Hypothetical Case 1

In the case of Aizah Ali v Kian Farmasi Sdn. Bhd. (1999), High
Court held that the defendant, Kian Farmasi Sdn Bhd is liable to
pay damages to the plaintiff, Aizah Azizi for breach of contract.
In this case, the defendant has made an advertisement to pay
RM10000 to anyone who use its brand new cosmetic product
Pure Whitening Lotion and still does not get the promised
result within 3 months after using it. Relying on the said
advertisement, Aizah spent RM2000 to buy the said product and
used it for 3 months but her skin condition remains the same.
On appeal, High Court held that the advertisement of reward is
an offer and a response in accordance with the said offer
amounting to an acceptance. It is also an example of executed
consideration.
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Hypothetical Case 2
In 2009, Dato Khalid has advertised in a local newspaper that
anyone who could cure his beloved wifes mysterious disease will
be rewarded RM20,000. Pak Ibrahim, a well known traditional
medical practitioner, in response to the said advertisement
attempted to give treatment to Dato Khalids wife. At that time,
he was in urgent need of money to pay fees and other expenses of
his daughter who got an offer to further her study in a university
abroad. With Gods mercy, Dato Khalids wife gradually
recovered upon receiving treatment from Pak Ibrahim. Dato
Khalids however refused to pay.

 Pak Ibrahim complained this matter to Legal Aid. The

appointed lawyer has cited the case of Aizah Azizi v
Kian Farmasi Sdn Bhd (1999) as one of the authority
to support his clients case.

You are the Magistrate deciding the said case.

Consider whether you will follow the case of Aizah
Azizi v Kian Farmasi Sdn Bhd (1999) or not ?
WHY ?

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

one of the important source of law

Precedent means a judgment or decision of a court of law
cited as an authority for the legal principle embodied in its
decision.
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 judge
agree 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 be
overruled 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 of
stare decisis or the rule of judicial precedent dictates
that a court other than the highest court is obliged
generally to follow the decisions of the courts at a
higher or the same level in the court structure subject
to certain exceptions.

APPLICABILITY OF THE DOCTRINE

OF JUDICIAL PRECEDENT
HIERARCHY OF COURT

SIMILAR MATERIAL FACT

SIMILAR RATIO DECIDENDI

Pre 1985

1985-1994

Mid 1994- present

Judicial
Committee of
the Privy
Council

Supreme Court

Federal Court

High Court

High Court

(Malaya)

(Borneo)

Court of Appeal

Federal Court

High Court

High Court

(Malaya)

(Borneo)

High Court

High Court

(Malaya)

(Sabah and
Sarawak)

HIERARCHY OF COURT
Vertical

Federal Court
(2000)

Court of
Appeal (2010)
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HIERARCHY OF COURT
VERTICAL STARE DECISIS
Within the hierarchy of the court, a decision of
superior court will be binding on subordinate court.
Every court in the hierarchy must follow the prior
decision 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

Federal Court

(2000)

(2009)

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HIERARCHY OF COURT
HORIZONTAL STARE DECISIS
The decision of superior courts especially Federal
Court and Court of Appeal bind their future decision
in respect of cases having same material facts and ratio
decidendi.

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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 and
suffered diarrhea and other illness due to the presence of
decomposed snail in the bottle. The person successfully
sued the manufacturer for negligence in the manufacture
of the product. Decided by COA.
In a subsequent case (2005), X bought clothes from
another shop, wore them an suffered dermatitis and other
related skin disease owing to the presence of certain
chemicals 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 are
similar.
Material facts

A consumer suffered illness due to negligence of

the 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 decidendi which has the binding effect.
In our previous example, the judge in a subsequent case
can apply the legal principle decided in the earlier case on
account of similarities in the material facts as well as the
existence of common element justifying the application of
the same rule (the ratio).
The ratio may be stated as follows:A manufacturer of products owes a duty of care to
consumer to take reasonable care in the manufacture of
products. If a consumer is injured as a result of the
negligent 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 to
the case before him.
Obiter dicta/dictum means things said by the way.
It is not part of the ratio, hence not strictly binding. It
may 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 judicata is a decision that has settled a dispute

once and for all, and that dispute cannot be reopened and re-argued in any subsequent legal
proceedings if the decision has been appealed to
the highest level, or the time for lodging an appeal
has expired.

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EXCEPTIONS TO THE DOCTRINE:

DISTINGUISHING PRECEDENT
A judge may not apply the decision made by previous
court by distinguishing the fact in the presence case
and the previous one.
The judge may take a view that there are certain
material differences between the precedent and the
case before him which justify the court in not
following the earlier case.

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EXCEPTIONS TO THE DOCTRINE:

YOUNG V BRISTOL AEROPLANE[1944]
The court is free to depart from its own previous
decision.

Only applicable to the decisions of courts of same

standing and not that of a higher court. Eg. CA and
CA and not CA and FC.
The CA is bound by its own previuos decisions unless the
exception in Young v Bristol Aeroplane Co Ltd [1944] KB 718
(modified to suit Msian context in Dalip Baghwan Singh)
applies, namely:

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EXCEPTIONS TO THE DOCTRINE:

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 inconsistent
statutory provisions or of some authority binding in the court
concerned.
2.

When there are two conflicting decisions, the CA may choose

which decision to follow irrespective of the dates of those
decision;(Dalip Baghwan Singh v PP) and

3.

The CA ought not to follow its own previous decisions if such

decisions are, expressly or by necessary implication, overruled
by 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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