Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd [2018] 9 NWLR (Pt. 1623) 138 at 176, paras. B-C, per Augie, JSC:

“…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”.

Notes:

Augie, JSC relied on the Supreme Court case of O.S.I.E.C. v. A.C. [2010] 19 NWLR (Pt. 1226) 273 at 337-338, paras. H-A, where it was stated that: “It is settled law that dissenting judgments are not binding and also that the lead(ing) judgment of an appellate court constitutes the judgment of the court concerned and that 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”.

However, notwithstanding the above statement of the law, it is settled that any decision contained in the lead judgment on a particular issue which is contrary to the opinions expressed in the majority of the concurring judgment, automatically becomes a minority decision and must thereby give way to the concurring decisions. This was the position in O.S.I.E.C. v. A.C.

In taking the above position, the Supreme Court in O.S.I.E.C. v. A.C was considering an unusual situation as found in the Supreme Court case of A.G. Abia v. A.G. Federation [2002] 6 NWLR (Pt. 763) 264 which presents an interesting scenario that throws more light on the foregoing. In that case (A.G. Abia v. A.G. Federation), the Supreme Court (full Court) unanimously held that the National Assembly has power to legislate on registration of voters and the procedure regulating elections to a Local Government Council.

However, one of the issues canvassed in the case concerned the constitutionality of Section 23 of the then Electoral Act, 2001 which provides for the publishing of notice of election including elections into Local Government Councils in Nigeria. Four out of the seven Justices of the Supreme Court (i.e., Uwais CJN (as he then was), Ogundare, Ogwuegbu and Ejiwunmi, JJSC) held that Section 23 of the Electoral Act, 2001 was constitutional as same clearly deals with part of the procedure regulating elections including elections to a Local Government Council. On the other hand, Kutigi, JSC in his leading Judgment had held that Section 23 of the Electoral Act, 2001 was unconstitutional. Mohammed and Kalgo, JJSC agreed with him.

What then should form the decision of the Court on the issue? Is it the position held by Kutigi, JSC (being the leading Judgment) and the two other concurring Justices or the position held by the four other concurring Justices? Going by the statement of law that 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, one might be tempted to say that the position of Kutigi, JSC should hold sway being the leading Judgment.

However, that will be clearly wrong. Onnoghen, JSC (as he then was) in O.S.I.E.C. v. A.C (supra) at 338, paras. A-F, while commenting on the situation in A.G. Abia v. A.G. Federation succinctly stated the position thus:

“We have a situation in which the concurring Judgments of four of the seven Hon. Justices held a contrary view on a particular point – the validity of Section 23 of the Electoral Act, 2001 as against the lead Judgment and two other concurring Judgments. Does this mean that the lead Judgment remains inviolate even on the point in which it holds a contrary view as against the majority of the Justices who sat on the appeal? I do not think so particularly as the contrary view of the majority in the concurring Judgments is completely in accord with the earlier holding in the lead Judgment that the National Assembly has power to legislate on registration of voters and the procedure regulating elections to a Local Government Council coupled with the fact that the said Section 23 of the Electoral Act, 2001 deals clearly with part of the procedure regulating elections including elections to a Local Government Council. I hold the considered view that with regard to the issue of the validity of Section 23 of the Electoral Act, 2001, the authority to be followed is that expressed by the majority of the concurring Judgments earlier reproduced in this Judgment, and that the opinion on the point expressed in the lead Judgment together with those who agreed with it become the dissenting opinion on the particular point. I therefore hold the considered view that the principle of a concurring Judgment not being in accord with the lead Judgment being regarded as a dissenting Judgment equally applies to the lead Judgment where it fails to agree on a particular point with the majority of the Justices who concurred with the lead Judgment. The principle cuts both ways to ensure substantial justice.”

After due consideration, Tabai, JSC expressed his views at p. 347 as follows:

“…Although Kutigi’s Judgment is the lead Judgment, his decision on the validity of Section 23 of the Electoral Act [2001] is a minority opinion which therefore does not represent the Judgment of the Court…”

Notably, Section 23 of the Electoral Act, 2001 is in pari material with Section 31 of the Electoral Act, 2006. The latter statute was subject of controversy in O.S.I.E.C. v. A.C as the Supreme Court had to decide whether Section 10 of the Osun State Electoral Law, 2002 applies as against Section 31 of the Electoral Act, 2006 which has similar provision but for the length of notice provided in both statutes. The Supreme Court held that Section 31 of the Electoral Act, 2006 is constitutional and is the applicable law and therefore nullified Section 10 of the Osun State Electoral Law, 2002 for being inconsistent with the former.

The position of the Supreme Court is quite commendable as it meets the ends of justice. It is in accord with the underlying principle that in an appellate court with plurality of Judges, the opinions of the majority of the Judges on a particular issue form the judgment of the court on that issue. To hold otherwise is to put on the head of a Lead Judgment an undeserving crown of superiority for all purposes.