CASE LAW – CONCEPTS RELATED

TO PRECEDENTS – OVERRULING,
REVERSING AND SETTING ASIDE
Nonso Robert Attoh
Faculty of Law,
University of Nigeria,
Enugu State, Nigeria (2015/2016 Session)
INTRODUCTION
• The three terms overruling, reversing, and setting aside as well as
overturning are terms that describe almost similar action by a court and so
oftentimes are used interchangeably even by judges in their judgment. By
normal definition of English words they could be used interchangeably
without necessarily losing the meaning but as legal terms they are used to
describe the same action but directed towards different objects.
• The Black’s Law Dictionary edited by Bryan Garner 10th edition and The
Dictionary of Modern Legal Usage also edited by Bryan Garner will be
consulted to show the differences in the use of these terms
• It may be noted that setting aside may be used in place of both reversing
and overruling but it is important not to mix up the use of the terms
reversing and overruling as they are directed towards different objects.
MEANING OF THE TERM - REVERSING
• A Dictionary of Modern Legal Usage explains that the term reverse is a
much narrower concept than either overrule or overturn, and it describes
an appellate court’s change to the opposite result from that by the lower
court in a given case.
• Black’s Law Dictionary defines it as “To overturn a judgment or ruling
especially on appeal”
• The term reverse therefore is directed towards a judgment/ruling of the
lower court which is appealed against. To reverse the judgment is therefore
for the appellate court to change the result given by the lower court to the
opposite result. For example if the lower court gave judgment for the
plaintiff, to reverse that judgment the higher court will change it to
judgment for the defendant.
MEANING OF THE TERM- OVERRULING
• A dictionary of Modern Legal usage explains that it denotes what a
superior court does to a precedent that it expressly decides should no
longer be controlling law, whether the precedent is a lower court’s or its
own (p. 632).
• Black’s Law Dictionary describes it as “To overturn or set aside a precedent
by expressly deciding that it should no longer be controlling law”
• Closely related to overruling though broader is overturning which describes
any judicial reasoning which may include express overruling, by which a
court partly or completely abolishes an earlier rule of law. Overturning may
also indicate a long-term process by which courts gradually whittle away
the authority of a precedent. Black’s Law Dictionary defines it as to
overrule or reverse
MEANING OF THE TERM - OVERRULING
• From the definitions it appears that overturning is an all purpose term
just like setting aside that can be used synonymously with both
overruling or reversing.
• Overruling however, unlike reversing which is directed towards a
judgment or ruling which is on appeal, is directed towards a
precedent which the court does not want to continue to be the
directing law
• The Supreme Court and the Court of Appeal have outlined the
circumstances in which they can overrule their earlier judgment
WHEN THE SUPREME COURT CAN OVERRULE
ITSELF
• The Supreme Court will overrule itself in the following circumstances
• 1. Where there is a breach of justice
• 2. On grounds of public policy
• 3. If the retention of the decision will constitute a perpetuation of
injustice
• 4. Where it was reached on wrong principle
• 5. If the decision was given per incuriam
• 6. If the decision will hinder development of law
• 7. If the judgment is a vehicle of injustice
• Abdulkarim v. Inkar Nig ltd. 1992 7SCNJ 366, Bronik Motors ltd v. Wema
Bank 1983 NSCC 226 etc
SUPREME COURT OVERRULING ITSELF
• The Supreme Court overruled its previous decision in Oyeniran v.
Egbetola (1997) 5 NWLR (504) 122 in Adisa v Onyiwola (2000) 10
NWLR pt. 674 at 116 . The previous decisions had held that the High
Court did not have jurisdiction over lands situate in non-urban areas
or which were subject to customary right of occupancy. But in Adisa v
Onyiwola, the court considered the previous precedent to have failed
to properly interpret the unlimited jurisdiction granted to the High
Court. It thus held that the decision was wrong and overruled it.
COURT OF APPEAL OVERRULING ITSELF
• The Court of Appeal following the principle laid down in Young v
Bristol Aeroplane Company [1944] K.B 718 can refuse to follow its
previous decision or overrule itself if
• 1. the decision although not expressly overruled cannot stand with a
decision of the supreme court - Co-operative and Commerce Bank
(Nigeria) Limited v. Alex O. Onwuchekwa (1999 Legalpedia CA CHV8),
• 2. if the decision was made per incuriam - ACN & Anor v. Amaewhule
& Ors (2011) 11 iLAW/CA/PH/EPT/6/2011
• 3. Where there are two conflicting decisions of the Court - ACN &
Anor v. Amaewhule & Ors (2011) 11 iLAW/CA/PH/EPT/6/2011
MEANING OF THE TERM – SETTING ASIDE
• According to Dictionary of Modern Legal Usage “set aside” and
“vacate” are synonymously used to denote an appellate court’s
wiping clean the judgment slate. The effect is to nullify the previous
decision, usually of a lower court, but not necessarily to dictate a
contrary result in further proceedings.
• In Black’s Law Dictionary 10th edition, it is to annul or vacate a
judgment, order etc.
• Even though from the definitions above, setting aside is used in
relation to judgments of the court which are nullified or vacated,
reading the judgments of the court reveals that some judges also use
it synonymously with overruling of a precedent.
MEANING OF THE TERM – SETTING ASIDE
• Going by simple English meaning such a usage may not be wrong as” to set
aside” a thing like precedent still has the meaning of not using the set aside
thing like not using the precedent anymore as the guiding law, but we
advise that it is better and more accurate to use setting aside to refer to
vacating or annulling a judgment without prescribing a contrary result for
further proceedings, as the authorities provide, and to use overruling for
overturning a precedent and substituting another precedent as the new
guiding law.
• Note that a subtle difference exists in the definitions of reversing and
setting aside. While in “reversing” the court changes the decision of the
lower court to the opposite but in “setting aside” it merely annuls or
vacates the judgment without prescribing or dictating a contrary result
MEANING OF THE TERM – SETTING ASIDE
• Thus it might not even be technically correct to use setting aside
when you really intend to talk about reversing
• The Court has inherent power to set aside its own judgments if the
judgment is 1. obtained by fraud (Olufunmise v. Falana (1990)LPELR-
2616(SC) 2. is a null judgment 3. is a default judgment Victor Anozie v.
IGP and Others (2016) LPELR-40427(CA)(a default judgment is one
given by the court in the absence of the defendant either because he
did not enter appearance or did not file his pleadings) 4. If the court
was misled into believing the parties were consenting to the
judgment.
MEANING OF THE TERM – SETTING ASIDE
• In each of these situations the defendant must fulfill certain
conditions before the court can set aside its own judgment.
• The higher court can always set aside the judgment of the lower court
if the conditions for it to do so are fulfilled.
• Note, however, that the court no longer dispenses technical justice
and as such a wrong use of terminology not affecting the substance
may not necessarily affect your case, but nevertheless it is important
to come to terms with the right use of these terms.
CONCLUSION
• A court reverses a judgment of a lower court on appeal before it and
changes it to the opposite result from that given by the lower court
• A court overrules a former precedent when it declares that it is no
longer the ruling law over the subject matter and substitutes a
different principle or precedent as the guiding law
• A court sets aside its own judgment or that of a lower court when it
annuls/vacates/nullifies the judgment without returning a contrary
result
• A court overturns a judgment or a precedent when it reverses or
overrules same.
PRACTICE QUESTION
• From the technical definitions of the words overrule, reverse and set
aside, are these usages correct or incorrect? Explain why they are
either correct or incorrect.
• a. The Justices of the Court of Appeal reversed their former decision
in X v. Y which was the guiding law in succession matters
• b. The Supreme Court set aside the decision of the COA and made the
winner instead
• c. The Court can set aside its own decisions in your favour if it was
obtained by fraud