UNIVERSITY OF

LUSAKA
SCHOOL OF LAW
UNIT 6:
JUDICIAL
PRECEDENT
 INTRODUCTION :
RATIO DECIDENDI OF A CASE
What is regarded as precedent and therefore to be
followed is the ratio decidendi of a case.
The ratio decidendi of a case is simply the reason or
ground for a decision.
Eg: in the case of Christine Mulundika & 7 Others v
The People (1995) the Supreme Court held that: section
5(4) of the Public Order Act Cap 104 contravenes arts 20
and 21 of the Constitution and is null and void. Thus the
ratio decidendi / reason for this decision is based on
constitutional supremacy.
The important part of each judgement is the principle
of law the judge is using to come to his decision. The
ratio decidendi is the part of the judgement that creates
law (or a precedent) for future judges to follow.
 INTRODUCTION : RATIO RATIO DECIDENDI
OF A CASE (CONT’D)
A general formula for determining the ratio decidendi of a case has been
suggested in the following ways:
“Suppose that in a certain case facts A, B and C exist and suppose that the court
finds that facts B and C are material and fact A immaterial, and then reaches
conclusion X (for example judgement for the Claimant, or judgement for the
defendant), then the doctrine of precedent enables us to say that in any future case
in which facts B and C exist, or in which facts A, B and C exist, the conclusion must
be X. If in any future case facts A, B, C and D exist and fact D is held to be material,
the first case will not be direct authority, though it may be of value as an analogy”.
What facts are legally material? That depends on the particular case but take as an
illustration a “running down” action, that is to say an action for injuries sustained
through the defendant’s negligent driving of a vehicle. The fact that the Claimant
had red hair and freckles, that her name was Smith, and that the accident happened
on a Friday are immaterial, for the rule of law upon which the decision proceeds will
apply equally to persons who do not possess these characteristics and to
accidents that happen on other days. On the other hand, the fact that the defendant
drove negligently, and the fact that in consequence the Claimant was injured, are
material, and a decision in the Claimant’s favour on such facts will be an authority
for the proposition that a person is liable for causing damage through the negligent
driving of a vehicle”. [Glanville William’s Learning the Law, p 93]
OBITER DICTUM OF A CASE
An obiter dictum refers to ‘things said by
the way’ or ‘things said in passing’. It is an
observation by a judge on a legal question
suggested by a case before him, but not
arising in such a manner as to require a
decision on it. Thus, the concept of obiter
dictum embraces all those parts of a
judgement which are capable of law but
which do not fall within the definition of ratio
decidendi. Unlike the ratio decidendi of a
case, the obiter dictum is not binding.
OBITER DICTUM OF A CASE
(CONT’D)
It is important to note that although obiter dictum is not
binding, it does not follow that it is worthless in terms of the
doctrine of precedent: dicta may, in practice, be so persuasive
that a judge may feel compelled to follow it. In this regard, a
distinction must be made between gratis dicta and judicial
dicta. The former are mere throwaways (sayings which are
given away, as it were, free) and so of very little, if any, value or
persuasive force. They are considered as not having been
given much thought by the judge before saying them. Judicial
dicta, on the other hand, are preceded not only by a great deal
of careful thought, but also by extensive argument on the point
in question. It is this careful thought and extensive argument
that makes judicial dicta so strongly persuasive as to be
practically indistinguishable from ratio decidendi.
 THE CONCEPT OF RES JUDICATA
This term res judicata, is a latin phrase which means “the
matter has been decided”.
This is another important concept worthy of
consideration.
It stems from the fact that the practical administration of
justice in any legal system requires that once a case has
been decided the parties should be bound by the decision
because endless re-opening of cases is wasteful of
resources as well as creating injustice to those who have
to defend themselves repeatedly in respect of the same
matter.
The point at which finality is imposed depends on the
detail of the appeal system that may be available, but at
some stage the appeals must run out and finality has to be
imposed.
DOCTRINE OF JUDICIAL PRECEDENT
The doctrine of judicial precedent is one of the
characteristic features of not only the English legal
system but also all legal systems founded upon the
English common law like Zambia.
Judicial precedent may be defined as “a
judgement or decision of a court of law cited as an
authority for deciding a case with similar set of
facts as one already decided” or as “a case which
serves as an authority for the legal principle
embodied in its decision”. The doctrine of
precedent declares that cases must be decided the
same way when their material facts are the same.
THE WIDER AND NARROWER
VIEW OF JUDICIAL
PRECEDENT
The doctrine of precedent may be formulated in both a wider
sense and a narrower sense.
When formulated in its wider sense, the doctrine of precedent
simply states that it is desirable that similar cases should be
decided in a similar manner.
This wide view of precedent is based:
partly on the proposition that consistency is an important element
of justice;
partly on the fact that the practice of following previous decisions
results in improved efficiency because points of law which have
once been decided can simply be applied in latter cases without
being subjected to repeated re-arguments; and
partly on judicial comity i.e. the mutual respect which judges have
for their colleagues.
THE WIDER AND NARROWER
VIEW OF JUDICIAL
PRECEDENT
The use of precedent in this wider
sense is not peculiar to legal
systems founded on English
common law: the courts in any
developed country do, to some
extent, follow and make use of
precedent in this sense.
THE WIDER AND NARROWER
VIEW OF JUDICIAL
PRECEDENT
On the other hand, the doctrine of precedent,
when formulated in a narrow sense, simply states
that courts are bound to follow earlier decisions. It
is the idea of precedent in this narrow sense
which is largely peculiar to legal systems founded
on English common law and is embodied in the
doctrine of Stare decisis which simply means ‘to
stand by decisions’. Under this doctrine, all courts
bind all lower courts and some courts, at least to
some extent, bind themselves. The hierarch of the
courts, which is discussed in UNIT 7, is relevant in
this context.
TYPES OF JUDICIAL PRECEDENT
1. Original precedent:
This is a type of precedent which is created when a
point of law has never been decided on before e.g.
the ‘neighbour principle’ was first created and applied
in Donoghue v Stevenson (1932) AC, 562.
2. Binding precedent:
A binding precedent is a decided case which a court
must follow whatever the result of its application e.g.
in Zambia every decision of the Supreme Court is
binding on all lower courts regardless of its merits,
provided there is a similarity in facts. Binding
precedents are sometimes called ‘authoritative’
precedents.
TYPES OF JUDICIAL
PRECEDENT
3. Persuasive precedent
A persuasive precedent is one which is not
absolutely binding but which may be applied.
That is to say, a judge may consider it and
decide that it is the correct principle. He is
thus persuaded to follow the precedent. In
Zambia, the following precedents are
persuasive:
EXAMPLES OF PERSUASIVE
PRECEDENT
(a) All English decisions and decisions made by
courts of other legal systems founded on the English
common law
(b) Judgments of courts that are lower in the
hierarchy
(c) Obiter dictum statements that are made in in
courts that are higher in the hierarchy (superior
courts)
(d) Dissenting judgements of appellate courts (E.g.
The Court of Appeal and the Supreme court).
(See the definition of a dissenting judgement below)
TERMINOLOGY IN RELATION TO THE
HANDLING OF JUDICIAL PRECEDENT

Different terms are used to describe the

position courts take with regard to the
applicability or non-applicability of previous
decisions.
A previous decision may be distinguished,
overruled / departed from, reversed /
overturned on appeal or disapproved.
DISTINGUISHING
The court may refuse to follow a previous
decision on the ground that the material facts
in the previous decision are not the same as
the material facts in the case before that
court. Whenever the court comes to such
conclusion, the current case on which the
court is required to pronounce itself is said
to be distinguishable from the previous
decision.
 DISTINGUISHING (CONT’D)
Distinguishing a case on its facts, or on the point of law
involved, is a device used by judges usually in order to avoid
the consequences of an earlier inconvenient decision which
is, in practice, binding on them.
Thus, distinguishing an earlier case from a later case is
simply a way of saying that the earlier case is irrelevant to the
later case and cannot, therefore, be followed as precedent.
Put differently, the practical implication of distinguishing an
earlier case from a later case is that the earlier case is
rendered inapplicable to the later case, because of the
difference in facts between the two cases.
NOTE: It does not, however, imply criticism of the
correctness of the earlier case. Neither does it imply that the
earlier case cannot be followed in future cases founded on
similar facts.
DISTINGUISHING (CONT’D)
For example, Merit v Merit (1971) was distinguished
from Balfour v Balfour (1919). In both cases, a wife
made a claim against her husband for breach of
contract. In Balfour v Balfour, the earlier decision, the
claim did not succeed because the parties did not
intend to create legal relations.
However, in the later case of Merit v Merit, the claim
was successful because husband and wife were on
separation and the agreement was made in writing.
Thus, the parties intended to create legal relations.
It can be seen from the two cases that the judgement
in Merit v Merit was distinguished from Balfour v
Balfour because the material facts of the two cases
were sufficiently different.
OVERRULING / DEPARTING FROM A
PREVIOUS DECISION
Overruling/ departing from a previous
decision simply means declaring a
previous decision as having been
wrongly decided.
This happens when a higher court
reaches the conclusion that a decision
made in an earlier case by a lower court
was based on the wrong application of
the law or that the ratio decidendi of
such decision is no longer desirable.
 OVERRULING / DEPARTING FROM
A PREVIOUS DECISION (CONT’D)
In Zambia, the power to overrule a previous decision lies only
with the Supreme Court. The Supreme Court can overrule
previous decisions of the High Court as well as overrule its
own previous decisions.
But the High Court cannot overrule its own previous
decisions although it may disapprove such decisions.
The practical implication or effect of overruling a previous
decision is that such decision loses all its authority and
ceases to be precedent forthwith in relation to all future cases.
See: Abel Banda v The People (1986) Z.R. 105 (S.C.)
See: Donald Maketo & 7 Others v The People (S.C.Z.
Judgment No. of 1979)
Paton v Attorney General and Others, (1968) Z.R.185
OVERRULING / DEPARTING FROM
A PREVIOUS DECISION (CONT’D)

Abel Banda v The People (1986) Z.R. 105 (S.C.)

Held: In order to have certainty in the law, the
Supreme Court should stand by its past decisions
even if they are erroneous unless there is a
sufficiently strong reason requiring that such
decisions should be overruled. Chibozu and Another
v The People(1981) Z.R. 2 overruled.
REVERSING/OVERTURNING ON
APPEAL
Reversing is the overturning on appeal, by a higher
court hearing the appeal, of the decision of the lower
court. The appellate court, on reversing the decision
of a lower court, substitutes its own decision.
For example, where a party to a case decided by
the High Court is dissatisfied with the decision of the
High Court and appeals to the Court of Appeal and
the Court of Appeal allows the appeal by reaching at
a different decision from that of the High Court, the
decision of the High Court stands reversed.
See: Tobo v People (S.C.Z. Judgment No. 2 of 1991)
 EFFECT OF
REVERSING/OVERTURNING ON
APPEAL

In practice, a decision that has

been reversed has no authority as
precedent and cannot, therefore, be
followed in any future case founded
on similar facts. Neither is it binding
on the parties to it.
DISSENTING
To ‘dissent’ is to ‘disagree’ or to hold a
‘different’ opinion.
The term dissenting is used in relation to
any judgement of a judge or judges who
reach a different decision from the majority
of the judges hearing a case.
This happens when a case is heard by a
panel of three (03) or a higher odd number of
judges and the minority of judges on the
panel disagree with the conclusion reached
by the majority of the judges on the panel.
DISSENTING
In such circumstances, the decision of the minority
judges on the panel is known as a ‘dissenting’
judgment while that of the majority of judges on the
panel is known as the ‘majority’ judgment. The
‘majority’ judgement is the one that is binding and
that may be followed in future as precedent, not the
‘dissenting’ or ‘minority’ judgement.
See: Christine Mulundika and 7 others v The People
(1995) S.C.Z. Judgement No. 25 of 1995 where Mr
Justice Matthew Chaila, had a dissenting judgement
from that of the majority judgement of Mr Justices
Ngulube CJ, Bweupe DCJ, Chirwa and Muzyamba.
DISSENTING
Christine Mulundika and 7 others v The
People (1995) S.C.Z. Judgement No. 25 of 1995
Held: (by a majority, CHAILA, J.S.,
dissenting): (i) Section 5(4) of the Public
Order Act Cap 104 contravenes arts 20
and 21 of the Constitution and is null and
void. (ii) The exemption granted to
certain office-holders does not fall under
the categories listed in the Constitution.
 THE DOCTRINE OF JUDICIAL PRECEDENT
IN ZAMBIA
Zambia, as explained in UNIT 3, is a dual legal system
comprising the ‘received’ English law and the local
customary law.
The doctrine of precedent is part of the common law
tradition inherited from the ‘received’ English law. In order
to facilitate access to previous judicial decisions in Zambia,
the Council of Law Reporting publishes the Zambia Law
Reports which are available for sale to lawyers and
interested members of the public.
When an issue arises on which there are no Zambian
previous decisions, English previous decisions relevant to
the issue may be used. However, English cases are not
binding on Zambian courts: they are merely persuasive. So
are the decisions from other common law jurisdictions.
 THE DOCTRINE OF JUDICIAL PRECEDENT IN
ZAMBIA
It is also important to note that the use of judicial
precedent is governed by the hierarchical nature of the
court system which makes the decisions of higher courts
binding on the lower courts.
Thus, the decisions of the Supreme Court are binding on
all the courts lower than the Supreme Court in the judicial
hierarchy. But the Supreme Court is also bound by its
own previous decisions subject to its jurisdiction to
overrule itself, as provided for in Article 125 (3) of The
(Amendment) Constitution.
Article 125 (3) of The (Amendment) Constitution
provides:
“The Supreme Court is bound by its decisions, except in
the interest of justice and development of jurisprudence.”
THE DOCTRINE OF JUDICIAL
PRECEDENT IN ZAMBIA
In the same way, decisions of the Court of Appeal bind all the
courts that are below the it in the judicial hierarchy. In the same way,
decisions of the High Court bind The Subordinate Court and The
Local Court.
However, unlike the Supreme Court, neither The Court of Appeal
nor The High Court can overrule itself; it can merely disapprove
itself. Of course, when a High Court Judge disapproves the decision
of another High Court Judge, this creates a problem as to which of
the two decisions is binding on the lower courts since High Court
Judges enjoy the same level of jurisdiction and are not, save for
reasons of certainty and consistency in the law, bound by the
decisions of each other. Whenever such a situation arises, the latest
of the two conflicting decisions is the one binding on the lower
courts.
Decisions of lower courts do not bind anyone other than the
parties to it if they choose not to appeal to the higher courts.
 ADVANTAGES OF PRECEDENT
Precedent ensures certainty and, therefore, predictability in the
law. This is because by looking at a existing precedents, it is
possible to forecast what a decision will be and plan accordingly;
(b) Precedent ensures uniformity in the law. Treating similar
cases in the same way gives the system a sense of justice and
makes the system acceptable to the public.
(c) The doctrine of judicial precedent is flexible in the sense
that there are a number of ways in which its application can be
avoided. This enables the system to change and adapt to new
situations.
(d) Judicial precedent is practical in nature. Unlike
legislation, it is based on real facts.
(e) Judicial precedent is detailed in the sense that there is a
wealth of cases to refer to.
 DISADVANTAGES OF PRECEDENT
Rigidity. Although precedent is flexible, it can, at the same time,
be rigid. If a previous decision made by a higher court is cited
before a lower court in a later case, the lower court has no option
but to apply such previous decision regardless of its merits
because a lower court has no power to question the merits of a
previous decision made by a higher court. This, in practice, may
result in injustice to parties involved in the later case.
(b) There is far too much case law which is also sometimes very
complex;
(c) Difficulties can arise in deciding what the ratio decidendi of
a case is, particularly in cases where there are several reasons
advanced for the decision.
(d) There may be a considerable wait for case to come to court
for a point to be decided.
PRINCIPLE OF STARE DECISIS
Stare decisis means “stand by the decision”
It expresses the idea that once a decision has been
made on a point of law, it is fair and just to keep to that
decision in later cases.
In Zambia, the courts have made a pronouncement
on the principle of stare decisis in the following cases:
Paton v Attorney General and Others (1968) Z.R 185
Kasote v The People (1977) ZR 75
Match Corporation Limited and Development Bank of
Zambia and the Attorney General SCZ Judgment No. 3
of 1999
PRINCIPLE OF STARE DECISIS
CASES
 The following cases highlight the importance of the principle of stare
decisis:

 1. Paton v Attorney General and Others (1968) Z.R 185

 HELD:  (Doyle, J.A., as he then was and he had this to say, at p. 190):
 “…I have no doubt that this court as the ultimate Court of Appeal for Zambia
is not absolutely bound by its previous decisions. It can, however, only be
for very compelling reasons that the court would refuse to follow a decision
of the court and only where the court clearly considered that the previous
decision was wrong. The relaxation of the rule is not its abandonment and
ordinarily the rule of stare decisis should be followed. Abandonment of the
rule would make the law an abyss of uncertainty. Mr. Ryan urged that it was
open to this court to refuse to follow a previous decision which was not
unanimous. That , in my view, is not a compelling reason. Thixton’’s case
was fully argued and it has certainly not been shown that it was clearly
wrong. Indeed I, as the dissenting Judge in that case, recognised and
recognise that the result which flowed from the majority decision was more
in accord with natural justice than that which flowed from the view of the
law which I felt compelled to take. This point therefore fails.””
PRINCIPLE OF STARE
DECISIS CASES (CONT’D)
2. Kasote v The People (1977) ZR 75
HELD:
(i) The principle of stare decisis is essential
to a hierarchical system of courts. Such a
system can only work if, when there are two
apparently conflicting judgments of the
Supreme Court, all lower courts are bound
by the latest decision.
PRINCIPLE OF STARE DECISIS CASES
(CONT’D)
3.Match Corporation Limited and Development Bank of Zambia
and the Attorney General SCZ Judgment No. 3 of 1999
HELD: From the foregoing, it is clear that there was the necessary
special relationship between the parties to support the creation of rights
of indemnity. Our conclusion in the Vacuum case clearly appears to have
proceeded from an understandable misapprehension of the facts and the
relationship between the parties brought about by the absence of the
fuller facts, or of the oral evidence and the documents which were not
placed before the first trial Court or before our Court in that earlier case.
In the light of the fuller facts and the more detailed submissions here
which have demonstrated that Government was not a trial stranger, it is
apparent that strong ground exists for revisiting our earlier decision which
proceeded from a serious misdirection on fact induced by the non-
disclosure of all the facts which led to an erroneous conclusion of law on
the validity of the indemnity in the circumstances.There was an indemnity
in the terms of the Permanent Secretary’’s letter to the bank.
PRINCIPLE OF STARE DECISIS
CASES (CONT’D)
The two trial Courts under consideration came to two different conclusions:
The first considered that the revocation letter by the Deputy Minister revoked
the indemnity ab initiowhile the second Court found that the indemnity was
valid while it lasted until revoked. We have considered the arguments by Mr.
Sikatana and Mr. Gondwe. Mr. Gondwe generally supported the trial Court in
the Vacuum case while Mr. Sikatana commended the approach of the trial
Court in the instant case but with the submission that the indemnity could in
fact not be revoked. We can immediately reject the latter suggestion which
was not supported by the terms of the Permanent Secretary's letter. There
was in that letter no suggestion that the indemnity would be limitless in
extent and duration. The second trial Court was clearly right to find that the
indemnity was valid while it lasted and until revoked.The revocation it self
followed representations by the bank. The bank ’’s letter of 3 rd March, 1993,
was in the following terms:
LAW REPORTING
In Zambia, reported cases are compiled and published
by the Council for Law Reporting, in the form of hard
copy yearly law report volumes as well as soft copy cases
available on the Zambia Legal Information Institute
(zamlii) website.
See section 5 of the Council of Law Reporting Act, Cap
46 which provides:
5.The objects and functions of the Council are-(a) to
organise, regulate and control the reporting of decisions
of the courts and of such tribunals and inquiries as it may
determine; (b)  to arrange for the production, publication
and distribution, whether by sale or otherwise, of the
Zambia Law Reports at such regular periods of time as it
may determine;(c) to provide assistance in the production
of the University Law Review.
END OF LECTURE
THANK YOU!