Reversed, Set Aside or Overruled? Appellate Terms Explained

Introduction

Judgments and court orders are often described as having been reversed, set aside, nullified, dismissed or struck out. Although these expressions may sometimes appear together, they do not necessarily have the same legal meaning or effect.

The first question is:

What exactly has been affected—a legal principle, a judgment, an order, a proceeding or the outcome of the dispute?

In broad terms:

• a legal principle may be overruled;
• a lower court’s conclusion may be reversed;
• a judgment or order may be set aside;
• a fundamentally defective decision may be declared a nullity;
• a suit or appeal may be struck out;
• a claim or appeal may be dismissed;
• a decision may be affirmed, varied or remitted.

The precise effect depends on the court’s reasons and the wording of its formal order.

Overruled: rejection of an earlier legal principle

A case is overruled when a later court rejects the legal principle or rule established in an earlier decision.

The focus is the earlier case’s authority as a precedent. Overruling does not necessarily mean that the earlier judgment is physically erased or that every consequence of the earlier litigation is cancelled.

For example:

“The Supreme Court overruled the earlier authority.”

This ordinarily means that the legal principle stated in the earlier case is no longer accepted as good law.

Overruling is not the same as reversing

A court generally reverses the result of a particular case before it. It overrules a legal principle established by an earlier case.

It is therefore more precise to write:

“The court overruled the principle stated in the earlier decision.”

Where an appellate court disagrees with the result reached by a lower court in the same litigation, “reversed” or “set aside” will usually be more appropriate.

Overruling and distinguishing

A later court does not overrule every earlier case that it declines to apply. It may instead distinguish the earlier decision because the facts, applicable law or procedural circumstances are materially different.

The distinction is important:

• Overruled: the earlier legal principle is rejected;
• Distinguished: the earlier decision remains relevant but does not govern the present facts;
• Followed: the earlier decision is applied;
• Disapproved: the court expresses disagreement, although the precise legal effect may depend on the context.

Adisa v. Oyinwola: an illustration of overruling and distinguishing

The Supreme Court’s decision in Adisa v. Oyinwola provides a useful illustration of these distinctions. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The case concerned a land dispute and the jurisdiction of the State High Court over a claim involving a customary right of occupancy. The Court held that the High Court had jurisdiction and rejected the argument that section 41 of the Land Use Act had made the jurisdiction of Area or Customary Courts exclusive.

In reaching that conclusion, the Supreme Court departed from the position adopted in Oyeniran v. Egbetola. The earlier legal position was rejected because the Court considered it inconsistent with the constitutional jurisdiction of State High Courts and with the language of the Land Use Act. This was an example of overruling a legal principle, rather than merely reversing the outcome of a particular case. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The Court also considered Salati v. Shehu (opens in a new tab) (1986) 1 NWLR (Pt. 15) 198 and Sadikwu v. Dalori (opens in a new tab) (1996) 5 NWLR (Pt. 447) 151. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The treatment of these authorities demonstrates that a court may deal with earlier decisions in different ways:

• a legal principle may be overruled;
• a statement may be treated as obiter and therefore not binding;
• an earlier decision may be distinguished because it arose under different laws or circumstances.

Thus, a later court does not automatically overrule every authority that it does not follow.

When may a superior court overrule itself?

The doctrine of precedent promotes certainty and consistency. However, the Supreme Court recognised in Adisa v. Oyinwola that it may depart from or overrule its previous decision in appropriate circumstances. ADISA VS. OYINWOLA (2000) (opens in a new tab)

Such circumstances may include where the earlier decision:

• is inconsistent with the Constitution;
• was reached per incuriam;
• is clearly erroneous in law;
• would perpetuate substantial injustice;
• obstructs the proper development of the law;
• produces unjust or unacceptable results; or
• is contrary to public policy.

A decision may be described as having been reached per incuriam where the court failed to consider a statute, statutory rule or binding authority that could have affected the outcome.

However, a court does not ordinarily overrule an earlier decision merely because another argument appears more persuasive. There should generally be a compelling legal reason for reconsidering the earlier authority.

Reversed: correction of the lower court’s outcome

An appellate court reverses a lower court’s decision when it concludes that the lower court reached the wrong legal or factual result.

The appellate court may then:

• substitute its own judgment;
• direct the lower court to enter a different judgment;
• dismiss the claim;
• grant relief to the appellant;
• order a retrial; or
• make consequential orders.

For example:

“The Court of Appeal reversed the judgment of the High Court and dismissed the claim.”

Reversal may be based on:

• an incorrect interpretation of the law;
• a wrong application of legal principles;
• improper evaluation of evidence;
• an erroneous finding of fact; or
• an inappropriate remedy.

Reversal does not necessarily mean nullity

A judgment may be reversed even though the lower court:

• had jurisdiction;
• properly constituted the proceedings;
• heard the parties; and
• complied with the basic rules of procedure.

The appellate court may simply conclude that the lower court reached the wrong conclusion.

This is different from a judgment declared a nullity, where a fundamental defect affects the legal validity of the proceedings.

Set aside: cancellation of a judgment or order

To set aside a judgment, ruling or order is to cancel it or remove its operative legal effect.

A court may set aside:

• a default judgment;
• an ex parte order;
• an interlocutory ruling;
• an order made without proper service;
• a decision reached in breach of fair hearing;
• a judgment affected by procedural irregularity;
• a decision made without jurisdiction; or
• a lower-court judgment overturned on appeal.

“Set aside” is a broad expression

The expression does not, by itself, explain why the decision was cancelled.

A judgment may be set aside because:

• it was wrong on the merits;
• a necessary party was not joined;
• a party was not served;
• there was a denial of fair hearing;
• a mandatory condition precedent was not satisfied;
• the court lacked jurisdiction; or
• the proceedings were conducted on an incorrect legal basis.

The reason must therefore be found in the judgment and formal order.

These statements convey different levels of information:

“The judgment was set aside.”

“The judgment was set aside because the defendant was not served.”

“The judgment was set aside as a nullity for want of jurisdiction.”

The first identifies the result. The others also identify the legal basis for the result.

Setting aside in Adisa v. Oyinwola

The final orders in Adisa v. Oyinwola show why the expression “set aside” must be read together with the court’s reasoning. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The Supreme Court did not set aside the lower-court judgments because the High Court lacked jurisdiction. On the contrary, it held that the High Court had jurisdiction to hear the claim concerning the customary right of occupancy.

The judgments were set aside because the lower courts had misunderstood the plaintiffs’ case and failed to properly evaluate important evidence concerning the alleged grant of the land. The Supreme Court also considered the failure to join the defendant’s family, which was said to have an interest in the land.

Instead of striking out the action, the Court ordered a retrial before another judge and permitted the plaintiffs to apply to join the relevant family and amend their pleadings. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The case therefore demonstrates that:

A judgment may be set aside because the court had jurisdiction but reached its decision through a serious misunderstanding of the pleadings, evidence or applicable legal principles.

Setting aside also does not necessarily mean that the opposing party automatically wins. The court may cancel the earlier judgment and direct that the dispute be heard again.

Nullified or declared a nullity: legal invalidity

A decision is nullified, or declared to be a nullity, when the court determines that it has no valid legal foundation.

The expression usually points to a fundamental defect affecting the validity of the proceedings or decision.

Possible examples include:

• lack of jurisdiction;
• denial of fair hearing;
• failure to satisfy a mandatory condition precedent;
• absence of essential service;
• proceedings conducted by a body lacking legal competence; or
• a fundamental procedural defect that invalidates the process.

Nullity is different from an ordinary appellate error

A judgment may be wrong without being a nullity.

For example, a court may:

• misunderstand the evidence;
• apply the wrong legal test;
• fail to make necessary findings; or
• reach an unsustainable conclusion.

Those errors may justify an appeal and reversal or setting aside. They do not automatically mean that the entire proceeding was void.

Nullity and setting aside may appear together

The expressions describe different aspects of the result:

• nullity describes the legal status of the defective decision;
• set aside describes the operative order removing the decision.

A court may therefore state:

“The judgment is set aside, having been declared a nullity.”

However, Adisa v. Oyinwola should not be described as a case in which the lower-court judgments were declared nullities. The Supreme Court held that the High Court had jurisdiction. The judgments were set aside because of serious errors in the treatment of the pleadings and evidence, not because the proceedings were void for want of jurisdiction. ADISA VS. OYINWOLA (2000) (opens in a new tab)

Struck out: procedural removal without deciding the merits

A suit, appeal, application or process is struck out when the court removes it from its list or record.

A matter may be struck out because of:

• procedural incompetence;
• non-compliance with the rules;
• want of diligent prosecution;
• failure to take a required procedural step;
• improper commencement;
• abuse of process; or
• another procedural defect.

The usual effect of striking out

A striking-out order often means that the substantive dispute has not been determined.

Depending on the circumstances:

• the matter may be recommenced;
• the party may apply for restoration or relisting;
• the defect may be corrected;
• the court may impose conditions for restoration; or
• limitation law may prevent a fresh action.

A matter struck out is therefore not necessarily a matter lost on its merits.

Striking out and Adisa v. Oyinwola

In Adisa v. Oyinwola, the Supreme Court recognised that failure to join parties whose presence was necessary for the determination of the dispute could, in an appropriate case, justify striking out the action. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The Court nevertheless ordered a retrial. It considered that the necessary family could be joined and that a retrial would serve the interests of justice better than terminating the action.

The case illustrates that non-joinder does not automatically require striking out. The appropriate order depends on the circumstances of the case.

Dismissed: termination of a claim or appeal

A claim, application or appeal is dismissed when the court brings it to an end by rejecting it or refusing the relief sought.

Dismissal may occur:

• after a hearing on the merits;
• for failure to prove the case;
• because the appeal is incompetent;
• for failure to prosecute;
• for non-compliance with procedural rules; or
• on another legal or procedural ground.

Dismissal may be substantive or procedural

The word “dismissed” does not always reveal whether the court determined the merits.

For example:

• a claim may be dismissed after the court finds that the claimant failed to establish liability;
• an appeal may be dismissed because the appellant failed to file a brief;
• an action may be dismissed for want of prosecution.

The judgment must be examined to identify the basis of the dismissal.

Dismissal compared with striking out

As a general guide:

• struck out: removed, often without determining the merits;
• dismissed on the merits: rejected after substantive determination;
• dismissed for procedural default: terminated because of non-compliance or failure to prosecute.

The precise effect may depend on the applicable rules and the reason for the order.

Affirmed: confirmation of the lower court’s decision

An appellate court affirms a lower court’s judgment when it agrees that the decision should remain in force.

For example:

“The appeal was dismissed and the judgment of the High Court was affirmed.”

Affirmation may mean that the appellate court agrees with:

• the result;
• the reasoning; or
• the result but for different reasons.

An appellate court may therefore affirm a judgment without endorsing every statement made by the lower court.

Varied: modification of part of a decision

A judgment or order is varied when an appellate court changes part of it while allowing the rest to remain effective.

Examples include:

• reducing damages;
• changing the rate of interest;
• altering the scope of an injunction;
• modifying the duration of an order;
• changing a sentence; or
• correcting a consequential order.

For example:

“The judgment was affirmed but varied as to the award of damages.”

Variation differs from reversal because the appellate court does not necessarily displace the entire lower-court decision.

Vacated and discharged: ending the operation of an order

An order may be vacated or discharged when the court removes it from operation.

These expressions commonly arise in relation to:

• interim injunctions;
• ex parte orders;
• stays of execution;
• freezing orders;
• procedural directions; and
• other interlocutory orders.

Vacated

“Vacated” generally means that the order is withdrawn or cancelled.

Discharged

“Discharged” often means that an interim or protective order is brought to an end.

For example, an ex parte injunction may be discharged after the affected party has been heard. The discharge of an interim order is not necessarily the same as the reversal of a final judgment.

Remitted: sent back for further proceedings

An appellate court remits a case or issue when it sends it back to the lower court for further consideration.

Remittal may be ordered where:

• the lower court failed to determine an issue;
• evidence requires reconsideration;
• the trial was affected by procedural error;
• the appellate court cannot properly make the necessary findings;
• a retrial is required; or
• further proceedings are necessary to give effect to the appellate judgment.

For example:

“The appeal was allowed and the matter was remitted to the trial court for rehearing.”

Remittal in Adisa v. Oyinwola

In Adisa v. Oyinwola, the Supreme Court set aside the judgments of the lower courts and remitted the action to the High Court for retrial before another judge. ADISA VS. OYINWOLA (2000) (opens in a new tab)

The Court also permitted the plaintiffs to apply to join the defendant’s family and amend their pleadings.

The order shows that:

• setting aside cancelled the earlier judgments;
• remittal sent the matter back to the High Court;
• retrial required the dispute to be heard afresh; and
• the case was not finally determined in favour of either side by the Supreme Court.

Retrial: a fresh hearing of the case

A retrial is a fresh hearing ordered after an appellate court has set aside the earlier decision.

A retrial may be appropriate where:

• the trial judge misunderstood the case;
• material evidence was not properly evaluated;
• necessary findings were not made;
• wrong legal principles were applied;
• a necessary party was absent; or
• the interests of justice require the dispute to be reconsidered.

A retrial is not the same as a fresh action. It ordinarily involves the existing litigation being reheard, subject to the directions of the appellate court.

In Adisa v. Oyinwola, the Supreme Court ordered a retrial because the lower courts had not properly understood the plaintiffs’ case or evaluated the evidence concerning the alleged grant of the land. ADISA VS. OYINWOLA (2000) (opens in a new tab)

Expunged: removed from the court record

Evidence, a paragraph, document, submission or process is expunged when it is removed from the record and should not be relied upon in determining the case.

The expression may apply to:

• inadmissible evidence;
• irrelevant material;
• scandalous or abusive averments;
• processes filed without the required leave;
• arguments outside the grounds of appeal; or
• documents improperly included in the record.

Expunging differs from setting aside:

• setting aside affects a judgment or order;
• expunging affects material contained in the court record.

Withdrawn, discontinued and abandoned

Withdrawn

A party may withdraw an application, notice, process or other procedural step, subject to the applicable rules and any order required by the court.

Discontinued

A claimant may discontinue an action, subject to procedural requirements and possible consequences concerning:

• costs;
• a fresh action;
• limitation periods; and
• counterclaims or independent proceedings.

Abandoned

A claim, issue or ground of appeal may be treated as abandoned where a party fails to pursue or argue it.

Abandonment of one ground of appeal does not necessarily amount to abandonment of the entire appeal.

Restored, reinstated or relisted

A matter may be restored, reinstated or relisted after it has been struck out or dismissed, where the applicable rules permit this.

The applicant may need to explain:

• why the matter was removed;
• why the default occurred;
• whether the default was intentional;
• whether the application was made promptly;
• whether the opposing party will suffer prejudice; and
• whether the applicant has complied with the relevant rules.

The procedure may differ depending on whether the matter was:

• struck out;
• dismissed for want of prosecution;
• dismissed for failure to file a brief;
• dismissed for non-compliance; or
• terminated after a decision on the merits.

Restoration is therefore not automatic.

How the terms may appear together

Appellate courts may use two or more of these expressions because each term may describe a different aspect of the result.

“Reversed and set aside”

“The appeal is allowed. The judgment of the lower court is reversed and set aside.”

Here:

• reversed describes the appellate court’s rejection of the lower court’s conclusion;
• set aside describes the cancellation of the lower court’s judgment.

“Set aside as a nullity”

“The judgment is set aside as a nullity.”

Here:

• nullity identifies the fundamental legal defect;
• set aside states the operative order removing the judgment.

“Affirmed but varied”

“The judgment is affirmed but varied as to damages.”

This means that the principal decision remains in force, but part of the relief has been changed.

“Struck out”

“The appeal is struck out for failure to comply with the rules.”

This usually indicates procedural termination and does not necessarily mean that the appellate court considered and rejected the merits of the appeal.

“Set aside and remitted for retrial”

This is the outcome illustrated by Adisa v. Oyinwola. The earlier judgments were cancelled, but the dispute was sent back for a fresh hearing rather than finally determined by the Supreme Court. ADISA VS. OYINWOLA (2000) (opens in a new tab)

Quick-reference table

Practical drafting checklist

Before using one of these expressions, ask:

1. What exactly did the court affect?

Was it:

• a judgment;
• an order;
• an appeal;
• a suit;
• evidence;
• a ground of appeal; or
• a legal principle?

2. Was the decision wrong or void?

An error on the merits may justify reversal or setting aside. A fundamental defect may justify a declaration of nullity.

3. Was the matter determined on the merits?

If not, “struck out” may be more accurate than “dismissed on the merits.”

4. What does the formal order say?

The operative order should be preferred to an informal description of the outcome.

5. Was the matter sent back?

If the appellate court ordered a fresh hearing, the relevant terms may be:

• set aside;
• remitted; and
• retrial ordered.

6. Is the statement about a particular judgment or a precedent?

Use:

• “reversed” or “set aside” for a particular lower-court judgment;
• “overruled” for a legal principle or precedent.

Conclusion

The expressions used in appellate judgments describe different legal effects.

As a general guide:

A legal precedent is overruled; a lower court’s conclusion is reversed; a judgment or order is set aside; a fundamentally defective decision is declared a nullity; and a proceeding may be struck out without a determination on the merits.

A decision may also be affirmed, varied, vacated, discharged, remitted or restored, depending on the court’s formal order and the circumstances of the case.

The safest approach is to look beyond the label and ask:

1. What did the court act upon?
2. Why did it act?
3. Was the dispute determined on its merits?
4. Was the earlier decision wrong, procedurally defective or void?
5. What further proceedings, if any, were ordered?

That approach avoids the common mistake of saying that a court “overruled” a judgment when it actually reversed it, or that a matter was “dismissed on the merits” when it was merely struck out for procedural non-compliance.