POWER OF THE SUPREME COURT TO OVERRULE ITS PREVIOUS JUDGMENT, THE LAW, POLICY AND JUSTICE
By
Babayemi Olaniyan Esq, LL.M, Notary Public, ACIS, ACIArb (UK), ABR
The Supreme Court is the highest law court in Nigeria and its powers functions and right are as enshrined in the Constitution of the Federal Republic of Nigeria (CFRN). Section 230 of the CFRN provides as follows:
There shall be a Supreme Court of Nigeria. 2 The Supreme Court of Nigeria shall consist of – a Chief Justice of Nigeria; and b such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.
One of the many powers of the Supreme Court is the finality of its decisions. The decisions of the Supreme Court are final and unappealable. In the words of Justice Robert H. Jackson popularly reechoed in Nigeria by Justice Chukwudifu Oputa, reads,
‘We are not final because we are infallible, but we are infallible only because we are final’[1]
Section 235 of the CFRN firmly establishes of the supreme Court when it stated as follows;
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.
Due to the finality of its decisions, the Supreme Court is very wary in making certain decisions that could negatively impact the economy, governance of the country and its citizens.
One of the very principles of Law and jurisprudence is that laws are made for man and not man for the law. The necessary interpretation of this statement is that laws are meant to benefit man and serve him, not to make man a slave to the dictates of laws.
The Courts have held on what the primary duty of the Supreme Court is. See .” Per OPUTA ,J.S.C in Alade v. Alemuloke & ors [2]
“The primary responsibility of the Supreme Court should be that of developing and maintaining consistency in the law to be applied in our sub-ordinate Courts and in interpreting the country’s fundamental law – its Constitution. These are two functions of cardinal importance and the Supreme Court should not be unduly distracted from these two important functions, distracted from its proper role by a deluge of unimportant if not frivolous appeals.
The Supreme Court in carrying out its functions encompass two jurisdictional powers, to wit:
- Original Jurisdiction
- Appellate Jurisdiction
On the extent of powers of the Supreme Court in its original jurisdiction we refer to the case of Per PETER-ODILI ,J.S.C in A.G Federation v. A.G Lagos state [3] where the Court held as follows:
“…I shall confine myself to the area containing the prescriptions in the original jurisdiction of the Supreme “Court”. I shall quote Section 232 of the 1999 Constitution of the Federal Republic of Nigeria and, viz:-
Section 232(1) provides that:
“The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.
Section 232(2) however provides that:
“In addition to the jurisdiction conferred upon it by Subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly.”
Pursuant to the above provision, the National Assembly on 22nd April, 2002 enacted the Supreme Court (Additional Original Jurisdiction) Act, 2002. Section 1(1) of the Act provides that:
“In addition to the original jurisdiction conferred upon the Supreme Court of Nigeria by Section 232 (1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between-
(a) the National Assembly and the President;
(b) the National Assembly and any State House of Assembly; and
(c) the National Assembly and a State of the Federation in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
In the interpretation of the above constitutional provisions, this Court had stated what the exact position of this Court is when confronted with a suit invoking this Court’s powers of original jurisdiction.
In the case of Attorney-General of Lagos State v Attorney-General of the Federation (2014) 9 NWLR (pt. 14122) 217 at 257, this Court held thus:
“Section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides for the original jurisdiction of the Supreme Court which is exclusive to it in respect of any dispute between the Federation and a State or between State inter se where the determination of such dispute involves a resolution of any question, whether of fact or law, on which the existence or extent of the legal right being asserted in dispute depends. By the section, once a dispute is between the Federation and a State or between States themselves, and the determination of the dispute requires resolution of any question, whether of fact or law in relation to the claim raised, the Supreme Court and no other Court has jurisdiction over such dispute. However, the section does not empower the Supreme Court to hear and determine disputes between the governments of the Federation and a State, or the Governments of the States inter se.”
Having examined the powers of the Supreme Court, the next question is whether it can overrule its previous decisions and the conditions required for invoking this powers.
Section 235 earlier cited makes the Supreme Court final and provides no medium for further appeal and this is where the Court derives its powers from. In BARRISTER ONKER JEV v. SEKAV DZUA IYORTOM[4] the Supreme Court emotionally berated senior lawyers from attempting to ask for a review of the decision of the Court. The Court Per Okoro JSC posited as follows:
“Let me state clearly from the outset that by virtue of Section 235 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Supreme Court cannot sit on appeal above its own judgment. The provisions give a stamp of finality to any decision of the Supreme Court. “As it is, I cannot believe, and I say this with tears in my eyes, I cannot believe that in my lifetime I would see very senior members of the Bar bring applications of this nature to this court, which are aimed at desecrating the sanctity of this court; violating the well-known principle that decisions of the court are final; and destroying the esteem, with which this court is held.
While many may agree that the supreme Court was justified in this holding, the Court had however on several occasions overruled its previous decisions and those decisions will be analysed hereunder.
Order 20 Rule 4 of the Supreme Court rules[5] provides as follows:
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.
By necessity and literal interpretation, a clear and unambiguous reading will reveal that the supreme Court finality on a judgment can be altered for the following reasons:
- Correct any clerical mistake
- Some error arising from any accidental slip or omission
- Vary the judgement or order so as to give effect to its meaning or intention
It is apparent that the Supreme Court is readily interested in varying or altering its decisions. In PRINCE YAHAYA ADIGUN & ORS v. THE ATTORNEY GENERAL OF OYO STATE & ORS[6] the court held as follows:
Hence it is well settled that appellate jurisdiction is entirely statutory, see Ikeakwu v. Nwamkpa (1967) N.M.L.R. 224, 227 and there is no constitutional provision enabling appeal from our decisions, accordingly any question of reopening the decisions of this Court for further consideration does not arise.
The Court went further to hold that
The judgment having been delivered in this Court is functus officio except for certain purposes not concerned with the substance of the judgment.
In Effiom v. State [7] Per ONU ,J.S.C the Supreme Court held as follows:
“Although it would do so with the greatest hesitation, the Supreme Court has the power to depart from or overrule its previous decision. Similarly, the full court of the Supreme Court has the competence to overrule a previous decision of another full panel. The onus is on the party seeking to have an earlier Supreme Court decision overruled to satisfy the court that there is a need to do so. The grounds upon which the Supreme Court will depart from and overrule its previous decision are where: (a) It is shown that the previous decision is inconsistent with the Constitution or is erroneous in law; or (b) the previous decision was given per incuriam; or (c) It is shown that the previous decision is occasioning miscarriage of justice or perpetuating injustice. It ought to be pointed out however that there are no hard and fast rules laid down exhausting the area within which to warrant a departure from a previous decision and each case must be decided on its special facts and circumstances with a view to avoiding perpetuating injustice. See Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17 at 34-35: 37-39; 46-48; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5; Bronik Motors v. Wema Bank (1983) 1 SCNLR 296 and Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382.”
In Mrs. Bucknor-McLean and Anor v. Inlaks Ltd. [8]Justice Idigbe J.S.C. put the principle in these words:
“I have no doubt that this Court will, and I do, treat this pronouncement of the House of Lords (i.e. in 1966 3 All E.R. 77) with considerable respect. All the same I share the view of Lord Morris in Conway v. Rimmer that ‘though precedent is an BRONIK MOTORS LTD &ANOR V. WEMA BANK LTD indispensable foundation on which to decide what is the law there may be times when a departure from precedent is in the interests of justice and the proper development of the law’ (See (1968) 1 All E.R. 874 at 892). With particular reference to the recent cases of Jammal (i.e. Shell B.P. etc. v. Jammal Engineering Nigeria Limited (1974) 1 All N.L.R. 542) and Owumi based as they are in part on some of the statements in another recent case of Jaffar v. Ladipo (Supra), I see no more justification for perpetuating recent error than for retaining uncorrected any error in much older decisions of this Court. “
By this decision it would appear that the Court is open to overruling its decision and will gladly do so. The dictum of the Court Per. Idigbe cannot be farther from the truth.
In GTB v Innoson (Nig) ltd [9] The court had dismissed the suit for lack of diligent prosecution. The issues leading up to the dismissal are that the Appellants motion filed on the 5th of June, 2019 to regularise the brief was struck out. The Applicant also abandoned its brief filed on 5th June, 2015 when it filed the one of 25th June, 2018. Further the appellant did not serve the Respondent with any motion to regularise its brief filed on the 5th June, 2015 out of time. Premised on this the Respondent Learned Senior counsel filed a motion on notice praying the Court to dismiss the appeal for want of diligent prosecution and being an abuse of Court process. The said motion was served on the Appellant but the Appellant did not file counter-affidavit.
The Appellant (GTB) subsequently filed an application before the apex court seeking re-listing of the said appeal on the grounds that the matter was dismissed wrongly. GTB’s claims was that the Court was misled as its briefs of argument were before the Court but was not brought to the attention of the Court.
Justice Abdu Aboki, in his judgment held as follows:
“I am convinced that at the material time that the appellant’s appeal was inadvertently dismissed by this court, there was in place, a valid and subsisting brief of argument filed by the applicant”.
“It is obvious from the material before us that there were errors committed by the Registry of this court, having failed to bring to the notice of the panel of Justices that sat in chambers on the 27th February 2019 that the appellant had indeed
The court, having admitted that it erred, said “It will be unjust to visit the sin of the court’s Registry on an innocent, vigilant, proactive and diligent litigant.” The court noted that the Supreme Court has the power to set aside its own decision in certain cases and the GTB case falls in such a category.
“Having gone through all the materials in this application, therefore, I am satisfied that the appellant/applicant’s brief of argument was filed before the order of this court made on the 27th of February 2019 dismissing the applicant’s appeal,” they added.
In final resolution the Court held as follows:
‘’The law is well settled and we will continue to solidly stand behind the law, equity and good conscience to ensure that we sustain the will and courage to correct errors committed by the Court or its Registry, it is only by so doing we will instill confidence in Court users that nobody is perfect, so doing will also rekindle the hope of the ordinary man in the dignity and impartiality of the Courts. Similarly, on the issue of mistake or inadvertence of counsel, the law is well settled that the sin of counsel, characterized by negligence or inadvertence must not be visited on a litigant, except in extreme circumstances where it is established that the litigant has deliberately or tacitly aided or contributed to the condemnable dereliction on the part of Counsel, in the instant case I find none. See EFP CO. LTD VS. NDIC (2007) 9 NWLR (pt. 1039) at 229 and MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000) 4 NWLR (pt. 651) 151. Once a party, such as the Applicant herein has performed his own responsibility and satisfied what he is required to do by law to fulfill in instituting an action, he must not be made to suffer the failure, blunders or omissions of either the registry or his counsel . Having gone through all the materials in this application therefore, I am satisfied that the Appellant’s/Applicant’s brief of argument was filed before the order of this Court made on the 27th day of February, 2019, dismissing the Applicant’s appeal. The order dismissing the appeal was therefore made in error, it ought not have been made if all the materials were fully and sufficiently disclosed. The application is therefore meritorious and succeeds, it is hereby granted, and the following orders are hereby made:
1. The ruling of this Court delivered on the 27th February, 2019, dismissing the Applicant’s appeal is hereby set aside.
2. It is hereby ordered that appeal No. SC/694/2014 be re-listed to constitute an integral part of the business of this Court for hearing and determination on the merit.
Parties shall bear their respective costs.
In Ede v. Mba (2011) 18 NWLR (Pt. 1278) 236 [10]the facts of the case are that the applicants’ appeal was dismissed by the Supreme Court in chambers on 4th June 1996. The dismissal was based on the belief that the applicants, as appellants, did not file their brief of argument as and when due, and did not file a motion for an enlargement of time to do so.
However, prior to the date of the order dismissing their appeal, the applicants had on 6th June 1993 filed a motion for enlargement of time to file their brief of argument and an order to regularize the filing of their brief out of time, but these processes were not put in the file of the case by the registry staff prior to the date the appeal was dismissed in chambers by the Supreme Court.
Consequently, by a motion on notice dated and filed on 3rd March 2010, the applicants herein prayed the Supreme Court for the following reliefs:
“1. An order setting aside the ruling of this court delivered on the 4th day of April, 1996.
2.An order of this court directing this appeal to be re-entered for hearing on the merits.
3. And for such further order or orders as the court may deem fit to make in the circumstances.”
In the final analysis the Court Per Muhammad, J.S.C. (Delivering the Leading Ruling) held:
It is my view therefore, that the applicants have satisfied the requirements/conditions for relisting of their Appeal which was erroneously dismissed by this Court in chambers on the 4th day of April, 1996.
“For the above reasons, I will, and do hereby, grant this application as prayed that is to say: the ruling of this court delivered on the 4th day of April,i.1996 is hereby set aside and
ii that it is ordered hereby that Appeal No. SC.102/1990be re-entered (re-listed) for hearing on the merit.
I make no order as to costs.”
CONCLUSION
It is deducible from the above that the Supreme Court of the land is more than willing and is able to own up and go the extra length of varying its judgement even on very rare occasions. The Applicant seeking the Courts discretion must show compelling reasons why the Court should grant the application. There are several occasions where the Court has refused the grant of the Application. This is not unconnected to the fact that the power to overrule is purely discretionary.
It is my firm view that the Court will not depart where the application is based on substantive point in the judgement except it is manifestly clear that same was a grave error and most times arguably, the Supreme Court rarely makes grave errors.
The jurisprudence of our laws is changing and one can only be certain of the mind of the Court when the court is approached to take a position. The Supreme Court which is a court of policy should always look at the overall interest of Nigerians in its decision to either overrule a previous decision or not.
Caveat!
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[1] Adegoke Motors v Adesanya (1989) 3 NWLR Pt 109
[2] (1988) LPELR-398(SC) (Pp. 7 paras. A)
[3] (2017) LPELR-42769(SC) (Pp. 24-27 paras. E
[4] 2015) 15 NWLR (pt 1483) 484 at 503
[5] Supreme Court rules 2024
[6] (NO.2) (1987) LPELR-40648(SC)
[7] (1995) LPELR-1026(SC) (Pp. 40-41 paras. F)
[8] (1980) 8-11 S.C. 1 at pp. 23-25
[9] (2022) LPELR-56657(SC
[10] (2011) 18 NWLR (Pt. 1278) 236