Good evening, Ladies & Gentlemen. I feel I am obliged to state here that I decided to send to my friends, etc, the CTC of the judgment in SC/655/2015 (MPP v. INEC), delivered on 12/09/2015, because I had earlier promised to make the CTC available as soon as I got it, which promise, I think, was binding in honour, and had imposed a duty on me. Besides, the CTC has helped to clear the air as to what the SC really decided in that case. Some people were already beginning to speculate, although without any bases, that SC/655/2015 was only a rumour. All those speculations are cleared now, by the release of the CTC.
Having said that, I am well aware that there is another, later, judgment of the Supreme Court (SC/722/2015 --- APC v. Sarkin Yasi), delivered on 27/10/2015, which appears to contradict the earlier decision. I shared that judgment, too, on my Facebook page on the same 27/10/2015. But the Supreme Court adjourned the suit (SC/722/2015) to November 13, 2015, to give reasons for its ruling in the case (SC/722/2015). We shall await the Supreme Court's reasons on 13/11/2015, and I promise to make the same available as soon as, and if, I lay my hands on the CTC.
Presented with the two seemingly contradictory judgments of the apex court on the same issue, Nigerian Lawyers, jurists, etc, I think, would be better placed to express informed opinions as they may deem fit on the two decisions. It must however be emphasized that, where two judgments of the same court, bothering on the same issue, are inconsistent with each other, the later in time might easily have its way as against the earlier decision.
In OPENE V NATIONAL JUDICIAL COUNCIL (Suit No: CA/A/324/07 of 03/02/2011) (SEE http://www.lawpavilionpersonal.com/lawreportsummary_ca.jsp… OR https://easylawonline.files.wordpress.com/…/hon-justice-ral…), THE Court of Appeal held that “when a court is faced with two conflicting decisions of the supreme court on an issue, it is bound to follow the latest. This is so because the Supreme court has an inherent power to overrule itself. ALHAJI M. C. DAHIRU & 1 OR VS ALH. KAMALE (2005) 9 NWLR (PT.929) 8. …. It is trite that when this court is faced with two conflicting decisions of the supreme court on an issue, it is bound to follow the latest. This is so because the Supreme court has an inherent power to overrule itself. If the latest decision is in conflict with the earlier one, it follows that the latest decision has overruled the earlier one. The case of YUSUF VS UBN was decided after the cases of DENLOYE, GARBA and LAOYE, as such I consider myself bound by that decision. see ALHAJI M. C. DAHIRU & 1 OR VS ALH. KAMALE (2005) 9 NWLR (PT.929) 8.”
On the other hand, however, the view has been conversed that a lower court is free to choose between two conflicting decisions of the Supreme Court. See the case of ADEGOKE MOTORS LTD. v. ODESANYA(Court of Apppeal) (suit No CA/L/218/87, decided on 09/11/1987), where the Court of Appeal, believing there was a conflict, held as follows:
“Lastly, what is the course open to this court faced with two conflicting decisions of the Supreme Court on a matter such as this? Of course it is to be understood that putting the matter this way I assume for the present that the cases of Sken Consult Nigeria Ltd. v. Ukey and the case of Ezomo v. Oyakhire are in conflict. The learned counsel for the respondent has relied on Gamra v. Adejuwon unreported SC 714/85 and Yusuf v. Egbe (1987) 2 N.L.R, part 56 at age 341 and 355 to say that I should be bound by the case of Ezomo and not Sken Consult. In Yusuf v, Egbe. Kolawole J.C.A, said:
"We, sitting as a Court of Appeal, must accept loyally the decision of the Supreme Court and where the decisions manifestly conflict it is in my view the latter decision that is binding on the Court of Appeal," The Appellant on the other hand relied a passage from Salmond on jurisprudence 11th Edition at page 207 and contended that this court has a freedom to choose which of the decisions that are in conflict it would follow, Kolawole JCA did not refer to the case of Gamra v Adejuwon (supra) as authority for the proposition he laid down in Yusuf v. Egbe.
1 must say that my understanding have always been that where there are two conflicting decisions of a higher court the lower court is free to choose which of the decision is to follow. I agree with the statement noted In the Appel-lant brief quoting Salmond; Jurisprudence; 11th edition page 207. In the judgment of this court in Okilo & another v. Ofili Okonwo & another 1977 NCAR page 368 at pages 372 and 373 the principle was laid down as to the freedom of the Court of Appeal to choose between two conflicting decisions of the Supreme Court.”
When however, the case of ADEGOKE MOTORS V ADESANYA got to the Supreme Court (See http://www.ilaw.com.ng/adegoke-motors-ltd-v-dr-babatunde-a…/ OR (1989) 3 NWLR (Pt. 109) 250), the Supreme Court dismissed the existence of any such conflict between the two cases, and stated as follows:
“Now to Issue 4.3 at p.2 of the appellant’s brief – Whether there is a conflict between the Supreme Court cases of Skenconsult v. Ukey and Ezomo v. Oyakhire? My simple answer is that it is not part of the jurisdiction or duties of this Court to go on looking for imaginary conflicts.. We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human-beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error. Learned counsel has not asked us to over-rule either Skenconsult or Ezomo supra. If that was what was wanted, the Briefs should have said so specifically and the Chief Justice of the Federation would have gladly empanelled a Full Court…... When that supposed conflict becomes an issue and when that issue comes squarely before this Court, then a Full Court will be empanelled to consider it, with proper Briefs filed. It is after such an exercise that the Court will know which one to over-rule. That issue has not arisen. There is here no question of choosing between an earlier and later decision of this Court. .” See Adegoke Motors v. Adesnaya ((1989) 5 iLAW/SC.186/1988). Or http://www.ilaw.com.ng/adegoke-motors-ltd-v-dr-babatunde-a…/
For the issue to arise, whether two cases decided by the same court are in conflict with each other, “the facts of the two cases alleged to be in conflict” must not be “totally different from one another," yet the decisions are inconsistent. See Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 281.
Finally, I think the only option open to a lower court in cases of genuine conflict between two (higher court) cases which are on all fours is to follow the LATER decision, except where the facts of the two cases are DISTINGUISHABLE. See CHUKWU V. IDOWU [1982] 3 FNLR 346.
est regards, All. God bless and help the Nigerian Lawyer!
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