INTRODUCTION
The Supreme Court, as of today, is the mother-court of all the courts within the strata of the courts’ hierarchy in Nigeria. It is a personality well and duly given to it by the organic law of the land, the fons et origo— the Constitution of the Federal Republic of Nigeria, particularly under section 235 of it. Included in the attendant features of the “apex” personality so given to it by the Constitution are that: its decision is binding on all courts inferior to it, its decision is final, it’s the last appellate court, its decision has an air of perpetuity (save for the instances of an overriding cessation by an Act of the National Assembly and a reversal by or an overruling of itself). In fact, in buttressing the point that the Supreme Court’s decision is final and that it is the last appellate court, it was held in ARCON VS. FASSASSI (No 4) (1984) 3 NWLR (PT.59) 422. that the decision of the Supreme Court, the apex court of the land, is final forever and not appealable.
However, for the fact that the Supreme Court justices are human beings and are therefore, just like any other fallible mortal, succeptible to making mistakes— as rightly captured by the eminent jurist, Chukwudifu Akunne Oputa, JSC (as he the was) in ADEGOKE MOTORS LTD V. ADESANYA & ORS (1989) NWLR (PT.109) 250 where he remarked “we are final not because we are infallible, rather we are infallible because we are final”— there are instances where the Supreme Court’s decisions may go through moments of partial modifications or even a complete reversal. In inviting the Surpreme Court to maintain a position different from the one taken in any of its previously decided decision; technically, it may be said that there are two ways through which the parties mostly route their judicial activism, viz; through (separate) appeals from similar cases to be decided at a later time and, secondly, through a special application called an application for review.
Noting the need to see to a departure where and when necessary, the Supreme Court in A-G. FEDERATION VS GUARDIAN NEWSPAPER LTD (1999) 9 NWLR (Pt. 618) 187 at 203 held as follows;
“Having regard to the commonly agreed statement that infallibility is never the virtue of any human being, errors can be made at any time by any human being. Where such errors come within the bracket of “SLIP RULE”- minor or clerical mistakes, this court like other courts below it, must be willing to effect correction upon being invited to do so by an application. Again, when over a period of time a judgment or judgments of this court already delivered are patently seen not to be meeting the course of desired justice, this court, again, upon an invitation to it through an appeal or appeals, similar in terms of facts, to the previous judgment or judgments, will readily revisit such decision with a view to varying same, or overruling same and setting same aside – all in the interest of justice which is the pre-occupation of all courts.”
On whether the right to call for a departure from an earlier decision/judgment can be called in vacuo; the Supreme Court, relying on the cases of Bronik Motors v Wema Bank (1983) 1 SCNLR page 296; Tewobade v Obadina (1994) 4 SCNJ (pt.1) 161 at 180, held in Chief S.O Adedayo & Ors v. Peoples Democratic Party & Ors. (2013) LPELR-20342 (SC) as follows;
“The right of the appellants to call for a departure from an earlier judgment or principle is not in contest. It is however a right that cannot be called up in vacuo or without the factors upon which this court would accede to such an invitation being absent. Those considerations that must exist before such a departure can be made are stated as follows:
1. That the decision is impeding the proper development of the law. 2. The decision has led to results which are unjust or undesirable or which are contrary to public policy.
3. That the previous decision was reached per incuriam and which, if followed, would inflict hardship and injustice upon generations in the future.
4. Or cause temporary disturbance of rights acquired under such a decision.
5. If the previous decision is inconsistent with the constitution or erroneous on points of law or that it is occasioning miscarriage of justice or perpetuating injustice”.
The Supreme Court’s holding in the above-quoted Chief S.O’s case is to the effect that for the right to make an invitation for departure— whether one with or without an application— not to be regarded as one in vacuo, it must then be based on certain sacrosanct grounds. Examples therefore abound of the instances where, courtesy of the brilliance in the analyses of the Counsels, the Supreme Court is made to see and realise the not-so-elegant part in the judicial and legal practicalty of some of its past, old decisions which, thenceforth, have automatically become precedents to rely on in the subsequently decided cases. A case in point is the Supreme Court’s decision in Garba v Universirty of Maiduguri (1985) 2 NWLR 599 which has now been departed from in a several other similar cases decided a while after it was decided.
The Supreme Court made it sound as a principle in that case that “when a student is found to be engaged in misconduct of a criminal nature, he must first be prosecuted and convicted by a court before he can be expelled”. Same reasoning was also advanced and adopted by the Port Harcourt Division of the Court of Appeal in Egwu v. University of Port Harcourt (1995) 8 NWLR (Pt.414) 419 at 448, where per ONALAJA J.C.A, the Court of Appeal held; “. . . examination malpractice is a serious criminal charge which can only be tried in a competent criminal court or a tribunal set up under the Constitution. The trial before the panel set up by the respondent with respect lacked the power and jurisdiction to try the appellant, any incompetent trial is a nullity thereby void and of no effect.”
However— and this is the proving point for the first limb of this discourse— there have been several other recently decided cases of the Supreme Court where, owing to the impracticability of what was the reason for the decision in that Garba’s and a few other erstwhile cases, the Supreme Court has totally departed from the decision or principle made therein.
In the year 2001, for instance, the same Supreme Court, in Dongtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 132 at 159, after having been invited, saw the need to maintain a position different from the one it maintained in the 1985 case of Garba v. University of Maiduguri where it held as follows; “It seems to me preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrongdoings.”
Again in Eze v Spring Bank Plc (2011) 18 NWLR (PT 1278) 113. Per MOHAMMED, J.S.C. (Pp.25-26, Paras.G-B) the Supreme Court held as follows:
“It is no longer the law that where an employee commits acts of gross-misconduct against his employer which acts also disclose criminal offences under any law, the employer has to wait for the out come of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service or employment.”
The second limb of this discourse is where such invitation is to be made through an application for review.
There is no doubt that the Honourable justices of the Supreme Court are human beings and therefore not infallible— as remarked by Chukwudifu Akunne Oputa J.S.C in Adegoke’s case. They can make mistakes or commit errors at any time like any other mortals. That is why the law allows for correction of errors in its judgment when called upon so to do, for instance, in SLIP RULE or PENCIL RULE. In other words, in deserved situation or circumstances, the Supreme Court, when invited, can revisit the judgment it delivered earlier or previously, if such judgments are seen not to be in accord with desired justice by setting same aside, or varying same or even overruling such judgment. See Order 8 Rule 16 of the Supreme Court Rules, 1985.
It must however be stressed that generally, once a Court delivers its judgment, it becomes functus officio. It goes without saying therefore that in the exercise of setting aside of its previous judgment, the Supreme Court and indeed every other Court must do so only in the interest of justice which is indeed the preoccupation of all Courts. The Court, when faced with an application to set aside its own judgment, must guard against possible instability crippling into the corpus of our laws. In fact, the Supreme Court in plethora of its decided authorities had set out some conditions which must be considered to have existed in the previous judgment sought to be set aside. See the cases of AG Federation v GUARDIAN NEWS PAPER LTD (Supra), Chief S.O Adedayo & Ors v. Peoples Democratic Party & Ors. (Supra).
From the foregoing, it appears therefore that the invitation through an application for review requires a few other special conditions in addition to the ones set out under an invitation by way of an appeal (coming from the inferior courts on decisions founded on the Supreme Court’s old cases), and also that the Supreme Court cannot stricto sensu have it decision set aside by way of an application filed before it. The extent of the effect of an application for a review filed before the Supreme Court is just for it to correct errors or clerical mistakes and not totally change the judgement. So, where that fact is already born in the mind, then the intending applicant has to also take care of the following conditions;
Timelines:
One of the conditions that are required to be kept up with by a party intending to make an application for review is that such application must be made timeously (that is, within “a reasonable time”)— the failure of compliance to which would result in the application being dismissed. This is rooted in Order 2 Rule 29 (1) of the Supreme Court Rules of 1985. It’s trite law that the issue of “reasonable time” is always a subject of the interpretation of the court. Hence, in ANAMELECHI ITEOGU v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2018) LPELR-43845(SC), the Supreme Court, per SANUSI J.S.C, gave a brief, critical overview of what it thought of that clause in relation to the applicant’s 8 years old “cause of action”— that is, the judgement it wanted reviewed. Describing the applicant’s application as one made at the 28th hour, it held as follows;
“Again, by the provisions of Order 2 Rule 29 (1) of the Supreme Court Rules, this Court shall only entertain application to set aside its judgment if only such application for setting aside is brought before it within a reasonable time. The instant application is seeking the setting aside of a decision delivered by this Court more than eight years ago. Such period cannot be regarded as a “reasonable time” from whichever angle one looks at it. It will be rather absurd to indulge the applicant’s requests which in my view, is brought at the 28th hour of the day. Having stated the above, I see no basis for me to invoke the provisions of Order 6 Rule 5 (4) of the Supreme Court Rules to set aside the earlier decision given by this Court on 4th December, 2009 in Anamelechi Iteogu Esq., v LPDC reprinted in (2009) 17 NWLR (Pt 117) 614.
Cogency of the reasons:
Generally speaking, the Supreme Court may depart from or overrule its previous decision under certain circumstances and in accordance with the laid down principles of law, such as where, as already highlighted above, it is shown or demonstrated that the earlier decision is either erroneous in law, or given per incuriam or that it has become an instrument of injustice etc. See Veepes Industries Ltd vs Cocoa Industries Ltd (2008) ALL FWLR (Pt.425) 1667 at 1687; Bakare v. NRC (2007) ALL FWLR (Pt.391) 1663.
However, Order 6 Rule 5 (4) of the Supreme Court’s Rules provides as follows: “If the parties intend to invite the court to depart from one of its own decisions, this shall be clearly stated in a separate paragraph of the Brief, to which special attention shall be drawn, and the intention shall also be restated as one of the reasons.”
It therefore flows from the above that the reasons for the invitation to depart from a previous decision must be strong, coherent and adequate, see Idoniboye – Obu vs NNPC (2003) FWLR (Pt.146) 959, Maclean vs Inlaks Ltd (1980) 8 – 11 S.C. 1; Disu v. Ajilowura (2006) 14 NWLR (Pt.1600) 783.
Finality of the decision
Another great point to also take care of is the finality of the Supreme Court’s decision. Pursuant jointly to the decision in the case of Adefulu v. Okulaja (1990) 5 NWLR (pt.550) 435. and Order 8 Rule 16 of the Supreme Court Rules 1985, the operative and substantive part of a judgment shall not be varied and a different form substituted. This is to the effect that where “A” is decided in a Supreme Court’s decision today, the Supreme Court cannot— through ‘a technical appeal’ clothed in the garment of an application (for review) filed before it— in that same case again go back and change it to “B” tomorrow. Of course, the writer is not unaware of the fact that there may be a futural, subsequent decision which would change the “A” principle already decided in that case to a “B” principle.
ANAMELECHI ITEOGU v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2018) LPELR-43845(SC) is a decision in an application for review. In that application, the applicant was asking the Supreme Court to revisit its case concerning the applicant which was decided on the 4th day of December, 2009 against a direction of the respondent which appeal it dismissed on the merit. The basis for that prayer for revisitation stems from the fact that on the 12th July, 2013 and 13th May, 2014 respectively, the Supreme Court held in the cases of Aladejobi v NBA (2013) 15 NWLR (Pt. 1376) 66 and ROTIMI WILLIAMS AKINTOKUN V LEGAL PRACTITIONERS’ DISCIPLINARY COMMITTEE in Suit No. SC 111/2006 in which the Court held it has no jurisdiction to entertain an appeal directly from the Legal Practitioners Disciplinary Committee. The applicant’s posture therein is that, by those latter decisions, the Supreme Court lacks jurisdiction to entertain appeals from the Legal Practitioner’s Committee Directions directly and so the need to revisit ANAMELECHI ITEOGU’s case and declare that the decision or judgment of it in 2009 was without vires and so set it aside and have the status of legal practitioners of the applicant restored.
The Supreme Court, per Odili JSC held inter alia; “. . . this Court having held at the time in 2009 that it had jurisdiction to consider appeals from the Legal Practitioners Disciplinary Committee (LPDC), that decision is final and cannot be set aside on the ground that a new thinking had taken place to which an opposite result is the effect. The point has to be made that this Court has the right to depart from its earlier decision in subsequent cases and thereby overrule itself, it does not however mean that the previous decisions in those earlier cases differently decided would be given a new lease of life on account of this new development. The reason for this is self evident as Oputa JSC stated in Adegoke Motors Ltd v Adesanya & Anor. (1989) 5 SC 113: (1989) 3 NWLR (Pt. 109) 250 at 274 thus: “We are final not because we are infallible, rather we are infallible because we are final.”
In another case of Chukwuka & Ors v Ezulike & Ors (1986) 5 NWLR (Pt. 45) 892, Uwais, JSC (as he then was) on the finality of the decision of the Supreme Court, stated thus: “There is no appeal in this Court against the decision of 12th November, 1985, and it is obvious that there cannot be such an appeal since no jurisdiction has been conferred upon this Court to sit on appeal over its own decision, no matter how manifestly wrong the decision may be. See Paul Cardoso v. John Bankole, Daniel & Ors (1986) 2 NWLR (Pt. 20) 1 at 28.”
Explaining further, the Court in the case of Eleazar Obioha v Innocent Ibero & Anor. (1994) 1 NWLR (Pt.322) 503 held as follows: “By Section 235 of the 1999 Constitution (as amended), the Supreme Court cannot sit on appeal over its own judgment. The provision gives a stamp of finality to any decision of the Supreme Court. There is no constitutional provision for the review of the judgment of the Court by itself. Indeed there can be no appeal questioning the decision of the Supreme Court to itself or anybody or person as there must be a finality to litigation. Hence, the appellate jurisdiction of the Supreme Court is limited by Section 233 (2) of the 1999 Constitution (as amended) to hearing appeals from the Court of Appeal only and no one.” See also Alhaji Alao v African Continental Bank Ltd. (2000) 9 NWLR (Pt. 672) 264 at 283.”
CONCLUSION
The writer of this article, having earnestly embarked on an eventful Odyssey of a judicial exploration, is able to lay bare, the exactitude of the realities in inviting courts, particularly the Supreme Court, to depart from their old decisions. Lucid analyses have also been made respecting the fact that the invitation in itself is a right to which every litigant is entitled, but certainly not one to be called in vacuo— it’s strictly on the observance of some conditions. On the one hand (that is, where it relates to appeal), certain facts must surely be in existence and on the other hand (that is, where it relates to an application), certain conditions must also first of all be acknowledged.
Clarity was also made on when such invitation can be made. In effect, when parties invite the Court to depart from one of its decisions, they invite the Court to do so in a subsequent appeal or application that is extrinsic and subsequent to the decision they want the Court to depart from. As was the case in ITEOGU’s application, it is not the same thing as asking the Court to set aside its own judgment in view or in the light of another decision given or delivered subsequent to the decision they seek to set aside.
It’s also to be noted on the final note that a reversal of an earlier decision of the Court can give rise to instability in the rules of judicial precedent, particularly the rules governing stare decisis; hence, the reason courts are often poised on the condition of being held satisfied or convinced that the earlier decision was clearly and patently wrong before reversing it. In doing the conviction or satisfaction’s assessment, as decided in Veepee lndustrial Ltd vs Cocoa Industrial Ltd (supra), the court will closely examine the facts of the decision it is called upon to reverse in the light of the facts of the case calling for reversal, because facts are the foundation of the law and cases are not decided in vacuo but in relation to the particular facts of the case before the court. See also Ekwunife v. Wayne (NA) Ltd (1989) 5 NWLR (Pt.122)
Amusan Tawfiiq ’Lekan is a 400 Level Student of the Faculty of Law, Bayero University, Kano. He can be reached via; [email protected] & +2348108012253
