In 2010, Mr Justice Peter, a high tribunal justice sitting entirely, in make up one’s minding a instance which has similar stuff facts to one decided by the Court of Appeal in 2009. Can he worsen to be bound by this determination? Discuss. ( 15m )
He can non worsen to be bound by this determination. He must be bound by this determination because of the philosophy of adhering judicial case in point. The philosophy of adhering judicial case in point is where old determinations of higher tribunal are adhering on the lower tribunals in future instances. The hierarchy of tribunals is of the kernel how the judicial case in point operates. Because some tribunals are higher than others, the philosophy of adhering case in point or instance jurisprudence which is based on ratio decidendi have to be followed by lower tribunal in future instances, whether or non it believes a determination is right.
“ The tribunals in Malaysia are divided into 2 divisions which are the superior tribunals and the subsidiary tribunals. The superior tribunals are the Federal Court, the Court of Appeal and the High Courts of Malaya and Sabah and Sarawak are superior tribunals. The Federal Court is the highest tribunal and the concluding tribunal of entreaty. The Subordinate tribunals include Sessionss tribunals, the Magistrates tribunals and the juvenile tribunals. The tribunal system is in the signifier of a hierarchy like a pyramid with the subsidiary tribunals at the base or underside of the pyramid. The hierarchy is indispensable for an entreaties system. This entreaty system is at that place so that if a party to a instance feels that in justness has been done in a lower tribunal, that party can hold his instance reconsidered by a higher tribunal. It is besides of import to observe that different tribunals has different legal power or power. The High tribunal handles serious condemnable instances like slaying, drug trafficking and civil instances affecting big amounts of money. Less serious condemnable instances and civil instances affecting smaller sum of money is heard in the lower tribunal. Examples are Sessions Court and Magistrate Court. ”[ I ]
In this instance, it means that a high tribunal justice in make up one’s minding a instance which has similar facts to one decided by the Court of Appeal in 2009, he has to compel the old determinations made by Court of Appeal because the position of the Court of Appeal is higher than the high tribunal. The high tribunal justice merely obliges what other Judgess have concluded before him.
As for the binding case in point, jurisprudence of civil wrong for illustration responsibility of attention is when the jurisprudence has long recognized a figure of specific state of affairss where the responsibility of attention exists, and the undermentioned are merely examples. As an illustration for adhering case in point, there is the instance of Donoghue v Stevenson [ 1932 ] AC 562, HL.[ two ]“ P went to a cafe with a friend, who bought her a bottle of ginger beer. After imbibing most of it, P found a decomposed snail in the bottle and became ill. P had no contract with the cafe , so she sued the makers in delict ( the Scottish equivalent of civil wrong ) . The House of Lords said the makers had a responsibility of attention to the consumer of their merchandise. Lord Atkin said you must take sensible attention to avoid Acts of the Apostless or skips which you can reasonably anticipate would be probably to wound your neighbors. Who so, in jurisprudence, is my neighbor? The reply seems to be, individuals who are so closely and straight affected by my act that I ought moderately to hold them in contemplation as being so affected when I am directing my head to the Acts of the Apostless or skips which are called in inquiry. While this statement surely encouraged subsequent Judgess to interrupt out of the bonds of the yesteryear, it was thought at the clip to be obiter and was regarded as excessively broad a statement of the jurisprudence. However, it was approved by Lord Reid in Home Office V Dorset Yacht [ 1970 ] 2 All ER 294: the clip had come, he said, when we could and should state that it ought to use unless there is some justification or valid account for its exclusion. The “ neighbour ” rule is now treated as ratio at least in relation to physical hurt and harm to belongings, capable to certain restrictions. ”
As seen from the above instance, it satisfy the component of ratio decidendi of the past instances and it is non considered as obiter pronouncement any longer and hence this instance satisfy the binding case in point demands.
However, a binding case in point still needs to be examined whether it can be applied to a instance. The determination must organize the component of the ratio decidendi of the old instance which are the statements of jurisprudence that the justice used in his determination. Legally, it is the principle behind a tribunal determination. Ratio decidendi in many instances is a footing of governing for tribunal to be used by the justice to obtain the ground critical to his determination because it tells what facts are stuffs and how the jurisprudence can be applied to them. While Statements of jurisprudence in which the justice makes which do non organize the footing of his determination are known as obiter pronouncement. It is known as expressions by the manner. Obiter pronouncement has no adhering power. They are merely persuasive case in point for the justice to see and are non organizing the needed case in point for justice to follow. Besides that, the material facts of the instance must be similar and the old tribunal must be of higher position when compared to the hereafter tribunal besides needed to be examined.