Counsel who asked Supreme Court to follow Court of Appeal decisions over its own had himself to blame.

Oil & Gas Export Free Zone Authority v. Osanakpo (SAN) [2019] 6 NWLR (Pt. 1668) 224 at 241, paras. F-G, per Augie, JSC:

“So, the Appellant is asking this Court to follow its reasoning in the said case of N.E.P.A. v Edegbero (supra), as “such an approach will be consistent with the opinion of the Court of Appeal as expressed” in the cases cited and “other relevant decisions of the Court of Appeal.” What an absurd proposition – that this Court should overlook or close its eyes to its decisions after N.E.P.A. v Edegbero (supra) and adopt the opinion of the Court of Appeal in cases that were decided in line with the decision of this Court in N.E.P.A. v Edegbero (supra). This line of argument offends all known principles of stare decisis.”


The Respondent, a Senior Advocate of Nigeria, sued the Appellant, a Federal Government Agency, at the High Court of Rivers State (trial Court) claiming unpaid professional fees. The Appellant raised a preliminary objection contending that the trial Court lacked jurisdiction to entertain the suit since the Appellant is a Federal Government Agency and that the alleged breach of the contract between the parties was an administrative/management decision or action. Thus, that it is the Federal High Court that has jurisdiction. The trial Court disagreed with him, heard the case and decided same in favour of the Respondent. The Court of Appeal dismissed the Appellant’s appeal. It further appealed to the Supreme Court.

The apex Court dismissed the appeal holding that the trial Court had jurisdiction since the matter touches on contract. In deciding whether the Federal High Court has jurisdiction, both the parties and subject matter must be considered. In other words, it is not enough that one of the parties is a Federal Government Agency. This is settled

The Appellant, through its Counsel, attempted to plunge the Supreme Court back into the long-settled controversy of N.E.P.A. v. Edegbero and Onuorah v. K.R.P.C. but the Supreme Court would have none of that. Augie, JSC had to travel memory lane to remind the Appellant of how the Supreme Court treated a Judge of the High Court of the Federal Capital Territory, Abuja in Dalhatu v. Turaki [2003] 15 NWLR (Pt. 843) 310. The said Judge, by legal artistry, ignored a decision of the Supreme Court which was brought to his Lordship’s attention. The apex Court was infuriated and found him “guilty” of judicial rascality and impertinence. Katsina-Alu, JSC (as he then was) did not hide his exasperation:

“The conduct of the learned trial Judge… is to say the least most unfortunate. This Court is the highest and final Court of appeal in Nigeria. Its decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis, the Courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sina qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge of the Court below to be bound by this Court’s decision, is gross insubordination (and I dare say such a judicial officer is a misfit in the judiciary).”

Kutigi, JSC (as he then was) did not spare the Judge:

“It is unfortunate that although that case was cited to the trial Judge, he deliberately and consciously refused to apply it, because he thought the Supreme Court was wrong in its decision in that case. If the Supreme Court was wrong, he was also wrong not to have followed the age long established doctrine of stare decisis, otherwise known as judicial precedent. His action has been variously described as “gross insubordination,” “judicial rascality,” “reckless,” “judicial impertinence” amongst others. I think he richly deserved the descriptions.”

Tobi, JSC (of blessed memory) continued in the line of chastisement thus:

“A trial Judge would have the courage and the strength not to follow a decision of the Supreme Court merely because he feels that the decision is wrong. As if that is not bad enough, the Judge has called upon this court to “re-amend its position” to fall in line with his. This is an extremely unfortunate situation. Apart from the fact that it attempts to destroy the well settled principle of stare decisis, this court is invited to abandon its own correct decision to follow a wrong decision of a trial Judge. This is very serious. On my part, I will not obey him.”

The point must be reiterated that attempts to unsettle settled principles of law is not advocacy!

Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.


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