Obiter dictum law

Obiter is a Latin word meaning “By the way” or “in passing”. It is something that occurred in the way, incidentally or collaterally. Obiter dictum is what is said by a judge in the course of his judgement. An obiter is anything said by a judge in a judgement. Obiter dictum are the explanations, analysis, illustrations, sayings by the way, chance remark, opinion, analogy, suggestions, observations and examples, whether hypothetical or otherwise, made by a judge in a ruling, judgement or decision. An obiter dictum in law is not binding as a rule of law or judicial precedent.

However, an obiter is a persuasive opinion and is usually respected according to the reputation or eminence of the judge or the hierarchy of the court that stated the opinion or analysis, or the circumstances of its pronouncement.

An obiter dictum is not usually binding, but is persuasive only, for reasons of:

  1. the circumstances of its pronouncement; or
  2. Not being made in the full consideration of the case law on the point of law; or
  3. being very broad in terms or statement.
  4. Not being made in consideration of all the consequences that may follow it; or
  5. The judge did not express a conclusive opinion.

However, an obiter may be a rule of law, which is applicable in another situation or area of law though it is not binding in the case at hand, but which the court may examine by way of analysis in trying to arrive at a judgment in the case at hand.

Difference between ratio decidendi and obiter dictu

Having previously discussed obiter dictum in law we know turn to ration decidendi. Ratio decidendi is the reason for the decision. It is the rule of law used to decide a case. It is the reason or principle for the judgment. It is the point of law which determined the ruling or judgment.

Therefore, the ratio decidendi of a case is the legal rule or principle, established in the case or on which the case was based. A ratio decidendi of a case is often a mixture of law and a summary of the facts. It is the legal rule or law stated or laid down by a judge in a case. The ratio decidendi is the part of a case that has authority and which in appropriate instances is binding as a judicial precedent, and which other courts may have to follow in similar circumstances later.

Obiter dictum example

The doctrine of constitutional sovereignty or supremacy is clearly demonstrated in many decided cases. In A.G. Bendel State V. A.G. Federation & 22 Ors. In this case, Fatai-Williams CJN said:

“In my view, a legislature which operates a written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law making, that are imposed by that constitution which regulated its power to make law”.

And in the US Supreme Court case of Marbury V. Madison, John Marshall, Chief Justice of the United States on the supremacy of the constitution said:

“Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void”.

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