It was a gathering of fine legal minds. Friday, the 7th day of March 2025.
The 4th Akaraiwe & Associates (Lex Rehoboth Partners) annual lecture series which has now received accreditation from the NBA Institute of Continuing Legal Education (NBA-ICLE) assembled judges (serving and retired) as well as legal practitioners at the Hon Justice A I Umezulike Auditorium, High Court Complex, Enugu, Nigeria.
“Per Incuriam Reagitata” Nigeria’s Superiority Rule for Regulating Divergent Supreme Court Decisions was the lecture topic.
And the guest lecturer, the very erudite Prof. Richard A.C.E Achara was brilliantly unhinged even though his first salvo was most delicately delivered — If you appoint as a judge, a person who is perverse, irrespective of the safeguards you put in place, he will deliver perverse judgments.
The key take-home lesson from the highly cerebral lecture is the reiteration of the truth that why Nigeria is having a challenge of several conflicting judgments (especially of the Supreme Court) is the tendency, (whether willfully or inadvertently) to forget that the modern professional judge in a constitutional democracy differs significantly from the ancient kingly judge, fashioned along the part of all knowing and therefore inherently capricious.
The ancient kingly judge did not operate under clearly defined and respected rules on how he could overrule himself to maintain consistency and predictability in justice delivery. And so, he could, at his whims and caprices, decide to go against his earlier decisions on certain matters he had previously decided upon.
However, the modern professionally trained and institutionalized judge does not decide cases according to his whims and caprices. He decides according to well-laid-down laws and rules, including rules on how to follow previous judgments of Courts superior to him and those of coordinate jurisdiction with him. Even when it concerns the highest Court of the land, the Supreme Court, it is bound by specific rules on how it can overrule itself.
Problem arises when such rules are not strictly followed, perhaps, owing to poor advocacy because lawyers in the cases fail to draw the attention of the Courts to the relevant extant rules of engagement or the Courts mistakenly see themselves as still wearing the garb of the kingly judge of old and go ahead to render judgments that have the effect of overruling their former judgements on the same issues and facts.
The result is that it becomes very difficult to predict the law, especially laws based on judicial precedent. The lecture made a case for the strict enforcement of the well-entrenched rules of procedure on how and when the nation’s Supreme Court can overrule itself. The rules are already there but need to be strictly followed at every point in time.
The said extant rules were also stated and highlighted by the learned Prof in the course of the lecture as follows.
This he started by recalling the initial controversies that erupted on some matters of how and when the Supreme Court can overrule itself. According to him, first was the position taken by His Lordship, A Ogbuagu, JSC in Osakue V Federal College of Education (Technical) (2010) 2-3 SC (pt 11) 158. There, his Lordship reprimanded Ogunwumiju JCA (as she then was) for holding that where there are two conflicting judgments of the Supreme Court on the same issues, facts or circumstances, the Court of Appeal and other Courts lower in rank should be bound by the earlier judgment (of the Supreme Court) and not the latter or latest as the case may be. And that is on the basis that the latter decision must have been delivered per incuriam of the earlier judgment.
In essence, Ogbuagu JSC in Osakue’s case (Supra) held that the latter (and not the earlier) judgment of the Supreme Court should apply. He relied on the sole authority of Chief Okpozo V Bendel Newsier (sic: Newspaper) Corporation & anor (1990) 5 NWLR (pt 153) 652, where Ogundare JCA (as he then was) did indeed make that statement of law at the tail end of his leading judgment in that case in 1990.
However, according to the learned Prof, four years after, when Ogundare had become a Justice of the Supreme Court, he found reason to reverse himself to the effect that the opposite was the true position and that the Supreme Court is bound by its own previous decisions unless expressly overruled or departed from. This was in Adesokan V Adetunji (1994) 7 NACR (Nigerian Appeal Cases Reports) 25 -57, also reported in (1994) 5 NWLR (pt 346) 540.
Concisely put, according to the learned Prof, the decision in Adesokan’s case (Supra) is that, if, without expressly considering and overruling the older case, the latter or last case of the (conflicting) decisions is inconsistent with the former or first one, it means that the latter one was decided in forgetfulness or ignorance of what ordinarily should have bound the latter court and was reached per incuriam.
In effect, their Lordships of the Supreme Court, according to the learned Prof, held that when any court is faced with two prior but conflicting decisions of the Supreme Court, neither of which had been expressly overruled, that court is bound to follow the earlier one as the latter or last one is denuded of precedential force by the reason of it being reached per incuriam.
That is the golden rule which the learned Prof called attention to and urged lawyers and judges to constantly bear in mind in handling conflicting judgments from the Supreme Court of Nigeria.
To earn the NBA-ICLE credit load, all attendees who filled out their NBA-ICLE forms at the venue received a Certificate of Participation at the end of the Lecture.
