The doctrine of stare decisis parades in a fanciful new robe in the Supreme Court: Ex Parte Opuni (No. 2).
The Supreme Court has, in a four to three majority decision of its review panel, overturned its earlier three to two majority decision of the ordinary bench in Ex parte Opuni. In the earlier decision, the Court granted an order of prohibition to restrain the trial judge in the criminal proceedings pending at the High Court (Honyenuga, JSC sitting as an additional High Court judge) from continuing to sit and hear the case.

Introduction

The Supreme Court has, in a four to three majority decision of its review panel, overturned its earlier three to two majority decision of the ordinary bench in Ex parte Opuni.[1] In the earlier decision, the Court granted an order of prohibition to restrain the trial judge in the criminal proceedings pending at the High Court (Honyenuga, JSC sitting as an additional High Court judge) from continuing to sit and hear the case. The Attorney-General, being dissatisfied with the decision, applied for a review of the decision and it is that application that resulted in the four to three majority decision under reference. The decision of the review panel is most interesting, not least because the minority decision is more convincing and has more depth and meat but also for the majority panel’s rather curious exposition of the doctrine of stare decisis.

 

What is the doctrine of stare decisis or judicial precedent?

The first elementary principle of stare decisis, also known as judicial precedent, is that, the law declared by a higher court in a hierarchy of courts enjoys a higher authority than that declared by a court lower in the hierarchy.

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4 thoughts on “The doctrine of stare decisis parades in a fanciful new robe in the Supreme Court: Ex Parte Opuni (No. 2).

  1. I have been wondering why in the first place Judges of the Superior Court have divergent views on cases they adjudicate. I always ask myself, what does the Law say? The discretional powers of our Judges, to me, should be reviewed. Again, I ask myself, why should the Supreme Court depart from its own previous decisions, if it considers that the decision was given per incuriam or for any other exceptional reasons not to be followed? Doesn’t the Court embarrass itself? What does the Law say?

    1. Dear Michael, Many thanks for reading the article and for sharing your perspectives on the subject. The Constitution has given the Supreme Court the power to depart from its preview decisions so as to be able to keep abreast with societal changes. Society is dynamic and what made perfect sense a few years ago may not be so today. The Court does not ’embarrass’ itself by doing so; it rather shows its adaptability to change.

      Once again, thanks so much for your comments and insights.

  2. The theory of judicial precedent is intended to create certainty , consistency and clarity in the law otherwise courts lower than the apex court would be engaging in dispersal application of the law. If a decision of a Superior Court given per incuriam,it should not lie in the purview of a lower court judge to ignore precedent and refuse to obey the decision .He could simply make his comment and address the wrong by a sound critique and allow the justices up there to correct the wrong. If we follow through with that argument and permit a lower court to ignore a binding precedent as postulated,we should also not find anything wrong with a party who refuses to obey a judgment of a court of competent jurisdiction if the said decision was given per incuriam.
    Doesnt the law say that a party must obey even a wrong decision until same has been set aside? Why cant we follow the same princiole of law in the case of precedent? I beg to differ for the first time from my priceless sister’s position!!!!

    1. My dear brother and learned friend Musah, thanks so much for reading the article and for sharing your well-reasoned thoughts. It’s always a pleasure to hear your sound perspectives and insights on the subjects I discuss and the feedback you give to enrich the discussions. As a general rule, the doctrine of ‘stare decisis’ is relevant and cognizable under our laws. However, it is not an inflexible rule, as pointed out in the article. If we are to follow your argument, then when a lower court encounters a most obnoxious precedent, the court must lament and wriggle its hands in desperation and ‘simply make his comment’ and ‘allow the justices up there to correct the wrong.’ What if the party does not, or cannot, appeal? We all know the inordinate delays that even interlocutory appeals suffer in our courts- please see my latest article on it. https://fsboateng.com/2022/05/16/achieving-speedy-interlocutory-appeals-in-civil-cases-lawyers-and-litigants-dream-clone/
      Please note, that a party failing to obey a judgment given ‘per incuriam’ is different from a judge slavishly following a bad precedent in adherence to ‘stare decisis.’ The outcomes are, therefore, different. A party cannot just disobey a court’s decision just because she feels or thinks it is wrong; she has to take the necessary steps to set the decision aside. But a judge can refuse to follow a precedent which is wrong. Taylor did it. Amua-Sekyi did it. Kpegah did it. And so must the present generation. Bro, many thanks once again for keeping the conversation going. Have a wonderful weekend.

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