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WHERE A PARTY HAS SEVERAL OPTIONS, HE COULD USE ANYONE HE WANTS

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It is now trite law that where a party is by law given the option or discretion to exercise his right in different ways it is not for an opponent to prescribe the particular form the other party should utilize and where the form adopted by the other party is not what the opponent feels is the right course, then automatically an abuse of court process would be said to have taken place. There were options open to the respondent to tackle the scenario before him and he cannot be confined to the only choice of a counter claim to the appellant’s counter claim to ventilate his own grouse or grievance even though at the base is the same contract or facts since he had the alternative of bringing a fresh action so that all that he needs say would be brought to the fore. He had that right and he was at liberty to take it and did so. I have therefore no difficulty in flowing along with what the court of Appeal did as I see no error in their decision in upholding that the fresh action filed by the respondent was in order and the integrity of the court was not jeopardized. I refer to the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 170.

— M. Peter-Odili JSC. R-Benkay Nigeria Limited. V. Cadbury Nigeria Limited (SC.29/2006, 23 Mar 2012)

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discretion

WHERE APPEAL COURT WILL NOT SET ASIDE DISCRETION OF LOWER COURT

A court of appeal will not set aside a discretion exercised by the Court below if it is judicially exercised i.e. it is not arbitrary, or based on extraneous or irrelevant materials.

– Nnamani, JSC. Adejumo v. Ayantegbe (1989)

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APPELLATE COURT WILL ORDINARILY NOT INTERFERE WITH THE DISCRETION OF THE TRIAL COURT

Where the trial Judge in his Judgment thinks it is proper to exercise his discretion in a particular way, an Appellate Court would ordinarily not interfere with the exercise of such discretion unless it is established that the discretion was exercised in total disregard to the materials before the Court. A judicial and judicious exercise of discretion by a trial Court cannot to be set aside by the Appellate Court, but where the Lower Court acted under a misconception of the law or under a misapprehension of facts or where such exercise of discretion occasioned a miscarriage of justice against the Appellant, the appellate Court will readily intervene to redress the wrong, an Appellate Court will however not interfere with the decision of the trial Court merely because it would have exercised such discretion differently.

— T. Abubakar JCA. Olukoya Ogungbeje Esq. v. EFCC (CA/L/1408/2017, 18 Jul 2018)

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RENEWAL OF OIL MINING LEASE II (OML II) IS DISCRETIONARY

The renewal of Oil Mining Lease II (OML II) falls squarely within the powers and discretion of the Honourable Minister of Petroleum Resources and the renewal of such lease may be with new terms and conditions. The Appellants have offered to renew the Oil Mining Lease for the Respondent on new terms and conditions. The Respondent refused and failed to accept the offer. The Respondent cannot dictate to the Appellants, the terms and conditions under which the renewal of the lease could be crystallized. The 1st Appellant acted within his powers and in accordance with the Petroleum Act, 2004 earlier referred to. The lower Court greatly erred in law in deciding the questions raised for determination and the reliefs sought against the Appellants.

– OLABISI IGE, JCA. Petroleum Resources v. SPDC (2021)

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THE EXERCISE OF DISCRETION IS BASED ON FACTS

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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EXERCISE OF JUDICIAL DISCRETION IS TO ATTAIN JUSTICE

I would like to add that in the exercise of judicial discretion the primary objective of the court must be to attain substantial justice. Acting judicially imports consideration of the interest of both parties and weighing them in order to arrive at a just and fair decision. See United Spinners Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) 195 at 216.

— M. Peter-Odili, JCA. CAC v. Ayedun (2005) – CA/A/152/2004

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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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