The Practice in Nigeria and Other Jurisdictions
The standard practice by appellate courts in Nigeria is that whenever an appeal succeeds and the resultant order has to be that the case has to go back to a lower court for one thing or the other, the appellate court would order a change in the composition of the court below. The Court of Appeal would always order, where a retrial is to be done, that it be done by a different judge. The Supreme Court would order, where the case would be remitted to the Court of Appeal, that it be before a different panel of the Court of Appeal, or before a different judge or magistrate where it has to go all down to the trial court. This is part of fair hearing, to make sure that justice is not only done but be manifestly seen to be done. In Obikoya v. Wema Bank Ltd 1 NWLR (Pt. 96) 157, the Supreme Court ordered, per Craig JSC in the lead judgement:
“In view of my observation that the lower Court appeared to have decided the main issue which would be raised in the proposed appeal, and in order that the parties may be given a fair hearing, it is further ordered that the proposed appeal shall be heard by a different panel other than that which sat on the Motion.”
Would the Supreme Court apply a different standard to itself? Would it, despite the controversy now raised in Uzodinma v. Ihedioha (No. 2) on the apparent if not actual likelihood of bias, deviate from its time-worn practice? Would the same panel that sat to decide Uzodinma v. Ihedioha (No. 1) objectively sit and hear an application to set it aside on the grounds now before the Court and be free from an objective charge that the principles of fair hearing was not observed or that the justices sat to decide their own cause? Whereas it is not their case, can it be said that they have not acquired a cause in that judgement?
In terms of panel composition, there is a difference between when a court sits to review its judgement to correct mistakes under the slip rule and when it sits to review its judgement with a view to setting it aside if found worthy. In the earlier, there is virtually no reason for a change of judge or panel. In fact, it may be argued that a review under the slip rule cannot be done by a different panel or judge other than the one that gave the judgement in the first place. In Barrister Oriker Jev & Ors. v. Iyortom & Ors.  NWLR (Pt. 1483) 484 the Supreme Court by the same panel that gave a judgement varied its consequential order when it discovered that it had misinterpreted a particular section of the Electoral Act. This was done under its slip rule contained in Order 18 Rule 16 of the Supreme Court Rules which allows it to vary its order “to give effect to its meaning or intention”. Although it can be argued that that variation was actually a consequence of the Court discovering that it acted per incuriam (without advertence to the law, in this case the proper interpretation of the law) and that it should not have come under the slip rule but on the broader inherent power of the Court to set aside its own judgement or order, the important thing here is that it acted under the slip rule and saw no reason for a different panel.
There are other factors which would, on proper analysis, distinguish Jev’s case from other situations that would clearly require a different panel. These are:
(a) The application to review was directed at the consequential order but not on the findings of fact.
(b) There was an unanimity between the court and counsel that a correction ought to be made. From the concurrent judgement of Mahmud Mohammed, JSC it is clear that it was in fact the Court that instigated the application by counsel. His observation, after citing Oputa JSC in Adegoke Motors Ltd. v. Adesanya (1986) 3 NWLR (Pt. 109) 250, at 274 and noting that it was Oputa JSC’s dictum in the case cited that inspired the inclusion of Order 18 Rule 16 of the Court’s Rule, is important to be quoted in extenso:
“it is not the learned Senior Counsel to the applicant himself who raised the question that our consequential order of 30/5/2014 in the present case was given per incuriam but it was the Justices themselves that saw the problem and rose earnestly to tackle it headlong. This is because the consequential order to conduct another election rather than ordering the 1st Respondent/Applicant to be issued with a Certificate of Return and be sworn in immediately to occupy his seat in the House of Representatives representing Buruku Federal Constituency of Benue State, was made without recourse to the propositions of Section 133(2) of the Electoral Act (2010) which clearly defined the words “tribunal’, and “court” as used in Section 141 of the same Electoral Act, upon which the Court order was predicated. Therefore, in order to avoid doing incalculable harm to the 1st Respondent/Applicant, this application deserves to succeed. This is particularly so in order to avert injustice in this case when the sister case from the same Buruku Federal Constituency also containing the Buruku Constituency of the House of Assembly of Benue State where the same political party, C.P.C. now A.P.C refused to forward the names of successful candidates in primaries conducted by it to INEC to contest election resulting in pre-election proceedings that ended in this court with victory to the Respondent who had since occupied her seat in the Benue State House of Assembly from Buruku Constituency on the orders of this court in our Judgment given on 31/1/2014 in the case No. SC.193/2012, ORHENA & 1 OR v. MRS. NGUNAN ADDINGI & I OR.”
(c) As noted in the above dictum of Mahmud Mohammed JSC, the Court wanted to bring harmony between two-sister cases where it made disparate consequential orders, a situation that would have resulted to a charge of double standards against the Court. This last point should be a strong point in the ultimate decision by the Supreme Court which is now clearly faced with this same accusation, considering its earlier holdings in recent cases on issues similar to that decided in Uzodinma v. Ihedioha (No. 1).
It is therefore clearly the case that where an application before the Supreme Court is to set aside the substantive judgement on any of the grounds which the Court by its jurisprudence has stated it could be done, it is absolutely necessary for not only the appearance of justice but for fair hearing that a different panel hear and determine the application. That is the practice. The Supreme Court got it right in Olorunfemi v. Asho (Suit No. SC. 13/1999), a very relevant but unreported case which was discussed in another Supreme Court case of Chief Kalu Igwe & 2 Ors v. Chief Okuwa Kalu & 3 Ors  14 NWLR (Pt.787) 435; (2002) LPELR-SC.26/1996. In Olorunfemi v. Asho (supra), the Supreme Court set up a different panel to hear an application to set aside its earlier judgement.
The panel composition is not something to be toyed with. It is as important as the decision itself, because the panel composition is what would define the appearance that justice was or was not done. In Re Pinochet II (supra), Lord Browne-Wilkinson cited Lord Campbell in Dimes v. Proprietors of Grand Junction Canal (supra), at 793:
“ … my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.”