CASE LAW – CONCEPTS RELATED TO PRECEDENTS – OBITER

DICTUMNonso Robert Attoh

Faculty of Law,

University of Nigeria,

Enugu State, Nigeria (2015/2016 Session)

MEANING OF OBITER DICTUM

• Obiter dictum is Latin term for “something said by the way” or ”something said in passing”. Dictum means “something said”, while obiter means “by the way” or “in passing”. The plural is obiter dicta – “things said in passing”

• The easiest way to understand the “obiter” is to realize that a court judgment can be divided into two major portions – the “ratio decidendi” (reason for the decision) and the obiter dicta (things said in passing)

• Whereas the ratio is the part of the judgment that is binding and consists of the reason for the judgment, the obiter dicta are those other things said by the judge in the course of his statement that do not constitute ex cathedra statements because they are not related to the issues before the court and are not relevant to the decision of the court

MEANING OF OBITER DICTUM

• These things said by the way may consist of illustrations made by the judge, hypothetical situations raised by the judge, analogical reasoning by the judge, observations made by the judge on collateral or incidental issues, suggestions made by the judge or examples cited by the judge in the course of the judgment

• According to Goodhart the obiter is a conclusion reached by the court based on a fact the existence of which has not been determined by the court.

• In Salami v. N. N. N Ltd (1999) 13 NWLR (pt. 634) 315 at 330, Aboki J.C.A defined it thus:

MEANING OF OBITER DICTUM

• 'An 'obiter dictum' is an observation by a judge on a legal question suggested by a case before him but not arising in such a manner as to require a decision. It is therefore not binding as a precedent." Per ABOKI, J.C.A

• The Blacks Law Dictionary 10th edition defines obiter dictum as “ a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive:

WEIGHT ATTACHED TO AN OBITER

• An obiter is not binding only persuasive. However the weight that will be given to an obiter may depend on the following factors; the eminence of the judge who pronounced it, status of the court, circumstances in which obiter was given

• Ifediorah and others v. Ume and Others, the justice of the Supreme Court, Nnaemeka-Agu JSC held that 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. This position is unique and has not been followed by the courts.

• Rather the court held in Chief Adedayo v. PDP (2013) LPELR-20342(SC) that an obiter dictum based on a ratio already established by the Supreme Court will be binding

WEIGHT ATTACHED TO AN OBITER

• Glanville Williams explained the reason why an obiter is not binding. The reason is that by its nature the judge may not have considered all the cases which are on that point because the point was not one of the issues required for the determination of the case

• The judge may also have pronounced a very wide obiter without considering all the possible consequences that may arise form such an obiter or he/she may not have given a considered opinion.

• Thus it may not be good law as it has not passed through thte usual rigours any ratio must pass through to qualify as a ratio

NIGERIAN CASE LAW ILLUSTRATION

• In Eyo and Others v. Okpa and Another (2009) LPELR-CA/C/130/2008, the following comment of the trial judge was attacked as occasioning injustice “"All I have said so far is from the angle of Law per se. But law consists of equity. It is therefore on equitable grounds that I will offer suggestion, not by decree or order, but by prescription. That is to say, since the plaintiffs (Old Netim people) are the defendants (New Netim people) are of the same stock and have never had any physical and violent confrontation (which I pray against) it will be appropriate for the two communities to dialogue together. They should do so frequently and continuously. No man is an island…”

NIGERIAN CASE LAW ILLUSTRATION

• The Court held that such a statement from the court was an obiter as it was not part of the reasons for the decision and as such was not appealable. “The above comment is not the reason for the judgment of the trial court, It is therefore not appealable. Furthermore, the comment of the learned trial Judge was a mere suggestion… A comment or statement of the court, which is not necessary for the determination of the issues joined in the parties' pleadings, is an obiter dictum. It has no binding authority and cannot be subject of an appeal. See: Wilson vs. Osin (1998) 4 NWLR (Pt. 88) 324; Per OmokriJCA

PRACTICE QUESTION

• The parties before the Court of Appeal did not raise any issue as to the validity of the custom on which they based their claim, but the justice of the Court of Appeal raised the issue suo motu in his judgment and made a pronouncement that the custom was invalid without asking the parties to address it on the matter. The Supreme Court is now required to rule on the validity of the pronouncement of the Court of Appeal on the invalidity of the custom. Write your well reasoned judgment on the issue.

• (Tip: Read the lead judgment in the case of Muojekwu v Iwuchukwuwhich was an appeal from the decision of the Court of Appeal in Mojekwu v. Mojekwu on the propriety of Niki Tobi’s JCA (as he then was) Pronouncement in that case)