By Hameed Ajibola Jimoh Esq.

It is not a novel call for judicial discretion to be used in the interest of justice having regards to the present circumstance which a judge or a court of law has to deal with in a specific circumstance. This paper views such judicial discretion as an enviable tool for societal reformation. By this topic, it is the view (most respectfully) shared by this paper that there is a lot that a judge can do in passing some signals to the society about how things should be done either by its sentencing, award of damages, refusal to utilize or lend its contribution to an evil to be carried out by the use of the judicial discretion of a court of law or a judge by any person or lawyer, by its passing-words in its judgment, etc. All these would have the effect of reforming the society from evils and teach lawyers and litigants the reason not to contribute to the ills of the society. A court of law (in my humble view) must be seen to be interested in doing justice to parties or the issues before it rather than being an advocate of injustice.

Section 6 (1), (2) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, has conferred judicial powers and discretion on the court of law as follows

‘6.—(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a State.

 (6) 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 law ;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person ;

(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution ; and

(d) shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’.

Furthermore, on the exercise of ‘judicial discretion’, the appellate courts have at various times, defined and expressed their judicial reasonings on what amounts to same as follows:

  1. In the case of ‘GEBI V. DAHIRU & ORS (2011) LPELR-9234(CA) held:

“It ought to be reiterated for the avoidance of doubt, that the very fundamental essence of the proper exercise of judicial discretion is rooted in the belief that it be exercised in accordance with well established rules of law practice, fairness and justice and not in accordance with whimsical opinion, humour parochial, or sentimental disposition. Thus, strict compliance with well established rules of law, reason and forensic logic are undoubtedly veritable handmaids for proper exercise of a judicial discretion for the unique purpose of attainment of justice to the parties before the court. See OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1993) 7 NWLR (pt. 270) 462; ANPP V. REC, AKWA IBOM STATE at 512 – 513 paragraph G-C per Saulawa, JCA.” Per SAULAWA, J.C.A. (P. 42, paras. C-F).;

  1. ADAMU SULEMAN & ANOR. V. COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR-3126(SC)

“A judicial officer saddled with the responsibility of exercising a 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.” Per Akintan JSC.;

  1. ANPP v. R.E.C., Akwa Ibom State (2008) 8 NWLR (Pt.1090) 453 at 512-513, paras. G-C, 516, paras. D-H: (CA)

“The very essence of the proper exercise of judicial discretion is deeply rooted in the belief that it be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humour or sentimental disposition. Compliance with well laid down rules, reason and forensic logic are veritable handmaids for proper exercise of a judicial discretion for the sole purpose of attainment of justice to the parties.;

  1. AJUWA & ANOR V. SPDC NIG. LTD. (2011) LPELR-8243(SC)

”I have searched for the meaning of the word ”Judicial discretion” in black’s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, the word or phrase was defined as follows;- “The Exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a courts power to act or not to act when a litigant is not entitled to demand the act as a matter of right”. Then in the New International Comprehensive Dictionary of the English Language – Encyclopedia Edition at page 365, the word “discretion” was defined as – “the act or the liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without willfulness or favour”. Both dictionaries referred to the word – “Circumstances” which means the facts or peculiar nature of the case which a Judge exercising its discretion would consider. Thus whichever way the appellants may put it, an appeal against the exercise of discretion by the lower court must involve the consideration of the ‘circumstances’ in order to determine whether discretion, was judiciously exercised. Thus this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower court. It is in this regard that I agree with my lord Karibe-Whyte in Metal Construction (W. A) Ltd V. Milliore (1990) 1 NWLR (pt. 126) 299 at 314, when he held as follows:- It is never the less a question of fact with the exercise of discretion. In Grifths V. J. P. Harrison Watford Ltd (1963) AC 1 lord Denning expressed it succinctly thus reasonable people on the same facts may reasonably come to different conclusion and often do juries. So do Judges. And are they not reasonable men”. It has therefore been recognised that these more or less discretion questions of impression or opinion in respect of which reasonable men may arrive at discrepant conclusions on the same evidence are questions of facts.” Per MUNTAKA-COOMASSIE, J.S.C (Pp. 51-52, paras. D-G).;

  1. ALCATEL KABELMETAL NIGERIA PLC ORS v. OJUGBELE (2002) LPELR-5240(CA)

“The attitude of appellate court to exercise of judicial discretion was stated in Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 749 CA and held:- “25. The law is that except upon grounds of law an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant considerations, order may be reversed [Saffieddine v. COP (1965) 1 All NLR 54; Enekebe v. Enekebe (1964) 1 All NLR 102; Awani v. Erejuwa II (1976) 11 SC 307; Odusote v. Odusote (1971) 1 All NLR (Pt.1) 219 referred to.] (24) It is well settled that if judicial discretion is exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrary or illegal, the general rule is that an appellate court will not ordinarily interfere. The discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 referred to.” Confirmed by the Supreme Court in Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) 320 SC. Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) 22 CA; Techno Mech. (Nig.) Ltd. v. Ogunbayo (2000) 1NWLR (Pt.639) 150 CA. ” Per ONALAJA, J.C.A. (Pp. 36-37, Paras G-F).

Finally, what this paper humbly recommends and advocates are that judicial discretion of a court of law must be used:

i. In the interest of justice, when the law seems or is likely to become ‘an ass’;
ii. To make law humanly adaptable whenever the court is called upon to interpret the law (this ‘law’ referred to here is not the normal law making but judicial activism which portrays the interest of justice in a particular circumstance);
iii. To utilize its judicial activism in the interest of justice at all times;
iv. The judicial discretion must be used for ensuring that justice prevails and for public good and or benefits;
v. The law should (through judicial discretion) be prevented from being portrayed continuously as ‘an ass’.

Email: hameed_ajibola@yahoo.com