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THE EXERCISE OF DISCRETION IS BASED ON FACTS

Dictum

In ADIGWE v. FRN (2015) 18 NWLR (pt. 1490) 105 this Court reiterated the point that “the exercise of discretion is not based on mere judgment of the person doing so but upon facts on circumstances necessary for the proper exercise of that discretion”. See also OYEGUN v. NZERIBE (2010) 41 NSCQR 127 at 147.

— E. Eko, JSC. Francis v. FRN (2020) – SC.810/2014

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DISCRETION OF TRIAL COURT WILL ONLY BE INTERFERED WITH WHERE IT IS ABSURD

In ANYAH v. AFRICAN NEWSPAPER OF NIG. LTD. [1992] NWLR (Pt. 247) Pg.319; (1992) LPELR-511 (SC) Pg.20-21, Paras. G – A the Supreme Court of Nigeria pertinently stated that: “It is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do that, the discretion is fettered.” See also the decision of the Supreme Court in OLATUBOSUN v. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C – D where it was held that “…an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently…This Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.” Also, in FALEYE and ORS v. DADA and ORS (2016) LPELR- 40297 (SC) Pg.33-34, Paras. E – C, the Supreme Court of Nigeria per MUHAMMAD JSC held as follows: “…This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice…”

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A JUDGE’S DISCRETION: WHAT IS FAIR AND JUST ACCORDING TO THE CIRCUMSTANCE OF THE CASE

I shall, in treating this issue, begin by saying that the line between a proper exercise of judicial discretion and an abuse of that discretion is not readily definable and it may be, that the term “abuse of discretion” means no more than that the decision below fell outside the permissible limits as viewed by the appellate court or that the Court of Appeal is of the opinion that the trial court should have decided otherwise. The resort of “discretion” at all times could turn to be an unruly horse. As Justice William Douglas in State of New York v. United States (1951) 342 US 822, opined at page 884 and I quote: “Absolute discretion, like corruption marks the beginning of the end of liberty.” Lord Simon of Glaisdale expressing the traditional view on the exercise of judicial discretion by a Judge said in D. v. NSPCC (1978) A.C 171 at page 239 and I quote:-. “And if it comes to the forensic crunch … it must be law, but discretion, which is in command.” Summing up the above dicta, in my words of definition, I will say an issue falls within a Judge’s discretion if, being governed by no rule of law, its resolution depends on the individual Judge’s assessment of what is fair and just to do in the particular case. A Judge has no discretion in making his findings of fact, he has no discretion in his rulings of the law. If a Judge, having made any necessary finding of fact and any necessary ruling on law, it seems to me clear that he has to choose between different causes of action, orders, penalties or remedies he then exercises a discretion. Let me reiterate that it is only when a trial Judge reaches a stage at which he asks himself, what is the fair and just thing to do or order in the instant case that he embarks on the exercise of a discretion. However, where the situation is governed by the rule of law, as in the instant case, which touches on admissibility of a document where the provisions of the Evidence Act come into play, although the court may have its own discretion, such discretion must be exercised according to the ordinary principles laid down in the Evidence Act as set out above. Its judicial discretion is founded upon those principles. And if a trial Judge refuses to do so, then the appellate court will set the matter right. See R. v. Stafford Justices (1940) 2 K.B. 33 at 43.

— P.O. Aderemi JSC. Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

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APPELLATE COURT INTERFERENCE WITH TRIAL COURTS DISCRETION

It needs to be emphasised here that an appellate Court will usually not interfere with an exercise of discretion in its quest to obtain substantial justice except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all necessary consideration having regard to the circumstances of the particular case. – Nweze JSC. Abdullahi v. Adetutu (2019)

Even then, it is well – established that an appellate Court will not, in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity. – Nweze JSC. Abdullahi v. Adetutu (2019)

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TRIAL JUDGE DISCRETION FOR LOCUS IN QUO; LOCUS IN QUO

It is clearly at the discretion of the trial Judge to determine whether in the light of the evidence before him, there is need to resolve, by a visit to the locus in quo, the conflict of evidence or clear a doubt as to the accuracy of a piece of evidence when there is such conflict of evidence.

– Nweze JSC. Abdullahi v. Adetutu (2019)

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COURTS WILL NOT BE SILENT EVEN WHERE THERE IS DISCRETION ON EXECUTIVE

The decision of the House of Lords in Attorney-General v. De Keyser’s Royal Hotel Limited (1920) A.C. 508 – dealing with the issue of payment of compensation by the Crown to a subject in respect of property requisitioned for the prosecution of the war – established the principle that in the protection of the property of the subject, the Crown was liable to pay compensation to the subject for the acquisition of the property, the exigencies of the war notwithstanding. Even amidst the clash of arms, they said, the courts would not be silent.

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DISCRETIONARY POWERS JUDICIALLY EXERCISED

Discretionary powers judicially and judiciously exercised cannot be interfered with. One must let the decision of the lower court be. – M.D. Muhammad, J.C.A. Shona-Jason v Omega Air (2005) – CA/L/418/2000

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