Rethinking The Status of Concurring Judgments: Supreme Court Trends and Legal Implications or Consequences

By: Kola’ Awodein S.A.N. , FCTI, FICI (Arb) and Uchenna Ihediwa S.A.N.

INTRODUCTION

1.       Through an analysis of Supreme Court decisions in Idise v. Williams International Limited[1], Abacha v. Fawehinmi[2], Nwana v. FCDA[3], Oloruntoba-Oju v. Abdulraheem[4], Olufeagba v. Oba Abdurraheem[5], and the recent case of Bot v. Jos Electricity Distribution Plc[6], we reveal apparent contradictions in judicial interpretation of the true and proper meaning and effect of a concurring judgment vis-à-vis a lead judgment.

2.       This situation has led to widespread confusion among justices and judges of the lower Court, legal practitioners, and the public.

3.       This article considers how, perhaps, the too widely stated status of a concurring judgment, as being essentially at par with and of the same weight and effect as a lead judgment in Nwana v. FCDA[7] and some other cases, might have created some confusion and uncertainty, and invariably, somewhat misled the Court of Appeal and High Courts, and, in at least one reported Court of Appeal case, Bankole v. Oladitan[8], encouraged the Court to construe a portion of the concurring judgment of Ogunwumiju, JSC, in Pillars Nig. Ltd. v. Desbordes[9] (which was additionally an obiter dictum) as creating a binding precedent.

4.       The characterisation by the Supreme Court of a concurring judgment, which basically indicates agreement with the lead judgment, as “crystallising into the lead judgment,” and as also constituting the authority for which the case stands as binding precedent, even in the many instances in which the former contains statements of the law that the lead judgment made no mention of at all, or that contradict or are inconsistent with the lead judgment, we have posited, often creates a state of confusion and uncertainty in the interpretation and understanding of a judgment as a whole.

5.       This article argues, with considerable respect and deference, that a concurring judgment, properly understood, is not at par with, nor has the same weight or effect as, a lead judgment and indeed does not crystallise into a lead judgment, notwithstanding several more recent decisions of the Supreme Court to the contrary.

6.       This is because, as we have argued in this Article, the Supreme Court had earlier in Idise v. Williams International Limited[10] and Abacha v. Fawehinmi[11] established that a lead judgment represents, in our jurisprudence, the majority view of the Court, and it is indeed the primary opinion that establishes binding precedent.

7.       Moreover, we have argued that it was also established in Abacha v.  Fawehinmi[12], as per Achike JSC, that the ratio of a case is contained in the lead judgment.

8.       Indeed, in our respectful view, in the United Kingdom and several other Common Law jurisdictions, including ours, the lead judgment is the primary opinion representing the majority view, typically setting out the main legal reasoning behind the Court’s final decision, analysing the arguments, relevant laws, and precedents. It is the lead judgment that creates the precedent that lower courts would follow in similar cases and that shapes the law.

9.       We have accordingly contended, on the reasoning of earlier decisions of the Supreme Court, before Nwana v. FCDA[13], that a concurring judgment, in the proper legal sense, does not crystallise into a lead judgment in any way. While it often reflects or indicates agreement with the lead judgment, it remains a separate opinion that may provide additional perspectives or rationale, but does not carry the same authoritative weight as the lead judgment. Furthermore, it does not, by itself, constitute the decision of the Court in a way that provides binding authority.

10.     The Article further examines in this regard the recent Court of Appeal’s case of Bankole v. Oladitan[14] and argues that the lower Court’s reliance on Ogunwumiju, JSC’s, far-reaching statement of law, in her Ladyship’s concurring judgment, in Pillars v. Desbordes[15] to the effect that a defective statutory notice or failure to serve statutory notices at all is somewhat cured by service of a Writ, as a binding precedent, is a classic example of the unintended legal consequences of the contradictory positions of the Supreme Court on the proper status of a concurring judgment vis-à-vis the lead judgment in our jurisprudence.

11.     In Pillars[16], as aforementioned, her Ladyship’s concurring judgment, perfunctorily, seemed to upend the settled law in an area of tenancy law, namely that failure to serve statutory notices is fatal and robs the Court of jurisdiction to entertain a landlord/tenant’s suit.

12.     Furthermore, the fact that the Court of Appeal in Bankole v. Oladitan[17] considered itself bound by that statement of the law in the concurring judgment of Ogunwumiju, JSC, demonstrates, in bold relief, the challenge of classifying, as the Supreme Court has done in more recent cases, a concurring judgment as crystallising into a lead judgment and being of binding authority.

13.     Based on that holding by the Supreme Court, which we contend is a misconception, we have argued that the lower Courts and indeed legal practitioners and the public are constrained to treat and regard every part of the concurring judgment in Pillars[18] (as in other cases) as part and parcel of the lead judgment, even when, as here, the lead judgment made no reference whatsoever to or mention at all, or raised such an issue or proposition as Ogunwumiju, JSC, did.

14.     Against this backdrop, we assert that this classification laid out by the Supreme Court in Nwana v. FCDA[19], which has been enthusiastically embraced in subsequent cases by the Supreme Court, as we will show, that a concurring judgment crystallises into the lead judgment, is of the same force and weight and equally constitutes authority for which the case stands, would appear to have introduced a measure of interpretational confusion.

15.     With this new classification, it has become a problem to determine whether the lead judgment or the concurring judgment should be cited as the binding authority in any one case, or used to formulate competent grounds of Appeal or indeed issues for determination in a particular case. Yet there is an absolute need to avoid confusion and uncertainty, and to ensure uniformity in citing the actual ratio decidendi that constitutes the authority for which a case truly stands.

16.     The unintended consequences of this later position of the Supreme Court is that now everyone is free to cite different portions of either the lead or concurring judgment as the authority for which the case stands, even when the concurring judgment makes far-reaching statements that are not contained in the lead judgment and/or may not be readily reconcilable with the lead judgment, even when that concurring opinion cannot be regarded as obiter.

17.     However, there appears to be even more confusion, as the Supreme Court has also decided that where there is any inconsistency between a concurring judgment and the lead judgment, the concurring judgment gives way to the lead judgment to the extent of its inconsistency. See Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd[20] where Augie, JSC, held as follows:

“As to the issue of simple contract, Oseji JCA said in the lead judgment that computing the limitation period shows that the respondents “are still within the ambit of the six years’ period of limitation as prescribed by Section 8(1)(a), granted that the transaction falls within the realm of a simple contract”. It was only one justice who stated differently in his concurring judgment, and where there is any inconsistency between a concurring and a lead judgment, the law says that the former would give way to the extent of the inconsistency – see O.S.I.E.C. & Anor v. A. C. & Ors [2010] 19 NWLR (Part 1226) 273 SC. So, the decision of the Court below is     that the transaction is a simple contract.” See also Nigeria Army Council v. Onyeachu[21], where Uwah, JSC, stated, in a similar vein, as follows: “…it is fairly settled that where there is any inconsistency between a concurring judgment and a leading judgment         (not when it is a dissenting opinion), the former would give way to the extent of the inconsistency. See Akpoku v. Ilombu (1998) 8 NWLR (PT. 561) 283 AT 292 and O.S.I.E.C. & Anor v. A. C. & Ors. (2010) LPELR-2818(SC).”

18.     The question is not only how one determines inconsistency now and for what purpose, but also whether, even if found to be consistent, it still retains the same force as a lead judgment to create a binding precedent.

19.     We respectfully propose that the Supreme Court address this unhealthy and unhelpful situation at the earliest opportunity by reverting, as circumstances permit, to its earlier position in Idise[22] and Abacha[23], which provides better legal clarity.

20.     We have also asserted that the decision in Bankole v. Oladitan[24], in our respectful view, to the effect that failure to serve the requisite statutory notice on a tenant before commencing an action for Recovery of Premises is not fatal, contrary to long-standing authoritative decisions of the Supreme Court on the subject, is misguided and clearly represents very bad law and should not be followed by other panels of the Court of Appeal.

AUTHORITY OF THE SUPREME COURT

21. At the apex of the judicial hierarchy in Nigeria, whether for Federal or State matters, stands the Supreme Court of Nigeria. Its supreme authority is enshrined in the hallowed provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides in clear terms: “…Subject to … no appeal shall lie to any other body or person from any determination of the Supreme Court.”

22.     The plenitude of powers vested in the Highest Court in every common law jurisdiction, as custodian of the law and its profound implications, was memorably captured by Justice Robert H. Jackson of the United States Supreme Court in Brown v. Allen[25] when he remarked: “We are not final     because we are infallible; but infallible only because we are final.”

23. Oputa, JSC, of blessed memory, echoed and elaborated on this profound observation (which, regrettably, in Nigeria is not commonly attributed to Justice Jackson) in Adegoke Motors Ltd. v. Adesanya[26] when he stated:

“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 a decision be overruled. This Court has the power to overrule itself (and has done that in the past) for it gladly       accepts that it is far better to admit an error than to persevere in error.”

24.     Whenever the Supreme Court delivers its judgments, practitioners, judges, scholars, and all who are interested in the state of the law eagerly scrutinise them. They do so primarily to distil the ratio decidendi of the decision. Others look to see whether the judgment has overruled previous authorities and laid down a new principle of law, or whether it has affirmed an earlier position.

25.     Against this backdrop, this paper will examine five previous Supreme Court decisions on the status of a lead judgment vis-à-vis a concurring judgment, as well as their legal implications and consequences. Particular attention will be paid to the Court’s recent decision in Pillars v. Desbordes[27] on recovery of premises—especially the concurring judgment of Ogunwumiju, JSC, and its apparent impact on the Court of Appeal’s decision in Bankole v. Oladitan[28].

THE SUPREME COURT’S POSITION ON THE STATUS OF CONCURRING JUDGMENTS

26.     Admittedly, long before now, the position of the law had been that the lead and not the concurring judgment bears the judgment of the Court.

27.     In the 1995 case of Idise v. Williams International Ltd.[29], the Supreme Court, coram Uwais, Wali, Kutigi, Ogundare, Uthman Mohammed, JJSC, held per Wali, JSC, who delivered the lead judgment, that it would be an academic exercise to consider issues 3, 4, and 5 of the issues for determination formulated by the appellant because they were based on the concurring judgment of Uche Omo, JCA (as he then was).

28.     This is how Bashir Wali JSC put it succinctly at page 11 of the Report: “As for issues 3, 4 and 5, these were based on the concurring judgment of Uche Omo JCA (as then was), which is not the LEAD judgment. Whatever Uche       Omo JCA said in his concurring judgment, which differs from the lead judgment with which he agreed, can only be obiter dicta, and therefore it will be a mere academic exercise to consider them.” (Emphasis ours).

29.     All other Justices agreed with him that the appeal be dismissed. In particular, Ogundare JSC pointedly stated inter alia as follows: “…I have had the advantage of a preview of the judgment of my learned brother Wali JSC just delivered. I agree entirely with the reasoning and conclusion reached by him which I also adopt as mine …”

30.     In Abacha v. Fawehinmi[30], an objection was raised as regards Ground 5 of the grounds of the Cross Appeal, namely that, being a Ground of Appeal against a statement made by Acholonu JCA (as then was) at the lower Court in a concurring judgment, it was not appealable.

31.     In the resolution of the Preliminary Objection to Ground 5, Achike, JSC, whose judgment was stated to be the consensus view on the Appeal by Uwaifo, JSC, at page 203, Paragraph C-F of the Report, stated, first, as follows:

“…The reason for Cross-Respondents’ prayer that Ground 5 be struck out is that the complaint is against the concurring judgment of Pats-Acholonu       JCA, rather than the leading (sic) judgment of Musdapher JCA. Cross-Respondents call in aid the decision of this Court in Idise v. Williams Int. Ltd. Learned Counsel to the Cross-Appellant, however, stresses that the principle in Idise v. Williams Ltd. (supra) can only come into play when there      is a divergence between the leading (sic) and concurring judgment…”

32.     His lordship then comprehensively and authoritatively stated the position succinctly and admirably at pages 115 and 116 of the Report as follows:

“One may then ask, what is the judgment of the Court? Where a single judge presides, the situation does not admit of any difficulty: the judgment of that Court is what may be described as the ratio decidendi or rationes decidendi of that case in contrast to the passing remarks, otherwise referred to as obiter dictum or dicta made by the Court in the course of preparing a judgment. The problem, such as the one raised in this appeal, arises when three justices (as is usually the case in the Court of Appeal) or five justices (as is usually the case in the Supreme Court) preside over a case or an appeal wherein one of the justices is assigned the responsibility to write the leading (sic) and others, under the mandatory provisions of the Constitution, are obliged to render either their concurring or dissenting judgment. In such a situation, it is the leading judgment that is, in legal circles, regarded as the judgment of the Court. The other judgments may respectively be a two-word judgment, e.g., “I concur,” or judgments longer or shorter than the leading judgments.”

33.     His Lordship then notably articulated the law as follows: “The point of jurisprudential interest and of considerable interest in this appeal is the relationship of the bindingness of the ratio decidendi or rationes decidendi contained in the leading judgment on the one hand, and the other concurring judgments, on the other hand. Are they at par, or are some superior to others? The jurisprudence and practice of law in this country appears to be tolerably clear: IT IS THE RATIO OR THE RATIONES CONTAINED IN THE LEADING JUDGMENT THAT CONSTITUTES OR CONSTITUTE THE AUTHORITY FOR WHICH THE CASE STANDS. All other expressions contained in the concurring judgments, PARTICULARLY THOSE NOT ADDRESSED IN the leading judgment, are obiter dictum or dicta. Obiter dicta in the leading judgment as well as in the concurring judgments may be of persuasive effect on other occasions. This is my understanding of Idise case.” (Emphasis ours).

34.     Accordingly, Achike, JSC, held that the Ground of Appeal, being against a concurring judgment, was incompetent and struck out the aforementioned Ground 5. All other justices of the seven-member panel agreed that the Ground was incompetent and struck it out.

35.     As in these two cases, we submit that the law in the United Kingdom and several other common law jurisdictions is that the lead judgment is typically the binding authority, as it represents the majority opinion. Concurring judgments do not have the same binding effect, though they can be influential.

36.     Additionally, a concurring judgment by itself does not constitute the Court’s decision in a manner that provides binding authority. However, if future cases adopt the reasoning in a concurring judgment or are widely accepted, it may still influence future interpretations and applications of the law. While a concurring judgment can provide valuable insights and may affect future legal reasoning, they do not replace or have equal standing with the lead judgment in a legal sense.

37.     Indeed, lower Courts are not compelled to follow concurring opinions, but they often consider them for their analytical contributions and the insights they offer into related legal issues.

38.     However, in the 2004 case of Nwana v. FCDA[31], this seemingly settled position was altered by the lead judgment of Tobi JSC.

39.     That old order as to the status of a concurring judgment, mainly when it addresses matters that are not mentioned in the lead judgment, has, by that decision, given way to the new. Indeed, the position today, whose foundation was laid by Nwana v. FCDA[32], is that a concurring judgment complements and has equal force and weight with the lead judgment insofar as the principle of stare decisis is concerned, and that both are the judgment of the Court. See Nwana v. FCDA[33] where Tobi, JSC held, without reliance on any prior judicial authority or legislation, as follows:

“Learned Counsel for the appellant made two submissions in respect of the concurring judgment of Karibi-Whyte, JSC. The first one is that, being a concurring judgment, this Court should not attach much to it. With respect, I am not carried along by counsel in this submission. A concurring judgment, in my humble view, has equal weight with or as a leading judgment. [A concurring judgment complements, edifies, and adds to the leading judgment. It could, at times, be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. Insofar as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment insofar as the principles of stare decisis are concerned.]” (Underlining in original). However, a concurring judgment is not expected to deviate from the leading judgment. A concurring judgment, as the name implies, must be in agreement with the leading judgment. A concurring judgment which does its own thing in its own way outside the leading judgment is not a concurring judgment but a dissenting judgment. The mere fact that a concurring judgment mentioned positively and correctly what is not contained in the leading judgment does not make it wear the appellation of a dissenting judgment. Insofar as what is contained there is relevant to the issues in the matter, the judgment is acceptable as a concurring judgment.” (Underlining ours).

40.     Equally, in Olufeagba v. Oba Abdurraheem[34], the lead judgment of Fabiyi JSC, faithfully followed the Nwana[35] case, where his Lordship noted at page 15, thus: “The objection to ground 4 of the grounds of appeal rests on the complaint that it relates to a concurring judgment. The decision of this Court in Nwana v. FCDA (supra) at page 1245 settles the point. Opinions expressed in a concurring judgment form part of a court decision. In short, ground 4 of the grounds of Appeal is basically alright.”

41.     See also Oloruntoba-Oju v. Abdul-Raheem[36], where Adekeye JSC, delivering the lead judgment, relied on the above-stated case of Nwana  v. FCDA[37], to hold, in a similar vein as reported at page 59, as follows:

“The learned Senior Counsel for the Respondents replied that the ground on which this issue was formulated is incompetent, as it relates to an academic issue. The issue is predicated on the concurring judgment of          Tijani JCA. A ground of appeal predicated on a concurring judgment is not a valid ground of appeal. Where an issue for determination is distilled from a valid and invalid ground of Appeal, both grounds will have to be dismissed or discountenanced on the ground of inconsistency. I have earlier on given my ruling on the preliminary objection raised on the competency of this appeal. I agree with the submission of the learned counsel to the appellants, quoting from the decision of Nwana v. F.C.D.A. (2004) All FWLR (Pt. 220) 1243 at 1254 paragraphs B-C; (2004) 13 NWLR (Pt. 889) 128, particularly that a concurring judgment forms part of the leading judgment and it is meant to complement same by way of addition or improvement on the issues resolved in the leading judgment. Both leading and concurrent crystallise into the judgment of an appellate court.”

42.     Undoubtedly, Adekeye JSC’s lead judgment clearly extends the proposition further in holding that both the lead judgment and the concurring judgment “crystallise into the judgment of the Court.”

43.     Furthermore, even in the very recent case of Bot v. Jos Electricity Distribution Plc[38] Saulawa, JSC, reinforced this position when his lordship held as follows: “Jurisprudentially, the postulates of brother Justice Uwais, CJN, and Niki Tobi, JSC, copiously alluded to above, albeit concurring, contributory judgments, same formidably form part of the lead judgment authored and delivered by Ogundare, JSC. That view is formidably anchored on the trite doctrine, that it is the concurring judgment and the lead judgment alike that crystallise into the entirety of the decision of the court seized of the matter or appeal.”

44.     This is a most troubling jurisprudential proposition. In our most respectful view, these holdings by the Supreme Court, without any reference whatsoever to the earlier decisions of Idise v. Williams International Ltd.[39] and Abacha v. Fawehinmi[40], ought properly to be regarded as having been made per incuriam.

45.     Since the Nwana[41] case forms the foundation of the Supreme Court’s new position regarding the status of a concurring judgment or opinion, it is pertinent to review the facts and circumstances of the case.

46.     In Nwana v. FCDA[42], Tobi JSC referred to the case of Chukwuma v. Shell Petroleum Development Company of Nigeria Limited[43] as the fulcrum of the Appeal. After stating the facts of the case in full, his Lordship then stated as follows:

“As the appellant failed in the High and the Court of Appeal, he came to the Supreme Court. The Supreme Court partially allowed the appeal. The Court did not allow the issue for determination in this appeal, and it is the issue of possession of the premises. On the issue, Karibi-Whyte JSC, in his concurring judgment, citing the English case of Torbett v. Faulkner (1952) TLR 659 with approval, said at page 566: “Appellant in the instant case has no interest in the land even during his occupation of the premises. The license to remain is automatically revoked on his retirement or for any cause ceasing to be employed. He cannot, therefore, be a tenant for the purposes of the housing arrangement made by respondent for its employees… It is well-settled law that a licensee cannot maintain an action in trespass against a landlord. There is, therefore, no legal base for the claim in trespass. The Court below was right to have dismissed the claim.” The Court of Appeal relied on the above. Salami JCA pungently said at page 87: “The case applicable is the case of Dr. Ben. O. Chukwuma v. Shell Petroleum Development Company Nigeria Ltd. [1993] 4 NWLR (Pt. 289) 512. In that case, the leading judgment of Ogundare JSC found the appellant to be a licensee just as the respondent in the instant appeal had been found to be a licensee whose occupation was for and on behalf of his employer. The other justices who sat on the appeal, including Bello, CJN, except Karibi-Whyte, JSC, did not discuss the issue. But Karibi-Whyte JSC, in his own judgment, not only did he find that the appellant was a servant whose occupation of the premises was subservient and necessary to the services which it was his duty to render to the master, he went on to hold that he had no estate nor property whatsoever in the premises save that of physical possession… I am bound by the decision of the Supreme Court which says that at common law a licensee has no estate in a property and can for that reason not sue his employer in trespass.” ”

47.     In our respectful view, his Lordship, having held that the Supreme Court, in Ben Chukwuma[44], did not allow the appeal as regards the appellant’s claim for damages for trespass and injunction from dispossessing him of possession, that should have been the end of the matter as far as what is binding in Chukwuma’s case[45] is concerned.

48.     Indeed, Ogundare JSC, who read the lead judgment in Ben Chukwuma[46], actually stated, in relation to the appellant’s claim for damages for trespass and injunction at page 545 of the Report, thus: “…Plaintiff had made allegations of forcible eviction against the defendant Company. I have examined the evidence proffered in support of these allegations and find them unproven…”

49. Then His Lordship concluded thus at page 546 paragraph F as follows: “…It may be that the defendant company used some unorthodox method in seeing to it that the Plaintiff vacated the house, such as preventing plaintiff and his visitors gaining entrance into the estate, thereby preventing them coming to the house where he lived with his family. It is not the same thing as saying that trespass, as pleaded, was proved. In view of this conclusion, I consider it unnecessary (sic) to dwell in depth on the issue whether the Plaintiff was a tenant or licensee of the premises, the subject matter of the claim for damages for trespass and injunction… I hold therefore that the claims for damages for trespass and injunction were rightly dismissed.”

50.     The question of whether a claim for damages for trespass and injunction was maintainable by a licensee was not considered by the lead judgment of the Supreme Court, which stated that it was unnecessary to do so in light of its findings as stated above.

51.     A close examination of the judgment will show that the decision reached in the lead judgment of Ogundare JSC is that, as the plaintiffs did not establish the factual basis of their claim for damages for trespass and injunction, namely, that the defendant company invaded the premises and forced them out, the claim was rightly dismissed. Indeed, Ogundare JSC stated that for this reason, it was unnecessary to consider whether the appellant was a licensee or tenant. This, undoubtedly, was the legal reasoning fundamental to the decision and therefore the ratio of the decision on this point.

52.     It was indeed Justice Karibi-Whyte, in his concurring judgment, after finding as well that the factual basis of the claim for damages for trespass and injunction was not proved by evidence, that then went ahead to hold that a licensee, as the High Court and Court of Appeal had found the plaintiff to be (a finding which had not been challenged on Appeal), had no legal right to maintain an action for trespass.

53.     The three other Justices, Bello CJN, Saad Kawu, and Olatawura JJSC, in their concurring judgments, affirmed the dismissal of the claim for damages and injunction by the lower Courts and stated no more on the subject.

54.     The pertinent question, therefore, is this: Since the lead judgment of Ogundare JSC (which we have argued is regarded as the primary decision in our jurisprudence and thus serves as the leading authority establishing the decision of the Court) was therefore limited as indicated, what is the status of the additional comment of Karibi-Whyte JSC to the effect that a licensee has no legal right to maintain an action for trespass?

55.     We would assert that if the actual reason for the decision is that the plaintiff had not established the factual basis for his claim, and for which reason the claim failed, then the additional statement of the law by Karibi-Whyte, as aforementioned, with utmost respect, cannot arguably be the basis for the decision. It therefore constitutes, at best, an obiter.

56.     Additionally, this holding of Tobi, JSC, in the circumstances of this case that:

“A concurring judgment, …, has equal weight with or as a leading judgment. A concurring judgment complements, edifies, and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. Insofar as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment insofar as the principles of stare decisis are concerned.[47]” is, in our respectful view, very problematic from several perspectives.

57.     First, it ignores the authoritative statement of the law enunciated in Abacha v. Fawehinmi,[48] with which it did not even engage, that it is the ratio or the rationes contained in the lead judgment that constitutes or constitute the authority for which the case stands.

58.     Second, it regarded as competent a ground of appeal founded on a concurring judgment which the earlier cases of Idise[49] and Abacha[50] disapproved of, and held that it is incompetent and invalid. Yet his Lordship did not consider these two earlier cases nor engage with them, which arguably makes his Lordship’s decision here untenable as having been made per incuriam and therefore of no precedential value and not binding.

59.     Third, in its free-flowing and unrestrained language, it introduces a measure of confusion as to how to treat a concurring judgment vis-à-vis a lead judgment such that a would-be appellant can freely abandon the lead judgment completely and focus on appealing against various statements of the law contained in a concurring judgment, even if they materially differ from the lead judgment and may, in fact, be obiter.

60.     Fourth, it makes the practitioners’ important job of deciding what the case truly stands for and determining the ratio of the case very difficult, as practitioners can simultaneously hover between various holdings and statements in both the concurring and lead judgments.

61.     Fifth, it undermines the fundamental principle of our jurisprudence that it is the lead judgment that is the majority and primary decision of the Court, and that it is that lead judgment that is the authority for which the case   stands, for the purpose of the doctrine of stare decisis.

62.     Moreover, a close examination of the facts of the Nwana[51] case also shows another fundamental error of his Lordship, the eminent law lord Tobi, JSC, in regarding as part of the ratio, the concurring judgment of Karibi-Whyte in the case of Chukwuma v. Shell Petroleum Development Company of Nigeria Limited[52], that he was considering and that gave rise to the instant quotation, when indeed that part of the judgment of Karibi-Whyte was an obiter dictum.

63.     In Nwana v. FCDA[53], the Supreme Court, per Tobi, JSC, dismissed the contention that Justice Karibi-Whyte’s earlier statement amounted to an obiter dictum, reasoning instead that it formed part of the ratio decidendi,         thus:

“…The issue before us is whether counsel is correct in saying that what Karibi-Whyte said in Dr. Chukwuma is obiter. One of the issues was trespass to the house in the respondent’s premises at Warri. As a matter of fact, the main issue, like in this appeal, was whether the Appellant was a tenant or a licensee in the premises which he occupied at No. 4, Benue Road… The Appellant sued when the respondent dispossessed him of the house. Like in this appeal, he sued for trespass. It is in the light of the above that Karibi-Whyte JSC said what he said above. Can what Karibi-Whyte, JSC, said be an obiter dictum? I think not. It is a clear ratio decidendi. The issue of trespass was involved, which called for damages, which the Appellant claimed.”

64.     Respectfully, this reasoning was flawed. His Lordship’s fundamental error lay in failing to appreciate that the determination of what constitutes the ratio decidendi, as distinct from an obiter dictum, must always be grounded in the facts of each case. Put differently, the ratio of Chukwuma[54] can only be that which coheres with the Court’s findings and conclusions of fact.

65.     The Supreme Court itself has, in previous decisions, provided guidance on how to determine such questions. In Aeroflot Soviet Airlines v. United Bank for Africa Limited,[55] Karibi-Whyte JSC, delivering the lead judgment, observed:

“Wherever in a judgment two reasons appear to have been given, the ratio decidendi can only be that reason which is consistent with the facts and the claim before the Court.” (Emphasis ours).

66.     Similarly, in Ogbechie v. Onochie,[56] Nnaemeka-Agu, JSC, held that “a judgment of court ought to flow naturally from the findings or conclusions of fact made by the court.”

67.     Thus, where the findings and conclusions of fact establish that the factual basis of the claim was not proved, that determination constitutes the true ratio of the case. Any further comments made beyond that scope do not qualify as part of the ratio. Accordingly, the additional observation of Karibi-Whyte, JSC, on the position of a licensee, which the lead judgment of Ogundare, JSC, had considered unnecessary for the resolution of the case, ought therefore to be regarded as obiter.

68.     We would submit that the earlier position of the Supreme Court ought to represent the binding authority on this point, as it authoritatively states the historical jurisprudential status of concurring judgments in all common law jurisdictions. In our respectful view, in all Common Law jurisdictions, including ours, it has always been held that a lead judgment represents the majority view of the Appellate Courts as it is indeed the primary opinion that establishes binding precedent and shapes the law.

69.     Against this backdrop, we maintain that the classification by the Supreme Court in Nwana v. FCDA[57] and subsequent cases that a concurring judgment crystallises into the lead judgment would have introduced a measure of interpretative confusion. With this classification, it has become a challenge to determine whether the lead judgment or the concurring judgment should be cited as the authority in any given case. Yet, there is an absolute need to avoid confusion and uncertainty, for uniformity, in citing the actual ratio decidendi that constitutes the authority for which a case truly stands.

70.     The unintended consequence of this later position of the Supreme Court is that now everyone is free to cite different portions of either the lead or concurring judgment as the authority for which the case stands, even when the concurring judgment makes far-reaching statements that are not contained in the lead judgment and/or may not be readily reconcilable with the lead judgment, even when it cannot be regarded as obiter.

71.     This unhealthy and unhelpful situation should be addressed by the Supreme Court at the earliest opportunity by reverting to its earlier position in Abacha[58] and earlier decisions, which clearly make better law. Let us now consider the case of Pillars[59] and the concurring judgment of Ogunwumiju, JSC, which, we have argued, appears to provide an example of how the lower court’s understanding of the later interpretation of the status of a concurring judgment by the Supreme Court has become extremely challenging.

THE PILLARS CASE[60]

72.     FACTS: The Appellant and Respondent entered into a development lease agreement in 1977 in respect of the Respondent’s piece of land at Plot B, Saibu–Ajose Crescent, Surulere, Lagos. By the agreement, the Respondent was granted a development lease of 26 years on payment of yearly rent in advance. The Respondent was also expected to erect a building on the land within two years from the date the development lease was granted. The Appellant failed to erect the building on the land, and the Respondent issued statutory notices, including Exhibit E (Notice of Breach of Covenant), before instituting an action at the Lagos High Court. The Court found in favour of the Respondent, and the Court of Appeal affirmed the finding of the High Court. The Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION

73. This appeal was anchored on four issues, to wit:

(i)       Whether the Court of Appeal was right in affirming the decision of the trial court that respondents pleaded and proved service of statutory “Notice of Breach of Covenant” (Exhibit E) and “Notice to Quit” (Exhibit G) as required by the law.

(ii)      Whether it was proper for the lower court to deviate from the original dispute before it and decide the appeal on an entirely different issue raised suo motu without giving the parties the opportunity of addressing it on the new issue raised at the hearing of the appeal.

(iii)     Whether the lower court exercised its discretion judiciously and judicially by striking out issue numbers 3.0(b) and (c) raised by the Defendant/Respondent in its brief of argument in the lower court against counsel’s application for merger of Issues A & B.

(iv)     Whether the Plaintiffs/Respondents have waived their right to forfeiture by demanding and collecting rent up to 1995 before the purported notice to quit (Exhibit G) was allegedly issued in line with the averments in paragraph 22 of the defendant/appellants’ statement of defence. We are concerned with Issue 1 in this essay.

RESOLUTION OF THE ISSUES

74.     With respect to Issue 1, anchored on Grounds 1 & 2, the Supreme Court was of the view that the issue of service of the statutory notice to quit (Exhibit G) did not arise from Ground 1 of the grounds of Appeal and struck it out. The Court also decided that with the determination of Issues 1 & 4, no useful purpose would be served by determining Issues 2 and 3.

75.     Having struck out the aspect of Issue 1 relating to Exhibit G, the Court proceeded to consider the surviving limb of the issue, namely: “Whether the Court of Appeal was right in affirming the decision of the trial Court that respondents pleaded and proved service of statutory Notice of Breach of Covenant (Exhibit E) …as required by law.”

76.     The Supreme Court’s lead judgment, per Agim, JSC, held that the Appellant did not appeal the Lower Court’s finding that Exhibit E was pleaded and, therefore, cannot raise it in this appeal. With respect to service of the notice, the Court stated that the Appellant cannot raise this issue in this Court, as it did not appeal the finding by the lower Courts that the notice was served. For avoidance of doubt, we reproduce the concluding part of the lead judgment of Agim, JSC. He said: “As I had held herein, the appellant abandoned its appeal in Ground 1 against this decision of the Court of Appeal affirming the decision of the trial Court on the credibility of PW1 and DW1. Having struck out that ground, the decision is left unchallenged and thereby accepted by the appellant as correct, conclusive, and binding upon it. Learned counsel for the appellant has correctly restated the law on the requirements of proof of service of the notice of breach of covenant. But having accepted as correct the decision of the Court of Appeal concurring with the decision of the trial court, believing PW1 that Exhibit E was served on the appellant and disbelieving DW1’s denial of such service, the brilliant arguments of learned counsel on the legal requirements of proof of service of notice of breach of covenant become valueless. It is settled law that a party who has not appealed against a finding or holding in the judgment appealed against cannot validly argue contrary to that finding or holding. Having accepted as correct the decision of the Court of Appeal affirming the decision of the trial Court that it believed PW1 that Exhibit E was served on the appellant, the appellant cannot argue that the service of the notice was not served.” The lead judgment then dismissed the appeal.

77.     In her concurring judgment on this matter, Ogunwumiju, JSC, after stating that she agrees with the lead judgment of Agim, JSC, and that the Appeal be dismissed, subsequently pointedly stated in part as follows:

   “The justice of this case is very clear. The appellant has held on to property regarding which it had breached the lease agreement from day one. It had continued to pursue spurious appeals through all hierarchies of courts to frustrate the judgment of the trial court delivered on 8/2/2000, about twenty years ago. After all, even if the initial notice to quit was irregular, the minute the writ of summons dated 13/5/1993 for repossession was served on the appellant, it served as adequate notice. The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the landlord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule. Equity demands that, whether and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to regain possession of the property has to be sufficient notice on the tenant that he is required to yield up possession. I am not saying here that statutory and proper notice to quit should not be given. Whatever form the periodic tenancy is, whether weekly, monthly, quarterly, yearly, etc., immediately a writ is filed to regain possession, the irregularity of the notice, if any, is cured. Time to give notice should start to run from the date the writ is served and so on.” (Underlining Ours).

ANALYSIS OF THE AFOREMENTIONED STATEMENT BY OGUNWUMIJU, JSC

78.     The first point a dispassionate reader would observe is that what her Ladyship set out to address was the recurring problem of tenants who adopt recalcitrant tactics when asked to vacate premises. In her view, the Courts must curb this mischief by invoking equitable principles. Thus, she reasoned that, going forward, the issuance and service of the writ would suffice to cure any defect in the statutory notice. With the greatest respect, this reasoning is difficult to comprehend, and its practical utility is equally doubtful.

79.     First, the tenant retains a right of appeal and cannot dictate when such an appeal will be heard. Second, the philosophy underpinning the law on recovery of premises and forfeiture of leases is to ensure that landlords or lessors comply with due process in ejecting tenants. This is rooted in the recognition that the supposed contractual equality between landlord and tenant is largely illusory. The law, therefore, seeks to protect tenants by mandating adequate notice before eviction.

80.     The Supreme Court itself has consistently underscored this protection. In A.P. v. Owodunni[61], the Court observed: “The Law, it has been said, is an ass. And the unruly as (sic) must keep galloping along so long as litigants       refuse to follow simple rules clearly laid down by statute.”

81.     That some tenants exploit institutional weaknesses to prolong their stay in possession should not obscure the reality that, in countless other cases, tenants are unlawfully evicted without due process by landlords wielding overwhelming power.

82.     Undoubtedly, the aforementioned statement of her Ladyship did not relate to any issue for determination in the appeal, and it is, at best, an obiter dictum, but this fact is not the thrust of this Article.

83.     What is of more immediate and vital concern and interest is how this portion of the clearly concurring judgment of Ogunwumiju, JSC, appeared to have been treated as if it were a lead judgment and of binding precedential value in the Court of Appeal case of Oladitan v. Bankole[62].

84.     Despite the peculiar nature of the aforementioned pronouncement of Her Ladyship, Ogunwumiju, JSC, the Court of Appeal has now followed it lock, stock, and barrel in Bankole v. Oladitan[63].

85.     A pivotal issue decided in this landlord and tenant case was whether service of the owner’s intention to recover premises (Exhibit C11) served on the 1st Appellant through his wife was proper. In reaching its decision, the Court of Appeal, per Muhammad Ibrahim Sirajo JCA, who delivered the lead judgment, agreed that the service was improper in these words: “I agree with the finding of the lower Court only to the extent that service of the statutory notice on Mrs. Bankole is good service on the 2nd Appellant but did not agree that the said service amounts to good and proper service on the 1st Appellant. For service on the 1st Appellant to be effected, it must be done personally or by substituted means, if ordered by the Court.”

86.     The Court then relied on Pillars[64] to proclaim in triumphant style that:

“The suit lasted over 5 years. From the commencement of the proceedings in August 2008 to the delivery of judgment in March 2014, the Appellants have more than enough notice that the landlords are desirous of possession of their property and recovery of arrears of rent. Gone were the days when cantankerous, troublesome, and unpleasant tenants held on to technicalities of service of statutory notices to defeat the claim of property owners by illegally holding onto such properties. The Supreme Court has now responded to the sad occasion by coming to the rescue of landlords and property owners whose cantankerous and recalcitrant tenants have, over the years, been clinging on to the issue of improper service of statutory notices to unjustifiably hold on to the landlord’s properties without payment of agreed rent or complying with the terms of the lease agreement. In the case of Pillars Nigeria v. Williams Kolo Desbordes & Anor. LPELR–55200 (SC) at pages 24-26, the Nigeria Judicial Oracle took a very proactive and practical decision, per Ogunwumiju, JSC, as follows…”.

87.     From the above, it is clear that the concurring opinion of Ogunwumiju, JSC, as aforementioned, has been understood, as in Bankole v. Oladitan[65], to be a binding statement of the law, as if it were contained in the lead judgment, and was thus treated as having metamorphosed into a binding principle of law in the case.

88.     Of course, Justice Sirajo conveniently took umbrage under the classification by the Supreme Court itself in the flowery language of Tobi JSC in Nwana v. FCDA[66] that: “A concurring judgment, in my humble view, has equal weight with or as a leading judgment.”

89.     Clearly, the Court of Appeal did not appreciate that what stands as authority for what the Pillars[67] case decided was the lead judgment of Agim, JSC, and nothing more, and that consequently the concurring judgment of Ogunwumiju, JSC, whether obiter or not, cannot be cited as an authority at all and has no binding effect whatsoever. The Court of Appeal in Oladitan v. Bankole[68] was therefore in grave error in considering itself bound by the statement of Ogunwumiju, JSC, in her concurring judgment.

90.     Our contention is supported by the fact that in Pillars[69], the lead judgment did not go into the merit of Issue 1 as formulated, since it was held not to have been competently raised. The lead judgment effectively decapitated Issue 1 when it said that the complaint relating to Exhibit G was not competently raised. It also noted that the appellant cannot complain about the service of Exhibit E since it did not appeal the lower Court’s affirmation of the trial court’s reliance on the testimony of PW1 that service of Exhibit E was duly effected.

91.     A concurring judgment must relate to the lead Judgment and should not be a general pronouncement on the recovery of premises, as has been done here. This concurring judgment would amount to “an amendment of existing Laws under the guise of interpretation”. Section 14 of the  Conveyancing Act, under which the notice of breach (Exhibit G) was issued, mandates a lessor to serve a notice of breach of covenant. It states:

“In an action for forfeiture, the lessor must prove: i. that the service of the notice was made known to the lessee himself.”

92.     The lessee, upon receiving it, can foreclose the landlord’s right to proceed with recovery of possession by remedying the breach. He can also apply for relief against forfeiture if the landlord institutes the action. So, the Conveyancing Act has an inbuilt dispute resolution mechanism.

93.     The Recovery of Residential Premises Laws of states, as well as the Tenancy Law of Lagos State, substantially govern the relationship between landlord and tenant. It stipulates that a landlord desirous of ejecting a tenant must issue and serve statutory notices.

94.     That Law describes proper service in Section 18 of, for instance, the Recovery of Premises Law, Cap X Laws of Lagos State 1993, thus: “Proper service on a tenant of residential premises shall be personal service for residential premises which includes, but is not limited to, the following: a. Service on the Tenant in person; b. Delivery to any adult residing in the premises to be recovered…”

95.     The Rent Control and Recovery of Residential Premises Laws of Lagos State, 1993, was the applicable law in 1993, when the action was filed. With respect to steps a landlord must take before instituting an action to recover premises, Section 15(1) provides inter alia: “(1) Where there is no express stipulation as to the notice to be given by either party to determine the tenancy, the following periods of time shall be given: – a. In the case of a tenancy at will or a weekly tenancy, a week’s notice; b. In the case of a monthly tenancy, a month’s notice; c. In the case of a quarterly tenancy, a quarter’s notice; and d. In the case of a yearly tenancy, a half- year’s notice.”

96.     The compulsory application of the requirement of notice, irrespective of the consequent inconvenience and challenge to a landlord, was pointedly stated in A.P. v. Owodunni[70]. The court said:

“The plaintiff has all through, by itself and through its counsel, tried to get him out of the premises. But he still lives there. Since counsel came into the matter some twelve years ago, eight different notices to quit or of intention to go to court have been issued, and on two occasions, notices issued and served have been cancelled, apparently to enable counsel to begin properly. But once more, the plaintiff must fail again because of its failure to serve correct and proper notices. This is sad. The law, it has been said, is an ass. And the unruly as (sic) must keep galloping along so long as litigants refuse to follow simple rules clearly laid down by statute. This is of the very nature of justice according to law, and the courts must take the blame! Be     that as it may, the two courts below were right to have held the defendant’s tenancy had not been determined according to law, and that the defendant would remain in possession until that is done.”

97.     The Supreme Court, in numerous cases, has stated that where a statute prescribes a method for doing a thing, that method and no other must be followed. See Macfranklyn Eng. Serv v. Daewoo Nig Ltd[71]., where the Supreme Court stated thus: “Where a Legislation creates or gives a right   and prescribes the method for the exercise of that right, it is that method that must be followed to validly exercise that right.” See also Williams & ors v. Hope Rising Voluntary Society[72].

98.     The Supreme Court has also enshrined the principle that failure to comply with a condition precedent for instituting an action robs the Court of jurisdiction to entertain the action. The Supreme Court has also held that failure to serve notices where they are required robs the Court of the jurisdiction to entertain the suit.

99.     But before we are done, it is helpful to consider the statement of Ogunwumiju, JSC, in the Pillars[73] case from the perspective that, being a concurring judgment, might it, on its merits, provide valuable insights that may influence future legal reasoning? Put in another way, can it support a legal reasoning or offer perspectives that can affect future cases?

100.   The implication of the quoted portion of Ogunwumiju, JSC’s, concurring judgment is that a Writ of Summons can cure any irregularity in service of the notice. With respect, this amounts to Judicial legislation. The dicta undermine the essence of service of notices as a condition precedent to an action for recovery of premises under the appropriate legislation, without providing any justifiable or measurable basis.

101.   A fundamental principle of our Law is that where the Law requires that a notice be served, it must be personally served or served by substituted means if authorised by the Court. Failure to serve robs the Court of jurisdiction. It also amounts to failure to comply with a condition precedent to instituting a case. By accepting that a writ should cure any defect as to the service of notice, we are putting the cart before the horse. This means that an incompetent writ, having been issued without compliance with the Law, can now validate the process. This reasoning is far-reaching because all Laws, including High Court Law, Chieftaincy Law, and the Public Officers Protection Act, among others, would no longer require service of notice, as a defect in service can be cured by the Writ.

102.   Her Ladyship’s reasoning here, we would argue, makes nonsense of iconic cases like Madukolu v. Nkemdilim[74]; A. P. v. Owodunni[75], and others, without any attempt at intellectually engaging with them so as to profoundly lead the way to a future consideration of their efficacy. We would thus contend that her Ladyship’s rather brazen attempt here to enrich legal discourse and perhaps significantly shape future legal thoughts with a view to guiding development in this area of the law has failed to produce the desired result or effect.

CONCLUSION

103.   In conclusion, we respectfully suggest that the Supreme Court should clarify the confusion caused by its recent pronouncements, which imply that a concurring judgment has the same effect as a lead judgment and constitutes binding authority on what a case represents.

104.   Second, we have argued that the cause of justice is best served by clarifying this point, as such clarity would significantly reduce the prevailing uncertainty surrounding divergent interpretations of the same Supreme Court or Court of Appeal decisions. At present, parties and commentators frequently cite as binding the disparate views expressed in concurring judgments of justices, whether in 3- or 5-member panels or otherwise, many of which do not align with, and at times are irreconcilable with, the lead judgment.

105.   Finally, the Court of Appeal should, at the earliest opportunity, depart from its wholly misguided decision in Bankole v. Oladitan[76] and restore much-needed judicial consistency in this frequently litigated area of the law.

---

[1] [1995] 1 NWLR (Part 370) 142

[2] [2000] 6 NWLR (Part 660) 228

[3] [2004] 13 NWLR (Part 889) 128

[4] [2009] 13 NWLR (Part 1157) 83

[5] (2009) LPELR-2613 (SC)

[6] (2021) LPELR-55327 (SC)

[7] Supra

[8] (2022) LPELR-56502 (CA)

[9] [2021] 12 NWLR (Part 1789) 122, 126

[10] Supra

[11] Supra

[12] Supra

[13] Supra

[14] Supra

[15] Supra

[16] Supra

[17] Supra

[18] Supra

[19] Supra

[20] (2018) LPELR-49735 (SC) 54 A-D

[21] (2025) LPELR-80760(SC) 19A-B

[22] Supra

[23] Supra

[24] Supra

[25] 344 U.S. 443 (1953)

[26] [1989] 3 NWLR (Part 109) 250

[27] Supra

[28] Supra

[29] Supra

[30] Supra

[31] Supra

[32] Supra

[33] Supra

[34] Supra

[35] Supra

[36] Supra

[37] Supra

[38] Supra

[39] Supra

[40] Supra

[41] Supra

[42] Supra

[43] [1993] 4 NWLR (Part 289) 512

[44] Supra

[45] Supra

[46] Supra

[47] Page 140 G-H

[48] Supra

[49] Supra

[50] Supra

[51] Supra

[52] Supra

[53] Supra

[54] Supra

[55] [1986] 3 NWLR (Part 27) 188

[56] [1986] 2 NWLR (Part 23) 484

[57] Supra

[58] Supra

[59] Supra

[60] Supra

[61] [1991] 8 NWLR (Part 210) 391, 417 B

[62] Supra

[63] Supra

[64] Supra

[65] Supra

[66] Supra, 140 F

[67] Supra

[68] Supra

[69] Supra

[70] Supra, 417 A-C

[71] (2024) LPELR-62633 (SC)

[72] (1982) LPELR-3484 (SC)

[73] Supra

[74] (1962) LPELR-24023 (SC)

[75] Supra

[76] Supra