By Obinna Kalu

The recent decisions of the Supreme Court regarding when it can set aside its earlier judgment and re-hear an appeal, have continued to generate public debates because of the court’s seeming inconsistencies, lopsidedness and contradictions in the application of precedents and laws relating to the subject matter. A school of thought believes that, more often than not, the court’s pronouncements on whether or not it has the power on when to set aside its earlier decisions, are  largely based on extra-judicial considerations than facts at issue, case laws and statutory authorities. Another school of thought insists that such opinions should be dismissed as mere conjecture. It is against this backdrop that I intend to review some of these cases so as to determine the veracity of each of the opposing views.        

The Supreme Court of Nigeria is the uppermost court in the hierarchical structure and arrangement of courts in the country, and it is the court of last resort. By implication, the judgments of the court cannot be reversed by any other court, except it decides to set it aside by itself.

The notion of the Supreme Court’s decisions having binding effect on lower courts is based on the doctrine of stare decisis, which means in Latin, “to stand by things decided.”

The fundamental postulation of the doctrine is that courts generally should adhere to the judgments and rulings of a previous case or legal decision in determining subsequent similar cases. While pronouncing on the jurisprudential concept of the doctrine, the United States Supreme Court, in the case Kimble v. Marvel Enterprises, explained that stare decisis is aimed at  “promoting the even-handed, predictable, and consistent development of legal principles, fostering reliance on judicial decisions, and contributing to the actual and perceived integrity of the judicial process.”

The Constitution of the Federal Republic of Nigeria, 1999 (as amended), does not give the Supreme Court any power to set aside its previous decisions. In fact, Section 235 of the Constitution provides that “Without prejudice to the powers of the President or of the Governor of a state with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.”

It is then not surprising that there has been a plethora of cases where the Supreme Court refused applications made by dissatisfied litigants for reversal of decisions earlier made by the court. For instance, in the case of Ashinyanbi and Ors. v. Adeniji (1967) 1 ALL N.L.R. 82, the court clearly examined the circumstances in which it would review its own previous judgments and pointed out that, “by  the provisions of the Federal Supreme Court Rules, Order 7, rule 29,  this court may  not review its own judgment once delivered.”

Also, L.J.  Morris, in Thynne v. Thynne (1955) 3 All E.R. 129, at page 146, pointed out that, “Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been made effective, then the court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded.”

In Macarthy v. Agard (1883) 2 K.B. 417; Akin-Olugbade & Ors v. Onigbongbo Community &Ors (1974) 6 S.C. 1; and Adigun & Ors. v. A.G. Oyo State & Ors (No.2) (1987) LPELR-40648 (SC), the Supreme Court categorically pronounced its unwillingness to entertain or grant applications to review its previous decision, as doing so would give rise to determining such applications as appeal.

Furthermore, in Amaechi v. Omehia, Omehia’s application for the review of the court’s earlier judgment that Amaechi was wrongly substituted with Omehia by PDP was dismissed as the court decided that the suit was “frivolous and an act of judicial rascality.”

In Ogboru v. Uduaghan, Ovedje Ogboru had asked the court to reverse its prior decision, which struck out his appeal against the election of Emmanuel Uduaghan on the ground that the court erred, but the court refused the application and made it clear that “no amount of antics and trickery by counsel and their clients will ever make it revisit a case it had earlier decided.”

In INEC v. Zamfara APC , the court refused an application asking the Supreme Court to set aside its earlier judgment that sacked all candidates of the All Progressives Congress (APC) that won various positions in Zamfara State in the 2019 general election. Justice Inyang Okoro, who delivered the lead judgment, stated that, “our forebears did not leave any one in doubt that judgment of the Supreme Court, once delivered, shall not be over-rided.”

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In Dingyadi v. Wamakko, the apex court also refused to review its earlier verdict on the ground that “The Supreme Court is the final court of justice in Nigeria and its decision is final. In short, the Supreme Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary judgment or order so as to give effect to its meaning or intention.”

In line with the above judicial mindset, on March 3, 2020, Hon. Emeka Ihedioha’s application for judicial review of the judgment that removed him as the Governor of Imo State was dismissed by Supreme Court on the ground that the court’s decision was final and that it lacked jurisdiction to review its judgment. The court stated that, “Generally, by the provision of the rules of this court, it shall not review any judgment once delivered by it save to correct any clerical mistake or some errors arising from any accidental slip of omission, or to vary the judgment or order so as to give effect to its meaning or intention.”

The court further stated that “a judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and supportive part of it be varied and a different form substituted. It is settled law that this court has no power to change or alter its own judgment or sit as an appeal court over its own judgment. It is clear from the tone and wordings of this application that what is being sought is asking the court to sit over its own judgment already delivered and executed. That is certainly beyond the competence of this court. It is not disputable that the jurisdiction of the court is derived from the constitution and an Act of the National Assembly. There is no constitutional provision for the review of the judgment of the Supreme Court by itself. And, therefore, once it delivers its final judgment, the Supreme Court, subject of course to the slip rule principle, it becomes functus officio in respect thereof.”

However, despite the strong and emphatic stand of the Supreme Court against  applications  by dissatisfied  parties to persuade the court to review its  previous judgments as cited above, the apex court has contrastingly, in several cases, demonstrated that it has power to set aside its previous decisions under the inherent jurisdiction of the court. In fact, Section 6(6) (a) of the Constitution provides that judicial powers “shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.”

Again, Order 8, Rule 16, of the Supreme Court Rules gives the apex court the power to set aside its own decision in certain circumstances. The rule states that, “The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”

For instance, in the case, Stanbic IBTC Bank Plc v. L.G.C. Ltd (2020) 2 NWLR (Pt. 1707) 1 @ 17 , the court ruled that it had the power to set aside its judgment, and rehear the case under the following circumstances: “Where there is a clerical mistake in the judgment or order; where there is an error arising from an accidental slip or omission; where there arises the necessity for carrying out its own meaning and to make its intention plain; where any of the parties obtained judgment by fraud or deceit; where such a decision is a nullity; where it is obvious that the court was misled into giving the decision under a wrong belief that the parties consented to it; when the judgment was given without jurisdiction; where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; where the writ or application was not served on the other party, or there is denial of fair hearing; and where the decision/judgment is contrary to public policy and will perpetuate injustice.”

Further decisions of the court that followed this line of reasoning include: Johnson v. Lawason, 1971 – LCER-SC where Coker J.S.C. held that “when the court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will, if followed, inflict hardship and injustice upon the generation in the future of causing temporary disturbance of rights acquired under such a decision, I do not think we shall hesitate to declare the law as we find it.”

Based on the foregoing declaration, an order for the appeal to be heard de novo by another panel of justices of the court was given.

Again, in the case of Olorunfemi v. Asho suit No. SC 13/1999, the judgment of the Supreme Court delivered on January 8, 1999, was set aside on the ground that the court had failed to hear the respondents’ cross-appeal before allowing the appellants’ appeal.

The plethora of cases where the Supreme Court reversed its earlier decision swelled on Friday, January 14, 2022, when, in a unanimous judgment, it reversed its earlier dismissal of an appeal by GTBank against a N2.4 billion judgment given in favour of Innoson Motors Nigeria Limited by the Court of Appeal in Ibadan, Oyo State. The court gave its reason for setting aside its earlier judgment against GTBank on the fact that it was misled by its registry, which failed to promptly bring to the notice of the panel that sat on the case on February 27, 2019, that GTBank had already filed its appellant’s brief of argument. The court, relying on Order 8, Rule 16, ruled that, “It will be unjust to visit the sin of the court’s registry on an innocent, vigilant, proactive and diligent litigant. The order dismissing the appeal was, therefore, made in error. It ought not to have been made, if all materials were disclosed. The application is, therefore, meritorious and hereby succeeds.”

In the final analysis, I am of the considered opinion that the Supreme Court, in its past judgments, has failed to carefully streamline its decisions on its powers and when it can set aside its earlier judgment and re-hear an appeal. There are lots of glaring irreconcilable inconsistencies in the judgments of the court and obiter dicta of the justices. This is partly caused by gaps and inadequacies in the constitutional provisions and rules of the court on the subject matter. As we prepare for the general election in 2023, there is an urgent need to amend the 1999 Constitution to clearly and precisely provide for the circumstances when the Supreme Court shall be duty-bound to set aside it previous judgments. This will surely help to rekindle the confidence of Nigerians in the court.    

•Dr. Kalu writes from Lagos