- The Principle of Stare Decisis
Article 129 of the Constitution acknowledges the Supreme Court as the final court of appeal which shall have such appellate and other jurisdiction as may be conferred on it by the Constitution itself, as well as any other law. According to the Constitution, the Supreme Court which is the apex court of the land is at liberty not to follow the decisions of any other court even though all other courts are mandated by law to follow its decisions.
The latter may however depart from its own decisions when it becomes necessary to do so, even though ordinarily they ought to be bound by it.
The doctrine of stare decisis is of such sacred nature that a court which does not abide by its rules incurs the wrath of the law; the possibility of having its decision quashed. In the case of Republic v High Court, Ho; Ex Parte Evangelical Presbyterian Church of Ghana and Another [1991] 1 GLR 323 for instance, Adade CJ iterated:
“I find it insufferable that a court can ignore an order of a higher court immobilizing its judgment and with specious arguments rehabilitate its own. It is a sophistry that must receive the severest rebuke. It is subversive of the principle of stare decisis and a naked example of the flouting of constitutional proprieties. In my view, an order of the Court of Appeal has full force and authority until reversed by a superior court. It does not matter how the sty was initiated, who were actually involved or even the correctness of the decision. The Court of Appeal did not express a debatable point of law; it pronounced an order which the High Court was in duty bound to follow. Dialectical effusions of the kind indulged in by the High Court Judge should not be countenanced if we are to preserve and respect the authority of the tiers of jurisdiction. Thus Van Lare J.A (as Ag C.J) in Kwami v Quaynor [1959] GLR 269, C.A was compelled to chide a judge for indulging in such criticisms.”
The principle of stare decisis is indeed revered in the hierarchy of the courts. Therefore, unless special circumstances require that a particular binding precedent is not followed, the courts are enjoined by law to follow decisions of a higher court.
So, in the case of Loga v Davordzi and Others [1966] GLR 530, it was indicated that the flexible rule of stare decisis does not mean that the Supreme Court should start, in every case, to speculate on every ground on which a previous decision was based, and reverse its recent and well-considered decisions on controversial questions. Breaking free from that bondage of a binding precedent therefore becomes extremely difficult.
- Can a Court depart from a binding decision?
Even though courts are obliged to uphold the principle of stare decisis, there are certain situations which may require a departure from a binding decision. In the case of Samuel Osei Boateng v National Media Commission and Berifi Afari Apenteng [2013] DLSC2683, the erudite Justice Date-Bah pointed out that the court was not absolutely bound by an earlier decision regarding the correct interpretation of “discretionary power”. He stated further that the interpretation still remained opened and it could not be legitimately asserted that the meaning of “discretionary power” had already been authoritatively and conclusively determined. By this, the court had smartly absolved itself of the mandate of following its own previous decision having found that it did not apply in the circumstance it found itself in.
- When can a court depart from a binding precedent?
The circumstances or situations under which a court may depart from a binding decision are as follows:
- Where the binding decision was made per incuriam
- Where the facts are distinguishable enroll
- Where there are two conflicting superior court decisions
- Where an Act of Parliament has been passed since the precedent was given, the precedent will no longer bind the lower court or where a statutory effect which would have affected the decision was not brought to the attention of the earlier court. (Young v Bristol Aeroplane Company Ltd [1994] KB 718)
These factors listed supra, that may give rise to a court departing from a binding precedent may be inferred from the case of Republic v National House of Chiefs [02/12/2009] Civil Appeal J4/18/2009 in which case Dotse JSC stated with approval, the principles laid out in the case of Young v Bristol Aeroplane Co. Ltd. [1944] KB 718, CA or [1944] 2 All ER 293.
In the case of Martin Kpebu v Attorney General [Civil Appeal No.J1/13/2016][5/5/2016], the Supreme Court intimated as follows:
“Clearly, undergirding the doctrine of stare decisis and its related principles as pertains to this court’s governing jurisdiction, is the fact that the decision from which the departure is urged, is a definitive or conclusive decision in a previous action.”
This goes to show that a decision of a superior court would only be binding on the lower court where that decision was a definitive or conclusive decision in the previous action.
In the ensuing paragraphs, the circumstances under which a court may depart from a binding decision would be elaborated with the aid of decided cases.
- Where the facts of the present case can be distinguished from the previous decision which is binding
In the case of Martin Alamisi Amidu v AG, Isofoton and Anane-Agyei Forson [21/06/2013] Writ No, J1/23/2012, it was noted that the AG v Facoe Atlantic Co. Ltd and the AG v Balkan Energy Ghana Ltd and 2 Others were not applicable in that instant case because, the Relationship between the Financial Protocol and the impugned agreements injects a novel element not present in those two cases. As such, the case was not covered by stare decisis.
It is apparent from this that, a court may depart from such precedent if they are able to show that there are marked differences in the decision being relied on and the case upon which a pronouncement is sought.
Reference ought to be made again, to the case of Republic v National House of Chiefs [02/12/2009] Civil Appeal J4/18/2009 cited supra in which case it was made clear that the likeness of the previous decision to the present decision must be considered in concluding whether or not to follow that previous decision. Dotse JSC posited that:
The principle is based first of all on the relevant likeness of the previous decisions or the relevance of the principle of law decided in the previous case and the instant one. If however, there is no likeness between the two, then there is no need to consider whether the previous one should be followed or not. It is the art of following the decision in the previous case or being able to distinguish the principle of law decided in the previous case form the one before the Court, that will determine its applicability.
Deductions may be made from this proposition to the effect that a court ought not to be bothered about following a decision which has no semblance, either in facts or in principle to the one being considered.
- Where the decision was made per incuriam
In the case of Agyekum v Asakum Engineering and Construction Ltd [1989-90] 2 GLR 650 the court stressed on the fact that no judge is bound by the legal misapprehensions of another judge, let alone one of co-ordinate jurisdiction. it concluded by saying that the rules of stare decisis do not extend to errors per incuriam even from the highest court of the land.
A mistake by a superior court must therefore not be endorsed by a lower court merely in the name of hierarchy. The court seeking to depart from the said binding precedent must be able to intrepidly point out the said error and direct itself to the correct proposition of the law by grounding it on solid authorities. Merely declaring a precedent as having been made per incuriam does not empower the court from departing from the decision.
For instance, in The Republic v The High Court, Accra Ex-Parte: Expendable Polystrene Products Limited [24/07/02] C.M. 21/2002, Bamford-Addo JSC in a quest to depart from the case of Republic v Judicial Committee of the Central Regional House of Chiefs; Ex parte Supi Mark Aaba and Others C.A. No 1/99 of 25/7/2001 said the following:
“I have carefully considered the above mentioned case. it appears to me that the Court’s attention was not directed, to nor did it consider the relevant provisions of the Constitution which I have referred to in this judgment. In my opinion if it had done so, I have no doubt that a different conclusion would have been arrived at which would conform with my views as expressed in this Ruling. Therefore, the judgment in the Ex parte Supi Aaba case supra was given per incuriam and Applicant’s reliance on it is unhelpful to this case.”
It is clear that in the case above, the learned Justice identified the error in the previous decision before going ahead to declare it as having been made per incuriam.
Furthermore, in the case of Nye v Nye [1967] GLR 76-91, Akuffo-Addo C.J. took cognizance of the dissenting opinion of Azu Crabbe JSC in the case of Loga v Davordzi which had been a focal point for the determination of the case at hand and quoted it with approval in the following manner:
“…A previous decision is regarded to have been given per incuriam if the decision must have been different had the court been referred to a particular statute or statutory rule or some authority decisive of the issue. In Morelle Ltd v Wakeling [1955] 2 Q.B. 379 at page 406, the Court of Appeal in England was asked to consider the meaning of the words per incuriam, and Evershed M.R., who read the judgment of the court, said: ‘As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.’ In the present case it has not been shown that in Nye v Nye any statutory provision or binding authority was overlooked. Indeed, Nye v Nye dealt specifically with subrules(1) and (4) which we are here asked to construe, and no argument has been advanced to persuade me that any part of that decision or a step in the reasoning on which it was based is faulty. Accordingly, I differ that Nye v Nye was decided per incuriam.” To the extent therefore that the decision in Loga v Davordzi declares the decision in the Nye v Nye application to be given per incuriam, that decision is wholly wrong.
- Where there are two conflicting superior court decisions
It has been held in a litany of cases that a lower court is at liberty to follow any one of several decisions of a higher court which are conflicting. In a quest to demonstrate such choice, Amua-Sekyi J (as he then was) in the case of Amponsah v Appiagyei; Amoah v Anthony; Boakye v Effah; Boateng v Boahen (Consolidated) [1982-83] GLR 96 at 109, expressed the view that:
“The Principle of judicial precedent requires that a lower court takes due notice of and apply decisions of a higher court which are binding on it. this however, does not mean that such decisions ought to be slavishly followed even when they are demonstrably wrong.”
The above case was relied on by Essiem JA when he sought to propagate the choices of a lower court faced with conflicting higher court decisions in the case of Darke and Another v Dei XI and Another [1991] 2 GLR 112-150. He said
“In my opinion, when a lower court is faced with conflicting decisions of a higher court, it has a choice to follow any of those conflicting decisions. Furthermore, my understanding of the law is that where a decision of a court is in clear conflict with the provisions of a statute, any court faced with the problem of choosing between the law and a decided case must comply with the provisions of the statute.”
- Where a decision of a court is in clear conflict with the provisions of a statute
A court’s decision, deemed as binding on other courts may be in conflict with the provisions of a statute or even the constitution. This may arise as a result of that decision having been given prior to the promulgation of the said statute. Moreover, that decision may have been given without recourse to the said statute. No matter the circumstances resulting in the said conflict, it has been held that the statute would have to take precedence over the said decision. Therefore, in the case of Edusei v Diners Club Suisse SA [1982-83] GLR 809, the Court of Appeal speaking through Francois J.A. (as he then was) took the view that
“…where there are competing calls on a court, as to which authority to comply with, obeisance is due to statute rather than the decision of a higher court however exalted.”
Grounding itself on the decision in the Diner’s Club Case, the Court of Appeal in the case of Darke and Another v Dei XI and Another cited supra, projected the supremacy of a statute over a court decision and stated that “the courts exist to do justice and are duly bound to observe and enforce the law of the land. Where a court, however exalted, gives a decision which is contrary to the mandatory provisions of a statute, that decision is illegal and it becomes the duty of the court to vacate it and ensure that justice is done. The doctrine of judicial precedent is based on the presumption that the higher court had itself acted lawfully. Where it is plain that a higher court has acted illegally it would be a complete denial of justice for anyone to hide behind the doctrine of judicial precedent to enforce the illegal orders of the court concerned.”
There is no iota of doubt, that where there is in existence a binding decision on a particular subject matter by a superior court, it ought to be followed. However, there is no mandate or compulsion on a court to slavishly follow a decision which has not been made within the ambits of the law.
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