While “working from home” during this unprecedented “Corona Virus Leave,” I stumbled on a discovery (and thought to share) from the leading judgment of My Lord, Uchechukwu Onyemenam, JCA in the election petition appeal between David Uchiv and Pius Sabo reported as (2005) LPELR – 40360 (CA) where his lordship ruled on exception to the obiter dictum rule of judicial precedent. His Lordship held that:
“While obiter dictum is not binding on a lower court, yet it is highly persuasive and no law holds the view that it cannot persuade a lower Court in arriving at its decision. Therefore a lower court reserves a right as it is free to rely on obiter dictum in reaching a conclusion. I refer to the Supreme Court case of: Ferodo Ltd. & Anor v. Ibeto Industries Ltd. (2004) LPELR 1275 (SC) where Tobi JSC in his contributory judgment at page 64 paras E-G said: ” However, there are occasions when obiter dictum may have a binding effect. See Mrs. Macleans v. Inlaks Ltd. (1980) 8-11 SC 1; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5. That is not relevant for our purposes and so I will not pursue it, what is important however is that an obiter dictum, which is what the Courts says by the way, has persuasive effect. A Court of law can allow itself to be persuaded by an obiter dictum. I know of no law which holds a contrary view. The Court of Appeal, in my view, was therefore free to rely on the statement of Romer, L.J, in Re Clement.” Instructive here too, is the decision of the apex Court in the case of: Buhari & Ors v. Obasanjo & Ors. (2003) LPELR 813 (SC) 66 paras B-C; where the Supreme Court admonished the lower Court not to treat the obiter of the Supreme Court with impunity. Hear Edozie JSC thus: “This does not mean that an obiter has no strength or teeth indeed no lower Court may treat an obiter of the Supreme Court with careless abandon or disrespect but the Supreme Court could ignore it if it does not firm up or strengthen the real issue in controversy.”
The blanket rule, right from law school, has been that, obiter dicta are not binding, however the Supreme Court, in 1980 felt differently in the case of Mrs. Macleans v. Inlaks Ltd. (1980) 8-11 SC 1 when Chukwunweike Idigbe, JSC (God rest his soul) held that:
“This last phrase is, of course entirely obiter since there is no claim in Owumi for a declaration that the instrument of transfer of interest to Paterson Zochonis which was in issue in that case is ” of no effect whatsoever”. I bear in mind, of course, that many obiter dicta have had the force of rationes decidendi and the weight accorded to dicta vary with quality; after all, the negative proposition for which Rylands v. Fletcher L.R. 3 H.L. 311 at 330 is generally cited as authority was not a necessary part of the decision.”
Ultimately, 8 years later, the same Supreme Court reiterated its earlier stance on instances where obiter dicta can be binding on lower courts when Nnaemeka-Agu, JSC (Of Blessed memory) held in Bennett Ifediorah & 4 Ors v. Ben Ume & 4 Ors.(1988) 2 NWLR (Pt. 74) 5; (1988) LPELR – 1434 (SC) that:
“Although this opinion was given in a criminal appeal, it has been followed and applied by the Court of Appeal in many civil appeals against interlocutory decisions. See for an example Akinsola Dawodu & Anor. v. F. O. Ologundundu & Ors. (1986) 4 NWLR 104, at p.112. For, it has been held by the House of Lords in England that although what is ordinarily binding in a case is the ratio decidendi and not the obiter dictum; yet an obiter dictum by the ultimate court on an important point of law is one which is binding on and followed by all the lower courts. see W.B. Anderson & Sons Ltd. & Ors. v. Rhodes (Liverpool) Ltd. & Ors. (1967) 2 ALL E.R. 850. After all, a good deal of the important pronouncements of the Supreme Court in the famous case of Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296 was obiter. Yet it was binding on the Court of Appeal and all other courts lower down in the judicial hierarchy until the law was changed in Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR 273.” (Emphasis mine)
By the decision above, the apex court, did not only frown at the wholesale branding of obiter dicta as persuasive but ruled that, distinction must be made in favour of decisions of the ultimate court as far as their dicta are concerned, especially on novel and important issues of law.
Olumide, is the managing partner of Olumide Babalola LP and can be reached on firstname.lastname@example.org