Given the doctrine of stare decisis (judicial precedent) can the Supreme Court overrule itself in particular after proceedings have been concluded and are final (res judicata)?

If the decision is based on a law that National Assembly has passed, parliament can simply change the law. If the decision is based on the Constitution, the Constitution can be amended. Finally, Supreme Court can decide that a certain decision was wrong. For example, the Supreme Court’s decision in Brown v. Board of Education (USA) effectively overruled the decision it made 58 years before in Plessy v. Ferguson.

According to a columnist, Barr Omoba Oladele Osinuga, in his article titled, ‘’Revisiting the Supreme Court decision in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors in light of the decision of Southwark Crown Court in R v Ibori’’, opined that conditions precedent for the apex court to reverse is very limited; this he espoused with the decided cases in question.

The decision of the Supreme Court in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors S.C. 63/2005 is surmised by the following remarks by Dahiru Musdapher, J.S.C (as he then was) the case, an appeal against the decision of the Court of appeal, Abuja Division delivered on 21st day March 2005, wherein the Court of Appeal dismissed the appellants’ appeal and affirmed the decision of the trial High Court.

The crucial issue is whether the 4th respondent herein, Governor James Onanefe Ibori of Delta State has been properly and adequately identified by the appellants, during the trial in the High Court, as the James Onanefe Ibori who was convicted by the Upper Area Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th September, 1995 for the offences of negligent conduct and criminal breach of trust and sentenced accordingly.

The matter started this way: On the 28th of September, 1995, the Upper Area Court Bwari FCT in a criminal case No CR-81-95 convicted one James Onanefe Ibori for the offences of negligent conduct and criminal breach of trust under Summary Trial Procedure under the provisions of Section 157 of the Criminal Procedure Code of the former Northern Region of Nigeria, applicable to the Federal Capital Territory, Abuja. The said convict was sentenced to a fine of N1000 or one year imprisonment on the information.

The issue before the Supreme Court in this was whether James Onanefe Ibori then Governor of Delta State was the same James Onanefe Ibori who had been convicted by the Upper Area Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th September, 1995. In his pleading before the Supreme Court and at every stage of the proceedings which commenced by way of Originating Summons brought by the (plaintiffs in the High Court and Appellants in the Supreme Court case Engineer Goodnews Agbi and Anthony Alabi) in the High Court of the Federal Capital Territory (hereinafter referred to as FCT) against Chief Audu Ogbe, Chief Vincent Ogbulafor, Peoples Democratic Party and Independent National Electoral Commission (later struck out as a defendant on the application of the plaintiffs) seeking a declaration that James Onanefe Ibori is by virtue of the conviction aforesaid at Bwari Upper Area Court is not qualified to contest election as the 3rd respondent’s gubernatorial candidate for the 2003 Delta State Governorship Elections. In its decision the Supreme Court affirmed the decisions of the lower courts and dismissed the appeals.

In the Queen v. James Onanefe Ibori (Case No. T20117192) on 17 April 2012 at Southwark Crown Court, London before Justice Anthony Pitts having pleaded guilty James Ibori was convicted and sentenced to 13 years imprisonment with a likely release of 17 October 2012 on 7 counts of money laundering contrary to Section 93 of the Criminal Justice Act 1988 and Sections 327, 328 or 329 of the Proceeds of Crime Act 2002, 1 count of Conspiracy to defraud under the Common Law and contrary to Section 12 of the Criminal Justice Act 1987, 1 count of Dishonestly obtaining property by deception contrary to Section 15 of the Theft Act 1963 as amended from 15 January 2007 by the Fraud Act 2006 and 1 count of conspiracy to launder money contrary to the Sections 327, 328 or 329 of the Proceeds of Crime Act 20021 count of forgery – making a false instrument, with the intention to induce somebody to accept it as genuine contrary to Section 1 of the Forgery and Counterfeiting Act 1981.

Furthermore the Crown Court at Southwark took judicial notice in the distinguishing features and facts of James Ibori previous conviction in the UK of theft from a Wickes Store Ruislip, Middlesex (where he worked as a cashier) in 1991 and for credit card fraud in 1992, facts which he lied about when standing for public office in Nigeria.

The Southwark Crown Court in doing so placed reliance on the submission of learned Counsel for the Crown Ms Sacha Wass Q.C who made copious references to James Ibori’s violations of Sections 182 and 185 of the Constitution of the Federal republic of Nigeria (CFRN 1999). The court’s stance going at great lengths to rebut the argument advanced by the learned Counsel for the defence Nicholas Purnell Q.C that James Ibori did not violate CFRN 1999 since the Prisoners Rehabilitation of Offenders Act of 1984 nullified such convictions after five years.

In the course of this discourse I shall examine the provisions of Sections 182 and 185 of CFRN 1999. Importantly Section 182 of the Constitution is the casus belli of the Supreme Court case of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors though curiously there is no express reference to this section in the Supreme Court judgement of this case but as noted in the learned Dahiru Musdapher, J.S.C (as he then was) summary of the case stated above implicit references are made to this section during the course of the proceedings given that this was the rationale for the appellants in initiating the suit in the first place.

The decision in Queen v. James Onanefe Ibori in my view has a significant impact of the ‘safety’, fairness and the interests of justice given the outcome and decision of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. Given the principles of finality of proceedings (res judicata), stare decisis, judicial precedent binding the court, the dispensation and administration of justice rests on the foundation of enduring truth, fairness and equity.

Reopening a previously decided Supreme Court case

The Supreme Court generally in following the doctrine of stare decisis is bound by its previous decisions. This principle of judicial precedent is not unique to our Supreme Court but is a common feature of 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. This rule that the judgement being final and conclusive having being determined by the court with jurisdiction is however subject to in some cases to certain rare exceptions. Thus under this general rule there are indeed occasions when the Supreme Court departs from being bound by its previous decision.

The exceptions to the Supreme Court from departing from its previous decisions as judicial precedent or in an existing case setting it aside can be done for a number of limited reasons. These include if it is in the interests of justice to depart from such decision, the original and initial decision has been obtained by dishonest and fraudulent means by the parties and the decision was such that if was allowed to subsist and prevail it would have a grave and detrimental impact and effect on the administration and delivery of justice.

These reasons are eloquently expressed in obiter dictum remarks of P. Nnaemeka-Agu J.S.C who delivered the judgment in Francis Asanya and The State (1991) SC.43/1990, 3 NWLR (Pt.180), (1991) 4 SCNJ 1, (1991) 4 S.C 42. The learned P. Nnaemeka-Agu J.S.C reasoning has been the guiding principle of the Supreme Court in respect of previous decisions of the Court.

1. Nnaemeka-Agu J.S.C states that, “Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong given per incuriam, and perpetuating injustice.”

“This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice.” (see at P.31, paras. E – G and Pp. 18-19, paras. G-B)

The learned Justice citing the cases of Odi v. Osafile (1985) 1 S.C. 1 (1985) 1 NWLR. (Part 1) 17; Bucknor-MacLean and Anor. v. Inlaks Ltd. (1980) 8-11 S.C. 1 stated that, ’’The court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.

This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. (Pp. 18-19, paras. G-B)

The learned Nnamani, J.S.C. also encapsulated these principles in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 (at page 276). In the same case the learned Uwais, J.S.C opined that,

“It is indeed well-settled that this Court does not ordinarily depart from its decision unless it is shown that the decision has over a period of time perpetuated injustice through the doctrine of stare decisis or it has impeded the development of law or it is in fact against public policy or the decision was given per incuriam. (James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 P.35, Paras.D-E).

Celestine Omehia Vs Chibuike Rotimi Amaechi Case

On November 2, 2009, Supreme Court dismissed Celestine Omehia’s application seeking for review of its judgement of October 25, 2007 which removed him and declared Rotimi Amaechi as the governor of River state.

Amaechi who won Rivers state PDP governorship primary in December 2006 was substituted with Omehia, and early in 2007, Amaechi filed a suit challenging his substitution against the April 14, 2007 elections.

Supreme Court in this case of AMAECHI v INEC [2008] 5 NWLR [PT.1080] 227 resolved the issue of the wrongful substitution of candidates of Political Parties during elections. The Court held that Amaechi was wrongly substituted with Omehia by PDP and that in the eyes of the law, Amaechi who didn’t contest the election was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.

But Omehia re-appealed saying the apex court made a mistake and the judgement contradicted some provisions of the 1999 Constitution.

But a 7-man panel led by Justice Alloysius Kastina-Alu described the suit as frivolous and an act of judicial rascality, and accordingly dismissed it with N100,000 cost, saying even if it was a mistake, the apex court has a right to make a mistake. They insisted Amaechi remained the legitimate governor, and that was final regardless of whether it was rightly or wrongly entered and that there was nothing anybody could do about it. He said that if anybody was aggrieved by the court’s decision, the proper place to appeal was in heaven where God Almighty reigns supreme and not in Nigeria where they held sway; adding that “only God can reverse the October 25, 2007 verdict”. (Leadership)

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