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Published: Fri, 02 Feb 2018
Court judge are bound to follow the decision made by the judge
According to the case given by the question, we would like to discuss about whether a high court judge are bound to follow the decision made by the judge of Court of Appeal when they are having the similar material facts.
As a High Court judge, Mr Justice Peter is bound to follow the decision of Court of Appeal. Under judicial precedent, decisions made by judge’s previously in similar material facts are binding upon future cases depending on the hierarchy of the court. A judicial precedent is a decision of the court used as a source for future decision making. This is also known as stare decisis and by which precedents are binding and must be followed. A court is bound to follow the decision made by higher court and some courts are followed by their own decision. Once a precedent is set whether or not the decision is correct, it cannot be changed until it is being overruled by a higher court in a later case.
The hierarchy of court of Malaysia as shown in Diagram 1 consists of Superior courts and Subordinate courts. Under Superior courts, we have Federal Court, Court of Appeal and High Courts. Federal Court is known as Supreme Court before 1 January 1985. Federal Court is the highest court in Malaysia with appellate and original jurisdiction. Next is the Court of Appeal which established in 1994. It has the jurisdiction to determine appeals from judgements of a High Court or a judge thereof and such other jurisdiction as may be provided for under any federal law.  Last in the Superior court is High Court which divides into Malaya and Sabah and Sarawak. There are two High Courts with parallel authorization. For the Subordinate courts, it includes sessions courts, the Magistrates courts, the juvenile courts and penghulu’s court for Malaya.
Ratio decidendi is “the rule of law contained the decision of the court in a case”. The judgement must contain the findings of material facts, statement of law and the decision based on the combined effect of the findings and statement. On the other hand, obiter dictum is not binding but only persuasive. It consists of two type of obiter dictum: a statement relates to facts which were not found to exist and a statement which does not form the basis of the decision (dissenting judgement). However, it is hard to distinguish between ratio decidendi and obiter dictum under the cases by the judges.
For a precedent to be binding, there are two requirements that must be met. Firstly, it must be a ratio decidendi statement. Next, the court must have a superior, or in some cases, equal status to the court which is considering the statement at a later date. In other words, Mr Justice Peter is bound to apply the rule of law stated in the earlier judgement because the requirements are met and the material facts of the case are similar.
Besides that, precedents are classified into original precedent and declaratory precedent. Both of them are equally important as sources of law. Original precedents are rule or law that are newly created or applied. It is use when judge are deciding on a case without a binding precedent and he will decide according to justice, equity and good conscience. For declaratory precedents, there are the existing legal principles that merely declare or apply on the similar case.
An example of original judicial precedent is the case of Donoghue v Stevenson.  Mrs Donoghue friend’s ordered an ice-cream and ginger beer for her at Wellmeadow Café in Paisley which owned by Francis Minchella. Mrs Donoghue drank most of the ginger beer and found a decomposed snail in her drink. She was then suffered severe shock, later gastroenteritis, mental depression and loss of wages following time off work. Therefore, she sued the manufacturer, David Stevenson under the Duty of Care in tort of negligence. In this case, one of the members of House of Lords, Lord Atkin has formulated what is known as “neighbour principle” which is about the foresight of the impact of one’s acts on one’s neighbours is central to the existence of a duty of care in the law of tort, especially on the then developing nascent tort of negligence.
Based on the above case, Dutton v Bognor Regis U.D.C.  are bound to follow previous decision as both of the cases are about the duty of care. The case is about Plaintiff was the second owner of the house in 1960. In 1963, the walls began to crack, windows could not shut properly, and other defects appeared. Plaintiff was informed that the house was built under unstable foundation. So he sued the council for negligence. He succeeded as a professional person who gives advice as to the safety of buildings owes a duty of care not only to the owner at that time, but to all those who might suffer injury as a result of their subsequent use.
Hence, Mr Justice Peter is bound to follow the decision made by the Court of Appeal. This is due to the judicial precedent which is a system where judges are binding to the previously decided cases that are in the similar facts by the court of same status or higher depending on the hierarchy of the courts. In this case, Court of appeal and high court is under superior court but court of appeal is one step higher than the High Court.
Court of Appeal
High Court in Malaysia
High Court in Sabah and SarawakSuperior Court
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