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OBITER DICTA OF THE ULTIMATE COURT ON IMPORTANT POINTS ARE BINDING ON LOWER COURT

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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 N.W.L.R. 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 N.W.L.R. 273.

— Nnaemeka-Agu JSC. Bennett Ifediorah & Ors. V. Ben Ume & Ors. (1988)

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THE SUPREME COURT HAS THE POWER TO OVERRULE ITSELF

Adegoke Motors Ltd v. Dr. Adesanya & Anor (1986) 3 NWLR (Pt. 109) 250 at 274; (1989) 5 SCNJ 80, inter alia, thus; “We are final not because we are infallible; rather we are infallible because we are final, Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per incuriam, such Counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error.”

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SOME CASES WHERE THE SUPREME COURT HAS OVERRULED ITSELF

Counsel then referred first to American authorities to indicate that the Supreme Court of the US has frequently overruled itself. These cases are: Brown v. Board of Education 98 L Ed 873, 38A LR 2nd 1180 (overruling Plessy v. Fergusson 41 L Ed 216 on racial segregation matters) Girouard v. U.S. 90 L Ed 1084 (overruling US v. Schwimmer 73 L Ed 889) West Virginia State Board of Education v. Barnette 87 L Ed 1628, 147 A.L.R. 674 (overruling Minersville School Dist. v. Gobitis 84 L. Ed. 1375, 127 A.L.R. 1493 as to constitutionality of requirements to salute the flag of USA).

— Obaseki, JSC. Odi v Osafile (1985) – SC.144/1983

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CONDITIONS FOR THE EXERCISE OF SECTION 22 OF THE SUPREME COURT ACT

In determining whether the conditions surrounding an appeal before the Supreme court are conducive to the exercise of its general power under section 22 of the Supreme Court act as if the proceedings had been instituted and prosecuted before it as a court of first instance, the court will consider the followings: (a) The Availability before it of all the necessary materials on which to consider the request of the party. (b) The length of time between the disposal of the action in the court below and the hearing of the appeal at the Supreme Court. (c) The interest of justice to eliminate further delay in the hearing of the matter and minimize the hardship of the party.

– Tobi JSC. Odedo v. INEC (2008)

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EFFECT OF SECTION 22 SUPREME COURT ACT

Section 22 of the Supreme Court Act, 1960, empowers this Court to amend any defect or error In the record of appeal, and gives it full jurisdiction over the whole proceedings as If the proceedings had been instituted and prosecuted in the Court as a court of first instance, which would include power to permit the amendment sought.

— Brett JSC. Benson v. Ashiru (1967) – SC. 405/1965

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SUPREME COURT IS NOT BOUND BY THE DECISION OF THE LOWER COURT

The Supreme Court being the highest court in the country is not bound by the decision of the High Court and it is free to interprete the decisions of the lower court in its own way. The Supreme Court as an appellate court has the right or power to do what a trial court ought to do but failed to do.

— Adeyemo v. Ida & Ors. (1998) – CA/1/6/92

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SUPREME COURT SHOULD INFREQUENTLY USE ITS POWERS DONATED IN SECTION 22

[W]e decided to hear counsel on both sides on the point, even though it was a point which could have been properly raised under a respondents’ notice. This course is of course permitted by the Rules (see, for example, Order 8 rule 3(6) of the Supreme Court Rules, 1985). Besides, our consideration of the point is necessary for the determination of the real question in controversy in the appeal within the meaning of Section 22 of the Supreme Court Act. Indeed it is envisaged by the subsidiary issue framed for the appellants in their brief. But let me emphasize that although such powers, no doubt, exist, they are such that this court does not want to make a habit of drawing therefrom constantly so that it does not give the wrong impression that it is taking sides in matters in controversy before it. A respondent’s counsel should always make his own decision and file a respondent’s notice whenever necessary, otherwise he may find that he cannot advance a certain line of argument. I am invoking the power in this case because it is necessary for my decision in the case and has been raised by the subsidiary issue and was fully argued.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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