The Supreme Court has power to consider identical application that has been dismissed by it.


Edilcon (Nig.) Ltd v. UBA Plc [2017] 18 NWLR (Pt. 1596) 74 at 93, paras. C-E, per Galinje, JSC:

“The Supreme Court is the apex Court in this country and its decisions are final in all respect. It has wide discretionary power to consider identical application that has been dismissed by it. However, this can only be done if the applicant is able to convince the court to exercise its discretion in his favour by setting aside its order of dismissal. It is only after this is done that the application seeking for the same order can be heard.”

Blogger’s Note:

The Court relied on its earlier decision in the case of PDP v. Asadu [2016] 17 NWLR (Pt. 1541) 215 where the rationale for the above position was stated thus at page 222-223, paras. H-B: “After an application which can only be granted at the discretion of the court is dismissed, that ought to be the end of the matter, but this being the top court, an applicant should file an application seeking an order of court setting aside the order of dismissal…” In other words, where an application has been considered and ruling delivered dismissing same by the lower courts, the only option available to the aggrieved party is to file an appeal challenging the said ruling. But in the case of the Supreme Court, an application seeking to aside the dismissal order would be entertained since appeal cannot lie against its decision.

As a matter of procedure, the applicant may file the application identical to the earlier one dismissed and on the face of the same motion, include initial prayers seeking an order setting aside the earlier decision before praying the court for the main reliefs. The Supreme Court did not state that a prayer for leave should be included but an applicant may consider including same ex abundanti cautela.

It is to be equally noted that every court of record has inherent jurisdiction to set aside its judgment and decision in appropriate cases and circumstances such as where same is null and void ab initio or where there was a fundamental defect in the proceedings which vitiates and renders same incompetent and invalid. See page 92 of the report. More so, it is trite that the Supreme Court can be called upon to overrule its earlier decision based on certain conditions. These settled principles make the foregoing decision of the apex Court a good one.

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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