LEGAL PRINCIPLE: CIVIL PROCEDURE — Finality of Judgment — Supreme Court — Effect of Failure to Consider Issue Where Concurring Opinion Addressed It
PRINCIPLE STATEMENT
Failure to consider an issue in the leading judgment does not rob the judgment of its efficacy where the issue was exhaustively considered and resolved in one of the concurring opinions; the inherent jurisdiction to set aside cannot be converted into an appellate jurisdiction.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Igwe & Ors v. Kalu & Ors (2002) NLC-261996(SC) at pp. 10–11; Paras E–A.
"The failure to consider Issue (5) in the leading judgment in the circumstances stated did not rob the judgment of its efficacy where the said issue was exhaustively considered and resolved against the applicants in one of the concurring opinions. It will be uncharitable on the part of the applicants to contend that Issue (5) was not considered by the Court and that the failure amounted to a denial of fair hearing. The inherent jurisdiction of the court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-argue their appeal."
EXPLANATION / SCOPE
A concurring opinion that resolves an issue cures any omission in the leading judgment. The judgment remains efficacious. Failure to consider an issue is not a denial of fair hearing if another justice addressed it. The inherent jurisdiction to set aside judgments cannot be used as an appellate jurisdiction to re-argue appeals. The principle prevents losing litigants from using applications to relitigate. The court will not allow parties to circumvent finality. The rule applies to all judgments of the Supreme Court. The applicant must show a fundamental defect, not mere omission. The concurring opinion forms part of the court’s decision. The principle promotes finality and prevents abuse.
