Chill! Not everything a court says matters.
All the parts of a judgment given by a court may seem at first glance to have the same force and effect. But that is not the case because a judgment may contain obiter dictum that are statements made in passing by the judge and do not have any binding effect on lower courts as precedent.

A: Introduction

One of the introductory courses in the study of law is Legal Systems & Legal Methods. At least, that was how the course was named when I encountered it some 30 years ago as a vibrant, wide-eyed (well, not literally) young lady with a set ambition: LL.B or suicide! Well, again, not literally but a little close. Glanville Williams’ LEARNING THE LAW was one of my favourite reads as it gave insights into legal terms, practices and generally ushered one a sneak-peek into the legal profession.

Among the Latin-heavy terms one had to contend with in First Year Law at the University of Ghana, Legon - whiles keeping an eye on the coveted LL.B ‘initials’ - were ratio decidendi, obiter dictum and per incuriam, which is not the opposite of per curiam. These exotic terms refer to different parts of a judgment given by a court. To those not learned in the fine intricacies of the judicial process, a judgment is a judgment. Everything that comes out of a court’s judgment is important and must be treated as such.

But a judgment contains different parts and elements. This article discusses the distinction between the binding or precedential parts of a judgment and the parts of the judgment that contain statements made just ‘by the way’ or ‘in passing’ by the court. The article concludes that it is important for such distinctions to be borne in mind so that lawyers and judges do not fret over non-binding statements and diatribes that are becoming a common feature in the judgments of the Superior Courts.

 

B: Obiter dictum and ratio decidendi explained

When a court gives judgment in a case, the judgment contains different parts as indicated earlier. It will state the facts that gave rise to the dispute or appeal before the court. It will also narrate the issues that the court had to resolve. Thirdly, the judgment will state the decision or conclusion that the court arrived at after analyzing the issues and applying the relevant laws. Finally, the court will give the reasons why it came to its decision.

 

      ·        Obiter dictum

Apart from the facts, issues, decision and the reasons for giving the judgment in a case, it is also common to read in judgments certain general statements or comments by the judge that express the judge’s opinion or sentiments about some aspects of the case. Such comment, suggestion, or observation made by a judge in a judgment or ruling that is not necessary to resolve the case, and as such, not legally binding on other courts as precedent, is known as obiter dictum.[1]

The method of identifying obiter in a judgment is a learned art. An illustration will be necessary here. For instance, Republic v Special Tribunal; Ex Parte Forson,[2] was a case involving an application for an order of certiorari to quash the decision of the Special Tribunal set up under A.F.R.C.D 23[3] and other constitutional issues raised. The Special Prosecutor filed a preliminary legal objection to the High Court’s jurisdiction to entertain the application for certiorari. On the day of the hearing of the application, as soon as the Special Prosecutor rose to his feet to make his submissions on the preliminary legal objection, the Judge interjected, saying he did not make much of the preliminary legal objection in the light of the decided cases. The Special Prosecutor was visibly shaken and incensed at the Judge’s attitude and he censured the Judge for apparently taking a point of view when he was as yet to develop his argument.

After hearing the legal submissions by both parties’ lawyers, the Judge overruled the Special Prosecutor’s preliminary legal objection and also dismissed the substantive application for an order of certiorari. In the course of giving his ruling, the Judge recounted the incident narrated above and stated as follows:

“With the experience of hindsight, I think learned Counsel's point is probably not untenable and frankly, I am not sure I can justifiably say it was well taken.  I must confess, though, that I was uneasy and a little unhappy at the time at Counsel's retort. Nevertheless, I accept the position that although the temptation to do so must be avoided, human nature being what it is, an emotional element cannot always and at all times be totally excluded in the judicial endeavour in search of justice. But as long as the situation does not degenerate to deflect the attention of the Court and Counsel from the task in hand, I think the judicial process will not suffer.”

This part of the ruling did not relate to the application for an order of certiorari nor the preliminary legal objection raised by the respondent. It was a passing comment the Judge made regarding the happenings in the courtroom. The decision to dismiss both the preliminary legal objection and the certiorari application was not based on this passing comment. It was based on how the Judge interpreted and applied the law. It is such passing comment as quoted above that is known as the obiter dictum, or simply obiter, in a court’s ruling or judgment. Since the comment was not based on law, it has no binding effect as a precedent. In simple terms, other lower courts are not bound to follow what the Judge said obiter. A court can refer to an obiter though, as a persuasive statement but it will not be obliged to follow it as precedent in arriving at its decision.

            The reported cases of the Superior Courts are replete with various obiter dicta.   In recent times, one can easily remember the “create, loot and share” statement in the Woyome[4] case. In Dalex Finance & Leasing Company Limited v Ebenezer Denzel Amanor & Others,[5] the Supreme Court commented on the form and manner in which lawyers formulate issues for determination in cases at the trial courts. We will return to the obiter in that case in due course.

 

      ·        Ratio decidendi

The ratio decidendi of a judgment, also simply called the ratio, literally means the "rationale for the decision." It refers to the essential elements that form the basis of a judgment. Thus, it is the part of the judgment that creates binding precedent, and must be followed by inferior courts, unlike obiter dicta, which do not possess binding authority.[6] A practical example of a judgment’s ratio will suffice here. Let’s take the case of Republic v High Court (Commercial Division) Accra; Ex parte Attorney-General (NML Capital & Republic of Argentina-Interested Parties).[7] In that case, the High Court, Accra, had issued an order for the arrest of an Argentine military warship, ARA Fragata Libertad that had made a stopover at the Tema Port, in execution of a foreign judgment debt. When the Republic of Argentina applied to set aside the order if arrest on grounds of sovereign immunity, the High Court Judge, Adjei-Frimpong, J. (as he then was) refused to release the ship.

As far as the High Court Judge was concerned, Argentina had waived its contractual immunity and thus, its assets, including military ships, could be attached in execution of its judgment debts. The Attorney-General of Ghana then applied to the Supreme Court for an order of certiorari to quash the High Court’s ruling. It was held that, the High Court Judge made a fundamentally and patently wrong decision when he said that the military ship could be arrested since Argentina had waived its contractual immunity. Accordingly, the Supreme Court quashed the High Court decision and held that, Ghanaian common law does not recognise waiver of immunity over military assets of a sovereign State. 

The ratio decidendi was that, public policy considerations dictated that waiver of a sovereign State’s immunity over military assets should not be recognized under Ghanaian common law. Therefore, Argentina’s contractual waiver of immunity, in so far as it related to the seizure of a military asset, could not be given effect as to do so would promote conditions leading to possible military conflict. For good measure, the Supreme Court added: “All lower courts are obliged to follow and apply the law as clarified in this case. There should, accordingly, be no further seizures of military assets of sovereign states by Ghanaian courts in execution of foreign judgments, even if the sovereign concerned has waived its immunity.” As stated earlier, it is this ratio decidendi of the judgment that is binding on lower courts as precedent.

 

C: Obiter dictum is not binding and must be treated as such

As discussed earlier, an obiter dictum is a comment a judge makes in passing in the course of giving judgment. Obiter dictum may form part of the judgment all right but because the rationale for the judgment (ratio decidendi) is not based on it, it has no binding effect as a precedent to be followed by lower courts. This might sound trite but recent happenings have shown a tendency for lower courts to consume judgments of higher courts in whole as if every word that gushes out of a judge’s mouth has precedential quality and implication.

Now, whether by ignorance, a tendency to please those ‘upstairs’ or a sheer desire not to be seen to be rocking the boat, some lawyers and judges treat every aspect of a court’s judgment, including comments that are made in passing as obiter, as if they constitute the ratio of the judgment. A recent decision of the Supreme Court that is gaining much notoriety in that regard is Dalex Finance & Leasing Company Limited v Ebenezer Denzel Amanor & Others.[8] The facts of the case are that, sometime in 2012, Amanor (1st defendant) approached Dalex Finance (the plaintiff) that his company called L.G.G Company (2nd defendant) was a supplier of telecomm equipment to Huawei (3rd defendant) and he wanted to discount some invoices and waybills. Amanor supported his request to Dalex Finance with a letter written by one Ankrah, Huawei’s Finance Manager, confirming the order. The letter stated Huawei will make payment in the joint names of Dalex Finance and L.G.G. To verify the authenticity of the documents and the letter, Dalex Finance sent officers to Huawei’s office. They met Ankrah, the Finance Manager, in his office and he confirmed the transaction between L.G.G and Huawei and the letter he signed.

Being satisfied with Ankrah’s confirmation, Dalex Finance requested L.G.G to formally apply for a loan. Dalex Finance gave L.G.G a loan of about GH₵2.3 million to be repaid within 180 days at monthly compound interest of 4.7%. Amanor guaranteed the loan. Dalex Finance gave a second loan of about GH₵3.6 million after Ankrah had countersigned Dalex Finance’s request letter but did not put Huawei stamp on it.

Then there was a third loan for GH₵600,000 but no documents were taken for it.

Before requesting for this third loan, L.G.G paid Dalex Finance GH₵1 million to offset an earlier loan it contracted before the ‘Huawei’ series of loans in this case. This gave Dalex Finance the confidence that these loans will be repaid. But Dalex did not receive any payment from Huawei. L.G.G later defaulted on the three loans. Dalex wrote directly to the Managing Director of Huawei and Huawei replied the letter saying it had no such transaction with L.G.G and did not owe L.G.G any money.

Dalex Finance realized the whole transaction was a fraud and that Ankrah and Amanor had done same to another discount company. Dalex Finance sued Amanor, L.G.G and Huawei at the High Court to recover the monies loaned out plus the agreed interest. The High Court gave judgment for Dalex Finance against Amanor and L.G.G. However, the Court held that Huawei was not jointly or severally liable to Dalex Finance.

Dalex Finance appealed against the decision in respect of Huawei to the Court of Appeal. The Court of Appeal dismissed the appeal and held that, Huawei was not jointly liable with Amanor and L.G.G. Dalex Finance appealed further to the Supreme Court but the Supreme Court also dismissed the appeal. In the course of giving his opinion in that case, Pwamang, JSC stated as follows:

“We take this opportunity to deprecate the emerging wrong practice where, in setting down issues for trial in a civil case, ‘whether or not the plaintiff is entitled to her claim’ is put down as an issue for trial. The whole trial is aimed at determining whether or not the plaintiff is entitled to the reliefs claimed so how can that be a distinct issue? This practice is a product of lazy work and a stop must be put to it.”

From the facts and decision in the Dalex Finance[9] case as narrated above, and the distinction between obiter and ratio as discussed in the preceding sections, it is clear that this statement was made by Pwamang, JSC in passing as an obiter. However, some trial courts are now demanding that lawyers exclude the issue: ‘whether or not the plaintiff is entitled to her claim’ from their Applications for Directions in obeisance to Pwamang, JSC’s obiter!

A few months ago, I had an experience at the High Court, Accra (General Jurisdiction Division)[10] regarding this issue. Much to my surprise, after moving the Application for Directions, the Judge politely indicated that in the light of the Supreme Court’s decision in the Dalex Finance case, he suggests I take out the issue ‘whether or not the plaintiff is entitled to her claim.’ My initial thought was to alert the Judge that that statement in the case was made obiter and thus, it was not binding on him or any other court. But I demurred and rather told the Judge that I am aware of that decision and that, I do not share in Pwamang, JSC’s discomfiture with the ‘omnibus’ issue. Being a harmless request that did not need to elicit any raising of the roof, I took that issue off because I was going to address it fully at the trial anyway, whether it was set down or not.

I have narrated this incident to show that, if this issue of distinguishing between obiter and ratio in judgments is not taken seriously, very soon all manner of lamentations and vituperations from the Superior Courts may unknowingly be raised onto the pedestal of ratios – binding precedent. That will be a palpable affront to the common law tradition we follow and its adherence to precedent properly so-called.

 

D: Was Pwamang, JSC’s lament in the Dalex Finance case justified?

That Pwamang, JSC found the settled practice whereby a plaintiff sets down the issue - ‘whether or not the plaintiff is entitled to her claim’ – as “a product of lazy work” is intriguing, at best. It bears stating that, the settled practices of the courts are part of the sources of the rules of civil practice and litigation in Ghana. They are not ‘products of lazy work’ any more than the customary repetition of the Tuakwa v Bosom[11] line of cases in almost every decision in a civil case before the Supreme Court.

At any rate, there are many instances where the courts have found such settled practices useful in deciding cases. For instance, In Re Asamoah (Deceased); Agyeiwaa & Others v Manu[12] and GIHOC Refrigeration & Household Products Limited (No. 1) v  Hanna Assi (No. 1),[13] the Supreme Court found the issue set down as ‘any other issue raised by the pleadings’ very useful and relied on it to grant reliefs which the parties had not specifically asked for in their claims but were found to emerge from the evidence on record.

The cases of In Re Asamoah[14] and Hanna Assi[15] have shown that, such manner of setting down issues is precautionary and it is not a mark of laziness. It is for this reason that Pwamang, JSC’s critique of lawyers who raise the omnibus issue of ‘whether or not the plaintiff is entitled to her claim’ as ‘a product of lazy work’ is, with respect, off the mark. It is submitted that, such an issue as ‘whether or not the plaintiff is entitled to her claim’ is none the worse than ‘the appellant will seek leave to file additional grounds of appeal upon receipt of the record of proceedings.’ Appellate courts tolerate this inchoate ground of appeal without question in Notices of Appeal. The fact is that, whether or not this magic phrase is included in a notice of appeal, the appellant will be at liberty to seek leave and file additional grounds of appeal once the record is received and she finds the need to do so.

Not surprisingly, the appellate courts have now come to recognize the phrase as legitimate and a settled practice of the courts, though it is not sanctioned by any rule of procedure. It has assumed the status of a well-known practice, and thus, acceptable in line with the dictum of Taylor, J (as he then was) in Ejura Farms v Harlley[16] that the courts apply statutes, case law and the courts’ well-known practices. Thus, it will be surprising to hear anyone describe lawyers who draft notices of appeal to include ‘the appellant will seek leave to file additional grounds of appeal upon receipt of the record of proceedings’ as lazy.

Another example of a practice accepted by the courts is including the phrase: “That at the hearing of this application, Counsel will seek leave of this honourable Court to refer to the processes so far filed in this suit” in affidavits in support or in opposition to motions filed in court. Also, in motion papers, parties pray for “any further orders that this honourable Court may deem fit” in addition to the specific prayer sought. Hardly can these settled practices of the courts be described as a mark of ‘lazy’ drafting.

 

E: Conclusion

All the parts of a judgment given by a court may seem at first glance to have the same force and effect. But that is not the case because a judgment may contain obiter dictum that are statements made in passing by the judge and do not have any binding effect on lower courts as precedent. The part of a judgment that is binding as precedent and must be followed by lower courts is the part that states the rationale for the judgment, that is, the ratio decidendi. The distinction between obiter and ratio is important to ensure that only the binding precedent of courts are followed and obiter remain at best, of persuasive value but not as binding precedent.



Footnotes



[2] [1980] GLR 529, by Taylor, J (as he then was)

[3] Armed Forces Revolutionary Council (Special Tribunal and Other Matters) Decree, 1979 (A.F.R.C.D. 23)

[4] Martin Amidu v Attorney- General, Waterville Holdings (BVI) Ltd & Alfred Woyome Writ No. J1/15/2012 judgment dated 14th June, 2013, SC

[5] Civil Appeal No. J4/02/2020 judgment dated 14th April, 2021, SC; dictum of Pwamang, JSC

[7] [2013-2014] SCGLR 990

[8] Civil Appeal No. J4/02/2020 judgment dated 14th April, 2021, SC

[9] Above

[10] Coram: Nyanteh, J

[11] [2001-2002] SCGLR 61. Others are:  Koglex Ltd. (No. 2) v Field (No. 2) [2000] SCGLR 175; Achoro & Another v Akanfela & Another [1996-1997] SCGLR 209; Koglex Ltd (No. 2) v Fields (No. 2) [2000] SCGLR 175; Awuku Sao v Ghana Supply Co. Ltd. [2009] SCGLR 710; Gregory v Tandoh & Hanson [2010] SCGLR 971; Obeng v Assemblies of God, Church [2010] SCGLR 300

[12] [2013-2014] 2 SCGLR 909

[13] [2007-2008] 1 SCGLR 1. See also: Republic v High Court, Kumasi; Ex parte Boateng [2007-2008] 1 SCGLR 404

[14] [2013-2014] 2 SCGLR 909

[15] [2007-2008] 1 SCGLR 1

[16] [1977] 2 GLR 179, CA (Full Bench) at 214

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