LEGAL METHODS- DOCTRINE OF PRECEDENTS скачать в хорошем качестве

LEGAL METHODS- DOCTRINE OF PRECEDENTS

A precedent is a decided case that furnishes a basis for determining later cases involving similar facts or issues. It must be noted that the doctrine of judicial precedent involves the application of the principle of stare decisis, namely to stand by the decided case. In order for the principle of Stare decisis to apply, it is necessary to be able to determine what point of law arises. The legal reasoning for a judge in making a decision amounts to ratio decidendi; the ratio decidendi forms the legal principle which becomes the binding precedent. More to that Stare decisis has been constitutionalized in Article 132 (4) of the 1995 constitution as amended, it provides that, the supreme court 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 supreme court on questions of law. Further, Article 129(1) of the constitution spells out the hierarchy of courts in descending order to be the Supreme Court, court of Appeal, High Court and such subordinate courts as Parliament may by law establish. The doctrine of precedent originates from common law The doctrine of precedent is one of the principles that underpins common law. The Latin name for the doctrine of precedent is stare decisis (“stand by that decided). It is a principle that requires judges to follow the rulings and determination of judges in higher courts, where a case involves similar facts and issues. The doctrine of precedent is sometimes described by the Latin word stare decisis. The doctrine of stare decisis has binding force depending on the hierarchy of courts. Higher bind lower courts and never vice versa. The development of common law and the doctrine of stare decisis required these judges to make more rational and consistent decisions. The common law of system that emerged from Britain during the Middle Ages was stable, consistent and even-handed-at least when compared to other systems of the time The doctrine of precedent only applies when the court is actively considering a case. When a case comes before the court, in general terms the judges will follow the approach of the doctrine. CATEGORIES OF PRECEDENT Declaratory precedent This is the application of an already existing rule of law. This states that the judges should declare the law rather than make it, thus preserving the doctrine of parliamentary sovereignty. This simply means where the judge applies existing rules of law without extending them. Kiriri Cotton Ltd v R.K Dewani Original precedent This is one that creates and applies a new rule It is where the court makes decisions on cases which have never been considered before and there has been no prior judicial decision. Over ruling precedent This is where applying an earlier decision will lead to injustice, the judge may refuse to fall it. If the precedent was laid down by the inferior court, he may over rule it, so the court can over rule its own earlier cases decided without regard to an existing legal authority or any existing principle of law that’s cases decided per incuriam. This set aside a precedent by expressly deciding that it should no longer be controlling law. Case; Matiya K. Wamala Vs Samson Sebutemba. Distinguishing precedent This is when cases are taken as being different from each other. Even where the precedent may be ordinarily binding in determining the subsequent case with similar legal issues and facts, courts may technically avoid following such precedents by way of distinguishing. If enough significant differences are found, for instance; if the material facts of the earlier case are not the same as the later case, the later court may simply distinguish the earlier one. Case; Bridges Vs Hawkes Worth TYPES OF PRECEDENTS There are majorly two types of precedents; Binding precedent This is where lower courts are binded by the decisions made by superior courts. It is only binding to courts lower or equal to the courts where the precedent was made. This mostly finds it expressions in the doctrine of stare decisis. Case; Attorney general Vs Uganda Law society Persuasive precedent It is a precedent made by the courts of law that is worth considering but may not be followed , for example the Uganda court system decision of the English lower courts are persuasive . That is; the supreme court may follow the decision of the court of appeal or constitutional court, the court of appeal may follow the decision of the high court , although not strictly bound to do so. E.g. R vs R (1991) it’s a martial rape case where the house of lords followed the decision of the court of appeal and held the husband to be liable. ‪@lawschoolmusiimentalex‬