COURT – DISCRETION OF COURT – When will discretion of Court be said to have been exercised judicially and judiciously


“Ground 2 purportedly complains the Appellant was denied fair hearing contrary to Section 36 of the 1999 Constitution. The ground complains that the Court of Appeal denied the Appellant fair hearing when the learned Justices of the Court “failed to interfere with the exercise of the discretion of the trial Court, and affirmed its decision in refusing to grant an adjournment to the Appellant to tender materials in support of his plea of leniency which application was not objected to by the Respondent…”. No particulars of error alluded to any circumstance whereby the Court of Appeal denied the Appellant fair hearing in the manner his appeal was heard. Rather, it is averred that “the learned Justices of the Court of Appeal OUGHT to have interfered with the exercise of discretion of the trial Court in the balanced interest of justice” and that the decision of the trial Court was perverse. The said ground 2, ingeniously, seeks the Apex Court’s interference with the concurrent findings of fact or the exercise, by the two Courts below of their undoubted discretion. In substance, it is not a complaint that the Court of Appeal denied the Appellant fair hearing, which apparently is a mislabel for complaint against concurrent exercise of discretion and/or concurrent findings of fact. This ingenious artifice, that ground 2 is, is no doubt incompetent. On the challenge to the exercise of discretion; it has to be borne in mind, my Lords, that judicial discretion must be exercised judicially and judiciously. It cannot be exercised in vacuo. A judicial discretion, as stated by Onnoghen, JSC (as he then was) in AMOSHIMA v. THE STATE (2011) 14 NWLR (pt. 1268) 530 at 534 D – E, ought to be founded upon the facts and circumstances presented before the Court, from which it must draw a conclusion which must be governed by law. See also TANKO v. THE STATE (2009) 4 NWLR (pt. 1131) 430. Sections 131 and 132 of the Evidence Act, 2011 become relevant here. The burden of producing evidential materials entitling him to favourable decision of a Court of justice lies on the party who would fail if no evidence at all were given on either side. The Appellant’s Counsel applied for adjournment to enable her “tender some (unspecified) materials – in support of my plea for leniency”. Since adjournment lies within the discretionary powers of the Court, the applicant for adjournment has the bounden duty to produce or adduce evidential materials in support of his application for adjournment. 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. By dint of Section 11(b) of the NDLEA Act, 2004 a term of life imprisonment is the maximum sentence the convict, of the offence the Appellant was charged with, should expect. The complaint of the Appellant that the trial Court did not properly exercise its discretion in the imposition on him of the sentence of “imprison for life” is not supported by any empirical fact. The opportunity for plea of allocutus offers the Appellant the occasion to show cause why the sentence prescribed by Section 11(b) of NDLEA Act should not be passed or imposed on him. He failed to testify to utilise the opportunity. Rather, it was his Counsel who made bare statement from the Bar. That bare statement from the Bar has no force of legal evidence: ONU OBEKPA v. C.O.P. (1980) 1 NCR 113; NIGER CONST. LTD. v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 at 792. on what facts, therefore, did the Appellant complain that the trial Court did not properly exercise its discretion in the sentence mandating that he served “imprisonment for life” I find none.” per EKO, J.S.C. in NWEKE CHIBUEZE FRANCIS v. FEDERAL REPUBLIC OF NIGERIA (2020- LCER-39157-SC) at p. 8 – p. 10

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