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“Courts are recognized and renowned
as the hallowed chambers of justice, where even-handed justice is meted out to
all and sundry, without sentiment, emotion, favoritism or being unnecessarily
embroiled in crass legalism. Additionally, constitutional and statutory
provisions which pertained to presumption of innocence and liberty of citizens
are meant to be applied and not treated as totem poles, left untouched in
sanctified and sacred deification”.
Lordship Oredola JCA in AHMED V. C.O.P., BAUCHI STATE (2012) 9 NWLR PT.
1304 P. 133 PARA A-B
constitutional right enshrined under the 1999 Constitution of the Federal
Republic of Nigeria (As Amended) to every individual. Section 35 (1) of the
Constitution provides that “ Every person shall be entitled to his personal
liberty and no person shall be deprived of such liberty save in the following
cases and in accordance with the procedure permitted by law…(quotation
bail to an applicant applying for bail in a court in Nigeria is entirely a
discretionary one, depending on the court hearing the application and with due
considerations being given to the materials placed before it either in the
affidavit evidence in support of the application or in opposition thereto.
Notwithstanding that the grant of bail is at the unfettered discretion of the
court, it is trite law that such discretion must however be exercise judicially
and judiciously. The term “judicially and judiciously” will be better explained
in a subsequent post but let me explain what the discretionary power of the
court means as a better understanding of same may assist an applicant in
understanding how the mind of the court works and what to expect in a his/her
means: a) the exercise of the judgment by a judge or a court based on what is
fair under the circumstance and guided by the rules and principles of law; (b)
a court’s power to act or not to act when a litigant is not entitled to demand
for the act as a matter of right. A judicial and judicious discretion is one
which is dictated on sound judgment, honesty, pure reason, surrounding
circumstances of the case and good conscience of the judge based on facts and
guided by the law or equitable decisions.
discretion which is not exercised judicially and judiciously is a discretion
exercised subject to the whims and caprices of the judge; based on sentiments
and extraneous conditions; fettered by the dictates of others which an
applicant can appeal against at a court of superior jurisdiction.
Nigeria, where a court has exercised its discretion, an appellate court as a
matter of practice will not peremptorily or readily intervene or interfere with
the decision of the lower court, not even if it would have exercised it
discretion differently or come to a direct conclusion than the trial court. An
appellate court will only interfere with the exercise of the discretion of the
court in certain stringent circumstances which are:
not such discretion was exercised in accordance with the Law, the rules and
existing binding precedents on the subject matter.
was exercised wrongly or wrongfully, to the extent that the trial court acted
under a misconception or misapprehension of law or fact by attaching weight to
irrelevant and unapproved facts;
omitted to take into account factors relevant or where the discretion was
exercised or not exercised based on wrong and insufficient materials and
thereby occasioned miscarriage of justice;
circumstances where such exercise would have occasioned a miscarriage of
have reasons to believe a judge failed to exercise this discretion judicially
and judiciously, such decision can be appealed against for setting aside.
The principle of law is that court must always maintain its prime position as
an impartial umpire and should not descend into the arena for whatever reason,
so as to favour or make a case for one of the parties before it. It is not the
function of the court to act on speculation or dabble into the realm of
you. You are welcomed to leave your questions, comments, constructive
criticism, suggestions, new ideas, contributions etc in the comment section or
my email address which is firstname.lastname@example.org I look forward to reading
from your comments.
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