Reviewing Supreme Court Judgments In Nigeria; Is It Possible? An Introspection Of The “Slip Rule” Principle

By Oliver Azi

The principle of “Interest Rei Publicae Res Jidicatas Non Rescindi”—it is in the interest of the state that things decided are not rescinded—is quite evident in the spirit of section 235 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides:

“Without prejudice to the powers of the president or of a governor of a state with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination from Supreme Court.”

By virtue of the provision of that section, it is onerously clear that once the law lords make its pronouncement on an issue—it is final. Hence, “Final Appeal” lies with the Supreme Court. In CHIEF GREAT OVEDJE OGBORU v. DR. EMMANUEL EWETAN UDUAGHAN & 2 ORS (2012) 11 NWLR (pt. 1311) 357, the Supreme Court of Nigeria was confronted with the meaning of the word “final appeal”

This came after contemplation into the provision of Section 285 (8) of the 1999 Constitution (as amended)  was made as well as the issue of whether the Court of Appeal can deliver judgment and reserve its reasons therefore to a later date in governorship election petition appeal. Delivering the lead judgment, Ibrahim Tanko Muhammad, J.S.C gave the meaning of final appeals as follows:

“Final appeals from the tribunal to the Court of Appeal to my understanding, is one which has disposed of the rights of the parties thereto. That is the final bus stop for that Court as far as that case, issue, or matter is concerned. Nothing further can be done as there is no avenue for appeal”. (Emphasis Mine)

The attitude of the apex court over the years has been extremely brutal when its judgments is called for review. On one occasion OKORO, J.S.C emotionally delivered a reprimand in guise of lead ruling in BARRISTER ONKER JEV v. SEKAV DZUA IYORTOM (2015) 15 NWLR (pt 1483) 484 at 503 when the judgment of the Supreme Court was called for review. According to him:

“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.

From the foregoing, the question of whether the Supreme Court is infallible or not subjected to the frailty and imperfections of humanity should be considered.   A curious and observant mind would ask; what if the custodians of the law god of our land make a mistake?

However, the “We are final not because we are infallible; rather we are infallible because we are final” utterance framed in the judicial hall of fame which has been credited, (erroneously though, Justice Robert Jackson of the United States Supreme Court in Brown v. Allen 344 US 443 (1953) first made that statement) to the “Socrates” of the Supreme Court, Hon. Justice Chukwudifu Akunne Oputa, J.S.C in the notorious case of ADEGOKE MOTORS LTD v. DR. BABATUNDE ADESANYA & ANOR (1989) 3 NWLR (pt 109) 250 at 274; (1989) 5 S.C 113 at 129 comes to mind.[1]

That statement came as a response to the issue whether there is a conflict between the Supreme Court cases of SKENCONSULT (NIG.) LTD and ANOR v. UKEY (1981) 1 SC 6 and EZOMO v. OYAKHIRE (1985) 1 NWLR (pt 2) 195, each decision having been made on its own peculiar facts. Hence, by virtue of this utterance, the learned justice of the Supreme Court has admitted that there can be mistake in judgments of the highest existing court in Nigeria. However, when this errors or mistake are detected, can they be reviewed?

THE SLIP RULE

By its nature, the Slip Rule permits a Court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the Court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the Court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the Court. In other words, the Slip Rule does not confer upon a Court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other superior Courts demonstrates, this is the true import of the Slip Rule.

When considering the “Slip Rule” in Nigeria justice system, the provisions of Order 8, Rule 16 of the Supreme Court Rules comes to mind, and it states that:

“The Court shall 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 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.”

This provision of the Supreme Court Rules might be contested by virtue section 1(3) which pronounced on the supremacy and “god” status of the Constitution when placed with other laws. Juxtaposing that section with the extant position of section

To proceed further, the burdensome question is; have this section of the law been put in use before? Of course yes. One of the successful reviews was in the case of BAR ORIKER JEV & ORS. V. IYORTOM & ORS. [2015] NWLR (PT. 1483) 484.

The Supreme Court had in an earlier judgment in the matter ordered that INEC conduct run-off election. During the review, 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-judgment application by one of the parties, the Court set aside the earlier order. It instead ordered the Independent National Electoral Commission (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 judgment 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 judgment 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.

Perusing through the black inks of that ration, it is clear that the Supreme Court can set aside its judgment in special and rare circumstances and this can only be done by the court not by an appeal.

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.

APPLICATION OF THE SLIP RULE IN OTHER JURISDICTION

Although it is customary around the world that the Supreme Court should not review its judgment, but the slip rule principle has always been used.

The United States Supreme Court has in a few instances set aside its own decisions or judgments. 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 Kenya, the Kenyan legal position as regards to Supreme Court’s power to review its own decision was settled in the FREDRICK OTIENO OUTA VS JARED ODOYO OKELLO & 3 OTHERS Supreme Court Petition No 6 of 2014, and reiterated recently in KENYA BUREAU OF STANDARDS V GEO CHEM MIDDLE EAST [2021] EKLR Application No. 33 of 2020 Supreme Court of Kenya, the Court set out the exceptional circumstances in which it can vary any of its Judgments, Rulings or Orders.

In Ghana, Article 133 of the Constitution provides that the Supreme Court can review any decision it has made on such grounds as prescribed under the Rules of the Court. These grounds are; exceptional circumstances which have resulted in a miscarriage of justice; discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given.

In Pakistan, Article 188 of the Constitution, vests the Supreme Court with power to review its own Orders or Judgments subject to any Act of Parliament or Rules made by it.

CONCLUSION

 In the upshot, being cognizant of the edicts and values embodied in Chapter 10 of our Constitution, as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, the Supreme Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.