When a Court May Set Aside Its Own Decision

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By Fiyinfoluwa Oyelade


Upon conclusion of evidence and final address, a court is meant to deliver its judgment. Upon delivery of judgment at the end of trial, the court becomes functus officio in the suit. The judgment of the court binds not only the parties to the suit, but the court itself. This reasoned decision can as a general rule be set aside on appeal to a higher court, however, there are instances cognizable to law, where the court may set aside its own decisions. This work aims to examine court decisions, their nature, when they can be set aside and other consequential matters.


The Constitution defines ‘ decision’  as any determination  of a court and includes judgment,   decree, order, conviction, sentence or recommendation.[1] A decision is a judicial determination after consideration of facts and the law; especially a ruling, order or judgment pronounced by a court when considering or disposing of a case.[2] In Umar v. Onwudine ,[3] a’ decision of court’ was held to be a determination of that court in proceedings before the court and it is said to include and cover the determination of an application before it but does not include an observation or expression of opinion by the court not related to issues joined by the parties in dispute. It is clear from these definitions that ‘decision’ includes ‘judgment’ and a ‘final decision’ is and includes a ‘final judgment’. The definitions also admit of the ruling of a court on a particular issue or an application. The Supreme Court in Contract Resources Nigeria Limited v. Standard Trust Bank,[4] held that, the law is well established and therefore held as trite that the use of the words, ‘judgment’ or ‘ruling’ both connote a decision of court. Hence, a judgment is a court’s final determination of the rights and obligations of the parties in a case and it includes an equitable decree and any order from which appeal lies.[5] A judgment is the reasoned and binding decision of the court upon conclusion of the matter before it. For a judgment to be valid, it must possess the following attributes:

  • It must be in writing: This is mandatory for all superior courts of records (including adoption of opinions). The Constitution provides that all judgments of superior courts must be in writing.[6]In Adeyeye & Anor v. Ajiboye & Ors,[7]it was held that no superior court can deliver an oral judgement, no matter how well considered. The judgement must be written by the judge himself. The judge is not allowed to deliver judgment and write later.
  • It must be delivered in open court: There are however, special circumstances where judgment may not be delivered in an open court.[8]
  • The judgment must properly evaluate evidence.
  • It must be delivered within 90 days of final address: However, the decision of a court shall not be a nullity solely on this ground unless it is shown that there is a miscarriage of justice.[9]
  • The judgment must contain reasons for it, where it is a high court.
  • It must show a clear resolution of all issues brought before the court and end up with a verdict which flows logically from the resolution of the issues, having considered all the evidence adduced at trial.
  • It must be obtained from the weighing on imagination scale.
  • It must be fit for what is claimed or less and not more.
  • It must be signed by the judge who wrote it, otherwise it is invalid. 
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Consent judgment: This judgment is entered pursuant to an agreement between the parties. In  Woluchem v.Wokama[10], it was held that in order to have a consent judgement, the parties must be ad idem  as far as the agreement is concerned. Their consent must be free and voluntary; the terms of settlement must be filed in court. When the court makes an order based upon such terms of settlement, there emerges a consent judgment. A consent judgment is a final judgment and parties can only apply by leave of court. A third party can apply for a consent judgment to be set aside for fraud, mistake or duress.

Default judgment: This judgment is given by the court where a party fails to do what is required by law to do. It is not a judgment on merit and can be set aide by the same court where an application to set same aside is timeously brought. It can be set aside where the applicant can prove fraud, non- service or lack of jurisdiction.

Final judgment : This is one that disposes of the rights and liabilities of the parties finally in a suit. A court becomes functus officio after judgment and the judgment binds the parties.

Interlocutory judgment : This is one judgment given during the pendency of a suit, which does not finally determine the rights of the parties.

Declaratory Judgment: This is the judgment that declares right of parties without ordering anything to be done or awarding damages. A declaratory judgment cannot be stayed, enforced or executed because it only declares the rights of the party seeking it.

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Executory judgment: This declares the rights and duties of the parties to an action and also includes a binding order on the defendant. Example includes: payment of damages, vacation of premises, etc.

Summary judgment: is a judgment is said to be a judgment given in favour of a plaintiff without a plenary trial of the action because the defendant has no defence to the matter. In Sodipo v. Leminkaimen,[11] the court held that summary judgment is for disposing with dispatch, cases which are virtually uncontested.

Non-suit : A non-suit order is made where on the facts of the case, there is no satisfactory evidence that entitles neither the plaintiff nor the defendant to the judgment of the court. The court may suo moto or upon an application to non-suit the claimant.


A decision of a court of law, no matter how incorrectly arrived at, subsists until set aside by a competent court.[12] In Emenike v.Orji,[13] the phrase ‘set aside’ in relation to a decision of court was defined  to mean to annul or vacate the decision, It is to state that a court decision is not legally valid.[14] In Craig v. Kanseen,[15] the court held that a court order can be set aside if it is a nullity. In Akinbobola v. Plisson Fisko (Nig) Ltd,[16] the court held that any decision which is a nullity owing to failure to comply with an essential provision such as service of process, fraud, want of jurisdiction or clerical mistakes from accidental slips can be set aside by the court which gave the order. It follows that where fraud, non service, lack of jurisdiction can be proved, the whole proceeding becomes a nullity and the court has the power to set aside the decision.


This is a ground where a court may set aside its own decision. However, the procedure for applying that a decision be set aside on ground of being obtained by fraud is of an exceptional nature.The decision on this ground can only be set aside against those who procured it by fraud.[17] Where the decision is obtained by fraud or deceit either in the court or of one or more of the parties or where it is obvious that the court was misled into giving judgment under a mistaken belief that parties consented to it or where the procedure adopted is such as to deprive the decision of the character of legitimate adjudication, such a decision can be impeached or set aside by means of action which may be brought without leave.[18]

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There is a legal requirement of service of originating processes, whether personal or by substituted means on the defendant. This is done to bring to the notice of  defendant in action, the knowledge and existence of a pending suit against him. And for him to prepare and defend the action adequately. Where service is not effected, it goes to the root of the matter. The Supreme Court in Eke v. Ogronda,[19]  held that failure to serve originating processes on the defendant is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae  to have the order set aside as a nullity.


In Madukoli v. Nkemdilim,[20] it was held that jurisdiction is very fundamental to a suit. It relates to the power, authority and right that a court has to entertain, hear and  determine a matter brought before it. Where a court is in want of jurisdiction, the proceeding becomes a nullity, the same as decisions therefrom. So, where a court lacks jurisdiction, any decision given by it in want of jurisdiction can be set aside by it.

Conclusively, the court may set aside its own decision where issue of fraud, lack of service of court processes, or lack of  jurisdiction over the matter has been raised and proved. That decision that is set aside becomes a nullity.

Fiyinfoluwa Oyelade can be reached at oyeladeoluwatomisin@gmail.com


[1] Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended); Omonuwa v. Oshodin (1985) LPELR- 2654 (SC)

[2] Black’s Law Dictionary 7th Edition

[3] (2002) 10 NWLR (Pt.774) p,129

[4] (2013) LPELR-19934 (SC)

[5] Black’s Law Dictionary, 9th  Edition

[6] Section 294(1) Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[7] (1987) 7 SC 1 at 22

[8] Section 36(4) Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[9] Ibid   Section 294(5)

[10] (1974) 1 All NLR (P.t1) 605bat p.616

[11] (1986) 1 NWLR 220

[12] Nwangwu v. Ofoegbu (2003) 7 NWLR (Pt. 820) 496


[14] Oxford Advanced Learners’ Dictionary, 5th Edition.

[15] (1943) K.B. 256

[16] (1991)  1 NWLR (Pt. 167) 270

[17] Tiv v. Wombo (1996) 9 NWLR (Pt. 471) 16

[18] Barrister Oriker Jev & Ors v. Iyortom & Ors (2015) NWLR (Pt. 1483) 484

[19] (2007) All FWLR (Pt. 351) 1456 at 1482

[20] (1962) 1 ALL NLR 187


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