A HOLISTIC APPRAISAL OF THE CONCEPT OF JUDICIAL DISCRETION UNDER

THE NIGERIAN JURISPRUDENCE

CHAPTER ONE: INTRODUCTION

1.0 Background to the Study

Black’s Law Dictionary1 defined Judicial discretion refers to the exercise of judgment by a judge

or court, taking into account what is fair given the specific circumstances and guided by the

established rules and principles of law. It is the court's authority to decide whether or not to take

action when a party does not have an absolute entitlement to demand such action. 2 According to

Abhulimhen-Iyoha, Judicial discretion refers to the authority to select between different options

or the ability to make official decisions based on logical reasoning and judgment in order to

choose from acceptable alternatives.3 The Supreme Court in Celtel Nig B.V v ECONET Wireless

Ltd & Ors4 held that discretion knows no bounds and in its general usage, it is that freedom or

power to decide what should be done in a peculiar situation. 5 A more befitting definition for this

thesis as stated in Airhiavbere v. Oshiomhole & Ors:6 is that discretion of a Court or judge is the

power or right conferred by the law, on a Court to act in certain circumstances, according to the

dictates of the judge's or court's own judgment and conscience, uncontrolled and unfettered by

1
Black’s Law Dictionary, op cit:1405-1406
2
See Akinyemi v Odu’a Inv. Co. Ltd (2012) LPELR 3270(SC) 39
3
Abhulimhen-Iyoha, A (2015) Judicial Discretion of Judges in Criminal Cases in Nigeria: Prospects and
Challenges; 2-3
4
(2014) LPELR 22430(CA)
5
“It is indeed a type of amour, speaking metaphorically, which a judge should and ought to employ judicially and
judiciously whenever the need arises”. See Ajuwa v. SPDC Ltd. (2011) 18 NWLR (Pt.1279) 787. See also Odusote
v. Odusote (1971) All NLR 219; Olatubosun v. Texaco Nigeria Plc (2012) 14 NWLR (Pt.1319) 200; Achi v.
Ebenighe (2014) 4 NWLR (Pt.1397) 380.
6
(2012) LPELR-19787(CA)
the judgment or conscience of others. 7 Also, in UBN Plc. v. Astra Builders (W.A.) Ltd 8, the court

states that an exercise of discretion is an act or deed based on one’s personal judgment in

accordance with one's conscience, free and unfettered by any external influence or suggestions.

Per Adekeye JSC defined the exercise of judicial discretion as an antithesis to the doctrine of

stare decisis.9

Judicial discretion is a very broad concept because of the different kinds of decisions judges

make and the different limits placed on these decisions. 10 A judge is constantly called upon to

exercise his/her discretionary power in the judicial process. 11 And there are times when, because

our laws do not provide any direction, the court is confronted with a situation that is similar to

clay or play-doo, in which the judge shapes his or her own view, ideas, or perception of the law

and gives it an appropriate interpretation. This kind of molding is known as judicial discretion,

and it is the process by which a judge interprets statutes in the manner that the judge believes

they should be (it is about what the judge considers to be right and just), taking into account the

circumstances that are present in a particular case. 12 The choice of deciding which canons of

interpretation to apply in any set of circumstances is a discretionary measure of the court which

should be exercised judiciously and judicially.

When it comes to the proper administration of justice, judicial discretion is an extremely

important tool. Taking into consideration its function and the benefits it provides; it is

undeniably a sacred power that enables the judge to express unrestricted opinions in cases that
7
See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10; Johnbull Adams Nig. Ltd & Ors. v Isoko
Community Bank Ltd (2013) LPELR-20730(CA)
8
(2010) LPELR-3383(SC)
9
Ibid:28
10
Kana, A.A (2014) Perspectives and Limits of Judicial Discretion in Nigerian Courts, op cit: 160
11
Tobi, N opcit:128
12
Which could also be social interests and views
are appropriate and justify them. It is essential, however, that this discretion be exercised within

the bounds of the law in order to arrive at a decision that is fair. It is therefore an opportunity for

the judge to demonstrate that he or she has taken the judicial oath of office. According to section

6(6) (a) of the 1999 Constitution, "the judicial powers vested in accordance with the foregoing

provisions of this section-shall extend, notwithstanding anything to the contrary in this

Constitution, to all inherent powers and sanctions of a court of law…." Pursuant to this

provision, Nigerian courts take the latitude to carve an inch to guide their use of discretion.

Accordingly, Judges have formulated basic principles based on respective “documentary" and

historical sources to support judicial evolution and adventures. 13 An example is section 45 (1) of

the Interpretation Act that empowers the courts in Nigeria to apply the Common law of England,

the doctrine of equity together with the statues of general application in resolving disputes in

Nigeria. Practically, the Constitutional powers of Courts in Nigeria are similar to that of the

United States of America (U.S). In the case of U.S v Noriega14 the court noted that trial judges

have broad discretion to take steps to ensure that Sixth Amendment rights of criminal defendants

are protected.15 The concept of discretion even in its legal usage implies power to make a choice

between alternative courses of action, therefore where and when it is tested, it follows that there

is really no absolute answer to the solution of the problem. As Per Adekeye JSC stated

above16,“…there is no hard and fast rule to the exercise of a judicial discretion by a court for if

that happens a discretion becomes fettered.” 17 The discretionary power of a judge is power other

13
See Ugoji & Ors v. Iwuagwu (2013) LPELR-20810(CA)
14
917 F.2d 1543 (11th Cir. 1990)
15
Although the Court also noted that the discretion the court wrote includes steps that might negatively affect First
Amendment interests.
16
(2010) LPELR-3383(SC)
17
See Iwuju v Federal Commissioner for Establishment and Anor (1985) LPELR-1568 (SC)
than the inherent power.18 Judicial discretion can only be exercised in accordance to the

requirements of law and the justice of the case. So, the judge is not at liberty to act according to

his judgment willy-nilly.19 In other words, judicial discretion is not a judge’s free ticket to act as

he or she pleases.

However, Legal decision making can never be reduced to geometric precision, as there is no

doubt that all legal formulations are subject to some judicial interpretation. Nonetheless, the

scrutiny structure as presently articulated leaves wide latitude for lower courts to reach almost

any result with little substantive guidance from above. 20 Hence, every judge, especially the trial

court judge has a level of discretion that he/she must exercise, no matter how fettered or

unfettered, there is a tiny window of liberty in any case. No doubt, guidance from superior courts

is highly necessary. Therefore, the discretion of a judge is unavoidable because the law cannot

anticipate every eventuality or how to decide which law may apply to a given situation. 21 Judicial

discretion is indispensable in Nigeria society, which has a range of inequalities, and diverse

people with different tribes/races, just like the American society. So, for courts to attend to all

these people and the needs of society, the discretion of the court is highly necessary.

Note that, judicial discretion shapes the jurisprudence of the court’s interpretation of statutes and

puts a face to the law. Thus, and very importantly, such discretion only makes sense when the

parties/society understands, appreciates, and acknowledges it as fair and just. Another value of

discretion is that it operates/evolves with the times and depicts reliance to society. It states or

underscores the relevance of the judiciary to social justice and democratic development-a
18
“Which means that power which is itself essential to the very existence of the court as an institution. They are the
powers the court is born with, more or less and such powers can only be exercised in respect to matters within the
court’s jurisdiction” Tobi, ibid: 124-125
19
Ibid
20
Bunker, opcit:124
21
Abhulimhen-Iyoha, opcit
fundamental tool in this era of somewhat ‘unrestricted’ liberties and diverse social interests. 22

The discretionary powers of judges arise in the final analysis in filling up gaps that have resulted

from legislative omission. There are some social issues that are not fully covered by existing

legislation that needs discretion to flesh out through proper interpretation. Thus, in the absence of

precedent, where there are extenuating circumstances, judges apply unfettered discretion. Such

discretion eventually helps to form the basis for precedent, and eventually establishes precedent.

Therefore, judicial discretion helps to advance the law and develop legal jurisprudence. No

single judge can boost of complete mastery of the law. Discretion creates the beauty of diverse

knowledge and experiences from different judges because it is individualistic. As different

judicial discretion with idiosyncratic judging philosophies evolves, with the times and seasons,

the law develops. Judicial discretion also saves judicial and legislative time. Where there is no

precedent or guidance on what to do, the judge’s discretion can save everyone involved valuable

time. A ready example is Commissioner of Police v Jelilie Lawal & Kehinde Oyelara.23 where

discretion became vital. This case involved threat to life and the cell phone which contained the

alleged threats could not come on. Thus, this, affected her review of evidence. Hence, in the

absence of a provision in the Evidence Act or any other law stipulating what to do in such

instance, the judge exercised discretion and asked that the phone be charged before both parties

in open court. Unfortunately, the phone could not come on and the court adjourned to rule on a

no-case submission.24

Further, note that judicial discretion is not an absolute power; hence it has its restrictions, though

limited. The point is in Nigeria sometimes it appears judicial discretion is exercised within broad
22
Where people have freedom to exercise their rights in such a way that it infringes on the rights of another. An
example is the freedom of expression of the press.
23
(Unreported), Charge No. L/8/2009.
24
See Vanguard Newspaper (September 1, 2009), Opcit
legal and social context that it can be taken that it is unfettered, to the extent that the judge is the

determinant of what the law is. When a judge exercises his/her discretion, they have an area of

autonomy free from strict legal rules, in which the judge can exercise his judgment free from

technicalities, to ensure justice in relation to the peculiarities of the case before him/her. This is a

convenient space to bring in the argument on fettered or unfettered discretion of the courts. There

are two classes of arguments, the first is that the discretion of judges are absolute and the second

is that judges do not and cannot exercise absolute discretion. According to Niki Tobi, the

moment a trial court is called upon to exercise his discretionary power in accordance with the

enabling law, judiciously and judicially, it will not be correct to say that the court has an

unfettered discretion in the matter.25 Over the years, judicial pronouncements in Nigeria have

developed and constantly made both arguments. While some judges believe judicial discretion in

Nigeria is fettered, others believe discretion is unfettered. 26 In Mohammed v. F.R.N. & Ors27. the

court held that where the discretion of a judge is required to do or omit to do anything, that

discretion when exercised, is not absolute. It can be challenged if a party feels injured by it or if

it will affect a person’s right to freedom or as to show that the discretion has not been judiciously

exercised.28 But in Awani v. Erejuwa,29 it was held inter alia that discretion conferred upon trial

courts is generally unfettered and an appellate court cannot ordinarily interfere with the exercise

of the discretion unless it is shown that the discretion was wrongly exercised." This was

supported by the court in Aso Motel Kaduna Ltd. v. Deyemo,30 that it is trite law that all courts in

25
Tobi, N, opcit:129
26
See cases below
27
(2009) LPELR-8364(CA)
28
Ibid.
29
11 (1976) H SC 307
30
(2006) LPELR-11596(CA)
Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in

order to do justice to the suit. The guiding principle is that the discretion must be exercised at all

times judicially and judiciously on the material placed before the court in the peculiar

circumstances of the particular case.31 It is important to note that the type of court, 32 the

proceedings,33 the nature of the case,34 the stage of the hearing,35 all somewhat determine whether

a court has fettered or unfettered discretion. For example, in Nwannewuihe v. Nwannewuihe,36

the court has an unfettered discretion to grant or refuse as the case may be, an order of

interlocutory injunction. Albeit like all other judicial discretions, the court has an obligation to

exercise such discretion not only judicially but also judiciously. 37 Also in Stabilini Visinoni Ltd

v. Mallinson & Partners Ltd,38 the court emphasized that bottom line is that a court has an

absolute and unfettered discretion to award costs or not to award them; what is paramount is to

take into account all circumstances of the case.39 Further, in Plateau State Health Services
31
See Flour Mill of Nigeria Ltd v. Ogunbayo (2014) LPELR-24264(CA)
32
See Mobil Producing (Nig) Unltd v Ajanaku & Ors (2007) LPELR-8758(CA) “it has become trite law that all
superior courts of record have unfettered discretion in the exercise of their equitable jurisdiction to stay their
proceedings. The same unfettered discretion avails the appellate courts to stay not only their proceedings but the
proceedings of the courts from which the appeals pending in the appellate courts arose. This discretion must
however be exercised judicially and judiciously"
33
See Awure & Anor. v. Iledu (2007) LPELR-3719(CA) “trial courts are allowed free hand to exercise their
discretion to amend any pleading any time before judgment provided no issues have been introduced.”
34
See Iche v. State (2013) LPELR-22035(CA) “a judge of the High Court trying an accused person has unfettered
discretion to review the bail.”
35
In IPCO Nigeria Ltd. v. NNPC (2013) LPELR-22083(CA) this court has an unfettered discretion to allow an
amendment of the Notice of Appeal at any time before the hearing of the appeal.
36
(2007) LPELR-8247(CA)
37
See Falomo v. Banigbe (Supra) at 695 paragraphs C - G.
38
(2014) LPELR-23090(CA)
39
See Total Engineering Services Team Inc. v Chevron Nigeria Ltd. (2010) LPELR-5032(CA) I would further wish
to restate the trite law that a court has an absolute and unfettered discretion to award or refuse costs in any
particular case but that the discretion must be exercised judicially and judiciously
Management Board & Anor. v. Goshwe40 a court has an unfettered discretion to re-arrange an

issue for determination by the parties to meet the case. 41 And in Honey Crown Products Ltd v

Shell Electric Manufacturing,42 the court held that a Judge is vested with unfettered discretion,

but when such discretion is exercised erratically, it then fetters the parties before it. 43 In summing

up the above argument, it appears in the most part that whether a judge’s discretion is fettered or

unfettered varies, depending on the nature of the case. In the US, it appears discretion swings

depending on the case or court. According to Smithburn sometimes discretion is fettered

sometimes it is not fettered.44 In family law or child custody case, for example, discretion is

unfettered as the best interest of the child is what determines the level of discretion a court can

apply. Although at a time in history, American courts had unfettered discretion in sentencing of

persons convicted with crime as judges took into account various mitigating factors. However,

with the Federal Sentencing Guidelines, and the mandatory minimum sentencing legislation,

federal courts in the U.S no longer had the broad latitude or discretion to make sentences to fit

crimes and the defendant as before.45 In other words, the legal framework in both Nigeria and the

U.S gives judges huge discretion, depending on the type of case. 46 Courts in the U.S have great

40
(2012) LPELR-9830(SC)
41
See Awojugbagbe Light Industries Ltd. v. P. N. Chinukwe & Anor (1995) 4 NWLR (Part 390) 379; (1995) 4 SCNJ
1; Latinde & Anor. v. Bella Lajunfin (1989) 5 S.C. 59; (1989) 5 SCNJ 59; Unity Bank & Anor. v. Edward Bonari
(2008) 2 SCM 193 At 240.
42
(2013) LPELR-20077(CA)
43
See Okoh & Ors. v. University of Lagos & Anor. (2010) LPELR-4719(CA)
44
See Smithburn, (2006), opcit
45
Kana, opcit:160
46
Family laws cases
discretion in rulings concerning the examination of witnesses, the manner in which witnesses

testify as well as the actual testimony,47 but it must be tempered with reason.48

Ultimately, though not precise, Nigerian courts seem to have more unfettered discretion than

fettered. In view of the leverage section 6 of the 1999 Constitution grants judges to exercise their

discretions, and coupled with the argument on the dangers of this 'latitude' of discretion allowed

a judge; courts have devised a concept/principle to regulate the extent of discretion allowed a

judge, which stipulates that judicial discretion is somewhat fettered must be exercised

"judiciously and judicially"49 Thus Niki Tobi’s argument that it is wrong to say a judge has

unfettered discretion in all matters, would be appropriate.50 Yet, what is equally appropriate is the

submission of Per Georgewill, JCA, that an exercise of discretion, though not subject to so much

hard and fast rules or fettering, loses its salt of being a discretion and thus it is best served

unfettered.51 To this end, this research aims to holistically appraise the concept of judicial

discretion under the Nigerian jurisprudence.

1.1 Statement of the Problem

Judicial discretion is a concept that has come to stay in our justice system. However, it has been

a subject of commendation and condemnation over the years. Be that as it may, judicial

discretion has been judicially defined as: “that discretion of a Court or judge is the power or right

conferred by the law, on a Court to act in certain circumstances, according to the dictates of the

47
See Louisiana v. Hayes, 806 So.2d 816 (La. App. 2001.)
48
Montana v. Nelson, 48 P.2d 739 (Mont.2002); Willard v. State, 244 Ga. App. 469, 535 S.E.2d 820 (Ga.App.
2000).
49
Kana, opcit :161
50
Prestidge, A (2010) "Semantic Change in Supreme Context: Semantics in the Privacy Line and Originalist
Interpretation," Brigham Young University Prelaw Review: Vol. 24, Article 26, opcit:120-122.
51
Adelaja v. C.M.S. Grammar School Bariga & Ors (2017) LPELR-42729(CA) at 11
judge's or court's own judgment and conscience, uncontrolled and unfettered by the judgment or

conscience of others.”52 The mere fact that judicial discretion is largely unfettered makes it

difficult to really put it into context in a number of situations.

The popular cliché that justice must not only be done, but must be seen as being done by

onlookers becomes questionable because to many on lookers, the exercise of judicial discretion,

which is often exercised judicially and judiciously, becomes difficult for them to comprehend.

Does this lack of understanding cast any aspersion on our justice system? This thesis will in this

regard examine the concept of judicial discretion, the factors that guide judges in reaching their

discretion, limitations to the exercise of judicial discretion, and other factors including the

historical evolution of the concept of judicial discretion.

1.2 Aim and Objectives of the Study

The general aim of this research is to holistically appraise the concept of judicial discretion under

the Nigerian jurisprudence. To address this topic in its entirety, the following objectives must be

given attention. Therefore, this study will seek:

a. Investigate the historical development of judicial discretion in Nigerian jurisprudence.

b. Examine the legal framework governing judicial discretion in Nigeria.

c. Analyze case law to understand how judicial discretion is exercised in practice.

d. Evaluate the impact of judicial discretion on legal certainty, justice, and the rule of law in

Nigeria.

e. Compare Nigerian judicial discretion with international legal standards

52
See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10; Johnbull Adams Nig. Ltd & Ors. v Isoko
Community Bank Ltd (2013) LPELR-20730(CA)
1.3 Research Methodology

The research methodology for this study involves a systematic approach to investigating the

topic through Literature Review, case analysis, comparative analysis and legal framework

evaluation.

The research will commence with an extensive literature review to gather existing knowledge,

theories, and perspectives on judicial discretion in Nigerian jurisprudence. This review will

encompass academic articles, legal texts, case law, and relevant publications to establish a solid

foundation for the study.

The methodology will also involve an in-depth analysis of judicial decisions and case law related

to judicial discretion in Nigerian courts. By examining specific cases where judicial discretion

was exercised, the study aims to identify patterns, trends, and challenges in the application of

discretion by judges.

Again, the research will critically evaluate the legal framework governing judicial discretion in

Nigeria. This evaluation will involve a detailed examination of relevant legislation, constitutional

provisions, and judicial guidelines that shape the exercise of discretion by judges within the

Nigerian legal system.

Lastly, a comparative analysis will be conducted to compare the concept of judicial discretion in

Nigerian jurisprudence with international legal standards. This comparative approach will

provide insights into how judicial discretion is practiced in Nigeria relative to other legal systems

globally.

1.4 Justification of the Study

This study is significant for a number of reasons. First of all, it will contribute to the body of

knowledge on the topic of discourse, thereby, enriching literature. Also, by delving into the
concept of judicial discretion, the study aims to provide a comprehensive understanding of how

judges exercise their judgment based on fairness and legal principles. This analysis is crucial for

legal practitioners, policymakers, and academics to grasp the nuances of decision-making within

the Nigerian legal framework.

Again, this research will evaluate the legal framework governing judicial discretion in Nigeria,

shedding light on the principles and rules that guide the exercise of discretion by judges. This

evaluation is essential for ensuring that judicial decisions align with legal standards and

principles. This study will also assess the impact of judicial discretion on legal certainty, justice,

and the rule of law in Nigeria. Understanding how judicial discretion influences legal outcomes

is vital for upholding justice, ensuring consistency in legal decisions, and maintaining the rule of

law within the Nigerian jurisprudence.

Also, by comparing Nigerian judicial discretion with international legal standards, this study

aims to provide insights into how the Nigerian legal system aligns with global practices. This

comparative analysis can help identify areas for improvement and ensure that Nigeria's judicial

system meets international legal norms.

Lastly, this research will explore the challenges associated with judicial discretion in Nigerian

courts and propose remedial approaches to address these challenges. By identifying issues such

as inconsistency, uncertainty, bias, and abuse of power, the study can contribute to enhancing the

administration of justice in Nigeria.

1.5 Conceptual Framework

The resolution of a matter based on the discretion of the court must depend on the facts

and circumstances of each case 53. This takes us to the need to briefly examine certain

53
See Senate President v. Nzeribe (2004) 41 W.R.N 39 at 45.
avenues of judicial discretion and peculiar parameters guiding the exercise of such powers

in each incident, situation and case, approaching the argument from juxtaposed angles of

anti and pro judicial discretion at this stage would afford us the benefit of the

assimilating the respective contexts. This is best understood from the varied definitions offered

by scholars and lawyers.

Isaacs54 explains that on matters of discretion of the court, lawyers are often confronted

with two series of dicta that are repeated with but little variation almost as a matter of

course. First, there is that group which decries discretion as the rule of tyranny and would

limit it in every possible way. A distinction is drawn between discretion in the ordinary

sense and judicial discretion, which is said to be “legal” or regulated by rule. ... discretion herein

is the art of being circumspect, wary and discrete in a bid to arrive at a reasonable and

plausible judgment.55

Black’s Law Dictionary56 has this to say;

Judicial and legal discretion - these terms are applied to the discretionary action

of a Judge or court, and mean discretion bounded by the rules and

principles of law, and not arbitrary, capricious, or unrestrained. It is not the

indulgence of a judicial whim, but the exercise of judicial judgment, based on

facts and guided by law, or the equitable decision of what is just and proper

under the circumstances. It is a legal discretion to be exercised in discerning the

course prescribed by law and is not to give effect to the will of the judge, but

to that of the law. The exercise of discretion where there are two alternative

54
Nathan Isaacs, “The Limits of Judicial Discretion” vol 32 The Yale Law Journal, No 4 (Feb., 1923), pp. 339-352.
55
See Ezinwa V. Agu (2003) 33 W.R.N 38 at 35 (Per Fabiyi, JCA).
56
5th Edition at page 419.
 provisions of law applicable, under either of which court could proceed. A liberty

or privilege to decide and act in accordance with what is fair and equitable under

the peculiar circumstances of the particular case, guided by the spirit and

principles of the law.57

Discretionary power means the power to choose between different options, when each option is

viable within the framework of the law. Where there is no choice, there can be no discretion.

Thus, when the language of a legal text mandates the court to act in a certain way, the court has

no choice and has to act accordingly.58

The word “discretion” when applied to judicial officers, is defined in Black Law Dictionary, as

meaning:

"A power or right conferred upon them by law of acting in certain

circumstances, according to the dictates of their own judgment and conscience,

uncontrolled by the judgment or conscience of others. It connotes action taken in

light or reason as applied to all facts and with view to rights of all parties to

action while having regard for what is right and equitable under all

circumstances and law.59

It follows, therefore, that a judicial officer saddled with the responsibility of exercising discretion

is required to arrive at the decision in every case or situation based on the facts placed before him

in the very case and apply the applicable law. His decision is therefore likely to vary from case to

case since the circumstances in each case may vary. The question of stereotype or strict

application of the rule of judicial precedent would not be of importance.

57
Black’s Law Dictionary
58
Kapeliuk D.’ “The Limits of Judicial Discretion: Emotive Dispositions of Israeli Courts in Implementing the New
York Convention” vol 24 Ohio State Journal of Dispute Resolution January 4, 2009.
59
Blacks Law Dicitionary 6th edition, 1990, page 466
Judicial discretion is a very broad concept because of the different kinds of decisions

made by judges and because of the different limits placed on those decisions. Section 6

(6) of the Nigerian Constitution60 confers enormous powers on the court of law, leaving the

courts the wide leverage to determine the extent of its powers; Section 6 (6) states;

The judicial powers vested in accordance with the foregoing provisions of this

section - (a) shall extend, notwithstanding anything to the contrary in this

constitution, to all inherent powers and sanctions of a court of law61

The Nigerian courts pursuant to this ample licence have over the years carved a domain

of operation for themselves, formulating the basic principles of law and developing the

Nigerian legal system based on respective documentary and historical sources and obviating

the necessity of additional enactments to support the judicial evolution and adventures 62

In practice, the constitutional powers of the Nigerian Courts are largely similar to that of

the United States of America (US). Article III, Section 2, of the U.S. Constitution also

grants the judiciary broad power, which extends "to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and Treaties made." Judges'

decisions must be made based on the "rule of law," which, in the United States, derives not only

from statutes passed by Congress but also from the tenets of the Constitution. In addition,

Common Law, or judge-made law, provides limits based on the principle of Stare

Decisis, which holds that a court's decision in a particular case must comport with the Rule of

Law as they have been determined by that court or by other, higher-level courts, in previous

60
. Constitution of Nigeria 1999 (as amended).
61
Ibid, Section 6 (6).
62
See for Instance S. 45 (1) of the Interpretation Act, Laws of theFederation of Nigeria, 1990, which empowers the
High Courts to apply the common law of England, the doctrine of equity together with the statutes of general
application in the resolution of disputes among Nigerians.
cases. Legal conclusions that do not fit within the prescribed limits of both statutory and

common law may be overturned by a reviewing court if that court determines that the

conclusions were an abuse of judicial discretion63.

At a certain period in time, the sentencing of those convicted of crimes the US was

almost entirely within the discretion of judges. Judges could take into account various

mitigating factors (circumstances reducing the degree of blame or fault attributed to the

offender) and craft a punishment that most appropriately fit the crime. For example, a first-time

petty offender convicted of shoplifting might be sentenced to Parole and community

service under the US system.64 Similarly, the Nigerian Courts usually consider seriously the plea

for mitigation of sentence of a first offender; the courts would often reduce the sentence to barest

minimum for such offenders. The US, in order to curb the limitless discretion of judges and

the arbitrary use of the power in such circumstances, introduced what they called the

Federal Sentencing Guidelines. With the implementation of Federal Sentencing Guidelines and

with mandatory minimum sentencing legislation, which was passed in both US Congress

and the US states, judges no longer had the broad latitude to make the sentence that fits the crime

and the defendant. In some states, first-time offenders have been sent to jail for life for

the possession of large amounts of controlled substances. Many federal judges in US must

incarcerate parole violators for minor parole violations because the guidelines specifically

direct them to and severely limit their sentencing choices. A judge’s failure to abide by

the sentencing guidelines in issuing a sentence would constitute an abuse of judicial

discretion.65

63
The Free Dictionary, Farlex visited on the 27th January, 2013.
64
ibid
65
ibid
In view of the leverage allowed the courts by the Nigeria’s Constitution to exercise

judicial discretions; The courts have over time evolved a perspective of the exercise of judicial

discretion to be governed and regulated by case law, which requires that such discretion must be

exercised judiciously and judicially.

1.6 Scope of the Study

The concept of judicial discretion is one that is very wide and it will take a lot of time, space and

energy to effectively study, except if the study is carefully streamlined to achieve a particular end

result due to the fact that this study calls for an in-depth investigation into the manner in which

the Nigerian legal system makes use of judicial discretion. As it is exercised by judges in

Nigerian courts, the purpose of this study is to define and investigate the meaning of judicial

discretion, as well as the perspectives and limitations associated with it. The principles,

challenges, and remedial approaches associated with the application of judicial discretion are

discussed in depth, as is the legal framework that governs judicial discretion. The study also

investigates the historical development of judicial discretion, its practical implications in court

decisions, and the significance of maintaining a balance between judicial authority and legal

constraints. All of these topics are covered in the research. A nuanced understanding of how

judicial discretion operates in the Nigerian context is the goal of this study. This will be

accomplished through the examination of case law, legal principles, and scholarly perspectives.

The study will also highlight the complexities, ambiguities, and ethical considerations that are

inherent in the exercise of judicial discretion within Nigerian jurisprudence. The purpose of this

study is to shed light on the meaning of laws, the extent of judicial power, and the implications

of judicial discretion on the outcomes of legal cases in Nigeria. The challenges and limitations

that judges face when exercising their discretion, the checks and balances that are in place to
regulate judicial authority, and the impact that judicial discretion has on the administration of

justice are also on the agenda for this document. The study intends to provide insights into the

role of judicial discretion in shaping legal decisions, ensuring fairness, and upholding the rule of

law within the Nigerian legal system. This will be accomplished through the utilization of a

multidimensional approach that includes legal analysis, case studies, and comparative

perspectives. In addition to making a contribution to the existing body of knowledge on judicial

discretion, the research will also provide crucial insights for legal practitioners, academics, and

policymakers who are looking to improve their understanding of judicial discretion and its

application in the Nigerian context.

As touching the limitations and possible limitations of the study on "a holistic appraisal of the

concept of judicial discretion under the Nigerian jurisprudence", the following should be given

attention:

a) Scope and Depth of Analysis: One limitation could be the challenge of comprehensively

covering all aspects of judicial discretion within the Nigerian legal system. Given the

complexity and depth of the topic, there may be constraints in fully exploring every

dimension of judicial discretion, potentially leading to gaps in the analysis.

b) Availability of Data: Another limitation could stem from the availability and accessibility

of data related to judicial decisions and practices in Nigeria. Limited access to court

records, case law, and judicial proceedings may hinder the researcher's ability to conduct

an in-depth analysis of how judicial discretion is exercised in practice.

c) Subjectivity and Bias: The study may face limitations related to subjectivity and bias in

interpreting judicial decisions and assessing the exercise of judicial discretion. Different
 researchers or legal experts may have varying perspectives on what constitutes

appropriate judicial discretion, leading to potential discrepancies in the analysis.

d) Legal Framework Challenges: Understanding the legal framework governing judicial

discretion in Nigeria may pose a limitation, especially if there are ambiguities or

inconsistencies within the legal system. Interpreting laws and regulations related to

judicial discretion accurately can be challenging, impacting the depth and accuracy of the

study.

e) Time Constraints: Conducting a holistic appraisal of judicial discretion under Nigerian

jurisprudence requires significant time and resources. Time constraints may limit the

researcher's ability to delve deeply into all relevant aspects of the topic, potentially

resulting in a more superficial analysis.

f) External Influences: External factors such as political, social, or economic influences on

judicial decisions may present a limitation. These external factors could impact the

exercise of judicial discretion in ways that are challenging to capture fully within the

scope of the study.

While the study on judicial discretion in Nigerian courts is essential for understanding the legal

system's functioning, it is crucial to acknowledge these limitations to ensure a nuanced and

balanced analysis of the topic. Addressing these limitations through careful research design and

methodology can enhance the study's credibility and relevance within the field of legal

scholarship.

1.7 Literature Review

“It is now a notorious principle of law that as courts of equity that we are, we

should not pursue technical and abstract justice at the expense of dealing with the

merits of the matter, but rather ensure that substantial justice is done to the
 parties. The primary function of any court of law is to do justice to the parties

and where any procedural rules antithesis to justice and fair play, maneuver that

harsh rule of law in pursuit of justice. If in the course of pursuing justice, the

court errs, it has ‘erred’ in the right direction.”66 Per Niki Tobi, JCA

The general meaning of the word “discretion” includes analysis, appraisal, assessment, choice,

consideration, contemplation, designation, determination, discrimination, distinction, election,

evaluation, examination, free decision, free will, freedom of choice, liberty of choosing, liberty

of judgment, license, option, optionality, permission, pick, power of choosing, review, right of

choice, sanction, self-determination suffrage.67

Judicial discretion then is the exercise of judgment by a judge or court based on what is fair

under the circumstance and guided by the rules and principles of law. It is a courts power to act

or not to act when a litigant is not entitled to demand the act as a matter of right. Every discretion

be it judicial and judicious must be based on prudence, rationality, sagacity, astuteness,

considerateness and reasonableness and these principles were as enumerated in our courts in the

following cases Akinyemi v Odu’a Investment Co Ltd 68 supra, University of Lagos v Aigoro 69,

Onuorah v Okafor70 , Ekwuno v Ifejika71 and Egbunike v Muonweokwu72. An exercise of

discretion is an act or deed on the personal judgment of the person exercising it and in

accordance with his conscience and should be free and unfettered from an external influence or

suggestions. Judicial discretion means the power exercised by judicial umpires acting in official
66
Busari v Ose (1992) LPELR-14981(CA) Per Niki Tobi, JCA (as he then was)
67
Akinyemi v. Odu’a Investment Coy Ltd (2012) 17 NWLR pt. 1329, p.609.
68
(2012) 17 NWLR pt. 1329, p.609.
69
(1985) 1 NWLR 1 p143.
70
(1983) 2 SCNLR 244.
71
(1960) SCNR 320.
72
(1962) 1 SCNLR 97.
capacity and in the manner which appears to be just and proper under a given situation. It must

not flow from or be bound by a previous decision of another court in which a decision was

exercised. It is in short, an antithesis of the doctrine of stare decisis. There is no hard and fast

rule as to the exercise of judicial discretion by a court because if it happens then, discretion will

become fettered as in the following court decisions: UBN Plc v Astra Builders WA Ltd73,

Odusote v Odusote74, Anyah v African Newspapers of Nigeria Ltd75.

In any event Dworkin, distinguishes three different senses in which a judge must be said to have

discretion;

(i) a judge has discretion when she examines judgment in applying a legal

standard to a particular case;

(ii) a judge has discretion when her decision is not subject to reversal by any other

authorities; and

(iii) a judge has discretion when her decision is not bound by any legal standards.

The Dworkins discretion thesis is highly committed to the third sense of discretion which he

refers to as strong and vital. In Dworkin’s view, the thesis that Judges have discretion only in the

sense that they exercise judgment is trivially true, while the thesis that Judges have discretion in

the sense that their decisions are not subject to being reversed by higher authorities is false

because even the Supreme Court which is the highest court in some situations do reversed their

judgment whether it is based on discretion or not but as far as it was discovered that such

decision creates an abuse of discretion by the application of wrong legal standard. There are

guidelines to exercise of discretion which must not be outside the bound of reasonableness.

73
(2010) 5 NWLR pt (1186) p 1.
74
(1971) 1 All NLR pt (1) p. 219.
75
(1992) 6 NWLR pt 247 p. 317.
Discretion is akin to judicial-law making. It brings to bear the question, how constitutional is

judicial law-making? Section 4 of the 1999 Constitution of Federal Republic of Nigeria (as

amended)76 assigned law-making functions to the legislature and dolls out the principle of

separation of powers in practice. It may be an encroachment for the judiciary to purport to

exercise law making powers.

The merit or otherwise of “judicial creativity” was examined and it was apparent that there is

need for a balance to avoid “judicial recklessness” which can arise if judges were given

unfettered power to exercise their discretion in cases before them, or judicial tepidity as a

consequence of rigid adherence to precedent, or literal interpretation, that may result in injustice

to those who seek refuge in the alter of justice.

By judicial discretion it presupposes that the courts enjoy powers to act at pleasure and without

external influences and constraints. The question of discretionary powers of courts is well and

long settled, in fact beyond the question of exercise of legislative interpretative powers to the

suggestion that, in the last analysis, the decision of judges do not merely expound rules that

existed before, but rather themselves create new principles of law. This is because the statement

that rules of law as being derived from existing legislation or previous cases is unsatisfying,

reason being that legislations will always require first time interpretation by the courts of law to

be understood and also for judicial precedent to be formed. So also, the courts will have to reach

a decision anyway when faced with an issue whether legislation properly covers it or not and

whether an earlier task of interpreting the legislation has been carried out or not. However, it is

trite law that judicial discretion must be exercised judicially and judiciously.

76
Section 4 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
On what constitutes judicial and judicious, the court in the case of African Continental Bank Ltd

v Nnamani77 held that the exercise of the court’s discretion is said to be judicial if the judge

invokes the power in his capacity as judge qua law. In other words, an exercise of a discretionary

power will be said to be judicial, if the power is exercised in accordance with the enabling

statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it

carries or conveys the intellectual wisdom or prudent intellectual capacity of the judge as judex.

In this second situation, the exercise of the discretion must be replete with such wisdom and

tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with

a view of doing justice to the parties. Here, the judge’s disposition about life is brought to play

and his mindset and view about life as he has to use his discretion prudently in the absence of

any guiding principle where the law is silent. See Offor v State.78

But, discretion is discretion, whether it wears any of the two qualifying expressions mentioned

above (judicious and judicial), only when it is exercised by the court according to law and good

judgment. Discretion is not discretion if its exercise is based on the court’s sentiments or

premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or

good judgment, as the case may be 79. In criminal cases, judges exercise enormous discretion;

from the commencement of the trial to the end, prominent of which is in the grant of bail and

sentencing.

Like other judicial remedies pending, a good guide on judicial discretion generally is found in

the dictum of Udoma, JSC in the case of Odusote v Odusote80 where he volunteered as follows:

77
(1980) JELR 33940 (SC).
78
18 NWLR pt 1333 p421.
79
On the principle of exercising discretion by the court, see General University of Lagos v. Olaniyan (1985) 1
NWLR Pt. 1p. 134 .
80
(1971) NMLR 231 see also Abatcha v COP (1998) 1 LRCNCC 97 at 100H.
 “In matters of discretion, no one case can be authority for another; and the court cannot

be bound by a previous decision to exercise its discretion in a particular way, because

that would be in effect putting an end to the discretion”

Also, in Ali v COP81 Anyebe, J held that:

“Granting of bail pending the determination of an appeal before this court is, under

Section 34(2) of the Criminal Procedure Code upon which this application is founded, a

matter of unfettered discretion of the court bearing in mind that where a judicial

discretion if to be exercised, as Reed CJ, put it in Kehinde v Commissioner of Police 82 it

is to be done according to the rules of reason and justice, not arbitrary, vague and

fanciful, but legal and regular”.

The idea of bail pending appeal being an issue of judicial discretion stems from the very words

of the statutes empowering the courts to exercise the discretionary power to grant it. By the use

of the permissive word “may”, the whole issue of bail pending appeal was put within the

discretion of the judge.

Thus, the decision whether or not to grant an application for bail pending appeal is entirely that

of the judge, his only obligation being that he should exercise his discretion judicially and

judiciously. Also, he is to give reasons for the manner he had chosen to exercise the discretion.

According to Uwaifo, JSC in Gen & Aviation Services v Thahal:

“There is always the need for a court exercising discretion to give reason in justification

of the exercise. See Solanke v Ajibola 83. There can hardly be any justifiable reason for

exercising discretion upon imprecise facts. It is the nature and strength of facts made

81
(2002) JELR P44479 CA.
82
(1973) NWLR 182.
83
(1968) 1 All NLR 46 @ 54.
 available to the court that provide the tonic for the proper exercise of discretion.

Admittedly, the exercise of discretion upon known facts involves the balancing of a

number of relevant considerations upon which opinions of individual judges may differ

as to their relative weight in a particular case. See Birkett v James 84. But that will not

necessarily affect the justness of the exercise of the discretion, so long as the facts are

available and reasonably appreciated85.

1.8 Delimitation of Chapters

This study will span six chapters in a bid to effectively dissect this topic accordingly. Chapter

one which is the general introduction is made of the background to the study, statement of the

problem, aim and objectives of the study, research methodology, scope of the study, justification

of the study conceptual framework, a review of literature and lastly delimitation of the study.

Chapter two chronicles the historical evolution of judicial discretion in Nigeria, constitutional

provisions and judicial discretion, categories and limits of judicial discretion, procedural laws

and judicial discretion, judicial discretion under Nigerian civil law, criminal law, family law and

tort. It will also discuss the importance of judicial discretion, abuse of judicial discretion, the

effect and the remedies. It will consider the attitude of appellate court in the exercise of judicial

discretion by lower court. It will round up by discussing the advantages and disadvantages of

judicial discretion as well as the limitations and controls in place to check judicial discretion in

Nigeria.

Chapter three opens by discussing the impact of judicial discretion in Nigerian Jurisprudence and

legal certainty, factors influencing judicial discretion, checks and balances in the exercise of
84
(1978) AC 297 @ 317D.
85
(2005) 1 CNQLR 107.
judicial discretion, legal precedents and case law analysis on judicial discretion, the role of

judicial discretion in making laws, and lastly do a comparative analysis of judicial discretion in

different common and civil law jurisdictions like Australia, Ghana, America, united kingdom

and then draw lessons out for Nigeria.

Chapter four detailing judicial discretion in substantive laws and procedures will shed light on

the concepts of judicial discretion in criminal law, sentencing and bail decisions, discretion in

evidence admissibility, judicial discretion in civil law, discretion in granting injunctions and

specific performance, discretionary remedies in tort and contract law. Because law is both

procedural and substantive, this chapter will also examine the position of procedural laws on

judicial discretion. This chapter will then go on to discuss the role of case management in court

discretion, the roles that discretion plays in applying rules of procedure and lastly the role of

legal practitioners and litigants in influencing judicial discretion.

Chapter five which is a critique of the practice of judicial discretion in Nigeria details the

principles and doctrines guiding judicial discretion along the line of equity and fairness, doctrine

of precedent and proportionality principle. It will also examine judicial review and discretion, the

grounds for judicial review and the role of judicial discretion in judicial review. Other things like

challenges and controversies surrounding judicial discretion in Nigeria, the influence of societal

values and legal culture and comparative perspectives on judicial discretion will be examined

too.

Chapter six which rounds up this study will detail the summary of findings, conclusion and

recommendations from the whole of this study.

 CHAPTER TWO:

OVERVIEW OF JUDICIAL DISCRETION IN NIGERIA

2.1 Historical evolution of Judicial discretion in Nigeria

The historical evolution of judicial discretion is a multifaceted concept that has undergone

significant changes over time, shaping the role of judges in interpreting and applying the law.

From the early views of judicial discretion as the "law of tyrants" 86 to its modern-day

implications in legal decision-making87, the evolution of judicial discretion reflects broader shifts

in legal philosophy, societal values, and the administration of justice.

Historically, judicial discretion was viewed with skepticism, as seen in Lord Camden's belief in

1680 that the discretion of a judge was akin to the law of tyrants. This perception highlighted

concerns about the potential abuse of power and the need for constraints on judicial decision-

making. However, as legal systems evolved, the understanding of judicial discretion

transformed. Chief Justice John Marshall's perspective in the 1800s emphasized that judicial

power should be exercised in alignment with the will of the legislature, emphasizing the

importance of adhering to the law rather than personal preferences.

Throughout the 18th and 19th centuries, the scope and importance of judicial discretion

fluctuated. While judicial discretion was prevalent in the trial and post-trial proceedings, there

were constraints imposed by universal criteria and ethical considerations. The collapse of the

'Bloody Code' in the 1830s marked a significant shift in the exercise of judicial discretion,

narrowing its remit and prompting reforms aimed at limiting arbitrary decision-making by

judges.

86
Spindle, R. B. (1947). Judicial Discretion in Common Law Courts. Washington and Lee Law Review, 4(2), 143.
87
Ibid.
The evolution of judicial discretion also intersects with broader legal debates, such as the balance

between judicial power and legislative intent. Concerns over judicial activism and the need to

uphold the rule of law have influenced the development of statutory interpretation theories that

guide judicial decision-making. The introduction of mandatory sentencing laws in the United

States reflects a shift towards limiting judicial discretion in sentencing, emphasizing

predetermined consequences for specific offenses.

In modern times, the concept of judicial discretion continues to be a subject of scholarly inquiry

and legal discourse. Scholars like H.L.A. Hart have explored the rational and constrained nature

of judicial decision-making in hard cases, highlighting the complexities involved in exercising

discretion within legal frameworks. The role of judicial discretion in promoting justice, fairness,

and the rule of law remains a central theme in contemporary legal systems, emphasizing the

delicate balance between judicial independence and accountability.

Simply put, the historical evolution of judicial discretion reflects a dynamic interplay between

legal traditions, societal values, and institutional reforms. From early perceptions of judicial

discretion as arbitrary and tyrannical to its modern-day role in promoting justice and upholding

legal principles, the concept has evolved significantly over time. Understanding the historical

context of judicial discretion provides valuable insights into the complexities of legal decision-

making and the ongoing efforts to ensure a fair and equitable legal system.

2.2 Constitutional Provisions and Judicial Discretion

The federal character of the Nigerian Constitution influenced the decentralization of the Court

system.88 The Supreme Court is the highest Court in Nigeria, often referred as the Apex Court of

Nigeria. It has both original and appellate jurisdictions and is located in the Federal capital
88
This means an equal number or courts and judges from each of the six regions represented in the federal courts
territory.89 This court is presently comprised of 21 justices, including the Chief Justice as head of

the Court.90 As the final superior Court of Appeal, the Supreme Court of Nigeria’s decisions are

binding on all of the other courts.91

Following the Supreme Court is the Court of Appeal with both appellate jurisdiction and original

jurisdiction.92 This court also acts as an intermediate between the Supreme Court and all the

other courts or tribunals. The Court of Appeal has sixteen judicial divisions across the country. 93

Following this Court in the hierarchy are the High Courts (Federal/Federal Capital Territory and

State High Courts), National Industrial Court, Customary Court of Appeal and Sharia Court of

Appeal. These Courts, also known as lower courts, were all established by the Constitution. They

exercise mostly original jurisdiction and minimal appellate jurisdictions. 94 State High Courts also

exercise considerable appellate jurisdiction, like the Customary Courts of Appeal and Sharia

Courts of Appeal that are appellate Courts. The Constitution did not establish some lower courts

such as the Magistrate Courts and special courts family or juvenile courts, but section 6(5) of the

Constitution empowers the legislatures to establish other courts as may be required by law. As a

result, Magistrate Courts, District Courts, Area Courts, Customary Courts, Juvenile Courts,

Corona Courts, etc. were created. Section 6(5) of the Nigerian Constitution resembles Article III

89
The justices of the Courts are appointed based on the regions their states of origin are located. However, the
female judges can also be appointed based on the state of origin of their husbands.
90
Although section 230 of the Constitution states the National Assembly can appoint such number of
justices in the Supreme Court not exceeding 21.
91
See section 233(1) of the Constitution
92
See sections 239 (1) & 240 of the Constitution
93
Abuja, Akure, Benin, Calabar, Ekiti, Enugu, Ibadan, Ilorin, Jos, Kaduna, Lagos, Makurdi, Owerri, Port
Harcourt, Sokoto, Yola
94
See sections 251, 154, 262, 267 & 272 of the Constitution
of the Constitution of the United States that established the Supreme Court of the United States,

and also grants Congress the option to establish “such inferior courts” as it sees fit.95

Therefore, the ‘Superior’ Courts of record as stated in the Nigerian Constitution are: the Supreme

Court; the Court of Appeal; the Federal High Court; Federal Capital Territory High Court,

Abuja; State High Courts; National Industrial Court; Customary Court of Appeal of the FCT;

Customary Courts of Appeal and Sharia Courts of Appeal of FCT; and Sharia Courts of Appeal.

The ‘Inferior’ courts include tribunals and special courts including Magistrates’ and District

Courts; Juvenile Courts; Customary and Area Courts; and Courts Martial and Public Complaints

Commission.96

The bifurcation of judicial jurisdictions in Nigeria was based on geographic/cultural alignments,

similar to the history of the federal judiciary of the United States of America. Although the

Nigerian Federal Constitution is not modeled after the US Federal Constitution, both documents

have some similarities. Since its origins in 1789, the court system in the U.S has embodied the

federal character of the government as established by the U.S. Constitution. The Supreme Court

of the United States guarantees the authority of the Constitution and federal law throughout the

nation, while a system of federal and state trial courts, organized within state borders, reflects the

legal traditions of each judicial district and facilitates citizen access to federal justice. The

decentralized federal judiciary helps ensure that individual federal courts have a strong local

orientation, while at the same time it united a geographically dispersed nation within a consistent

system of federal law.97

95
See section 1, Article 3 of the American Constitution
96
See section 6(1) of the Constitution
97
History of the Federal Judiciary
However, in contrast to most other federal systems of government, the United States preserved

parallel systems of federal and state courts, thus further protecting the local orientation of much

of the nation’s legal affairs.

It is important to stress that the 1999 constitution of the Federal Republic of Nigeria gives

powers to heads of court to make rules guiding them, and part of the rules allow for the express

exercise of discretion or exercise of discretion to cover up for where no provisions are in

existence.

2.3 Categories and Limits of Judicial Discretion

Judicial discretion encompasses a judge's authority to make legal decisions based on

individualized evaluations within the framework of legal principles. This discretionary power is

granted to courts by the legislature and allows judges to tailor decisions to the specific

circumstances of each case. Understanding the categories and limits of judicial discretion is

essential in comprehending the scope and boundaries within which judges can exercise their

judgment. Categories of Judicial Discretion includes:

a) Civil Law vs. Common Law Systems: Judicial discretion operates differently in civil law

and common law systems. Civil law systems, prevalent in continental Europe, emphasize

codified laws and limit judicial creativity, while common law systems, like those in the

United States and the United Kingdom, rely on judicial precedent and case law to guide

decision-making.

b) Criminal Law: In criminal law, judicial discretion is evident in certain penal code

provisions that grant courts the authority to choose between different punishments for

specific crimes. For example, California's penal code allows courts to exercise discretion

in selecting punishments based on the circumstances of the case.

 c) Individuality of Cases: Judicial discretion is granted to recognize the uniqueness of each

case, emphasizing that decisions should be based on the particular circumstances rather

than a rigid application of the law. This category underscores the need for judges to

consider the specifics of each case when exercising their discretion.

Limits of Judicial Discretion also includes:

a) Soundness and Non-Arbitrariness: Decisions made under judicial discretion must be

sound and non-arbitrary, meaning they should be based on what is right and equitable

under the circumstances. An abuse of discretion can be appealed, highlighting the

importance of ensuring that decisions are made within reasonable bounds.

b) Boundaries of Reason: Courts must not exceed the bounds of reason when exercising

discretion. An abuse of discretion occurs when a court makes decisions based on an error

of law, a clearly erroneous factual finding, or reaches a conclusion outside the

permissible range of conclusions. This emphasizes the need for decisions to be grounded

in legal principles and factual accuracy.

c) Judicial Independence and Accountability: Judicial discretion must be balanced with

mechanisms for oversight and accountability. Appellate courts play a crucial role in

reviewing the exercise of judicial discretion to ensure that decisions are made within

legal boundaries and uphold the rule of law.

Understanding the categories and limits of judicial discretion is essential in navigating the

complexities of legal decision-making. By delineating the various categories within which

judicial discretion operates and the boundaries that constrain its exercise, we gain insights into

the delicate balance between judicial independence, fairness, and the rule of law within diverse

legal systems.
2.4 Judicial Discretion in Nigerian Criminal and Civil Law

Judicial discretion is the power or right to make official decisions using reason and judgment to

choose from acceptable alternatives. Judges are charged with exercising judicial discretion in the

discharge of judicial functions. All decisions made are subject to some kind of review and are

also subject to reversal or modification if there has been an abuse of judicial discretion 98. Judges

as human beings are prone to human weaknesses. Hence, whenever the courts are exercising

their judicial discretion on matters before them, the outcome of such actions cannot be totally

free from the personal prejudices, whims and caprices of the “judge”. No wonder, the law is

ultimately a product of what a judge deems right under different situations. Therefore, the

exercise of law is completely a product of the judicial discretion of a judge. In the Nigerian

criminal justice system, judges are often able to exercise a degree of discretion in deciding who

will be subjected to criminal penalties and how they will be punished 99. In spite of several

challenges, judicial discretion remains one of the viable options available to “judges” in

exercising the law in Nigeria courts in relation to criminal matters. The law regulates society and

conflicts therein. Courts are created by the law as the last hope of the common man where their

injuries are redressed especially when their rights are trampled upon in reality. The law is what a

judge says it is and this is partly or entirely connected with his social environment, economic

condition, personal thought, emotion, interest, and psychology. The reasons for giving “judges”

judicial discretions are to cater for unforeseen situations in the course of adjudication and to

prevent unnecessary outcomes procedurally. From the above, it is clear that judicial discretion,

which the courts exercise, no matter how logically designed its procedures are, may be abused,

98
See Davis, C. Kenneth Discretionary Justice: A preliminary inquiry Champaign, Illinois University of Illinois
(1971) p. 5.
99
J. Paquette, and D. Allison (1997) a Decision-Making and Discretion: The Agony and Ecstasy of law and
administration; Education and Law Journal 8 (September 1997) p. 161.
and completely utilized to prevent justice, Niki Tobi JSC as he then was in the case of Ideozu &

Ors v Chief Ochoma & Ors100 opined that the aphorism “unfettered discretion” is a misnomer.

The erudite jurist noted that the moment a judge is called upon to exercise discretionary powers

in accordance with the enabling law or rule of court, it is not correct to say that he has an

unfettered discretion in the matter otherwise the exercise would be incapable of being set aside

on appeal.

2.4.1 Bail

The decision to grant or not to grant an application for bail is at the discretion of the

Court. However, such discretion must be exercised judicially and judiciously having

regard to the right of the accused person to his liberty until he is proven guilty to the

crime alleged, and the need for the society to be protected from the grievous criminal

act. See the case of Dokubo-Asari v. FRN101. See also the case of Bulama v. Federal

Republic of Nigeria.102 The exercise of discretion by the court in the grant or refusal of

bail to an accused is governed by several factors which are not necessarily consent as

they do change with changing circumstances and time. They cannot be regarded as

immutable and applicable for all times. See Bulama v. FRN.103 The Supreme Court in the

case of Adamu Suleiman v. Commissioner of Police, Plateau State held;

It is submitted in reply, in the respondent's brief that the criteria that should guide

the courts in deciding whether to grant or refuse an application for bail are well

laid down by this court in numerous decisions of this court, particularly in

Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558;
100
(2006) All FWLR pt (308) p. 1183 @ 1207.
101
(2007) 12 NWLR (pt. 1048) 320 SC.
102
(2004) 12 NWLR (pt 888) 498, CA.
103
Supra
 at 572; and Bamayi v. The State (2001) FWLR (Pt, 46) 956 at 984. It is also

argued that the bailability of an accused depend largely on the weight the

judge attached to one or several of the criteria open to him in any given case. The

court below in this case is said to have exercised its discretion judicially

and judiciously when it dismissed the appellants' appeal having regard to the

facts tendered in the case.

It is further submitted that the presumption of innocence does not make the grant of bail

automatic since there is always the discretion to refuse bail if the court is satisfied that there are

substantial grounds for believing that the applicant for bail pending trial would abscond or

interfere with witnesses or otherwise obstruct the course of justice. The crucial factor is said

to be the existence of substantial ground for the belief that he would do so. Also, since the

issue of grant or refusal of bail is a discretionary matter, previous decisions are not of

much value. They are therefore said not to be binding but can only offer broad guidelines as each

exercise of discretion depends on the facts of each case.

It is therefore settled that the decision whether to grant or refuse an application for bail

involves exercise of judicial discretion in every case. The criteria to be followed in taking

such a decision as laid down by courts include;

i. the nature of the charge;

ii. the strength of the evidence which supports the charge;

iii. the gravity of the punishment in the event of conviction;

iv. the previous criminal record of the accused, if any;

v. the probability that the accused may not surrender himself for trial;
 vi. the likelihood of the accused interfering with witnesses or may suppress any

evidence that may incriminate him;

vii. the likelihood of further charge being brought against the accused; and

viii. the necessity to procure medical or social report pending final disposal of the case.104

2.4.2 Sentencing

The Black’s Law Dictionary105 defines sentence as “judgment formally pronounced by the court

or judge upon the defendant after conviction in a criminal prosecution, imposing punishments to

be inflicted”.

The Nigerian Law Dictionary106 defines sentencing as the judgment of a court pronounced,

especially in a criminal proceeding, in respect of the nature of sanctions to be imposed after an

accused person has been adjudged guilty of the offence he is charged for.

The Oxford Concise Law Dictionary 7th Edition defines sentence as the “judgment of a

court particularly in an ecclesiastical or criminal cause”.

A sentence of the court can be defined as a definite disposition order issued by a court

or other competent tribunal against a person standing trial, at the conclusion of a criminal trial,

subsequent to finding of guilt against him and must be an order 107 which is definite in its nature,

104
See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270; Dokubo-Asari v. Federal Republic of Nigeria
(2007) All FWLR (Pt. 375) 558; Abacha v. The State (2002) 5 NWLR (Pt. 761) 638; Ani v. The State
(2002) 1 NWLR (Pt. 747) 217; Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 9; and Eyu
v. The State (1988) 2 NWLR (Pt. 78) 607.
105
5th Edition
106
Nchi . I., Nigerian Law Dictionary, Published by Greenworld Publishing Company Limited (Jos-2000)
107
The term Order here refers also to sentencing but mainly refers to order made after conviction as
against other types of orders that may made by the court in the course of the trial. See Section 248, Criminal
Procedure Act, Cap C41 LFN, 2004, Similarly, Section 305, Criminal Procedure Code, Cap 30 of the LFN, 1963
which interchangeably uses the phrases “any sentence or order of a Criminal Court”.
type and quantum108. The Criminal Code and the Penal Code as well as the offence-creating

statutes specify the quantum of sentence while the sentences themselves find their

legitimacy in the Criminal legislations applicable at the states and federal levels as well

as the Probations of Offenders Law in the case of probation orders made in the Northern

States109.

Sentencing is a very broad field accommodating different approach and ideas. Also, sentencing

is an exercise of a discretionary power that is little guided in a country such as Nigeria. Hence,

the power presents “sentencers” / judges with a very wide playing field and accommodates

individual inclinations and approaches or solutions to the same problem. The differences in

approaches, however, become a problem in society when it presents the criminal justice

system as irrational, inconsistent and unjust. The relative recent concern with sentencing practice

beyond the legal provisions undergirding it has paced by other experts aside lawyers and judges

who have drawn attention to the importance of questioning both sentence legislation and

sentencing practice as well the philosophies or logic upon which these rest.110

Offenders are guaranteed fair hearing under the Constitution of Nigeria. 111 It is also settled law

that no one can be punished for an offence unless it is contained in a written law. 112

108
A. A. Adeyemi: “Administration of Justice in Nigeria: Sentencing, in Yemi Osibanjo and Awa Kalu (Eds.) Law
Development and Administration in Nigeria, (Lagos: FMoJ, 1990). P109. And cited in Peter A. Anyebe: Sentencing
in Criminal Cases in Nigeria and the Case for Paradigmatic Shifts. Published in
www.nials-nigeria.org/journals/peter. last visited on the 9th April, 2024.
109
P. A. Anyebe: “Sentencing in Criminal Cases in Nigeria and the Case for Paradigmatic Shifts. Published in
www.nials-nigeria.org/journals/peter. last visited on the 9th April, 2024.
110
Ibid
111
Section 36 1999 Constitution as amended.
112
See Section 36 (12) 1999 Constitution as amended.
Personal liberty113 of citizens is also guaranteed and can only be lost or taken in due

execution of sentence or order of court after conviction and the finding of guilt.

The provisions in laws that criminalize acts provide sanctions for breach of the laws and

commission of such acts or omission provided therein. The sanctions are defined and stipulated

and the judge is expected to comply with the injunctions spelled out in both the descriptive

aspect, and the punishment part of the provision. A punishment provision in a criminal law

presents itself in two ways; the first is where the quantum of sentence is fixed by law, where the

discretion of the court is fore-closed on account of fixed provision of the law, as in most capital

crime provisions carrying death penalty, once guilt is established the punishment must be

carried out in full. The second is the type of provision laded with discretional opportunity for

the judge.

2.4.2.1 Sentences Fixed By Law

Where the quantum of sentence is fixed by law, the discretion of the court is foreclosed

on account of fixed provision of the law, as in most capital crime provisions carrying

death penalty, once guilt is established the punishment must be carried out in full. Hence,

after an accused is convicted of an offence, the judge must pass a sentence on him. The

sentence passed must be one prescribed for the offence under the statute creating it 114 and

the judge cannot differ. There are also certain non-capital offences with fixed minimum

sentence.

2.4.2.2 Death Sentence

113
Section 35 of the 1999 Constitution as amended.
114
Oluwatoyin Doherty: Criminal Procedure in Nigeria: Law and Practice. Blackstone Press Limited, 1999, page
317 also cited in P. A. Anyebe supra page 160.
Under Nigerian criminal law various offences are punishable by death across the Federation

including murder,115 treason,116 and treachery,117 conspiracy to commit treason,118 directing and

controlling or presiding at an unlawful trial by ordeal which results in death 119 and armed

robbery.120 More recently, kidnapping has been added to the list in Abia, Imo and Akwa

Ibom States121 and oil theft and crude oil bunkering in Rivers and Enugu State. The

introduction of Sharia based criminal law in some states in Northern Nigeria has widened the

number of capital offences to include adultery, sodomy, lesbianism and rape.122

Where the death sentence is prescribed against a convicted felon, the sentence is

mandatory. The judge has no discretion in the matter, after an accused has been found guilty

of a capital offence; the only sentence open to the court to impose is that of death which the

highest punishment in the array of punishments under Nigerian law.

2.4.2.3 Non-Capital Offences with Fixed or Mandatory Minimum Sentences.

There are certain offences with minimum sentences stipulated by law, and in such

instances, the court is mandated on conviction to impose nothing below the stipulated

sentence. For example section 12 of the ICPC Act 2000123 provides;

Any person who, being employed in the public service, knowingly acquires or holds,

directly or indirectly, otherwise than as a member of a registered joint stock company

consisting of more than twenty (20) persons, a private interest in any contract, agreement or
115
S. 319 CC and S. 220 PC. See generally P. A. Anyebe page 160.
116
S. 37 (1) CC; S. 410 PC.
117
S. 49 A. CC.
118
S. 37 (2) CC; S. 411 PC.
119
S. 208 PC
120
S. 1 Robbery and Firearms (Special Provision) Act, Cap. R11 Laws of the Federation of Nigeria, 2004.
121
See Anyebe P. A. (supra) page 160.
122
Kano and Zamfara Shariah Penal Codes, 2000
123
Corrupt Practices and Other Related Offences Act, 2000.
investment emanating from or connected with the department or office in which he is

employed or which is made on account of the public office, and shall on conviction be

liable to imprisonment for seven (7) years.

Most of the other provisions of the ICPC Act make such mandatory provisions by the use of the

word shall124 of which by the trite doctrine of statutory interpretation “the word shall connotes

mandatory discharge of a duty or obligation, and when the word in respect of a provision of the

law that requirement must be met”.125

It is a pre-supposition that where any penal provision deploys the word shall in

qualifying a specific sentence, then the sentence therein must be imposed.

2.4.2.4 Discretionary Sentence

There are usually three types of situations in which a court can impose a discretionary sentence;

i. Where the law simply provides a penalty without stipulating its maximum;

ii. Where the law prescribe a statutory minimum above which the court may discretionarily

impose any sentence; and

iii. Where the law provides a range between a statutory minimum and maximum leaving the

court to exercise the discretion in any manner it deems fit and appropriate within the

prescribed range.126

The judge in exercise of discretion in the award of punishment is expected to act within a set

benchmark defined by parameters that are not exactly sanctioned by law, but mostly by practice,

124
See for instance Sections 8 to 26 of the ICPC Act 2000. Similar provisions in EFCC Act e.g S. 18 (2).
125
Per Bode Rhodes-Vivour JSC in the case of Tabik Investment Ltd v. Guarantee Trust Bank Plc.

126
Yomi Okubote: Current Issues on Sentencing, Custodial Reforms & The Criminal Justice Administration in
Nigeria. Written in Honour of Hon. Justice Lawal Hassan Gummi, OFR
convention and judicial precedence, with rather weak and non- binding directives stipulating

conditions for exercise of discretion.127

The allocutus, mitigating and aggravating factors are all conditions that influence the exercise of

discretion by a judge in awarding sentence on a convict but no law particularly obliges the judge

to adopt any of this factors.

Allocutus is the statement made before the court by a felony or treason convict before his

sentencing, appealing for leniency in the sentence yet to be awarded. Allocutus or plea of

mitigation in certain parlance influences the mind of the judge to exercise discretion favorably.

And where the judge is swayed by the plea or appeal of the convict or his counsel, a lighter or

more liberal sentence is imposed. This consideration confers on the judge an ample leverage to

select a sentence that is less than the maximum in favour of the most minimum

provided by the law. The judge is not guided by any statutory standard for determining

when to be lenient and when not. However such factors as mitigating or aggravating

factor mentioned assist the judge in determining when to temper justice with mercy by

exercising discretion in favour of far less than the maximum punishment provided by the law,

or going lenient by imposing far less than stipulated by the law. Factors that may

invoke leniency normally referred to as mitigating factors are the old age of the offender, plea of

guilt without wasting the time of the court and show of remorse, membership of the same

family, good character or record of been a good Samaritan etc while factors that may

lead to invocation of the maximum sentence provided by the law are normally called

Aggravating Factor e.g prevalence of such a crime and the need to educate and deter

potential offenders, the serious nature of the offence, bad character of the offender or

127
Sse the case of University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at 175. Stating the conditions for
discretionary power to be judicious and judicial.
cruelty/callousness in commission of the crime, occupying a position of trust and using the

colour of the office to perpetrate the crime as in cases of corruption by public officers etc.

Although there is the general presupposition that sentence can only be imposed in

tandem with the enabling statute i.e the Constitution or the other codes, this hardly defines or

refines the ambit of judicial discretion in the award of sentence. It nevertheless highlights and

helps in the formulation of the judicial rule that discretionary powers of the judge or

magistrate must be judicially and judiciously exercised. 128 In Abanyi v. State.129 It was held that

the judge has discretion but should state the factor that influenced his decision.

Some other consideration that judges pay attention to are the aims and objectives, or

purpose that should be achieved by punishing the offender for the crime convicted. Most

of the objectives are rooted in philosophy where scholars have identified and adumbrated

the objects of punishment and that each sentence to aim at achieving a defined goal.

Goals ranging from Retribution, educative or the utilitarian object of punishment,

encompassing deterrence, rehabilitation and reform, and disablement theories. This philosophical

theories define the objective of criminal law and punishment in particular, that a sentence in all

situations most seek to attain a goal of either deterring the offender and other prospective

offenders from committing the punishment, or permanently disabling the offender from

further crimes by imprisoning him or physical amputation. Achieve a goal of rehabilitating

or reforming the offender or educating the public about the existence and consequence of such a

crime, or deterrence principle which seeks to deter the offender or potential offenders

from committing the same crime.

128
Essien v. Cop 5NMLR 449 Pg 381 cited in Yomi Okubote supra page 73.
129
1995 9 NWLR 369. Pg. 1.
In as much as this judicially formulated rule and the other considerations in exercising

discretion in sentencing are meant to be served, there are no hard and fast rules on this

point. Because they are not statutorily backed, there is nothing mandatory about been strict in

compliance with the rules and considerations by the judges.

Historically, judges have had considerable discretion over the determination of criminal

sentences. Except for a few cases mostly capital offences with strict minimum sentences

imbedded in the laws and imposed on conviction, most other criminal provisions in our

statute stipulate maximum sentences and without a baseline for least punishments for such

offences referred. Under the American legal appellation referred to as indeterminate sentencing,

which allows a wide range of discretion for judges to elect to either be lenient or strict

in the application of the specific provision during sentencing. While such discretion theoretically

allows judges to tailor sentences to the circumstances of individual crimes and criminals, thereby

achieving a sort of ex-post fairness, it also permits variation in sentences that may not be

warranted by the observable facts of the case, reflecting instead the judge's own

preferences and sometimes biases. The deterrent essence of punishment is defeated

because judicial discretion makes it difficult for potential offenders to predict the consequences

of their actions, an impediment to the deterrence function of criminal punishment 130.

In the civil clime, I will discuss judicial discretion as it affects injunctions and adjournment.

2.4.3 Injunctions

An injunction is an equitable order restraining the party to whom it is directed from the

things specified in the order or requiring in exceptional situations the performance or a

specified act. In other words, the order of injunction is available to restrain a party from

the repetition or continuation of the particular wrongful act complaint of, with the aim of
130
See Generally Miceli, Thomas J., supra
preserving the RES or subject matter of the case. See the case of Adenuga v. Odumeru131

and Odutola v. Lawal132. Injunction is a discretionary remedy available to courts in situations

where there is a clear and present danger of distortion or tempering with the state of affairs or

things subject matter of a pending or determined suit.

There are different kinds of injunctions. These are namely: exparte/ interim injunction,

interlocutory injunction, perpetual injunction, mareva injunction, and Anton Piller injunction.

Apart from interlocutory and perpetual injunctions, the rest have limited application and are

conceived of being of extremely short duration. See the case of G.M.C. (UK) Ltd v. Medicair

W/A Ltd133. I shall here only briefly consider Perpetual and Interlocutory injunctions.

2.4.3.1 Perpetual Injunction

A court may only grant a perpetual injunction at the suit of a plaintiff in support of a

right known to law or equity. The plaintiff’s conduct must also be taken into consideration in

determining whether or not to grant the injunction see the case of Biyo v. Aku134 and Afrotec v.

MIA135.

A perpetual injunction can only be granted after a trial, when the applicant has established both

his rights and the actual or threatened infringement thereof 136. Perpetual injunction will only

be ordered, whenever the tort of trespass to property is committed, under two main

circumstances, namely: where there would be an irreparable damage or if the act

complaint of would be destructive where an injunction to restrain it is not ordered; and

131
(2001) 10 WRN 104 SC.
132
(2001) 11 WRN 34 CA.
133
(1998) 2 NWLR (Pt. 536) 86 CA.
134
(1996) 1 NWLR (Pt. 422) 1 CA.
135
(2001)6 WRN 65 SC.
136
See Globe Fishing Ind Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265 SC.
where a failure to exercise the jurisdiction would lead to multiplicity of suits. 137 The grant of the

relief of perpetual orders, which should naturally flow from the declaratory orders sought by the

claimant in a suit and granted by the court.138

2.4.3.2 Interlocutory Injunction

The discretionary remedy or order of interlocutory injunction is an equitable remedy that is

available to restrain the Defendant from repetition or continuance of a wrongful act in

relation to the subject matter of the suit “the res” and to maintain the status quo between the

parties pending the determination of the substantive suit. See the case of C.G.C. Nig Ltd Vs

Baba139. If the Plaintiff is not restrained from his acts in relation to the res, the judgment

of the court will be rendered nugatory in the event the suit is determined in favour of the

applicant.

In an application of this nature, the following factors as laid down in Kotoye Vs CBN140;

Obeya Memorial Hospital Vs A-G., Federation141 and a host of cases are considered by the

court, to wit:

i. Whether there is or are serious question(s) to be tried.

ii. Whether the applicant has a legal right or interest to be protected in the suit or on the

subject matter that warrants the grant of the injunctive order.

iii. Whether the damages that will occur if the act is not restrained by an injunction

are irreparable or are such that cannot be adequately compensated in monetary

terms if the applicant succeeds at the end of the trial.

137
See the case of Onabanjo v. Efunpitan (1996) 7 NWLR (Pt. 463) 756 CA.
138
See the case of E.S.C.S.C.v. Geofrey (2006)18 NWLR (Pt. 1011) 293 CA.
139
(2003) 23 WRN 44 at 49 Ratio 6
140
(2000) 16 WRN 71
141
(2000) 24 WRN 138
 iv. Whether the balance of convenience is on the applicant side and more justice will

therefore result in granting the application than in refusing it.

v. The applicant is required to give an undertaking as to damages. See the case of

C.G.C. Nig. Ltd Vs Baba142

vi. Whether there is or are serious question(s) to be tried.

In order to determine the question as to whether there is a serious question to be tried the court

has to look at the affidavit and pleadings and an applicant for interlocutory injunction has

to only show that there is a fair question(s) to raise as to the existence of the right

which he alleges. See the case of Itex Ltd Vs First inland Bank Plc143.

It is therefore sufficient for the applicant of interlocutory injunction to establish that there exists

a question fit to be tried or adjudicated by the court to satisfy the requirement of triable issue;

there lies the discretionary power, to determine whether the facts as presented indeed fulfill the

conditions as stated.

2.4.4 Adjournments

In the consideration of application for adjournment, the court is expected to balance between two

main factors (i) the need to dispose off the case without delay; and (ii) the right of the

applicant to be heard without undue coercion. In balancing these factors, the court is

guided by the need to do substantial justice. Unnecessary and prolonged adjournments

lead to frustration on the part of the parties and ultimately miscarriage of justice. The

court may therefore refuse an application for adjournment if in the opinion of the court

142
( 2003) 23 WRN 44 at pg 50, Ratio 7
143
(2007) 14 WRN 135 at pg 140, Ratio 3
is designed to delay or defeat justice. See the case of State v. Duke144, Odogwu v. Odogwu145

and the case of Ndu v. State146.

The granting or the refusal of an application for adjournment in a hearing is within the

discretion of the court, though subject to the trite guiding principles as discussed earlier

in this paper, that the discretion must be exercised at all times not only judicially but

also judiciously on the materials placed before the court and the peculiar circumstances

of the particular case. See the case of State v. Duke147 and Odogwu v. Odogwu148. An

appellate court can only set aside the decision of a lower court for exercise of discretion in these

circumstances where it is shown that the court exercised its discretion wrongly; in that it

works manifest injustice against the interest or rights of the appellant, or in clear

infringement of a law see also Queen v. Onye149 and State v. Duke150.

2.5 Importance of Judicial Discretion

Legal decision making can never be reduced to geometric precision, as there is no doubt that all

legal formulations are subject to some judicial interpretation. Nonetheless, the scrutiny structure

as presently articulated leaves wide latitude for lower courts to reach almost any result with little

substantive guidance from above.388 Hence, every judge, especially the trial court judge has a

level of discretion that he/she must exercise, no matter how fettered or unfettered, there is a tiny

window of liberty in any case. No doubt, guidance from superior courts are highly necessary.

144
(2003) 5 NWLR (Pt. 813) 394, CA.
145
(1992) 7 NWLR (Ppt 253) 244, CA
146
(1990) 7 NWLR (Pt 164) 550, SC.
147
supra
148
supra
149
(1961) 1 ALL NLR 642.
150
supra
Therefore, the discretion of a judge is unavoidable because law cannot anticipate every

eventuality or how to decide which law may apply to a given situation.151

Judicial discretion is indispensable in the Nigeria society, which has a range of inequalities,

diverse people with different tribes/race, just like the American society. So, for courts to attend

to all these people and the needs of society, discretion of the court is highly necessary.

Judicial discretion shapes the jurisprudence of the court’s interpretation of statutes and puts a

face to the law. Thus, and very importantly, such discretion only makes sense when the

parties/society understands, appreciates and acknowledges it as fair and just.

Another value of discretion is that it operates/evolves with the times and depicts reliance to

society. It states or underscores the relevance of the judiciary to social justice and democratic

development-a fundamental tool in this era of somewhat ‘unrestricted’ liberties and diverse

social interests.152

The discretionary powers of judges arise in the final analysis in filling up gaps that have resulted

from legislative omission. There are some social issues that are not fully covered by existing

legislation that needs discretion to flesh out through proper interpretation. Thus, in the absence of

precedent, where there are extenuating circumstances, judges apply unfettered discretion. Such

discretion eventually helps to form the basis for precedent, and eventually establishes precedent.

Therefore, judicial discretion helps to advance the law and develop legal jurisprudence. No

single judge can boost of complete mastery of the law. Discretion creates the beauty of diverse

knowledge and experiences from different judges because it is individualistic. As different

judicial discretion with idiosyncratic judging philosophies evolves, with the times and seasons,

the law develops.

151
Abhulimhen-Iyoha, opcit
152
Where people have freedom to exercise their rights in such a way that it infringes on the rights of another. An
example is the freedom of expression of the press.
Judicial discretion also saves judicial and legislative time. Where there is no precedent or

guidance on what to do, the judge’s discretion can save everyone involved valuable time. A

ready example is a case this author presided over in Lagos Sate, Nigeria: Commissioner of

Police v Jelilie Lawal & Kehinde Oyelara. 153 discretion became vital and necessary. This case

involved threat to life and the cell phone which contained the alleged threats could not come on.

Thus, this, affected her review of evidence. Hence, in the absence of a provision in the Evidence

Act or any other law stipulating what to do in such instance, she exercised discretion and asked

that the phone be charged before both parties in open court. Unfortunately, the phone could not

come on and the court adjourned for ruling on a no case submission.154

Judicial discretion is not an absolute power; hence it has its restrictions however limited. The

point is in Nigeria sometimes it appears judicial discretion is exercised within broad legal and

social context that it can be taken that it is unfettered, to the extent that the judge is the

determinant of what the law is. When a judge exercises his/her discretion, they have an area of

autonomy free from strict legal rules, in which the judge can exercise his judgment free from

technicalities, to ensure justice in relation to the peculiarities of the case before him/her.

This is a convenient space to bring in the argument on fettered or unfettered discretion of the

courts. There are two classes of arguments, the first is that the discretion of judges are absolute

and the second is that judges do not and cannot exercise absolute discretion. According to Niki

Tobi, the moment a trial court is called upon to exercise his discretionary power in accordance

with the enabling law, judiciously and judicially, it will not be correct to say that the court has an

unfettered discretion in the matter. 155 Over the years, judicial pronouncements in Nigeria have

153
(Unreported), Charge No. L/8/2009.
154
See Vanguard Newspaper (September 1, 2009), Opcit
155
Tobi, N, opcit:129
developed and constantly made both arguments. While some judges believe judicial discretion in

Nigeria is fettered, others believe discretion is unfettered. 156 Smithburn supports the later.157 In

Mohammed v. F.R.N. & Ors158. the court held that where the discretion of a judge is required to

do or omit to do anything, that discretion when exercised, is not absolute. It can be challenged if

a party feels injured by it or if it will affect a person’s right to freedom or as to show that the

discretion has not been judiciously exercised.159 But in Awani v. Erejuwa,160 it was held inter alia

that discretion conferred upon trial courts is generally unfettered and an appellate court cannot

ordinarily interfere with the exercise of the discretion unless it is shown that the discretion was

wrongly exercised." This was supported by the court in Aso Motel Kaduna Ltd. v. Deyemo,161

that it is trite law that all courts in Nigeria have unfettered discretionary power to adjourn any

proceedings pending before them in order to do justice to the suit. The guiding principle is that

the discretion must be exercised at all times judicially and judiciously on the material placed

before the court in the peculiar circumstances of the particular case.162

156
See cases below
157
Smithburn, opcit: 143-234
158
(2009) LPELR-8364(CA)
159
Ibid
160
11 (1976) H SC 307
161
(2006) LPELR-11596(CA)
162
See Flour Mill of Nigeria Ltd v. Ogunbayo (2014) LPELR-24264(CA)
It is important to note that the type of court, 163 the proceedings,164 the nature of the case,165 the

stage of the hearing,166 all somewhat determine whether a court has fettered or unfettered

discretion. For example, in Nwannewuihe v. Nwannewuihe,167 the court has an unfettered

discretion to grant or refuse as the case may be, an order of interlocutory injunction. Albeit like

all other judicial discretions, the court has an obligation to exercise such discretion not only

judicially but also judiciously.168 Also in Stabilini Visinoni Ltd v. Mallinson & Partners Ltd,169

the court emphasized that bottom line is that a court has an absolute and unfettered discretion to

award costs or not to award them; what is paramount is to take into account all circumstances of

the case.170

Further, in Plateau State Health Services Management Board & Anor. v. Goshwe 171 a court has

an unfettered discretion to re-arrange an issue for determination by the parties to meet the case. 172
163
See Mobil Producing (Nig) Unltd v Ajanaku & Ors (2007) LPELR-8758(CA) “it has become trite law that all
superior courts of record have unfettered discretion in the exercise of their equitable jurisdiction to stay their
proceedings. The same unfettered discretion avails the appellate courts to stay not only their own proceedings but
the proceedings of the courts from which the appeals pending in the appellate courts arose. This discretion must
however be exercised judicially and judiciously"
164
See Awure & Anor. v. Iledu (2007) LPELR-3719(CA) “trial courts are allowed free hand to exercise their
discretion to amend any pleading any time before judgment provided no issues have been introduced.”
165
See Iche v. State (2013) LPELR-22035(CA)” a judge of the High Court trying an accused person has unfettered
discretion to review the bail.”
166
In IPCO Nigeria Ltd. v. NNPC (2013) LPELR-22083(CA) this court has an unfettered discretion to allow an
amendment of the Notice of Appeal at any time before the hearing of the appeal.
167
(2007) LPELR-8247(CA)
168
See Falomo v. Banigbe (Supra) at 695 paragraphs C - G.
169
(2014) LPELR-23090(CA)
170
See Total Engineering Services Team Inc. v Chevron Nigeria Ltd. (2010) LPELR-5032(CA) I would further wish
to restate the trite law that a court has an absolute and unfettered discretion to award or refuse costs in any
particular case but that the discretion must be exercised judicially and judiciously.
171
(2012) LPELR-9830(SC)
172
See Awojugbagbe Light Industries Ltd. v. P. N. Chinukwe & Anor (1995) 4 NWLR (Part 390) 379; (1995) 4
SCNJ 1; Latinde & Anor. v. Bella Lajunfin (1989) 5 S.C. 59; (1989) 5 SCNJ 59; Unity Bank & Anor. v. Edward
And in Honey Crown Products Ltd v Shell Electric Manufacturing, 173 the court held that a Judge

is vested with unfettered discretion, but when such discretion is exercised erratically, it then

fetters the parties before it.174

In summing up the above argument, it appears in the most part that whether a judge’s discretion

is fettered or unfettered varies, depending on the nature of the case. In the US, it appears

discretion swings depending on the case or court. According to Smithburn sometimes discretion

is fettered sometimes it is not fettered. 175 In family law or child custody case, for example,

discretion is unfettered as the best interest of the child is what determines the level of discretion a

court can apply. Although at a time in history, American courts had unfettered discretion in

sentencing of persons convicted with crime as judges took into account various mitigating

factors. However, with the Federal Sentencing Guidelines, and the mandatory minimum

sentencing legislation, federal courts in the U.S no longer had the broad latitude or discretion to

make sentences to fit crimes and the defendant as before. 176 In other words, the legal framework

in both Nigeria and the U.S gives judges huge discretion, depending on the type of case. 177

Courts in the U.S have great discretion in rulings concerning the examination of witnesses, the

manner in which witnesses testify as well as the actual testimony, 178 but it must be tempered with

reason.179

Bonari (2008) 2 SCM 193 At 240.

173
(2013) Lpelr-20077(CA)
174
See Okoh & Ors. v. University of Lagos & Anor. (2010) LPELR-4719(CA)
175
See Smithburn, (2006), opcit
176
Kana, opcit:160
177
Family laws cases
178
See Louisiana v. Hayes, 806 So.2d 816 (La. App. 2001.)
179
Montana v. Nelson, 48 P.2d 739 (Mont.2002); Willard v. State, 244 Ga. App. 469, 535 S.E.2d 820 (Ga.App.
2000).
However, the discretion of judges in Nigeria appears to be somewhat unfettered in sentencing.

For example, the recently enacted sentencing guidelines of the Federal Capital Territory of

Nigeria180 and Lagos State of Nigeria181, gives judges options to sentencing convicted felons in

the absence of statutory punishment.182 These Guidelines widens the judge’s discretion. 183 For

example, the provisions under the Administration of Criminal Justice Law that provides for

custodial and non-custodial sentences require the court to

…penalizing concepts such as probation, parole, community service,

rehabilitation, etc. unfortunately the absence or...

these facilities give courts unfettered discretion to decide how to sentence.

Ultimately, though not precise, Nigerian courts seem to have more unfettered discretion than

fettered. In view of the leverage section 6 of the 1999 Constitution grants judges to exercise their

discretions, and coupled with the argument on the dangers of this 'latitude' of discretion allowed

a judge; courts have devised a concept/principle to regulate the extent of discretion allowed a

judge, which stipulates that judicial discretion is somewhat fettered must be exercised

"judiciously and judicially"184 Thus Niki Tobi’s argument that it is wrong to say a judge has

unfettered discretion in all matters, would be appropriate. 185 Yet, what is equally appropriate is

the submission of Per Georgewill, JCA, that an exercise of discretion, though not subject to so

much hard and fast rules or fettering, loses its salt of being a discretion and thus it is best served

180
The Federal Capital Territory Courts (Sentencing Guidelines) Practice Direction, 2016
181
Lagos State Judiciary (Sentencing Guidelines) Practice Directives, 2018
182
See notes 109 &110, ibid
183
See sections 3, 12, 21, 30, 39, 48 and 57 of the FCT Sentencing Guidelines, Ibid and sections 4, 14, 24, 34, 44, 54
and 64 of the LSJ Sentencing Guidelines, ibid which both provides for discretionary and nondiscretionary
punishments.
184
Kana, opcit :161
185
See fn 377
unfettered.186 Nevertheless an exercise of discretion must be founded on justice, fairness and law

and not on the whims and caprice of the court with scanty or no regard to the facts of the case. 187

This is supported by the Court in Anyah v African Newspaper of Nig. Ltd,188 that discretion will

cease to be one if it can only be exercised in one particular form. Also, in Ozigbu Engr Co Ltd v

Iwuamadi,189 the Court held that in the course of deciding on the circumstances of a case, courts

are endowed with an unfettered discretion to keep up with the times and economic trend in the

country and most especially with prevailing fluctuating and rather obvious decline of purchasing

power of the Nigerian currency i.e. the Naira.

The bottom-line in all arguments above is that the discretionary powers of a judge are

indispensable in the act of judging. Judges are neither machines nor equipment, but humans who

must assess, review and decide on the best justice in a given case, based on diverse extenuating

circumstances that revolve with seasons in a revolving society. The discretion of a judge should

be of value to the society. It is the role of the judge to use the law for its true purpose in society–

gain the confidence of society on the merits of substantial justice. As Per Abiru, JCA succinctly

puts it in Mbas Motel Ltd. v Wema Bank Plc.190

“We must never lose sight of the fact that justice is rooted in public confidence

and it is essential to social order and security. It is the bond of society and the

cornerstone of human togetherness. Justice is the condition in which the

186
Adelaja v. C.M.S. Grammar School Bariga & Ors (2017) LPELR-42729(CA) at 11
187
See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143. See also Aboseldehyde Lab. Plc. v. U.M.B. Ltd.
(2013) 13 NWLR (Pt.1370) 91 @ pp. 97 - 98; Aroh v. PDP (2013) 13 NWLR (Pt.1371) 235; Thimnu v. UBN Plc. &
Ors. (2013) LPELR 22127 (CA) @ pp. 20 - 21; Abiodun v. CJ. Kwara State (2007) 18 NWLR (Pt.1065) 109 @
p.152; Adeniji v. Adeniji (2013) 15 NWLR (Pt.1376) 102 @ p. 125. In E.F.P.C. Ltd. v. NDIC. (2007) All FWLR (pt.
367) 793 @pp. 825 – 826.
188
(1992) LPELR-511 (SC)
189
(2009) 16 NWLR (PT.1116) 44 @ 79
190
(2013) LPELR-20736(CA) at P. 26, Paras. E-G
 individual is able to identify with society, feel at one with it and accept its rulings.

The moment members of the society lose confidence in the system of

administration of justice, a descent to anarchy begins.”

Accordingly, the view of Judicial discretion in Nigeria creates the opportunity for courts to

establish or restore the confidence of society in the judicial process.

2.6 Abuse of Judicial Discretion

It is clear from the discussion thus far that discretionary powers which the courts exercise, no

matter how logically designed and its procedures are, may be abused, and completely utilised to

pervert justice.191 The recent birth of corruption in our courts has made the abuse of discretionary

powers become enormous both in criminal and civil cases. It has influenced the tilt in balance to

the scale of justice in proceedings that requires the exercise of discretionary power. Abuse of

judicial discretion is more aggressive in criminal cases alluding to the sentimental nature

attached to crime and the utmost regard giving to public opinion. A judge before whom a

paedophile is brought and who has had such nasty personal experience would be holier than the

Pope for such a judge not to abuse his discretionary power in sentencing such an offender. 192 In

191
Abuse of Discretionary Power’ available at http://www.criminaljusticedegreehub.com retrieved on 19th
November, 2016. A District Judge Mike Fuller of Montgomery, Alabama didn’t live up to this creed of impartiality.
Over the course of his career, it’s become clear that he prefers to judge cases based upon his own interests. He’s
refused to try political allies, taken in large sums of money via his private company, and avoids recuing himself of
duty. His antics are so renowned that they’ve inspired numerous newspaper columns and opinion pieces
192
In Re Fuselier 837 so.2d 1257, 1259 (La 2003) Judge Perrell Fuselier, of the City Court of Oakdale, Louisiana,
was found to have abused his authority when he conducted arraignment in criminal cases without a prosecutor
present. It involved the arrest of ten local teenagers for defacing private property with spray paint. When the
teenagers appeared in front of judge Fuselier, the prosecutor was not available nor were the defendants, accepted
guilty pleas from each of them, fined them $100 plus costs, and sentenced them to perform three days of community
service; Stewart C.E, Abuse of Power & Judicial Misconduct: A Reflection on Contemporary Ethical Issues Facing
Judges, 1 U. St. Thomas L.J. 464 (2003), p.473 available at http//:www awjournalstthomas.edu.com retrieved 19th
March, 2024
criminal cases, the criminal intent (mens rea) and the actual commission of the crime (actus reus)

are majorly looked out for by the court. However, study have shown that these two major

elements has found less of a place in sentencing offenders compared with public morals and the

intention to get criminals off the street. Thus, the neglect and or refusal of a trial judge to take

into account the necessary statutory provisions in the trial of the accused/offender, with

consequent verdict of guilt and sentence on him based on upholding morals and the intention to

keep sanity in the society can best be described as gross abuse of discretionary powers.193

Another familiar terrain where judges often abuse discretionary power in criminal cases is on the

issue of bail applications. Judges on several occasions have made a mockery of our criminal

justice system, by refusing to grant application for bail despite the fact that evidence has not been

placed before the court by the prosecution to warrant refusal. There has been recent legal

argument by lawyers that bail application should not be refused ordinarily if there is no cogent

evidence before the court in support of the alleged crime. However, judges have hid under the

guise of national security to refuse bail application where the matter is of sensitive nature. 194 It

should be noted however that the Constitution presumes the innocence of an accused person until

193
Rufia v. The State (2001)13NWLR (Part 731) 713, In that case the appellant along with other two accused
persons were jointly charged and arraigned before the High Court of Oyo State sitting in Ibadan, for the murder of
one Bolape Olaleken. At the conclusion of the trial, the court found the appellant guilty as charged, but the other
two accused persons were found not guilty and were discharged and acquitted. The appellant’s appeal to the Court
of Appeal was dismissed. He further appealed to the Supreme Court which allowed the appeal and declared the trial
null and void. It was revealed that the appellant was not properly arraigned and his plea was wrongly taken, yet the
trial judge found the accused guilty and sentenced him. See also Ashiru v. Ayoade (2006) 6NWLR (Part 976) 405
194
Oghushi A, ‘Abuse of Discretionary Power in FRN. v. Nnamdi Kanu’: Comments, available at
http://www.nigeriaeye.com retrieved 11th April, 2024. Application for bail in that case was refused by both the trial
court and the court of appeal despite the prosecution not been able to put forward evidence in support of the alleged
crime of treason against the defendant, all that was before the court to refuse the application was a said radio
station transmitter, two international passports and the fact of entry into the country by the defendant without using
either of the passports.
the contrary is proved195 in granting bail applications and not the sensitive nature canvassed by

most judges. Failure by judges to abide by the constitution which gives them the statutory

powers they exercise will in no doubt itself amount to gross abuse of power. Abuse of

discretionary power by judges is not limited to the confines of criminal cases only, civil matters

are not left out of this cankerworm. This menace has found its way even in superior courts,

where conflicting judgments are given by courts with concurrent jurisdictions 196 and frustrating

injunctions are granted197 despite the provisions in the Code of Conduct for Judicial officer. 198

Judicial officers have also abused their powers by ignoring decisions of superior courts. 199

Conflicting judgments in civil cases go to the very root of the judicial system. If the established

principle that trial courts have no power to set aside their own judgment except in well-

established circumstances, the principle that courts of coordinate jurisdiction cannot overrule

195
Section 36(5) CFRN, 1999 (As amended).
196
Justice Mahmud Mohammed (CJN) Rtd, ‘Address delivered at the special session of the Supreme Court to mark
the commencement of the 2016/2017 Legal Year and the inauguration of 22 new Senior Advocates of Nigeria’,
2016. He stated that ‘It can be recalled that conflicting judgments were given by a Federal High Court in Abuja and
another Federal High Court in Port Harcourt over the crisis in the Peoples Democratic Party between the Ahmed
Makarfi and Alli Modu Sherrif’s factions. Another conflicting judgment was given in the Abia State governorship
tussle between Governor Okezie Ikpeazu and another PDP contender, Dr. Uche Ogah’.
197
Osita Mba O, ‘Petition to the National Judicial Council against Hon Justice Ibrahim N. Buba in relation to the
Illegal Perpetual Injunctions he granted to Dr Peter Odili: Gross Incompetence and Flagrant Abuse of Powers
amounting to Judicial Misconduct and Violations of the Code of Conduct for Judicial Officers’; FHC/PH/CS/78/2-
007, 20th November, 2009, available at http://www.saharareporters.com retrieved 19th March, 2024
198
Paragraph 2 Rule 2 of the Code of Conduct for Judicial Officers.
199
Justice Mustapha Akanbi, Former Chairman of the Independent Corrupt Practices and Other Related Offences
Commission (ICPC), ‘Safeguarding the Integrity of the Justice System: Corruption in the Administration of Justice,’
A paper delivered at a summit on Justice Sector Reform, Federal Ministry of Justice; Thisday Newspaper, 19th
March, 2003. Where he expressed concern over the growing trend of judicial officers ignoring decisions of superior
courts, and abuse their discretionary powers. Calling on erring judges to re-examine their lives, he said the
slightest suspicion by discerning members of the public that justice is available for sale, diminishes the awe and
regard with which judges and the judiciary are held.
themselves or set aside each other’s judgments and that the Court of Appeal itself cannot over

rule itself are all in one place, then the question is how come do conflicting judgments still rear

its head in our courts? The answer is simple, every judge believes he is the lord and master of his

court and that he decides what to do and how to do it. In Osayomi & Ors v. Governor of Ekiti

State & Ors200

The Appellant filed a competent Notice of Appeal within time at the registry of the

Court, the Respondent then brought an application to strike out the Notice of

Appeal on the ground that the requisite filing fee for Notice of Appeal which is

N5,000 according to the schedule of payment in the Court of Appeal Act 2011,

was not met by the Appellant. It was the argument of the Appellant that payment

of incomplete filing fee would not warrant the Notice of Appeal being

incompetent, that it would have been different if the Appellant did not make any

payment at all and that the court has the power under the Act to order the

performance of a duty, if such duty has not been carried out in totality that is the

payment of the outstanding balance on the Notice of Appeal. The Appellant

supported his position with a ruling in a similar case just delivered two days

before the hearing of his own matter at another division of the Court Appeal,

where the Learned Justices gave a considered ruling that instead of striking out

the entire Notice of Appeal on the ground that the requisite fee was not paid and

delay or deny justice, the Appellant should go to the registry of the court and pay

the outstanding balance. The Court of Appeal in its ruling gave a different ruling

by striking out the Notice of Appeal.

200
Unreported Motion No: CA/EK/36M/2013
It should be noted that no doubt from the ruling of the court in that case that the decisions of the

court are confusing. Though it is trite that the ruling of courts of concurrent jurisdiction is

persuasive on each other, however, obviously that has created lots of problems for lower courts.

The grant of custody in matrimonial petitions is another area where judges exercise discretion.

This exercise of power and authority is without question life altering; it can provide great

protection or cause terrible harm. Certainly, some legal issues call for broader judicial discretion

than others.201 Custody determinations are among the most difficult and important decisions

judges make in the lives of parents and children. Not only must judges balance the rights,

interests, and wishes of parents, but, above all, they must ensure the safety and well-being of

children.202 However, the abuse of discretion sometimes is imminent.

In Re Brown203:-

A trial judge of the Wayne County Circuit Court decided where two small

children would spend the Christmas holiday case, by flipping a coin. Rather than

issuing a decision regarding the dispute, Judge Brown produced a coin, allowed

the defendant to call heads or tail and flipped the coin. ‘The defendant called

heads, which is what appeared on the coin and Judge Brown... ordered the

children to spend Christmas Eve with the defendant.’

201
Schneider C.E, ‘Discretion, Rules and Law: Child Custody and the UMDA’s Best-Interest Standard’, 89
MICH.L.REV. 2215, 2217-19 (1991). Schneider explains custody law as follows: [custody law] regulates the
complex behaviour of millions of people . . . Family law tries to regulate people in the most complex, most
emotional, most mysterious, most individual, most personal, most idiosyncratic of realms. It is absurdly difficult to
write rules of conduct for such an area that are clear, just, and effective . . . To put the point rather differently, rules
probably cannot wholly or perhaps even largely replace discretion in the law of child custody.
202
Aragon v. Aragon, 104 P.3d 756, 765 (Wyo. 2005) (citing Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo. 1965))
(explaining that the trial judge is granted broad discretion in custody cases because the ultimate goal is a
reasonable balance between the rights of the parents and the children’s needs)
203
Re Brown, 662 N.W. 2d 733, 736 (Mich.2003)
Also the grant or refusal of an injunctive relief is at the absolute discretion of the judge. The one

overriding requirement for any type of injunction is that the plaintiff must have a cause of action

in law entitling him to substantive relief. In effect, an injunction is not a cause of action but a

remedy. Therefore, it is generally granted only to a plaintiff or defendant who shows that he has

a cause of action against the defendant or plaintiff (or in the case of a quia timet injunction that

there would be a cause of action if the defendant were to do the act which the plaintiff seeks to

restrain). In other words, an injunctive relief protects some legal or equitable right of the plaintiff

or defendant in respect of which the defendant or plaintiff owes him a legal duty. However the

task by judges to protect these legal rights should be exercised with caution so as not to create

egregious errors of laws in the judgments. 204 Granting perpetual injunction (which is continuous

in nature) restraining the performance of a legal duty by a statutory agency against person(s) or

group of persons is an abuse of discretionary power where such injunction is without any legal

basis. Admission of evidence in civil proceedings is another critical area where judges abuse

their discretion. It is trite that evidence is admitted only if they are relevant to the facts in issue

and admissible. However, there are situations where the court would refuse to admit evidence

despite it been relevant and admissible. For example, in a Negligence case, a state appellate court

ruled that the trial court did not abuse its discretion by admitting into evidence a posed accident-

scene photograph, even though the photograph depicted a model pedestrian blindly walking into

the path of the driver's vehicle with the pedestrian's head pointed straight ahead as if

she was totally oblivious to the vehicle and other traffic. 205 In upholding the trial court's decision

to admit the evidence, the appellate court observed that the photograph was only used to show

the pedestrian's position relative to the vehicle at the time of impact and not to blame the

204
Osita Mba O, Ibid.
205
Gorman v. Hunt, 19 S.W.3d 662 (Ky. 2000).
pedestrian for being negligent. The appellate court also noted that the lawyer objecting to the

photograph's admissibility was free to remind the jury of its limited relevance during cross-

examination and closing arguments. An appellate court would find that a trial court abused its

discretion, however, if it admitted into evidence a photograph without proof that it was authentic

A photograph's authenticity may be established by a witness's personal observations that the

photograph accurately depicts what it purports to depict at the time the photograph was taken and

not the trial court. Ordinarily, the photographer who took the picture is in the best position to

provide such testimony.206 Abuse of discretionary powers by judges in civil proceeding is not

however limited to the instances discussed above, but for the purpose of research work we would

not be discussing further on that.

2.6.1 Legal Effect of Abuse of Judicial Discretion

Distrust in the Judiciary

The reasons for giving ‘judges’ judicial discretions are to cater for unforeseen situations in the

course of adjudication and to prevent unnecessary outcomes procedurally 207, however, these

discretionary powers which may be absolute corrupts absolutely, thereby having a resultant legal

effect. There has been increasing concern about the judiciary stemming out of judicial

misconduct and incessant abuse of discretionary powers. The hallmark of the judiciary has been

its historical posture of neutrality and impartiality towards litigants and the dispute they bring to

court for resolution.208 The courtrooms are regarded as the last hope of the common man where

justice is not only done but should be manifestly seen to be done; once the oath taken by judges

to do justice at all times is abused and litigants can properly evaluate the fairness of judicial

206
Apter v. Ross, 781 N.E.2d 744 (Ind.App. 2003).
207
Abhulimhen-Iyoha A, Ibid. p.3
208
Stewart C.E, Ibid, p.477
proceedings at least as much on the basis of their tone, exercise of discretion and the respect the

judge afford the parties as by the actual outcome of the proceeding, 209 adverse public perception

are casted on the ability and fitness of the individual judge involved, and the judicial collectively,

to adjudicate matters in a fair and equitable manner, thereby eroding public confidence in the

judiciary. Thus, the slightest suspicion by discerning members of the public that justice may not

be served diminishes the awe and regard with which judges and the judiciary are held.210

Controversial Pronouncements

The growing trend of judges ignoring decision of superior courts is the extreme abuse of judicial

discretion having the colossal legal effect of judges making controversial pronouncements which

has the tendency of establishing conflicting legal precedent. Controversial pronouncement is

more prominent in political cases considering the fact that corruption and partisan politics has

cripped into the judicial system, allowing judges to form ally with political parties of interest. In

an attempt to favour these interested parties, they abuse their discretionary and make

pronouncement which conflict with an existing pronouncement on the same subject matter. For

example the issues surrounding the leadership i.e the Ahmed Makarfi and Alli Modu Sherrif’s

factions and the National Convention of the People’s Democratic Party (PDP) has raised a lot of

dust particularly when separate courts with concurrent jurisdiction gave controversial

pronouncement as to where the National Convention is to take place and who is to chair the said

convention. It should be noted that once there is a pronouncement on a matter, courts with

concurrent and lower jurisdictions should be wary of making contrary pronouncement as it

209
Ibid. See also Sambhav N. Sankar, Disciplining the Professional Judge, 88 Cal. L. Rev. 2000, Pp. 1233,1241-
42 ;
210
Justice Mustapha Akanbi, Ibid. For example, where a litigant applied for an adjournment before a Code of
Conduct Tribunal on the ground that he has to preside over a legislative session at the National Assembly and the
Chairman of the tribunal insisted that he must appear at the tribunal for hearing may ordinarily create lack of
confidence in the tribunal by the applicant and the general public.
becomes conflicting precedent for cases that have related subject matters. More so, it becomes

difficult for other courts to choose which judgment to follow in matters that have related facts

and principle; and once decisions is left at the absolute discretion of the judge without a law or

precedent to follow sentimental rulings/judgments are inevitable.

Stampeding Legal Right of Litigants

One of the canons of natural justice advocates legal right for litigants to be heard on every matter

brought before the court, particularly where several applications are filed before the court by a

litigant. It is not unknown to law for a litigant to file several applications where such seeks

different reliefs, and as long as the law permits such, judges are not expected to use their

discretionary powers to displace such legal rights (to be heard) of litigants. A situation where a

counsel file several applications before a court and informs the court of the applications and in

which order he intends to take them and the court in exercise of its discretion suo motu chose the

applications that should be taken by the counsel and the once that would not be taken on the

ground that it is his court implies descending into the arena to prevent the counsel from been

heard. It is trite that every legal practitioner has the right to appear before and be heard by any

court of law, and once the court asserts its discretion against such (which is an abuse); it

displaces legal right of litigant.

Instigates Contempt of Court

In the event that judges abuse their discretionary powers and displace the legal right of counsel

or litigant, a follow up legal effect of this is that it insights contempt of court. There has been

argument that it is not contempt and it will never be where counsel refuses to be directed by the

court as to how he should present or argue his case. 211 I agree with this position. However, where
211
Hon. Justice Edokpayi M. I., Is It Contempt of Court or Abuse of Judicial Power? A Paper Presented in Honour
of Hon. Justice S.M.A. Belgore, GCON, p. 2, available at http://www.nigerialawguru.com, retrieved 19th March,
2024... ‘Counsel has a constitutional right of audience. How he chooses to present his case is his own style. It would
counsel insults or speaks disrespectfully to the judge for exercising his discretionary power; it

would be regarded as contempt,212 whether abused or not. Where it is manifestly seen that a

judge has abused his discretionary power, there are several options readily available to a counsel

to seek redress rather than acting contemptuously by insulting the judge. Contempt in-facie by

counsel is in most cases aroused by the act of judges towards such counsel. I have been

privileged to witness such an event where a counsel abused a judge when the judge attempted to

stampede the counsel to moving certain applications over others. The counsel was of the opinion

that the applications are his and that he has the right as to which application he intends to move

and in what sequence,213 and that an attempt by the court to dangle its power of discretion to

deprive him of his legal right is an abuse of the judge’s discretionary power. No doubt the

situation blew out of hand and resulted to in-facie contempt.

Misrepresentation of Law

Another concern fostered by abuse of discretionary power is the frustrating effect such has on the

rule of law. Perpetuation of the rule of law is unarguably embarrassed by the judicial abuse of

discretionary power. The exercise of discretionary power of judges requires an objective

analysis; a reasonable person should be able to find the exercise of discretion to be fair and

impartial as well. This should as a matter of fact be based on the canons of rule of law, i.e. (i)

Supremacy of the Law, (ii) Equality before the Law and (iii) Liberty. It should be noted there is a

place for giving weight to precedents, especially in civil cases and matters of equity, and to

clarify ambiguities in the black letter law, but it is an abuse of judicial discretion to treat

be unconstitutional and an abuse of office for a Judge to abridge Counsel’s right of audience by dangling or
invoking his powers of contempt.’
212
See The Dictionary of English Law 4
th Edition, p. 217 for definition of ‘Contempt.’
213
Ibid.
precedents or personal intuitions as though they are laws, equal or superior to black letter law,

especially when that black letter law is a written constitution.214

Delivering Biased/ Sentimental Judgments

Prospective injustice and biased/sentimental judgment is another legal effect of the abuse of

discretionary power by judges, especially when they unscrupulously deal with evidence that

form the basis of their judicial determination. In every legal proceeding, the trial judge has the

absolute discretion to either admit or reject any form of evidence based on whether it is relevance

and admissible, or not. Before such materials may be introduced into the record at a legal

proceeding, the trial court must determine that they satisfy certain criteria governing the

admissibility of evidence. At the minimum, the court must find that the evidence presented is

relevant to the legal proceedings. The exercise of discretion to limit the use of particular

evidence with probative value or vice versa might be unfairly prejudicial to a party, misleading

or confusing. Once an evidence is irrelevant and the judge uses his discretion to admit same to

favour either of the parties, or reject evidence with probative value, it will no doubt affect the

substantive justice of the case and in turn produce a biased and sentimental judgment most

especially when the court rely on such an evidence.

Estranged Bar and Bench Relationship

Balancing the excesses of the Bar with the high handedness of the Bench is by no means an easy

task, but parties must strike a balance and maintain some acceptable level of decorum and

civility in and out of Court. However, judicial rascality of judges in exercising their discretionary

power has the tendency of creating estranged bar and bench relationship. Counsel and litigant at

all times intend to get justice every time they approach the bench. However, where a court or

214
Roland J., Abuse of Judicial discretion, Constitution Society, available at
http://www.constitution.org/abus/discretion/judicial/judicial_discretion.htm retrieved 9th April, 2024.
judge abuses its/his discretionary power, it may warrant lawyers boycotting such court. For

example where a judge uses his discretionary power to make the production of tax clearance a

compulsory pre-condition for granting bail to an accused person standing trial as against the

provision of the Constitution, it is deemed to be an abuse of discretion which may warrant court

boycott.

2.6.2 Legal Remedies for Abuse of Discretionary Powers

Where a trial court must exercise discretion in deciding a question, it must do so in a way that is

not clearly against logic and the evidence. Consequently, the principle of independence of judges

was not invented for the personal benefit of the judges themselves, but was created to protect

human beings against abuses of power. It follows that judges cannot act arbitrarily in any way by

deciding cases according to their own personal preferences, 215 however, where they do, it may

not necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge. It is trite

law that where there is a wrong there is a remedy; it then implies that there are remedies

available to correct the error of abuse of discretionary powers. We shall be discussing these

remedies.

Judicial Sanctions

The Constitution has clearly placed the power to exercise discretionary control over erring

judicial officers in the National Judicial Council. Once it is clear that a certain judge has abused

is discretionary power there is a set out procedure for making a complaint, disallowing

interference from other arms of government. 216 The National Judicial Council is the statutory

body saddle with the responsibility of investigating and carrying out quasi-trial of judicial

215
Chapter 4, ‘Independence and Impartiality of Judges, Prosecutors and Lawyers’, Human Rights in the
Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, p. 115, available at
http://www.ibanet.org retrieved 2nd April, 2024
216
See Judicial Discipline Regulations, 2014
offences and upon its findings has the power to punish its erring members. Although this

measure of control may be administrative in nature but effective as it covers dismissal of

judges,217 suspension of judges,218 transfer of judges in cases of justices of the Court of Appeal

from one division to another, non-promotion to the higher bench and possible prosecution of

judges involved in corrupt practices.219

Judicial Review

One of the recurrent themes in legal thought has been the need to control discretionary power of

judges so that it is not abused. One method for controlling discretionary power is through judicial

review. The aim of judicial review is to ensure that public officials stay within the law and do not

abuse their powers.220 Where they abuse such powers it is the duty of courts with, Appellate and

217
See Dismissal of Justice Mohammed Yunusa (wrote and delivered two different judgments in one case);
Dismissal of Justice Olumide Felahanmi Oloyede, Osun High Court, available at http://www.Saharareporters.com
retrieved 12th April, 2024
218
See List of judges suspended by National Judicial Council in Nigeria, available at
http://www.nigeriamonitor.com retrieved 12th April, 2024
219
The Chief Justice of Nigeria, Justice Mahmud Mohammed, on Monday (during the special session of the
Supreme Court to mark the commencement of the 2016/2017 Legal Year and the inauguration of 22 new Senior
Advocates of Nigeria), declared that judges, who in the recent past in the country, gave conflicting judgments from
courts of concurrent jurisdiction, were being investigated based on petitions against them. Mohammed, who
promised that appropriate actions would be taken against errant judges who gave conflicting judgments. He said,
‘Let me state before the court starts that cases of courts of coordinate jurisdiction, giving conflicting judgments, will
be addressed. All the judges involved are being investigated and actions will be taken against them accordingly. The
CJN stated that in line with the provisions of the constitution, the Judicial Discipline Regulations 2014
comprehensively sets out the procedure for making a complaint, disallowing interference from other arms of
government. He added that lawyers, who wrote petitions against judges and other judicial officers directly to the
President, without going through the National Judicial Council, would be punished by the LPDC; The ongoing case
of Justice Adeniyi Ademola of the Federal High Court of the FCT who is been tried for judicial corruption and
abuse of office is a handy example of the disciplinary measures melted out to judges; see also Rita Ofilli-
Ajumogbia’s case; Justice Sylvester Ngwuta’s case, all available at http://www.mondaq.com retrieved 11th April,
2024.
220
Craig P.P., ‘Administrative Law’, (sixth ed.) Sweet and Maxwell, 1989, p. 22.
Concurrent jurisdiction or the court itself to review such judgment or ruling. It is trite that a court

has the power to review its own decision particularly when such decision was entered into per

incuriam (decision giving in error) and it clearly evidenced that injustice has occurred. At this

stage, the court is empowered to set aside, quash every judgment in error to mitigate the

harshness of judicial abuse of discretion. Judicial review may be upward or downwards

depending on which side the abuse tilts to. For example with issues of granting cost by the court,

which either may be excessively outrageous compared to the event or unreasonably inappropriate

may be reviewed by an Appellate court or the court itself.

Exercising Administrative Fiat

The Chief Judge of a state may make rules for regulating the practice and procedure of the High

Court of a State, subject to the provision of any law made by the House of Assembly of a

State.221 The implication of making rules is that the Chief Judge of a State can exercise his

administrative power/fiat when and where he deems fit, to act as check on judicial officers. The

Chief Judge of a State has the power to withdraw a case from a particular court and transfer same

to another court through administrative fiat if there are reasonable grounds to believe that a

particular judge has shown biased interest to a particular case, or as abused his discretion or there

is the likelihood of him abusing his discretion. Where the abuse has already been carried out, the

Chief Judge may decide to stop further hearing of such case by that particular judge and remit

same to another judge to start de-novu. However, it should be noted that administrative fiat is not

only exercisedwhen judges abuse discretionary powers.

Appeals

221
See Section 274 of the 1999 Constitution (As Amended); Sections 236, 248 254, 264 of the 1999 Constitution
The Constitution222 expressly provides for the right of appeal to every litigant whether with the

leave of court or without leave. It could then be inferred that once the decision of a court is not

satisfactory to a litigant, the litigant has the right to appeal such decision to the appellate court

for such decision to be set-aside. No doubt exercising discretion leads to making decision, thus,

when discretion is abused, it may affect the decision of the court, and once the decision of the

court is affected adversely by the abuse of discretion it becomes a ground for appeal. 223 The

traditional standard of appellate review for evidence-related questions arising during trial is the

‘abuse of discretion’ standard. Most judicial determinations are made based on evidence

introduced at legal proceedings, as such, appeal is to evaluate whether the lower court examined

properly the evidence before it and to see if extraneous issues are not brought into the

proceedings, thus, where the appellate court finds an improvident exercise of discretion contrary

to the position of the law then it become an error of law and ground for setting aside the decision

of the lower court.

2.7 Attitude of Appellate Court in Exercise of Discretion by Lower Court

Discretion, being judicial must at all times be exercised not only judicially, but also judiciously

on sufficient materials224. An appellate court may interfere with the exercise of judicial discretion

if it is shown that there has been a wrongful exercise of the discretion.

A trial court’s discretion ought not to be interfered with by an appellate court if the exercise of

the discretion is based on a correct principle of law, even though the appellate court could have

come to a different decision.

222
Sections 241 and 242 of the 1999 Constitution (As Amended)
223
Kana A.A, Ibid, p. 166
224
B. Momodu. Encyclopedia of Nigerian Case Law Principles and Authorities (Benin: Momodu B. Law Publishing;
2018) p. 310.
Discretion however will lose its character and import if it does not “command some level of

subjectivity and arbitrariness”225. Where there is no error in principle, exercise of discretionary

power should not be interfered with unless the appellate court is of the opinion that the exercise

of power is capable of working or involves injustice. 226 Where a discretionary power exercised

by the lower court is not based on a wrong principle of law and not arbitrary capricious or

unrestrained, an appellate court will not reverse a discretionary order merely because it would

have exercised the discretion differently227.

Exercise of discretion by the High Court would not be substituted with appellate court’s

discretion unless it is not exercised judiciously or judicially. For instance, where the exercise of

discretion was done arbitrarily, illegally or based on extraneous and irrelevant matters as was the

issue(s) in the under listed cases.

Mrs S. Kadiya & Ors v Kadiya & Ors 228, Gateway Bank of Nigeria v Abosede 229, Prof. Chief

Olatunde & Anor v Abidogun & Anor230, Obi Eze v A.G. River State & Anor 231, Dalfam Nigeria

Ltd. v Okaku International Ltd & Anor232. The appellate court will intervene where wrongful

exercise would lead to injustice Maya v Oshuntokun233, C.A. Okeniyi & Ors. v Mogaji O. Akanbi

& Ors234.

225
Murli Mirchandani & Anor. Babatunde Pinheiro (2002) FWLR (pt 48) P. 1307 @ 1326.
226
Chief Hseghosimhe & Ors v. Chief Ogbeta & Ors (2002) FWLR (pt 88) p. 862 @ 869.
227
Ayangede v. OAUTH (2001) 7 NWLR (pt 711) p. 187.
228
(2001) FWLR (pt 70) @ 1597.
229
(2001) FWLR pt. 79 (p 1316) p.1347.
230
(2002) FWLR (pt 88) 902 @ 913.
231
(2002) FWLR (pt 89) 1109 @ 1128
232
(2002) FWLR (pt 96) 50 @ 526.
233
(2001) FWLR (pt. 81) p. 1771 @ 1805.
234
(2002) FWLR (pt. 84) p. 113 @ 133.
It is an essential requirement of the administration of justice that the exercise by a court of its

judicial discretion should not only be respected but invariably upheld. However, such exercise of

discretion may be interfered with by an appellate court where the discretion so exercised will

result in injustice. See Amed v S.M.B. Ltd235, see also, Awolaye v Ogunbiyi236.

Where the exercise of discretion by a trial court is in issue, an appellate court is usually reluctant

to interfere with the decision, except where the discretion was exercised in an arbitrary or illegal

manner or without due consideration of the issue by the trial court. See Military Governor of

Lagos State v Adeyiga237 see also Williams v Hope Rising Voluntary Funds Society238; Biocon

Agrochemicals v Kudu Holdings239; Ehidinmhen v Musa240; R. Benkay (Nig.) Ltd v Cadbury

(Nig.)241; Onyekanmi v NEPA242.

However, once a lower court has exercised its discretion judiciously and judicially the appellate

court cannot interfere with it even if it would have exercised its discretion differently in the same

situation. See Rabiu v Adebajo243.

An appellate court will not reverse a discretionary exercise of a lower court in arriving at a

decision unless the discretion was exercised wrongly. However, the court must be guided by

rules and principles of law and will only grant a party’s claim when he is found to be entitled to

235
(2015) 13 NWLR (pt. 1476) p. 403.
236
(1985) 2 NWLR (pt. 10)861.
237
(2012) 5 NWLR p. 291 (SC).
238
(1982) 1-2 SC 145.
239
(2000) 15 NWLR (PT. 691) 493.
240
(2000) 8 NWLR (pt. 669) 540.
241
(2006) 6 NWLR (pt. 976) 338.
242
(2000) 15 NWLR (pt. 690) 414.
243
(2012) 15 NWLR p. 125 (SC.
such claims. See Akinyemi v Odu’s Investment Company Ltd.244 . See also University of Lagos v

Aigoro245; Onuoha v Okafor246; see also University of Lagos v Aigoro247; Elendu v Ekwoaba248.

The appellate court may however intervene where wrongful exercise of discretion would lead to

injustice249 Okeniyi & Ors v Mogaji O. Akanbi & Ors supra 250. It may also interfere with exercise

of judicial discretion where it was based on wrong or insufficient material; where no weight or

insufficient weight is given to relevant consideration; where the court acted under misconception

of law or misapprehension of facts, the appellate court will intervene in the overall interest of

justice. See Akinyenmi v Odu’a Investment Company Ltd 251, Alhaji Saleh v Alhaji Monguno &

Ors.252, Alhaji Okewunmi v Mrs Sodunke253.

Generally, the appellate court will interfere with a lower court’s exercise of discretion where:

i) The lower court took irrelevant matters or omitted to take relevant matters into

consideration. Abeki v Amboro254, Odusote v Odusote255, Shittu & Ors v Osibanjo

& Anor In Re Adewunmi & Ors256, Princewill v Usman257 Ntuikidem v Oko258.

244
(2012) 17 NWLR p. 209 (SC).
245
(1985) 1 NWLR (pt. 1) 143.
246
(1983) 2 SCNLR 244.
247
(1985) 1 NWLR (pt.1) 143.
248
(1995) 1 NWLR (pt. 1) 704.
249
Maya v. Oshuntokun (2001) FWLR (pt. 81) 1777 @ 1805.
250
(2002) FWLR (pt 84) 113-4.
251
(2012) 17 NWLR (pt. 1325) p. 209.
252
(2002) FWLR (pt 87) 671 @ 687.
253
(2002) FWLR (pt 97) 613 @ 643.
254
(1961) ANLR 368.
255
(1991) 1 NWLR (pt 711) 228.
256
(1988) 3 NWLR (pt 83) 483.
257
(1990) 5 NWLR pt. 150 p. 274.
258
(1986) 5 NWLR (pt 45) p. 130,
 ii) Where discretion is exercised in complete disregard of the rules of natural justice.

[perverse] University of Lagos v Aigoro259. Ariori v Elemo260, Usikaro & Ors v

Itsekiri Communal Land Trustees261, Atake v Ajenifuja262, Salu v Egeigbon263.

iii) Where there is a failure by the court to exercise discretion judicially and

judiciously. Saffidine v COP264, Ugboma v Olise265. The appellate court will also

interfere with the exercise of discretion where such exercise of discretion was

based on misgiven facts or under a misunderstanding of law266.

iv) Where it is in the interest of justice for the appellate court to interfere and the

lower court’s exercise of discretion did not accord with the interest of justice or in

consonance with common sense. Enekebe v Enekebe267 Demuren v Asuni268,

Solanke v Ajibola269.

v) Where the exercise of discretion palpably leads to miscarriage of Justice. Nnubbia

v A.G. River State270, Igbi v State271.

259
(1985) 1 NWLR (pt. 1) @ p. 143.
260
[1983] 1 SC 13.
261
(1991) 2 NWLR PT 172 P. 150.
262
(1994) 9 NWLR (pt 368) p. 379.
263
[1994] 6 NWLR pt. 368 p. 379.
264
[1965] 1 ANLR 54.
265
(1971) 1 ANLR 8.
266
Biocon Agrochem Ltd v. Kudu Holdings Ltd (2001) FWLR pt. 33 p.245 @ 268-9.
267
(1964) 1 ANLR 102.
268
(1967) 1 ANLR 94.
269
(1968) 1 ANLR 86.
270
(1991) 3 NWLR pt. 593, p92.
271
(2000) FWLR pt.3, p358.
 vi) Where discretion appears to have been exercised capriciously and arbitrarily.

Ekwutosi Menkiti v Clara Menkiti272, Salaideen v Mamman273. In Onyali v

Okpala274, the Court of Appeal’s refusal of application for the amendment of

pleading on appeal was upheld by the Supreme Court on the ground that to

exercise such discretion in favour of amendment at that stage would have the

effect of thwarting the ground of appeal and that would be unjust.

The Supreme Court however will not interfere with exercise of discretion unless it is manifestly

wrong, arbitrary, reckless or injudicious or as in the case of University of Lagos v Olaniyan275

where the court’s discretion gave weight to irrelevant or unproven matter or it omitted to take

into account matters that are relevant or where it exercised or failed to exercise the discretion on

wrong or inadequate materials John Akujobi Nwabueze v Obioma Nwosu 276, Obi Eze v A.G River

State Supra277.

The Supreme Court would not ordinarily reverse the decision of the court below unless it is clear

that it is perverse and shown to have been arrived at upon an erroneous view of the facts of the

law applicable thereto; as if the court had adverted to a question properly, it might have arrived

at a different decision. See Remilekun Olaiya v Mrs Cornelia J. Olaiya & Ors 278, by section

272(2)279 of the Evidence Act, the wrongful exclusion of evidence is not sufficient to reverse the

decision of a trial court where even if the evidence was admitted the result would have been the

272
(2000) FNLR pt. 2 p. 293.
273
(2000) FWLR pt. 17.
274
(2000) FWLR (pt 3) p 495.
275
(1985) 1 NWLR (pt. 156) p. 163.
276
(1988) 9 SC 689 @ 70.
277
(2001) 2 SC pt II 21.
278
(2002) 5 SC pt I p. 122 @ 132.
279
Section 272(2) Evidence Act 2011.
same. See Mallam Jimoh & Co. v Mallam Akande & Anor280, ipso facto it is necessary to show

that wrongful admission of evidence has affected the decision of the court differently from what

it would have been if such evidence was not admitted. Suntai & Anor. v Tukur281.

2.8 Limitations/Control of Judicial Discretion in Nigeria

As broad and liberal as the discretion of a judge can be, it has limitations, which range from

private/personal to public/social. The private/personal constraints are the external factors that

influence the discretion of the judge. They include the judge’s idiosyncrasies, views and biases.

The public/social constraints are the external factors that impact the judge’s discretion. They

include the law, judicial policies and influence of society. Some of the private constraints

associated with judicial discretion are inconsistency and uncertainty, use of instinct and intuition

instead of reasoned decisions, perpetuation of injustice, breach of fair hearing, miscarriage of

justice, bias.282 Some of the public constraints include strict adherence to precedent or stipulated

principles, corruption, abuse or disregard for judicial process or powers, arbitrariness.283

Although exercise of discretion is individualistic, discretion is not exercised in a vacuum as

judges’ choices are influenced by their idiosyncrasies, personal views, philosophies and

experiences. Judges as human beings are prone to human weaknesses, so whenever courts are

exercising judicial discretion over matters before them, the outcome of such actions cannot be

totally free from the personal prejudices, whims and caprices of the judge. Therefore, the

exercise of law is completely a product of the judicial discretion of a judge. 284 Hence judges

differ in their application of discretion. And as humans some of this may lead to error too, as no
280
(2002) FNLR pt. 129 p. 1532.
281
(2003) FWLR pt 157 p. 1128 @ 1146.
282
Abhulimhen-Iyoha, A, (2015) Judicial Discretion of Judges in Criminal Cases in Nigeria: Prospects and
Challenges.opcit:2
283
Ibid
284
Ibid:3
human being which includes judges are infallible. According to Niki Tobi, the judge is just one

human being with human reactions, but he reacts calmly within the private recess of his mind. 285

Within that private recess, are words that carry diverse meanings in a statute. And amidst the

choice of verbs and tenses used in the statutes, judges face the challenge of the likelihood of

ambiguous statutes with more than one grammatical principle that potentially applies to a word

which may mean different interpretations, hence the court is left with a choice of which

principles applies most aptly.286 Smithburn, agrees and argues accordingly that the range of

judicial discretion is not fully understood, as judges do not know the extent of discretion

available to them.287

Bunker puts it rightly that one does not have to be a lawyer to recognize that even the clearest

verbal formula can be manipulated.288 Grammatically, words may carry a different meaning from

the legal context it is used and thus such words assume a different meaning in law. Words also

change with time. And their interpretations determine the discretion of the judge at the particular

point in time. For example, over time in the Nigerian judiciary, the word “may” has fluctuated in

interpretation. Grammatically the word “may” connote a likelihood or possibility. Accordingly in

the 1976 case of Mokelu v Federal Commissioner for Works & Housing,289 Per Madarikan, JSC

held that “may” is an enabling or permissive word, in that sense, it imposes or gives a

discretionary or enabling power.290 Also, in Busari & Ors v. Oseni & Ors,291 Per Niki Tobi, JCA

reinforces that it is an established canon of statutory interpretation that the word “may” is
285
Tobi, Ibid:42
286
Eig (2014), Ibid: 13
287
Smithburn, J.E, opcit:8
288
Bunker, M. D. (1997) Justice and the Media opcit:124
289
(1976) NSCC 187
290
See British American Tobacco (Investments) Ltd v. A.G. Of Lagos State & Ors (2014) LPELR-23200(CA)
291
(1992) LPELR-14981(CA) Paras B-C
generally permissive and not mandatory. It does not foist on a party a legal duty which must be

performed, or which is not performed at the pain of punishment.

With the passage of time, Nigerian courts seemed to have expanded on the meaning of the word

“may”. For example, the Supreme Court in Nigerian Navy & Ors v Labinjo,292 while

acknowledging that the word “may” generally carries a permissive meaning, went on to say that

in exceptional circumstance it may mean mandatory or compulsory action. In fact, depending on

the circumstance, permissive words can have mandatory interpretation and vice versa. 293

Similarly, Per Nnaemeka Agu, JSC stated “I believe that it is now the invariable practice of the

courts to interpret "may" as mandatory whenever it is used to impose a duty upon a public

functionary the benefit of which enures to a private citizen."294 And this was reiterated most

recently in PDP v. Sherrif & Ors,295 where Per Rhodes-Vivour, JSC stated that “The law is long

settled that "may" is not always "may". It may sometimes be equivalent to "shall".

Similarly, in the United States, words have shifted meaning from the literal to the figurative and

the changing meanings of these words have impacted American law and culture. 296 According to

Prestidge, one of the principal tendencies of semantic change is for the meaning of a word to

often shift to what the speaker believes it to mean. Individual circumstances and schema, or

broader social and cultural forces may influence this. 297 Accordingly, Prestige observed, the

words liberty and privacy have metamorphosed from their literal meaning in American legal

292
(2012) LPELR-7868 (SC)
293
See Fidelity Bank Plc. v. Monye & Ors. (2012) 3 SC. (PT.73).
294
See Ude v. Nwara & Anor. (1993) LPELR-3289(SC) P.24, Paras. B-C.
295
4 (2017) LPELR-42736(SC) (P. 54, Paras. A-B).
296
Prestidge, A (2010) "Semantic Change in Supreme Context: Semantics in the Privacy Line and Originalist
Interpretation," Brigham Young University Prelaw Review: Vol. 24, Article 26, opcit:119.
297
Ibid: 120-122
jurisprudence.298 Hence, in Griswold v. Connecticut,299 the word ‘liberty’ (which grammatically

simply means freedom from something and ‘privacy’ (which grammatically caries the simple

meaning of secrecy, solitude and seclusion; were given complimentary interpretation by the

Supreme court. There, even though the court, did not define the word ‘liberty’, it established that

the right to liberty protected a right to privacy within a marriage. 300 In other words, it appeared

that courts defined liberty and privacy as conjunctive or coherent rights. Years later in Planned

Parenthood of Southeastern PA. v. Casey,301 the Court actually redefines liberty thus: “At the

heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe,

and of the mystery of human life.” 302 In this case, Liberty and privacy are cited hand-in-hand as

seemingly complementary rights; a product of the semantic fusion discussed.303

Therefore, in the absence of a concise and precise legislative/ grammatical definition of the

word(s) in a statute, judges have to give a legal definition for judicial purposes, often not far

from the grammatical meaning. And sometimes, even when the choice of the appropriate rule

(statute) is reasonably clear, situations also inevitably occur that the rule maker (drafter) simply

never contemplated.304 In such a situation, the judge who is constrained, attempts to interpret the

words therein. What is even more constraining is that the judge’s discretion changes with

seasons and circumstances. Thus, how courts interpreted statutes in the past, changes with time.

For example, the discretion a judge applies in a case today may change in similar circumstances

298
Ibid
299
381 U.S. 479 (1965)
300
Ibid. See also Roe v. Wade, 410 U.S. 113 (1973, where the principle was restated
301
505 U.S. 833 (1992)
302
Ibid:851
303
Prestidge, A (2010) "Semantic Change in Supreme Context: Semantics in the Privacy Line and Originalist
Interpretation, opcit: 130
304
Bunker, opcit:139
years later. The examples in the above cited cases show how simple words metamorphosed on

semantics.305

Furthermore, another aspect where judges face the most constraint in exercising discretion is the

balancing factor. This is when judges weigh one person’s interests or rights against another’s or

when judges attempt to balance social interest with legal/judicial requirements. In other words,

where does the justice of the matter lie or to what side does the scale of justice tilt? An

overriding principle in the exercise of discretion by a court is to maintain a balance of justice

between parties and bearing in mind the right of parties. But since the exercise of such discretion

is not absolute, and can be challenged if a party feels injured by it or can affect the parties right

to freedom as to show that the discretion has not been judiciously exercised; 306 then it may be

right to argue that judicial discretion in Nigeria is fettered.

Judges interpret these laws all the time even when no clear guidelines or parameters or procedure

of interpretation are laid down by the legislative arm. In such a situation, the court finds itself in

a state of absolute and unbridled discretion; whereby the judge must make findings and deliver a

decision no matter what it takes even when the law is blurred on the core of the link between the

law and the question for determination or facts before the court. 307 However, in certain cases or at

certain stages of the trial (depending on the process or application before the court), where the

case is void of precedent and the court applies discretion judiciously and judicially to arrive at a

just determination of the case, such discretion is unfettered.308

305
See Griswold v. Connecticut(supra); Planned Parenthood of Southeastern PA. v. Casey (supra)
306
See Abacha v The State (2002) 11 NWLR (pt779) 437 at 484.
307
Kana, A.A “Perspectives and Limits of Judicial Discretion in Nigerian Courts, opcit: 157
308
See Total Engineering Services Team Inc. v Chevron Nigeria Ltd. (2010) LPELR-5032(CA)