judicial precedent.pdf

7/26/2019 judicial precedent.pdf

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In the case ofAizah Ali v Kian Farmasi Sdn. Bhd. (1999), HighCourt held that the defendant, Kian Farmasi Sdn Bhd is liable topay damages to the plaintiff, Aizah Azizi for breach of contract.In this case, the defendant has made an advertisement to payRM10000 to anyone who use its brand new cosmetic productPure Whitening Lotion and still does not get the promisedresult within 3 months after using it. Relying on the saidadvertisement, Aizah spent RM2000 to buy the said product andused it for 3 months but her skin condition remains the same.

On appeal, High Court held that the advertisement of reward isan offer and a response in accordance with the said offeramounting to an acceptance. It is also an example of executedconsideration.

Hypothetical Case 1

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Hypothetical Case 2In 2009, Dato Khalid has advertised in a local newspaper thatanyone who could cure his beloved wifes mysterious disease will

be rewarded RM20,000. Pak Ibrahim, a well known traditionalmedical practitioner, in response to the said advertisementattempted to give treatment to Dato Khalids wife. At that time,he was in urgent need of money to pay fees and other expenses ofhis daughter who got an offer to further her study in a university

abroad. With Gods mercy, Dato Khalids wife graduallyrecovered upon receiving treatment from Pak Ibrahim. DatoKhalids however refused to pay.

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Pak Ibrahim complained this matter to Legal Aid. Theappointed lawyer has cited the case ofAizah Azizi vKian Farmasi Sdn Bhd(1999) as one of the authorityto support his clients case.

You are the Magistrate deciding the said case.Consider whether you will follow the case ofAizahAzizi v Kian Farmasi Sdn Bhd

(1999) or not ?WHY ?

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JUDICIAL PRECEDENT Common law country- Decided cases /Judge-made law is

one of the important source of law Precedentmeans a judgment or decision of a court of law

cited as an authority for the legal principle embodied in itsdecision. Stare decisis literally means stand by what has been

decided. It requires the court not only to follow the precedent but in

specific situation, BOUND to do so whether the judgeagree with the decision or not. Failure to do so, the judgement is legally wrong and can be

reversed on appeal. If there is no appeal, it can beoverruled in a later case.

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JUDICIAL PRECEDENT Per Peh Swee Chin FCJ in Dalip Baghwan Singh v PP

[1998] 1 MLJ 1 define the doctrine as the doctrine ofstare decisis or the rule of judicial precedent dictatesthat a court other than the highest court is obligedgenerally to follow the decisions of the courts at ahigher or the same level in the court structure subjectto certain exceptions.

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APPLICABILITY OF THE DOCTRINE

OF JUDICIAL PRECEDENT

HIERARCHY OF COURT

SIMILAR MATERIAL FACT

SIMILAR RATIO DECIDENDI

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Pre 1985

Judicial

Committee of

the Privy

Council

High Court

(Borneo)

Federal Court

High Court

(Malaya)

High Court

(Borneo)

Supreme Court

High Court

(Malaya)

1985-1994

High Court(Malaya)

High Court(Sabah and

Sarawak)

Court of Appeal

Federal Court

Mid 1994- present

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HIERARCHY OF COURTVertical

Federal Court(2000)

Court ofAppeal (2010)

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HIERARCHY OF COURTVERTICAL STARE DECISIS

Within the hierarchy of the court, a decision ofsuperior court will be binding on subordinate court.

Every court in the hierarchy must follow the priordecision of the courts higher than itself in respect of

cases having same material facts and ratio decidendi. Eg. COA is bound by the decision of FC, and its

decision binds two HC and also subordinate courts.

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HIERARCHY OF COURT Horizontal

Federal Court

(2000)

Federal Court

(2009)

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HIERARCHY OF COURTHORIZONTAL STARE DECISIS

The decision of superior courts especially FederalCourt and Court of Appeal bind their future decisionin respect of cases having same material facts and ratiodecidendi.

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SIMILARITY OF MATERIAL FACTS The judge must ensure that the cases referred and to be

followed contain similar material facts.

Example :

In 2000, A bought a bottle of ginger beer, drank it andsuffered diarrhea and other illness due to the presence ofdecomposed snail in the bottle. The person successfullysued the manufacturer for negligence in the manufactureof the product. Decided by COA.

In a subsequent case (2005), X bought clothes fromanother shop, wore them an suffered dermatitis and otherrelated skin disease owing to the presence of certainchemicals in the clothes. Action commenced in HC.

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SIMILARITY OF MATERIAL FACTS The parties to the dispute, the goods bought and

nature of illness are different but the material facts aresimilar.

Material facts

A consumer suffered illness due to negligence ofthe manufacturer of the goods

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SIMILARITY OF RATIO DECIDENDI Refers to legal reasoning/legal reason why the judge arrives

at the decision. It is the ratio decidendiwhich has the binding effect.

In our previous example, the judge in a subsequent casecan apply the legal principle decided in the earlier case onaccount of similarities in the material facts as well as theexistence of common element justifying the application ofthe same rule (the ratio).

The ratio may be stated as follows:-A manufacturer of products owes a duty of care toconsumer to take reasonable care in the manufacture of

products. If a consumer is injured as a result of thenegligent act of the manufacturer, the latter is liable.

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RATIO DECIDENDI v OBITER DICTA In the course of judgment, a judge may express an

opinion on a question of law not directly relevant tothe case before him.

Obiter dicta/dictum means things said by the way.

It is not part of the ratio, hence not strictly binding. Itmay however have persuasive authority particularly if

it originates from a higher court e.g Federal Court. HOW TO DISTINGUISH ? Require training and

experience in the law.

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RES JUDICATA Res judicatais a decision that has settled a dispute

once and for all, and that dispute cannot be re-

opened and re-argued in any subsequent legalproceedings if the decision has been appealed tothe highest level, or the time for lodging an appealhas expired.

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EXCEPTIONS TO THE DOCTRINE:

DISTINGUISHING PRECEDENTA judge may not apply the decision made by previous

court by distinguishing the fact in the presence caseand the previous one.

The judge may take a view that there are certainmaterial differences between the precedent and thecase before him which justify the court in notfollowing the earlier case.

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YOUNG V BRISTOL AEROPLANE[1944]

The court is free to depart from its own previousdecision.

Only applicable to the decisions of courts of samestanding and not that of a higher court. Eg. CA andCA and not CA and FC.

The CA is bound by its own previuos decisions unless theexception in Young v Bristol Aeroplane Co Ltd [1944] KB 718(modified to suit Msiancontext in Dalip Baghwan Singh)applies, namely:

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YOUNG V BRISTOL AEROPLANE[1944]

1. Decision of the CA given per incuriam i.e. through lack of care.

Defined in Morelle v Wakeling [1955] 2 QB 379 as a decision

given in ignorance or forgetfulness of some inconsistentstatutory provisions or of some authority binding in the courtconcerned.

2. When there are two conflicting decisions, the CA may choosewhich decision to follow irrespective of the dates of thosedecision;(Dalip Baghwan Singh v PP) and

3. The CA ought not to follow its own previous decisions if suchdecisions are, expressly or by necessary implication, overruledby the FC or if they cannot stand with the decision of the FC.

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ADVANTAGES Certainty

Predictability

Fairness and consistency Saves courts time

Saves parties time and money

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DISADVANTAGES Rigidity

Causes injustice

Prevents proper development of the law Difficult to identify ratio and obiter

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