By Emeka U. Opara
On 14th January 2020 the Supreme Court of Nigeria set aside the judgement of the Court of Appeal which had affirmed that of the Governorship Election Tribunal that sat in Owerri, Imo State. The Supreme Court set aside the victory of Rt. Honourable Emeka Ihedioha as the winner of the 9th March 2019 governorship election in Imo State, ordered the Independent National Electoral Commission to issue Senator Hope Uzodinma a certificate of return and that he be sworn in as Governor of Imo State immediately.
Rt. Hon. Emeka Ihedioha has since then filed an application before the Supreme Court urging it to set aside its judgement of 14th January 2020 on five grounds contained in the application. It is now common knowledge that the Supreme Court has set Tuesday, 18th February 2020 for hearing of the application.
Before the fireworks expected at the hearing at the Supreme Court on the date fixed, both camps have taken their cases to the court of public opinion. For whatever it is worth, many Nigerians have as a result been schooled, partially, if unfortunately, in some aspects of the law. The majority have been rather awed, and entertained, in the process. Owing to social media, the chatter on both sides have been deafening, with all kinds of arguments. Curiously, there has been no serious denial from the camp of Hope Uzodinma of the substance of the application – fraud, misrepresentation, per incuriam, illegality, etc. Rather, the main defence which his camp has presented to the public has been an insistence that the Supreme Court’s decision is final and that the Court cannot sit on appeal on its own judgement.
While the argument on the non-appealability of the Supreme Court judgement is legally unassailable as a mere statement of the law, the facts of the application now before the Supreme Court belies that argument. That is, the application before the Supreme Court is not an appeal. It is not even a call for a review to correct mistakes.
It is not intended here to go into the grounds upon which the Supreme Court can set aside its own judgement. That, as can be seen, has been vigorously canvassed in the brief filed at the Supreme Court. The purpose of this essay is two-fold: To explore the instances when the Supreme Courts in Nigeria and other English-speaking jurisdictions have had to set aside their judgements and to discover where the power to set aside its own judgement by a superior court, especially by a Supreme Court, is derived from. This second issue is particularly important because of the argument which has been awash on several media that there is no specific legislation or rule empowering the Supreme Court to set aside its own decision and that it can only indulge in any change to its decisions in the limited format of correcting errors as specifically provided under its slip rule (Order 8 Rule 16, Supreme Court Rules).
Instances When Supreme Courts Set Aside their Judgements
Legal practice in Nigeria, made up of the bar and the bench in the administration of justice, developed from and has since followed English legal practice. The principle of stare decisis, that is, the legal principle of determining points in litigation according to precedent, has impacted much of the law everywhere in the world, but nowhere has it had as much impact as in English law and practice which Nigeria inherited.
There is a world of difference between when, on the one hand, a Supreme Court overrules its decision in a subsequent decision, perhaps after some years, sometimes decades or even centuries, and on the other hand when it sets aside an earlier decision (judgement or ruling) in the same case. The earlier sometimes happens. For example, in Conway v. Rimmer  AC 910,  2 WLR 998, the English House of Lords reversed its earlier decision in Duncan v. Cammell Laird and Co. Ltd  AC 624. In Brown v. Board of Education 347 U.S. 483 (1954), the United States Supreme Court reversed its earlier decision in Plessy v. Fergusson 163 U.S. 537 (1896). In this kind of reversal or overruling, the rights that accrued from the earlier decision reversed or overruled is not affected. The case or principle is reversed from the new case moving forward. This is not the kind we mean here.
The kind meant here is the setting aside of an earlier decision in the same case. It is rare, not an appeal but nevertheless done. Here are instances, from several jurisdictions around the world. We start from England, with the Pinochet case (Re Pinochet, Re Pinochet II and Re Pinochet III).
In R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary Magistrate  1 AC 61, a panel of Law Lords of the House of Lords ruled that former Chilean Head of State was not entitled to immunity from prosecution for the crimes of torture and could therefore be extradited to Spain to face charges. Subsequent to this decision, it came to light that one of the Law Lords (Lord Hoffman) who decided the matter had links to Amnesty International, an organization that was one of the interveners in the case. Consequently, in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)  1 AC 119 (Pinochet II), the House of Lords by a different panel set aside the judgement. It further ordered that an entirely different panel rehear the case, giving rise to the judgement in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3)  1 AC  1 AC 147 (Pinochet III), in which the House of Lords subsequently affirmed that Pinochet was not entitled to state immunity but that acts committed outside of British territories could only be prosecuted under national law if committed after the passage of section 134 of the Criminal Justice Act 1988 (which gave UK courts universal jurisdiction over crimes of torture).
In Attorney-General’s Reference No. 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order  UKHL 34, the House of Lords on application set aside an earlier order which it had made. The Law Lords (Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury) after careful analysis of their powers, upon application by the British Broadcasting Corporation, set aside an earlier anonymity order made by the House of Lords because they doubted that the House of Lords had power to have made such order in the first place.
The United States Supreme Court has in a few instances set aside its own decisions or judgements. In Jones v. City of Opelika (II), 319 U.S. 103 (1943) the Court vacated certain orders made in its judgement in Jones v. City of Opelika 316 U.S. 584 (1942), having found on application and proper examination of the law, that it arrived at the earlier decision wrongly. This later decision was based on its decision in Murdock v. Pennsylvania, 319 U.S. 105 (1943) which had been brought to its notice.
In the Civil Trials Bench Rules of Australia, it is noted (Note 2-6600) that a judgement or order can be set aside if entered or made irregularly, illegally or against good faith. Violi v. Commonwealth Bank of Australia  NSWCA 152 and Chand v Zurich Australian Insurance Ltd  NSWSC 102 are two examples.
Coming home to Nigeria, in Barrister Oriker Jev & Ors. v. Iyortom & Ors.  NWLR (Pt. 1483) 484, interestingly an electoral matter, the Supreme Court had in an earlier judgement ordered that INEC conduct run-off election in the case. Subsequently, the Court discovered that it made the said 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-judgement application by one of the parties, the Court set aside the earlier order. It 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 judgement 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 judgement in appropriate 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 yet 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 that it had inherent power 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) which has been trending since the recent Supreme Court judgement in Uzodinma v. Ihedioha presents some particularly interesting aspects similar to the Uzodinma case. In that unreported case, a ruling, the Supreme Court is said to have in its unreported ruling dated 18-3-99 set aside its judgment delivered on 8-1-99 (reported in Olorunfemi v. Asho  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 judgements or orders and substituting them with others. The ultimate end is justice, not the prestige of the court.
The Root or Source of the Power to Set Aside
Contrary to what some people think, the power of the Supreme Court, in fact any superior court of record, to set aside its own judgement is not derived from any positive law but from its inherent powers as a court of record.
The inherent powers of a court are extensive. The powers emanate from a court’s nature as a court of record and not from the positive legislation setting it up. Whereas the existence of a court of record derives from a law, its inherent powers go beyond any scope of legislation.
In fact, it is from the inherent powers of a court that the court interprets the legislation that sets it up. In the seminal case of Lakanmi and Ors v. Attorney General of Western State & Ors 1971 1 UILR 201, the Supreme Court of Nigeria was confronted with S.6 of Decree No. 1 of 1966 which provided that “No question as to the validity of any decree, or edict should be entertained in any court of law in Nigeria.” In what still stands as one of our finest points of jurisprudence, Ademola CJN held that the court has an inherent power to decide whether it has or has not the power. The power of adjudication can never be taken away by any legislation, decree or otherwise. According to the learned jurist of blessed memory, no level of ingenuity in legal draftsmanship can take away this power.
The inherent powers of the court are akin to human rights. They are not given by any human law. Once a person comes into this world he or she comes with “human” rights. What human legislations do is to recognize such rights and, in some cases, circumscribe them. That is why it is not appropriate to say that Chapter IV of the Constitution of the Federal Republic of Nigeria or the African Charter on Human and Peoples Rights gives such rights. Rather, the appropriate expression is that the rights are enshrined or recognized in Chapter IV of the Constitution or such other legislation which also limits such rights.
In the same vein, the inherent powers of the superior courts are not given by any legislation, Act or Rule. Once such court comes into being it assumes its inherent powers, which include the power to interpret the law that sets it up, and it in fact determines the scope of such law. Section 6(6)(a) of the 1999 Constitution recognizes the immutability of the inherent powers of the court. It provides:
6(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.
The Nigerian Supreme Court has in Barrister Oriker Jev & Ors. v. Iyortom & Ors.(supra) held that there is no provision in the constitution empowering it to review or set aside its judgement, but that it derives such power from its inherent powers. In the House of Lords case of Re Pinochet II (supra), Lord Browne-Wilkinson stated thus in the lead judgement:
“In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Cassell & Co. Ltd. v. Broome (No. 2)  A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.” [My emphasis]
It has to be taken as given that whereas parliament (the National Assembly, etc.) may circumscribe or to some extent limit the inherent powers of a court of law, its power to do this is limited. The court, under any circumstance, retains its power of adjudication, including its power to set aside its own decision in appropriate cases and its power to punish for contempt in its face. If it were otherwise the 1999 Constitution would not have fettered itself from circumscribing the judicial powers of a court of law in section 6(6)(a), and that being the case, no other law made under the Constitution can circumscribe such power.
The conclusion of the case must necessarily be that the argument that where no specific provision exists which gives the Supreme Court power to set aside its obviously bad judgement in Uzodinma & Anor. v. Ihedioha & 2 Ors that the Court cannot set it aside is necessarily flawed. The Court retains such power under its inherent powers. It is not given by the 1999 Constitution. It is inherent in it. It is, however, recognized under section 6(6) of the said Constitution which affirms that it cannot be taken away.
Findings reveal that the courts, both in Nigeria and elsewhere, take the integrity of the judiciary very seriously. Where there is some controversy necessitating a Supreme Court to look again at its earlier decision, it is somehow imperative that a different panel should be set up. In Re Pinochet II (supra) a different panel of the House of Lords set aside the decision of an earlier panel. This second panel then recommended that another entirely new panel rehear the matter. It is the decision of this third panel that is reported in Re Pinochet III (supra).
In the Nigerian case of Olorunfemi v. Asho (supra), the initial panel was headed by A. B. Wali, JSC, and the lead judgement was delivered by Ayoola, JSC. However, another panel was set up and Kutigi, JSC delivered the lead judgement, setting aside the earlier judgement.
It will be interesting to see what will happen in Uzodinma v. Ihedioha (No. 2).
One final aspect is the surprise tinged with discouragement and expressed in some quarters, almost with a threat of sanction, on the public interest and the demonstrations in Imo State and other parts of Nigeria and beyond. It is the height of patronage to expect any lesser interest or participation of the people on their own matter. The parties on record are only symbols of the democratic process. The process belongs to the people, and not just to the people of Imo State but the whole Nigeria. In Re Pinochet II (supra) Lord Browne-Wilkinson said, concerning the public interest in the case:
“The hearing of this case, both before the Divisional Court and in your Lordships’ House, produced an unprecedent degree of public interest not only in this country but worldwide. … This wide public interest was reflected in the very large number attending the hearings before the Appellate Committee including representatives of the world press. The Palace of Westminster was picketed throughout. The announcement of the final result gave rise to worldwide reactions. In the eyes of very many people the issue was not a mere legal issue ….
The Uzodinma v. Ihedioha case should not be expected to garner lesser public interest and participation. It is part of the democratic process and so should not be left to lawyers and judges alone.
A final note on an issue which may come in handy in Uzodinma v. Ihedioha (No. 2): In the recent case of Takhar v. Gracefield Developments Ltd  UKSC 13 the United Kingdom Supreme Court (the replacement of the Appeals Committee of the House of Lords) confirmed that in a case where a judgement is sought to be set aside on the ground of fraud, there is no need to demonstrate that the evidence of fraud could not have been obtained with reasonable diligence at the time of the earlier trial. The Hong Kong Court of Appeal also recently relied on Takhar in deciding Mayer Corp Development International Ltd v. Alliance Financial Intelligence Ltd  HKCA 777.
The holding in Takhar is in consonance with modern trends and would go to modify the Nigerian Court of Appeal decision in Iweka II v. Anatogu  4 NWLR (Pt. 185) 305 which stipulates this as a requirement
*Emeka U. Opara is a Lagos-based Attorney and consultant.