Obiter dictum as an unguided missile: P. C. Ibiwoye Adeola v Police Service Commission & 2 ors.
Obiter dictum as an unguided missile: P. C. Ibiwoye Adeola v Police Service Commission & 2 ors.*
In the ruling of the National Industrial Court (“NIC” or the “court”) delivered in P. C. Ibiwoye Adeola v Police Service Commission & 2 ors.1 (the “suit”), the court, per his Lordship, Hon. Justice B. B. Kanyip, struck out the suit as incompetent on the ground that “there was nothing left for the court to hear and determine” in the suit “given the concurring opinion of His Lordship Georgewill JCA in Adeola v The State (2017) LPELR – 42327 (CA) to the effect that the claimant (appellant in the appeal) deserves due re-integration into the society and restoration in his office with commensurate promotions”.
The court took the view that the said opinion of his Lordship Georgewill JCA had prejudged the fundamental question placed before it for determination, namely, whether consequent upon the judgment of the Court of Appeal in Adeola v The State2 (the “appeal”) discharging and acquitting the claimant of the offence of manslaughter, the claimant was entitled to be restored to his office as a member of the Nigeria Police Force together with all the commensurate salaries, benefits and promotions due to him from January 2005 till the date of the judgment of the NIC. The court took the view that the opinion was not obiter dictum; and that even if it were, the court was not in a position to declare it so – being lower court than the Court of Appeal in the hierarchy of Nigerian courts.
In this comment we will argue that his Lordship, Kanyip J, would have struck out the suit but for a different reason. We will also show that the suit might have been decided differently if the claimant’s case were framed and presented differently.
On 13 January 2004, the claimant, a police constable, whilst on duty with his team of police officers at Carter Bridge, Lagos, had an encounter with the driver of a commercial bus and his conductor which culminated in the conductor’s death from drowning in the Lagos lagoon. The claimant was arrested, charged with and tried for the murder of the conductor, but eventually convicted of manslaughter and sentenced to 10 years imprisonment by the High Court of Lagos State. Dissatisfied, the claimant, as appellant, appealed to the Court of Appeal, which set aside his conviction, and discharged and acquitted him in the appeal. Meanwhile, the claimant had spent over 11 years in detention and prison custody (though he had already been released from prison by the grant of amnesty by the Lagos State Governor) by the time the appeal was determined.
In his concurring judgment in the appeal, his Lordship Georgewill JCA, opined that the claimant “having been so erroneously convicted and sentenced and having spent almost 11 years both in custody and in prison upon his wrongful conviction” deserved “neither pardon nor amnesty having not committed any offence but rather due re-integration into the society and restoration in his office with commensurate promotions”. Relying solely on the judgment in the appeal and apparently on the strength of the opinion of Georgewill JCA, the claimant wrote to the Police Service Commission and the other defendants to reinstate him to his position in the Police Force and pay him his arrears of salary, but they refused. Consequently, he filed the suit claiming a declaration that “consequent upon the judgment” in the appeal he was entitled to be restored to his office as a member of the Nigeria Police Force together with all the commensurate salaries, benefits and promotions. He also sought various mandatory reliefs flowing from the declaration.
The defendants did not enter an appearance in the suit and did not file any process in defence thereof. But before the suit could be set down for trial, his Lordship Kanyip J., suo motu raised, and asked the claimant’s counsel to address the court on, the question of whether there was anything left for the NIC to determine given the opinion of his Lordship Georgewill JCA. In its ruling, following the address by counsel, the court held that there was nothing left for it to hear and determine, and consequently struck out the suit.
In coming to the conclusion to strike out the suit, the court took the view that (a) the said opinion of Georgewill JCA in his concurring judgment in the appeal was not obiter dictum, (b) even if the opinion were obiter dictum, the court, being lower than the Court of Appeal in our judicial hierarchy, is not in a position to so declare it, and (b) the opinion effectively determined the question of whether the claimant was entitled to be restored to his office as a member of the Nigeria Police Force together with all the commensurate salaries, benefits and promotions, which was the question placed before the court for determination.
(a) Ratio decidendi or obiter dictum?
Obiter dicta are statements by the way. They arise when a judge thinks it desirable to express opinion on some point “though not in issue or necessary to the case before him.”3 Contrasting obiter dictum with ratio decidendi, Iguh JSC held that ratio decidendi is “the legal principle formulated by [the] court which is necessary in the determination of the issues raised in the case.”4 It follows that any statement made in passing by a court in the course of its resolution of the issue before it in a case, but which is not necessary for the resolution of the issue, is obiter dictum. Accordingly, for a stronger reason, a statement made by the court after it has fully resolved the issue(s) before it in a suit is obiter dictum. Hence in K.R.K Holdings Nig. Ltd. v First Bank of Nigeria Ltd. & anor.,5 the Supreme Court, per Nweze JSC, held about a similar postscript thus: “True indeed, His Lordship’s views, sequel to this categorical finding that the appellant’s issue went outside the compass of the appeal, were tantamount to obiter dicta.” Similarly, there is no gainsaying that the view of Georgewill JCA sequel to his finding that the claimant was erroneously convicted is obiter dictum. The sole issue before the Court of Appeal, as formulated by his Lordship Ikyegh JCA, and adopted by Georgewill JCA, was whether the claimant, as appellant, was responsible for the death of the deceased. The question whether the claimant was entitled to be restored to his office as a member of the Nigeria Police Force together with all the commensurate salaries, benefits and promotions did not arise in the appeal.
(b) Was the NIC in a position to declare that the passage was obiter dictum?
Obiter dictum, even that of the Supreme Court, is not binding, even on lower courts such as the NIC.6 Accordingly, a lower court is free to reach a conclusion different from that expressed in the obiter dictum in a matter before such lower court in which an issue on the point addressed in the obiter dictum properly arises for determination. On such occasion, the obiter dictum is merely of persuasive authority.7 It is also true that in such a situation the lower court not only has the power but also the duty to construe the passage in context (of the facts and the issues considered in the judgment), and determine whether it constitutes ratio decidendi or obiter dictum. Such exercise of distinguishing the binding aspects of a superior court’s decision from the non-binding aspects should not be construed as judicial impertinence or judicial rascality, which has been judicially defined to mean a “deliberate refusal” to be bound by the decision of a superior court’s decision.8 To hold otherwise would be to drive a coach and four through the doctrine of stare decisis.
(c) Did the claimant shoot himself in the foot?
It would however appear that had the claimant framed the suit differently, the NIC would have come to a different decision on the matter. It would also appear that by framing the suit the way he did, the claimant put the court in a situation in which it had to consider whether the passage from Gerogewill JCA’s concurring judgment was obiter dictum or ratio decidendi.
The claimant ought to have brought the suit as one challenging his dismissal from the Police Force and claiming appropriate remedies consequent upon the setting aside of his dismissal. Such a suit properly brought would be couched in a manner that shows that the claims therein are independent of the decision in the appeal, though the decision in the appeal (discharging and acquitting the claimant) would be very relevant piece of evidence to prove the wrongfulness of the claimant’s dismissal. But instead, the claimant framed the suit as one founded solely on the decision in the appeal, as if the orders sought from the court were consequential orders to give effect to the decision of the Court of Appeal. In so doing, the claimant adopted the opinion of his Lordship, Georgewill JCA, as ratio decidendi (see paragraphs 13, 18, 19 and 20 of the claimant’s statement of facts). Hence, instead of the NIC being called upon to determine the propriety or otherwise of the claimant’s dismissal from the Police Force, it was called upon to determine whether it should give effect to the decision of the Court of Appeal. Kanyip J, therefore rightly held that he was being set up by the claimant himself “by presenting [him] with a fait accompli in terms of the opinion of His Lordship Georgewill, JCA”.
In Buhari v Obasanjo (2)9 Pats-Acholonu JSC pointed out that “Sometimes an obiter may have the ungainly characteristic of an unguided missile” and warned counsel appearing before the apex court to “exercise due care in allowing it to form or be the bulwark of their case”. It would seem that the dangers inherent in crafting one’s case around obiter dictum is not limited to appeals from the judgments in which such dictum is contained, but extends to suits at first instance pursued on the basis of rights purportedly declared by such judgments when in fact the statements in the judgment supposedly declaring the rights are mere obiter dicta. An appellate court would usually strike out a ground of appeal and the issue framed on it upon a finding that the ground of appeal complains about obiter dictum. Similarly, a suit at first instance built around rights purportedly declared by a judgment must necessarily fail upon a finding that the statements in the judgment supposedly declaring the rights are obiter dicta.
Bringing the point home, one problem in the approach adopted by the claimant in framing his case before the NIC is that if, as argued by the claimant, the court agreed with him that the statement of his Lordship, Georgewill JCA was obiter dictum, the court would still have had to strike out the suit as constituted on the ground that the suit disclosed no cause of action. Since the orders sought from the court in the suit were framed as consequential orders to give effect to the decision of the Court of Appeal, a finding that the supposed decision of the Court of Appeal, to which the court was being called upon to give effect (assuming that it could under such circumstance), was actually not a decision but obiter dictum would mean that the claimant had no such right as he was trying to enforce. In other words, there was no cause of action that entitled the claimant to bring the suit ab initio. In Lasisi Fadare v. A.G. Oyo State,10 Aniagolu JSC, citing with approval the case of Read v. Brown,11 defined cause of action as “every fact which it would be necessary for the plaintiff to prove…to support his right to judgment of court.” In the case of Bello v. Attorney-General, Oyo State,12 it was held that “The factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to substantive right capable of being claimed against defendant.” If the court agreed with the claimant that the statement was obiter dictum, which was not binding, the result would be that the one fact necessary for the claimant to prove to “support his right” to the “consequential orders” prayed for in the suit did not exist, in that what he presented as giving him that right is “not recognised by law as giving rise to” such right.
The alternative problem with the approach adopted by the claimant in framing his case before the court is the court’s refusal to accept that the statement by his Lordship, Georgewill JCA, was obiter, which resulted in the suit being struck out: the matter having been decided by the Court of Appeal, there was nothing left for the NIC to hear and determine. So, head or tail, the suit was doomed to be struck out in view of the manner in which the claims were framed and presented to the court.
The decision of the Court of Appeal in the appeal suggests that the claimant may have been wrongfully dismissed from the Police Force following his encounter with the driver of the commercial bus and his conductor resulting in the eventual death of the conductor. But the Court of Appeal was not called upon to, and did not, decide the wrongfulness or otherwise of the dismissal of the claimant from the Police Force. The claimant’s dismissal from the Police Force therefore needs to be determined by a competent court in a suit properly constituted for that purpose; and it is only upon such determination that the claimant may obtain any judicial remedy in respect of the dismissal.
It would seem that if a suit were to be properly framed to present the issue before the NIC for determination, the court would consider and determine the issue and grant any remedy as may be appropriate, notwithstanding the statement of his Lordship, Georgewill JCA. The striking out of the suit by the NIC was an inevitable consequence of the approach adopted by the claimant in framing the suit. It is instructive in this regard, the Supreme Court, per Adekeye JSC in Egharevba v Eribo, held that “The jurisdiction of a court to adjudicate on a matter is predicated upon the facts placed before it, and more importantly the phraseology of the plaintiff’s claim.”13
* Nduka Ikeyi and Sam Orji
1 Unreported judgement delivered in Suit No.: NICN/LA/235/2017 on 6 March 2018.
2 (2017) LPELR – 42327 (CA)
3 Buhari v Obasanjo (2003) LPELR – 813(SC) per Belgore JSC.
4 Afro-Continental Nig. Ltd. v Ayantuyi & 9 ors. (1995) 9 NWLR (Pt. 420) 411, 435 quoted and relied on by the
Supreme Court in Dairo v Union Bank of Nigeria Plc (2007) LPELR – 913 (SC).
5 (2016) LPELR – 41463 (SC).
6 Dairo v Union Bank of Nigeria Plc (supra) per Ogbuagu JSC.
7 Nwana v FCDA & ors. (2004) LPELR – 2102 (SC) per Tobi JSC.
8 Lead Merchant Bank Ltd. v PTF (2005) LPELR – 5804 (CA).
9 (2003) 11 KLR (Pt. 167) 2495, 2533
10 (1982) 4 S.C. 1, 6 – 7.
11 (1888) 22 Q.B.D. 128, 131
12 (1986) 5 NWLR 828, 876
13 (2010) 3 KLR (Pt. 278) 877, 892.