowtowing to the inveterate doctrine of stare decisis. The reason for this isn’t far-fetched, the Court of Appeal being a court within the purview of the hierarchical organigram must pay obeisance to precedents. It is bound to follow the principle established by the Supreme Court in a decided case where the diacritical facts of the matter before the mare the same as the facts that induced the decision in the said case.

It is also important to note that where the Court of Appeal is faced with two conflicting decisions of the apex court, the justices need not fold their hands in dismay but apply the later or the latest if the circumstances are the same. Vide YUSUF v EGBE (1987) 2 NWLR (Pt. 56) 341, per Kolawole, JCA (of blessed memory);OSAKUE v FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA & ORS, (SUPRA), per Ogbuagu, JSC.

On the issue of departure from its previously decided case, the Court of Appeal is still governed by the rules laid down in Young v Bristol Aeroplane Co. Ltd (1944) 2 All E. R. 293, as pertaining to civil cases.

John Asein, in his book, Introduction to the Nigerian Legal System has opined that the grounds of departure outlined in Young’s Case,(SUPRA), are by no means exhaustive and a rigid application of the rules should be discarded in favour of a more flexible one permitting the Court to depart from the precedent in the same circumstances of the Supreme Court. Whilst this may be desired, it’s not completely practicable as that would defy and undermine the sacred doctrine.

ILLS ASSOCIATED WITH THE DOCTRINE
Although one of the greatest underlying reasons for stare decisisis consistency which also helps to economise on decision-making resources instead of reinventing the wheel every time,stare decisis is not free of its own faults and ills.

The most important ill associated with the doctrine seems to be the injustice a principle might pose in future circumstances. However, there seems to be argument in some quarters about the injustice inconsistency in decisions may produce, thus, consistency of treatment is akin to non-discrimination and justice. I beg to differ, because the society in itself is evolutionary, ergo, previously decided cases may no longer accurately reflect contemporary practices or morals.Principles ought to be evaluated overtime. An argument that posits that MrB should get the same result Mr A got, 10 years ago, isn’t tenable, as dynamism is a feature of law.Indeed, the older a precedent is, the more possibility there is that its doctrinal underpinnings will have been eroded through developments in the law. The crucible of time should tend towards revising or overruling ‘bad’ precedent sand respecting ‘good’ ones.

Stare decisis also stalls the imaginativeness, initiative and thought of the judges, the reason being that judges aren’t given the opportunity to think the issues through again, perhaps, they might come up with a better solution. It promotes the habit of relying completely on past decisions. The idea of relying solely on past decisions and asking, ‘how did we deal with this issue the last time it arose?’ isn’t a bad idea, but the tendency to forestall imaginativeness and profound ratio cinatio postulates the dangers of strictly adhering to stare decisis. Judges should not be caught up in the doctrine’s intricate skein but must be allowed to make nuanced decisions on matters before them having regard to orthogonal variables that may not have arisen when an issue was first decided upon.

CONCLUSION
Although the doctrine of stare decisishas the merit of promoting certainty and consistency in judicial decisions and helps to economise on decision-making resources,it remains a controversial feature of the legal systems that recognise it.

A strict adherence to it can limit and cripple profound developments in the law. What the earlier decisions establish are only principles, not rules, they should merely serve as guides to arriving at a decision.

Whilst the views expressed in this article are just cogitations, it would be in the interest of justice and the development of the law for courts to avoid ‘strictly’ adhering to the doctrine and to overrule a decision when it doesn’t suit the contemporary demands of the society.

DAMILOLAOBANIJESU OYAWOLE writes from Faculty of Law, University of Ilorin.

09033182827 or [email protected]