Appraising Nigeria’s Supreme Court’s Powers to Review Its Own Judgments

The paper appraises the power of review of the Supreme Court on its own judgment in Nigeria and Ghana, that is, judgment delivered by the Court and the judgment of the Court being appealed on by an aggrieved party despite the fact that the Court is one of finality once it delivers its judgment. Two distinctions are made pertaining to this. First, the Court’s powers to review its judgment based accidental slip or omission, clerical error or to vary a judgment or order to give effect to its purpose or intention that occasioned miscarriage of justice. Second, the Court’s power to review, that is, sit as an appellate Court on its judgments. Plethora of Supreme Court judgments in both jurisdictions was examined in dealing with the two germane issues raised. The paper concludes that in respect of the former, such power enures the Court while in case of the latter, such power does not enure it. It calls for amendment of applicable laws so that the Court can sit as an appellate Court on its judgments. It however cautions that this power of review should be rarely exercised unless there exist a clear case of gross miscarriage of justice based on strong compelling facts.


Introduction
In general, the Supreme Court is bound by its previous decisions when applying the doctrine of stare decisis. This judicial precedent theory is not exclusive to the Nigeria's Supreme Court, but it is also a standard characteristic in superior courts of record in common law jurisdictions. It is also related to the principle which ensures that there is a finality of proceedings (res judicata) in the matter that is being adjudicated. The rule which states that judgement is final and conclusive if it is delivered by a Court of competent jurisdiction is subject to exceptions in certain cases. As a result, there are times when the Supreme Court deviates from its previous judgment under this general rule. The Supreme Court may deviate from its previous decisions as legal precedent or set it aside in an existing case for a variety of limited reasons. This include whether it is in the interest of justice to depart from a decision, whether the original or initial decision was obtained by the parties by deceptive or fraudulent means and whether the decision would have a great and diverse impact and effect on administration and delivery of justice.
The above was eloquently expressed in the obiter dictum remarks of Nnaemeka-Agu JSC in Francis Asanya v The State [1] when his Lordship stated that unless overruled or departed from, previous decisions of this Court remain binding on this Court. Departing from a prior decision should not encouraged unless such previous decisions were shown to be given per incuriam resulting in injustice. Even though, it is not a precedent bound Court, this Court follows precedent. It is essential for the certainty of the law, both here and in many other parts of the Commonwealth, that it generally follows its previous decisions. However, as a Court of last resort, it is not expected to do so unless the interests of justice warrants it. As a result, it will not be bound by precedent when it is shown that an established principle contained a significant flaw and such that adhering to it would result in further injustice [1]. The learned Justice citing the cases of Odi v. Osafile [2] and Bucknor-MacLean and Anor. v. Inlaks Ltd [3] stated further that the Court has a dual responsibility to ensure that justice is built on a fair understanding of the law and that justice is not savaged by Powers to Review Its Own Judgments erroneous interpretation and application of the law and equity. The fulfilment of these principles must be balanced with the pursuit of the ideal of certainty in the law.
The paper in light of the above deals with five interrelated parts beginning with the introductory part. Part 2 deals with the Supreme Court review of its decisions by examining judicial authorities thereto. Such power of review of minor errors and similar others enure the Court. Part 3 deals with the Supreme Court sitting as an appellate Court over its own judgment by examining plethora of cases where the Court had been called upon to exercise this power. Enabling Supreme Court rules does not provide for this or any enabling law. This power does not enure the Court. Under part 4, the position in Ghana which is similar to that of Nigeria was examined as a form of comparative study. Part 5 concludes by stating unequivocally that in both jurisdictions, that is, Nigeria and Ghana, their Supreme Courts have the power to review minor errors as conferred by applicable rules in a judgment that has been delivered but does not have the power to sit as an appellate Court over its own judgment since this power is yet to be conferred by any statute.

Review of Its Own Judgments
Order 8 (16) of the Supreme Court rules provides that the Court has the authority to review any judgment it has given, except to correct any clerical error or error resulting from an unintended slip or omission or to vary the judgment or order to give effect to its purpose or intention. A judgment or order can be varied only if it accurately reflects the Court's decision nor the operative and substantive parts of it be varied and a different form substituted.
The Supreme Court's power to correcting error arising from accidental slip or omission is explained by the case of Elias v Ecobank Nigeria Plc [4], where an application to review and vary part of the judgment of the Court of Appeal was granted in part only in relation to accidental slip. In granting the application, the following words from the judgement [4]: "Briefs of argument were deemed argued in the absence of appelant's counsel in compliance with order 18 rule 9 (4) of the Court of Appeal rules and " none for appellants" were substituted with Mr. E. Nwonu holding brief of Dr. Charles Mekwunye, for appellants". The Court can exercise this power of review in cases of minor slips or to clarify its position and review of its judgments though very rare if occasion demands that justice should be done.
There are, however, historical instances of the Supreme Court reversing itself. In a 1971 case of Kobina Johnson v Irene Lawanson [5], a section of the Evidence Act was allegedly challenged by the claimant. The Court had previously held that a deed must be 20 years old as of the date of proceeding to be competent under section 129 of the EA. The Court, however reversed its decision on February 12, 1971. It was held that a deed must be 20 years old "at the date of the contract" to be competent. Coker JSC stated further that when the Court is faced with the option of perpetuating what it believes is an incorrect judgment reached per incuriam and that if followed would impose hardship and injustice upon future generations or trigger temporary disruptions of rights acquired under such a decision, "I do not believe we would hesitate to pronounce the law as we find it [5]".
In the unreported case of Olorunfemi v. Asho [6], the Court set aside its January 8 1999 judgment in an unreported ruling dated 18 March 1999 on the grounds that it refused to consider the respondent's cross appeal before accepting the appellant's appeal. The Court ordered that the case should be heard again by another panel of Justices of the Court. In Barrister Oriker Jev & Ors. v. Iyortom & Ors, [7] which was an electoral matter, the Supreme Court had in an earlier judgment ordered that INEC conducts run-off election in the case. Following that, the Court discovered that it had rendered the said order based on an incorrect reading of section 133 (2) of the Electoral Act 2010 in accordance with section 141 as amended. The Court overturned the earlier order after one of the parties filed a post-judgment motion. Instead, it directed INEC to grant a certificate of return to the claimant.
The Supreme Court, like every other superior Court of record, has the right to set aside its own decision because of its intrinsic powers as a Court of record. The existence of a Court of Record is based on a statute, but its intrinsic powers extend well beyond the reach of the law. The immutability of the Court's inherent powers is recognized in section 6 (6) (a) of the 1999 Constitution, as amended.. 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. From all the above, It is deducible and it is submitted that the Supreme Court can review its judgment where substantial justice will be done on instances where the Court discovers some errors as captured under its rules contained in order 8 rule 16.

Supreme Court Sitting as an Appellate Court over Its Own Judgment
The Supreme Court has been inundated with appeals to overrule by way of review [8] by sitting as an appellate Court on its decision given in many cases. There has been a consistent refusal on the part of the Court to act as an Appeal Court over itself.
In Dismissing the application, Katsina-Alu CJN held that hearing the application was a "wild goose chase". The Supreme Court ruled that Uba's second attempt was a thorough violation of the judicial process. Kutigi CJN held that in an earlier judgment, this Court held that Peter Obi's notice of appeal to the Court of Appeal was valid. Nonetheless, following our decision, the applicant went back to the trial Court to request that the same notice of appeal that this court had found valid be declared invalid. He went back to the Court of Appeal after failing, and now he is back with us. On a matter which the Supreme Court has already rendered judgment, the appellant has been hopping from the Court to the next. There are mechanisms for fixing errors if the Supreme Court makes them, not this way and we will not tolerate it.
In same vein, the case of Celestine Omehia v Chibuike Rotimi Amaechi [10]  candidates being wrongly substituted during elections was resolved by the Court. It was decided that Amaechi was incorrectly substituted with Omehia by the PDP and that in the eyes of the law, Amaechi who did not contest the election was the legal candidate of the PDP at the election at all times. Omehia re-appealed against the apex Court's judgment stating that the Court made a mistake and the judgment contradicted some provisions of the 1999 Constitution Omehia's application for review of the Court's judgment of October 25 2007 removing him from office and appointing Amaechi as Governor of Rivers State was denied. On November 2, 2009, a seven member panel headed by Katsina-Alu JSC described the suit as frivolous and an act of judicial rascality dismissing it with costs of #100,000.00 saying that if it was an error, the apex Court has the right to make mistakes. The Court maintained that Amaechi's remained the legitimate Governor and that this was absolute regardless of whether it was wrongly entered or not and nothing could be done about it. His Lordship stated that we do not have the legal right to sit on appeal over our own decisions. If someone is aggrieved by the Court's judgment, the proper place to appeal was in heaven where God Almighty reigns supreme, not in Nigeria where they hold sway, adding that "only God can reverse the October 25 2007 judgment".
Further, in Ogboru v Uduaghan [11], in 2014, Chief Ogboru, the Democratic Peoples Party (DPP) governorship nominee in Delta State had asked the Supreme Court to reconsider its decision upholding Governor Uduaghan's victory. His Lawyers argued that section 285 (7) of the Constitution, which the Supreme Court used to dismiss their case was "fraudulently inserted by the National Assembly" and that it was added without due process. The Court dismissed the case and awarded eight million naira (#8 million) cost to Uduaghan against appellant's counsel and must be paid from his pocket to the respondents.
Ogboru twice failed in his attempt to have the judgment reviewed.
In a more recent case, in INEC v Zamfara APC, [12] the Supreme Court was asked by the appellants (APC) again to review and set aside the decision nullifying the election of all members of the APC in Zamfara State. We recall that on May 24 2019, the Supreme Court delivered its judgment declaring the first-runners up (PDP) in the 2019 general elections in the State as the winner of the posts previously declared to have been won by the APC and its candidates. Galinje JSC who read the lead judgment upheld the ruling of the Court of Appeal's Sokoto division that the APC did not hold a legitimate primary election and as a result had no candidates for any of the State's elections. His Lordship deemed the votes cast for APC candidates in the election to be wasted and declared the party and candidates with the second highest vote and spread in the various elections to be the legitimate winner. The APC thus lost 36 elective positions to the PDP including the governorship, deputy governorship, three senatorial seats, seven House of Representatives seats and twenty four House of Assembly seats. The APC still dissatisfied with Court's judgment lodged an appeal with the Supreme Court to have the judgment reviewed. On July 22, 2019, the request to review its May 24, 2019 decision invalidating the APC's election participation was heard by the Supreme Court. The appeal was thrown out. In his lead judgment, Rhodes Vivour JSC held that the application was incompetent and time barred and that the Court lacked jurisdiction over the matter. His Lordship went on to say that the consequential orders were a necessary part of the preelection process and that asking the Supreme Court to review its judgment or orders was an abuse of Court process.

Pertinent to the above discourse also is the case of Peoples Democratic Party (PDP) & 2 Others v. Biobara & 3 Others.
[13] On November 12, 2019, four days to the November 16 governorship election, the Federal High Court sitting in Abuja disqualified Degi-Eremieoyo for alleged forged certificate. The APC and Degi-Eremieoyo appealed to the Appeal Court which reversed the Federal High Court's decision and cleared Lyon and Degi Eremieoyo's joint ticket to run in the November governorship election. On February 13. 2020, the Supreme Court disqualified Lyon 24 hours to his swearing in as Governor of Bayelsa State because of irregularities in his running mate's names in his certificates [14] and ordered PDP's Douye Diri to be sworn in as Governor.. The apex Court panel led by Odili JSC set aside the Court of Appeal judgment and affirmed that of the Federal High Court. The Court held that since Lyon and Degi-Eremieoyo shared a joint ticket, the disqualification of Degi-Eremieoyo invalidated their nomination by the APC ab initio.
Quite instructive on the above judgment is section 187 (1) to (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which states that: (1) In any election to which the foregoing provisions of this section of this chapter apply, a candidate for governor of a state shall not be deemed to have been validly qualified for that position unless he nominates another candidate for governor as his associate for governor, who will hold the office of deputy governor, and that candidate shall be deemed to have been duly elected to that office if the candidate who nominated him is duly elected as governor in accordance with the said provisions (2) The provisions of this section of this chapter relating to fitness for office, term of office, disqualifications, declaration of assets and liabilities, and governor's oath extend to the position of deputy governor as if references to governor were references to deputy governor. The appellants appealed to the Supreme Court to review its judgment delivered on February 13 2020. On 26 February, 2020, the Supreme Court held that the appellants request to review Bayelsa governorship election judgment was vexatious, frivolous and an abuse of court process. The apex Court slammed N 10,000,000:00 (ten million naira) cost each against the counsel of APC and contended that the suit filed on behalf of APC lacked merit and accordingly dismissed the suit. The Court therefore upheld the judgment and dismissed the APC's application seeking review of the February 13 2020 judgement.
In Uzodinma and others v Ihedioha and others [15], the apex Court on January 14 2020 sacked Ihedioha and Senator Uzodinma, the APC candidate was declared the duly elected Governor of Imo State. The votes attributable to Uzodinma was unfairly withheld from 300 polling units according to Muhammad JSC who delivered the judgment. After determining that the omission of those votes in his favour during the State's governorship election was unconstitutional, the Supreme Court went ahead and added the votes resulting in Uzodinma's victory. As a result, the Court declared him the legitimately elected Governor and ordered that the certificate of return given to Ihedioha be issued to him. INEC has since complied with the Court's order and Uzodinma has since been in charge of the State affairs.
Related to the above, in the case of Emeka Ihedioha and others v APC and others [16], Ihedioha of the PDP filed an appeal at the Supreme Court requesting it reviewed its judgment on the governorship election held March 9 2019 in Imo State. He argued that Uzodinma deceived the Supreme Court with his self-tabulated results from 388 polling units and that based on the results accepted by the Supreme Court, the number of voters in the Imo State governorship election outnumbered the number of registered voters, which would normally invalidate the election. On March 2, 2020, the Supreme Court rejected the application. Ariwoola JSC held that there is no constitutional provision for the Supreme Court to hear an appeal of its own decisions. His Lordship ruled that the Court lacked power to review its own judgment stating that the Court's finality is enshrined in the Constitution and the Court's inherent powers do not enable it to review or set aside its own decision.
In his dissenting judgment [16], Nweze JSC held that the Supreme Court judgment on the Imo State governorship election was incorrect and perverse and that "it will continue to haunt our (Nigeria's) electoral jurisprudence". His Lordship stated that "the apex Court has the power to overrule itself and has done so in the past and therefore cannot use the time frame to extinguish the right of any citizen". Mr. Uzodinma and his party allegedly deceived the Court into accepting the allegedly excluded results in 388 polling units without disclosing the votes cast by other political parties according to the Judge. His Lordship stated how at the election tribunal Uzodinma confessed to stealing the result sheets from INEC officials and filling them himself. In my opinion, "this application should be upheld. I hereby issue an order revoking this Court's judgment of January 14 2020 and ordering the appellant's certificate of return to be returned to INEC. I also issue an order declaring the respondents the winners of the governorshp election of March 9 2019".
Ajiromanus contributing [17] to the above, states that the Supreme Court erred in dismissing the petition for review for the following reasons: First, cumulative number of votes added by the Supreme Court surpassed the number of votes cast by accredited voters. Second, the Supreme Court's acceptance of results from 388 polling units without certification by the required public bodies violated sections 89 (e) and (f) and 90 (c) of the EA 2011. Third, neither INEC, the maker of the document nor the police whose custody the said documents originated certified the results from the disputed 388 polling units. Fourth, accepting the testimony of a police officer who did not make the document or having any knowledge of it violates sections 37, 38 and 126 of the EA 2011. Fifth, the Supreme Court's acceptance of the results from the 388 polling units without any evidence from polling agents or INEC officials is a direct break from previous judicial precedent. The margin of registered voters in those polling units was such that could influence the election's result. The Supreme Court would have ordered [17] INEC to hold elections in those 388 polling units.
We concur with the dissenting judgment of Nweze JSC and the above submissions pertaining to Ihedioha's case [18] because miscarriage of justice was evident based on the clear facts of the case but not on the interpretation of enabling laws pertaining to the case. We however point further that the rules of the Supreme Court does not give it power sit as an appellate court over its own decisions. There is also no enabling law in the Constitution or any other known law in our statute books that provides by giving powers to the Supreme Court to sit as an appellate Court over its own decisions. Until this is done through legislative enactment or amendment, such power to sit as an appellate Court over its own decisions does not enure the Court. The Court becomes functus officio just it delivers its judgment in matters. The Court can only revisit its judgment which it has delivered based on the prevailing instances captured under its rules under Order 8 Rule 16. We submit further that the refusal of the Supreme Court to sit as an appellate Court in Peoples Democratic Party (PDP) & 2 Others v. Biobara & 3 Others [19], INEC v Zamfara APC, [20] Ogboru v Uduaghan [21], Celestine Omehia v Chibuike Rotimi Amaechi, [22] Ubah v INEC [23] was proper as such powers are not provided under its rules and there is no enabling law (s) to conferring such power on it. Moreover, we opine that the decisions reached in these cases were not perverse as they were in tandem with the tenets of justice.

The Position in Ghana
The Supreme Court's authority to review its own decisions is enshrined in article 133 (1) of the Republic of Ghana's 1992 Constitution which states that the Supreme Court "can review any decision made or provided by it on such grounds and subject to such grounds and conditions as maybe prescribed by the Court rules". The grounds for review are specified as follows in Rule 54 of Supreme Court Rules 1996 (C1 16), made under the authority of the Constitution thus: a). extraordinary circumstances that have resulted in miscarriage of justice. b) discovery of new and significant information or evidence that after due diligence was not known to the applicant or could not be produced by him at the time the decision was made.
The Court's review authority is derived from the inherent jurisdiction of the Court as contained in the current Constitution and butressed in the case of Fosuhene v Pomaa [24], which held that the Supreme Court had jurisdiction to correct its own error by way of review and that application for review must be founded on compelling reasons and exceptional circumstances dictated by the interest of justice. The term "exceptional circumstances" is not defined in rule 54 of C1 16 of the rules of the Supreme Court, However, some guidance can be obtained from judicial pronouncements in cases that have come up for review both before and after rule 54 came into force. In Republic v. Numapau and others; Exparte Ameyau II [25], it was held that what constitutes exceptional cases cannot be comprehensively defined. However, in the case of Mechanical Lloyd Assembly Plant Ltd v Nartey, [26] Taylor JSC valiantly proposed certain conditions suggestive of extraordinary circumstances which might necessitate a review if the decision resulted in a gross miscarriage of justice as follows: (i) matters discovered after judgment; these must be relevant, exceptional and capable of tending to show that if they had been discovered earlier, their effect would have influenced the decision; (ii) cases where a judgment is invalid as enunciated in Mosi v Bogyina [27] because it is not warranted by any law or rule of procedure; and (iii) the class of judgments that may legally be said to have been given per incuriam because of failure to recognize a statute, case law, or fundamental that would have resulted in a different decision.
In Bisi v Kwakye [28], the Court in rejecting an application to review its earlier judgment held that the exceptional circumstance relied upon must be of such a nature, as to convince the Court that the previous judgment had led to the creation of miscarriage of justice and that it should be reversed in the interest of justice. In Darbah v Ampah [29], the Supreme Court unanimously rejected the appeal for review defining it as simply as an invitation to the Court to accept new submissions on that had already been addressed at the previous hearing in order to draw a different conclusion. The Court thus held that, rearguing matters already adjudicated upon did not constitute a patent error, the existence of which would justify a grant of review to correct such mistakes. An opportunity for a second bite at the cherry is not the purpose for which the Supreme Court is given the power of review. [29]

Conclusion
From the plethora of cases examined, the Supreme Courts' has power to review its decisions in Nigeria and Ghana where it involves clerical errors, minor mistakes and so on covered under its enabling rules and the inherent power of the Court. However, in both jurisdictions, the power to sit as an appellate Court on its own decisions does not enure the Court. It is imperative that the enabling laws, that is the Constitution and or the Supreme Court Act or rules be amended to provide for situations where the Court can sit as an appellate Court over its decisions. The purpose is to remedy decisions where it is manifestly clear that gross miscarriage of justice has been done especially where strong compelling facts emerge. This power of review should be exercised by the Court in rare exceptional cases.