MUST THE SUPREME COURT REVIEW AND CORRECT ITS MISTAKE

Judges are the living oracles who speak and interpret law, the question of what is the legal position on every issue is best resolved in their shrines. They are the chief priests in the temple of justice to whom the whole society owe their believes and trust to adjudge the right against the wrong, good against bad and justice against injustice. People believe is not just with them because the law say they have it but also because it was believed that they deserved it. One won’t exaggerate to say that judges are the symbols of unity, justice, harmony and sustainability of the society. said this with the prime belief that we can’t have a living society without law and they are the custodian of the law.

So far people with all these noble and outstanding personalities are still not super humans neither gods nor angels, they are undoubtly humans like all others. imperfection is the perfect attribute of human being, Believing with this fact the possibility of judicial officer to make mistake while adjudicating is not a bizzare although learned, trained and professional.

This piece briefly attempts to rest some arising issues as to whether learned Justice can unanimously make mistake, whether the mistake is however final if made in the apex court and juxtaposing the supreme court’s power to review its judgment with the finality of its judgment as the final court of appeal in the land.

In many instances the learned Justices have themselves Admitted the imperfection and infallibility.

The Socrates of the Supreme Court Justice Oputa, JSC (of blessed memory) in the case of ADEGOKE MOTORS LTD. v. DR. ADESANYA & ANOR (1939) 3 NWLR (Pt.109) 250 at 274: (1989) 5 SC 113 where the erudite jurist said:

“We are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through it’s mistakes.

The supreme Court has recently also in ITEOGU v. LPDC (infra) retreated this fact through the erudition of SANUSI, J.S.C. In which His Lordship while admitting the fact that Supreme Court can make mistake, states the reason why corrections are allowed in it’s judgement and the extent to which the correction could take as follows;

“There is no doubt that Honourable justices of this Court are human beings and therefore not infallible. 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, this 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”.

There is no constitutional provision for the review of the judgment of the Supreme Court by itself or any other body. And that is without prejudice to the powers of the President or of the Governor of a state with respect to prerogative of mercy. See section 235 Of The CFRN 1999 as amended.

Order 8 Rule 16 of the Supreme Court Rules, 1985 (as amended) has however gives room for the supreme Court to review it’s judgement save the conditions stated there in. For the sake of clarity the rule states;

The Court shall not 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 not 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 opened room is however restrictive and not widely open for every review application as many Judicial precedents gave account as to the effect of it’s provision and it is settled that it is not every mistake in Judgement that can lead it to be set aside as rightly held Per FABIYI JSC in ADEGBUYI v. APC [2015] EJSC at 130/SC. 257/2012

“…it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial, in the sense that it affected the decision appealed against…”

The Supreme Court while observing the impact of the order through His Lordship OKORO, J.S.C in JEV & ANOR v. IYORTOM & ORS(2015) AELR 5981 (SC) /SC.164/2012(R) has this to say that;

Courts of law are set up to do substantial justice to parties who appear before them. Therefore, where a court makes an order in its judgment which does not fully represent its meaning and for intention, the court is allowed to vary the said order in order to give effect to the judgment delivered.

My Lord moved further that;
There could be a situation where the court has made clerical mistake or some error arising from any accidental slip or omission. In such circumstance, the court is in good position to correct such obvious mistake in order not to enthrone injustice and pain on the affected party. That is the intendment and purport of Order 8 Rule 16 of the Rules of this Court.

In Chief Kalu Igwe & 2 Ors v. Chief Onwuka Kalu and 3 Ors (2002) 14 NWLR (Pt.787) 435 the Supreme Court per Ogwuegbu, JSC enumerates the instances in which the Court possess inherant power to set aside it’s judgment as follows:

(i) When the judgment is obtained by fraud or deceit either in the court or of 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;

(ii) When 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;

(iii) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it.

Interestingly, two years before Chief Kalu’s case the Supreme Court have enumerated five conditions that at least one must be met in ALAO v. AFRICAN CONTINENTAL BANK LTD (2000) 9 NWLR (Pt.672) 264 before the court set aside or review it’s Judgment as follows-

“(1) When the Judgment was obtained by fraud;

(2) When the Judgment is a nullity such as when the Court itself was not competent;

(3) When the Court was misled into giving Judgment under a mistaken belief that the Parties have consented to it;

(4)Where the Judgment was given without jurisdiction;

(5) Where the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudication.

However these conditions are of course not exclusive neither definitive nor conclusive.

The Supreme Court in the ITEOGU v. LPDC (2018) LPELR-43845(SC) refused to grant application for review of it’s judgement in ANAMELECHI ITEOGU v. LPDC (2009) 12 SC. (pt. 1) 1. Where the Court held that it had the jurisdiction to entertain appeal directly from the decision of the Legal Practitioners Disciplinary Committee (respondent) without same routing through its Appeal Committee.

Later on the court had discovered it’s mistake and departed from ITEOGU’s case position in the case of ROTIMI WILLIAMS AKINTOKUN V. LPDC, (2014) LPELR-22941 (SC) and the case of ALADEJOBI V. NIGERIAN BAR ASSOCIATION (2013) 15 NWLR (Pt.1376).

In these later cases the Supreme Court admits that it doesn’t have jurisdiction to entertain such appeal directly from the Legal Practitioners Disciplinary Committee.

Issue of jurisdiction being a fundamental and one of the conditions given in ALAO’s case supra the Supreme Court have unanimously refused to grant the application.

The judicial reason for denying the application was given Per SANUSI, J.S.C in his leading Judgement, thus;

“To my mind, if this Court grants the order of setting aside its earlier judgment as sought in this instant application, it will open a flood gate for litigants with similar complaints or grouse to be greeting this Court with multiplicity of applications or suits which may in the long run open a chain of reactions the consequence of which nobody can foretell”.

This also tallies with the dictum of His Lordship AUGIE JSC in the ruling on the review application of the PDP & ORS V. DEGI-AREMIENYO & Ors SC.1/2020 delivered on 26 day of February 2020 that;

“To do otherwise, is to open a floodgate of litigation on appeals that have already been settled by this court. There is even no guarantee that if these two applications are granted, the other side will not come with a fresh application to review the ruling on the ground that this Court did not consider certain aspects of the argument in it’s ruling”.

One more point to note is, even when the application is granted the inherant jurisdiction of the Court 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 re-state or re-argue their appeal. See JEV & ANOR v. IYORTOM & ORS (supra) per OKORO JSC

This indeed is to preserve the sanctity of our judicial system and to meet the intention of the learned drafters of our constitution which provides under section 235. Without prejudice to the powers of the President or of the Governor of a state with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.

The intention of the drafters can be clearly seen that they meant the supreme Court’s decision to be final notwithstanding, and all litigations to end in the Supreme Court.

It’s also commendable the Apex court has despite many attempts refused to allow any appeal came to them in the blanket of review to survive. as succinctly held by Former C.J.N MOHAMMED, J.S.C. in the JEV case supra thus;

“Any application therefore challenging the correctness of the Judgment of the Supreme Court, this court has no jurisdiction to grant the application”.

conclusively, It has been wholly but respectively submitted that the learned Justices although as the living Oracles can make mistakes, and such mistakes can only be corrected when certain rules and conditions are fulfilled and the Court deems it proper and necessary for the interest of Justice, it is also submitted that no appeal can be lodged before the supreme Court against it’s final decision, and in the same vein no review can survive serving the purpose of appeal. It has however been submitted that the decision of the supreme Court is final and it’s finality is final notwithstanding the possibility of mistakes. if one is to put it in the words of His Lordship (the Socrates of Supreme Court) Oputa JSC (as he then was) one can say that ‘ The Supreme Court is final not because it is infallible, rather it is infallible because it is final.

About the author

ALKASIM ABUBAKAR (AAMG)

Is law student of ABU ZARIA.

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