Judgment: Can a Whole Judgment be an Obiter Dictum?

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His Worship Emmanuel J. Samaila’s Lex Scripta (Note 30)

Ordinarily, an obiter dictum is the non-binding part of a judgment.

Will it surprise you to hear that a whole judgment can be an obiter dictum?

Inasmuch as a point made in a concurring or dissenting decision today could become the position of the Court someday, it is fatal to rely on it on the mere fact that it is a part of the judgment of an appellate Court.

No matter how erudite a concurring decision may be, its totality remains an obiter dictum if the issues considered therein are not in the lead judgment.

In the case of SDP v. BIEM & ORS (infra), the 1st respondent’s counsel relied on the case of Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 398 in contending that the Sheriffs and Civil Process Act does not apply to the Federal High Court.

The Court held that that position is contained in Odili, J.S.C.’s concurring judgment, hence it is an obiter dictum as it was not part of the lone issue determined in the appeal in the lead judgment delivered by Okoro, J.S.C.

Hear Justice Ekanem’s illuminative exposition:

“It is no doubt the law that a concurring judgment forms part of the lead judgment and is meant to complement the same by way of addition or improvement on the issues involved in the lead judgment.

Both the lead judgment and the concurring judgment crystallize into the judgment of an appellate Court. …

However, the Supreme Court being the ultimate or final appellate Court is entitled to resolve only one out of several issues in an appeal where the appeal can be determined by the resolution of that one issue without the need to consider other issues.…

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It is therefore my view, which I express with much trepidation, that in that circumstance other issues become academic and any comment thereon in a concurring judgment becomes obiter dictum.

It is therefore my position that the comment of Peter-Odili, JSC, in Boko’s case supra relied on by 1st respondent’s counsel offers no help to the 1st respondent.”


Citation 

SDP v. BIEM & ORS (2019) LCN/12812 (CA)
(2019) LPELR-46871 (CA)

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