March 2, 2024
Dafe Akpedeye

Instances Where The Supreme Court Can Set Aside Its Own Judgement– Dafe Akpedeye, SAN

Dafe Akpedeye
Dafe Akpedeye, SAN

We are final not because we are infallible, rather we are infallible because we are final– Late Justice Oputa.

 This memorable quote by the late Justice Chukwudifu Oputa speaks volume about the powers of the Supreme Court.

There is no power in the Supreme Court to set aside or review its own judgment given in the same case. The only exception relates to correction under the slip rule, which cannot be regarded as a review properly so called.

Thus, the Supreme Court may revisit its judgment under Order 8 Rule 16, Supreme Rules to correct clerical errors or omissions or gabs to give meaning to the judgment or decision of the court and not to vary it.

This is without prejudice to the inherent power of the Supreme Court to set aside its judgment in appropriate cases when; the judgment is obtained by fraud or deceit either on the court or by one or more of the parties.

Such a judgment can be impeached or set aside by means of an action which may be brought without leave, or where the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside, and when it is obvious that the court was misled into giving judgment under a mistaken belief that the parties had consented to it.

For example, the case of Johnson v Lawanson (1971) 7 NSCC 82 is regarded as the trail-blazing case in which the Supreme Court exercised the power to overrule itself. Coker J.S.C. delivering the court’s judgment 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 generations in the future or of causing temporary disturbances of rights acquired under such a decision, I do not think we shall hesitate to declare the law as we find it.”

Again in Olorunfemi v Asho the Supreme Court set aside its judgment delivered in January 8, 1999 on the ground that, it failed to consider the respondents cross–appeal before allowing the appellant’s appeal. The court then ordered that the appeal be re-heard de novo by another panel of Justices of the Supreme Court.

 The Supreme Court has been inundated with appeals to review its decision given in the same case and there has been a consistent refusal on the part of the court to act as an appeal court over itself.

A case in point is that of Dr Andy Uba, who had earlier gone to the Supreme Court to ask for the revalidation of his alleged victory at the April 14, 2007 governorship election and return him to office after the Supreme Court threw out his case, approached a seven man panel of the court to get the court to set aside its judgment which terminated his two weeks tenure as the Governor of Anambra State in 2007.

The court in its ruling delivered by the then Chief Justice of Nigeria, Justice Idris Kutigi, observed that Dr. Uba’s attempt at luring the court into setting aside its judgment which was delivered on June 14, 2007 was a gross abuse of the court process and maintained that there must be an end to litigation. 

This was again reaffirmed in the case of Prof. Steve Torkuma Ugba vs. Gebriel Torwua Suswam, where the issue for determination was whether, given the facts of the case, the applicants satisfied the conditions to warrant the Supreme Court to set aside its earlier ruling.

The advantage of this stance, is that it fosters stability, enhances development of consistent and coherent body of laws, preserves continuity and manifests respect for the past, assures equality of treatment for litigants similarly situated, spares the judges the task of re-examining rules of law or principles with each succeeding case and finally it affords the law a desirable measure of predictability. 


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