Apex court’s reviews in history

There are a few occasions where the Supreme Court has been asked to review its decision in Nigeria and on those occasions, a couple of them were successful.

Chief Robert Clarke (SAN) told The Guardian that there had been about four instances and he participated unsuccessfully in two of them.

He said: “All over the world, where the common law is being practised, the apex court allows people to review their judgments. In Nigeria also, the Supreme Court allows people to seek a review of judgments.

“But not to challenge a verdict, as if you are appealing the judgment because if they make the mistake to allow anybody to always come to the court to challenge their decisions, they would open a floodgate, where everybody will want to take advantage.

“And that is why in Nigeria today, I don’t think there are more than three cases that have gone to the Supreme Court for review. I am lucky I have done two of those cases in the history of the three that have returned to them.

“I am doing one presently. The apex court says we can come when it makes a mistake, acknowledging that they are not saints. They are mortals like us, but they gave conditions.”

One of the successful reviews was in the case of Barrister Oriker Jev & Ors v Iyortom & Ors (2015) NWLR (Pt.1483) 484. Interestingly, it was an electoral matter. The Supreme Court had in an earlier judgment in the matter ordered that the Independent National Electoral Commission (INEC) conduct a run-off election.

During the review, the court discovered that it made the order based on a wrong interpretation of Section 133(2) in conjunction with Section 141 of the Electoral Act 2010 (as amended). On a post-judgment application by one of the parties, the court set aside the earlier order and instead ordered INEC to issue the applicant a certificate of return.
The court further held:

(1) That there is no constitutional provision for the Supreme Court to review its ruling as section 235 of the Constitution gives a stamp of finality to any decision of the Supreme Court. (2) That there is, however, as the Supreme Court has decided in several cases, an inherent power to set aside its verdict inappropriate or deserving cases but that such inherent jurisdiction cannot be converted into an appellate jurisdiction as though the matter before it is another appeal intended to afford the losing litigants another opportunity to restate or re-argue their appeal.

(3) The Supreme Court avoided any direct holding on whether it acted per incuriam (without regard to existing law or precedent) in making the former consequential order, which it was called upon in the application to set aside.

Rather, the court said it had inherent powers to set aside the consequential order, which it had made on the basis of a wrong interpretation of Sections 141 and 133 of the Electoral Act.

In holding thus, the court sidestepped the question of whether section 141 of the Electoral Act was unconstitutional, an issue that was raised by the applicant relying on a Federal High Court ruling in Labour Party v Hon. Attorney-General of the Federation (Suit No. FHC/ABJ/CS/399/2011).

The court instead held that section 141 does not apply to them and other courts engaged in a pre-election matter.

The case of Olorunfemi v Asho (Suit No. SC. 13/1999) presents some particularly interesting aspects similar to the case of Uzodinma v Ihedioha. In that case, the Supreme Court is said to have in its unreported ruling dated March 18, 1999, set aside its judgment delivered on January 8, 1999 (reported in Olorunfemi v Asho (2000) 2 NWLR (Pt. 643) 143) on the ground that it failed to consider the respondent’s cross-appeal before allowing the appellant’s appeal. It ordered that the appeal be heard de novo by another panel of justices of the court.

It is, therefore, evidently clear that where the ground exists, Supreme Courts of basically all jurisdictions will not shy away from setting aside their judgments or orders. Having dismissed the case of the All Progressives Congress (APC) in Bayelsa, it is most likely that other reviews, that seemingly appear like an appeal would face a similar fate.

Reacting to the development, Ebun-Olu Adegboruwa (SAN) said, “Interest Rei Publicae Res Jidicatas Non-Rescindi (It is in the interest of the state that things decided are not rescinded). Let all candidates and their parties wait for the next election.

“We cannot because of a four-year political tenure denigrate the most sacred institution of democracy. I hail the justices of the Supreme Court for their courage and sagacity, which should be replicated in all other frivolous applications still pending for review.”

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