Finally, the 1st respondent in asking this Court to discountenance the appellant's brief seeks to invoke the discretionary powers of the Court. He has the duty of providing the necessary material on which basis the discretion is to be exercised in his favour. See University of Lagos V. Aigoro (1985) 1 NSCC 88 and Babatunde V. Pan Atlantic Shipping and Transport Agency Ltd & ors (2007) 4 SCNJ 140.
ENEH v. NIGERIA DEPOSIT INSURANCE CORPORATION & ORS LGC(6/7/2018)B
Now, a grant or refusal of this application is purely within the discretionary power of this Court. The law is settled that the discretion of this Court must at all-time be exercised not only judicially but also judiciously on sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545 at 558 Para (b); Ogbuechi v. Governor of Imo State (1995) 9 NWLR (pt. 417) 53; University of Lagos v. M.I Aigoro (1985) 1 NWLR (PT. 1) 143 at 148.
Judicial discretion is described as a sacred power that inheres to a judge, and which he should employ judicially and judiciously – Achi V. Ebenighe & Ors (2013) LPELR-21884 (CA). Since two cases are not always the same, this Court does not lay down rules to fetter the exercise of its discretion or that of the lower Courts. Thus, a Court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be putting an end to discretion – Odusote V. Odusote (1971) NSCC (Vol. 7) 231, Ajuwa & Anor v. Shell Petroleum Dev. co. Nig, Ltd. (2011) 18 NWLR (Pt.1279) 797 SC.
There it is – the trial Court may order substituted service either after "or without an attempt at personal service".The word "may" makes room for the exercise of discretion. lt is an enabling and permissive word and in that sense, it imposes or gives a discretionary power – see Mokelu V. Fed. Comm., Works and Housing (1976) All NLR 224.
Generally speaking, the Court of Appeal, being an intermediate Court has a duty to consider all issues placed before it by the parties for determination. The reason is to give the apex Court the benefit of their view on all the issues should there be a further appeal to the Supreme Court.
There is however, an exception. In Federal Ministry of Health & Anor v. Comet Shipping Agencies Ltd, (2003) 9 NWLR (pt. 1145) 193 at 220, this Court held as follows:-
"In respect of the second issue of the parties, generally, it is settled that except in this Court, all issues ought and must be considered or dealt with by the intermediate Court. In other words, unless or except in the clearest of cases an intermediate Court such as the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.
See alsoIfeanyichukwu (Osondu) Co. Ltd v. Soleh Boneh Nig. Ltd (2000) 5 NWLR (Pt.656) 322, Owodunni v Registered Trustees of Celestial Church of Christ & 3 Ors (2000) 10 NWLR (Pt.675) 315 at 326.
I am mindful of the fact that Court has discretionary powers to grant specific performance. However, Court could always grant discretionary powers judicially and judiciously and certainly not arbitrarily. It must weigh the consequences and hardship on the defendant as well as the conduct of plaintiff before granting the order of specific performance. See MTN Nig. Telecommunications Ltd vs Wigatap Trade and Investment Ltd (2013) 4 NWLR (Pt. 1344) 276; Enejo vs SA (2008) All FWLR (Pt. 412) 1084; Olowo vs Building Stock Ltd (2010) 2 NWLR (Pt. 117) 310.
A Court is duty-bound to adjudicate between the parties on the basis of the claim formulated by them. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial Court. The Court must hear the views of the parties before making an order different from the one claimed See: Ekpenyong v. Nyong (1975) 2 SC 71; Ajay v. Texaco Nig. Ltd (1978) 9-10 SC 1; A-G Anambra State v. Okafor{1992} 2 NWLR (Pt. 224) 396; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257; Abbas v. Solomon (2001) 15 NWLR (Pt. 735) 144. Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483; Akinterinwa v. Oladunjoye (2000) 6 NWLR (659) 92; Osuji v. Ekeocha (2009) 16 NWLR (pt. 1166) 81.
OYEYEMI(RTD) &
Where in a provision of law, a mandatory sentence of a term of imprisonment is provided, a trial Court upon conviction of the offender, must hand down such mandatory sentence as no discretion is allowed to be exercised in passing a sentence lower than the mandatory minimum sentence as provided by the law.
Thus, from the cumulative effect of the above provisions of the Act and of course, the Criminal Procedure Act, in exercising the discretion to grant bail to an applicant, the Court has a duty to consider the nature of the charge, the severity of the punishment, the character of the evidence, the applicant's criminal record as well as the likelihood of him repeating the offence and including all the elements mentioned in Section 162 of the Act as stated supra. The trite position of the law is that in exercising the discretion to grant or refuse bail, a trial Court must consider the weight of facts deposed to in an affidavit evidence placed before it and all other requirements as highlighted supra.
It must however be emphasized that the Bench mark of the exercise of discretion by Courts is that the decision to use discretionary powers must be exercised judiciously and judicially too. See Bamaiyi v The State (2001) 3 NWLR (pt. 715) 230; Dantata vs COP (1958) NRNLR 3 Or (2001) 4 SC NJI 126.
It must be borne in mind that the essential difference between an arbitrary or wrongful exercise of discretion, on the one hand, and judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all or with wrong or insufficient, correct and convincing reason. While judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.
A judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by law. A discretion must be exercised honestly and in the spirit of the law.
See UNIVERSITY OF LAGOS & ORS VS C.I.O. OLANIYAN (1985) 1 S.C 295 at 344.
It is well settled that if judicial discretion has been exercised bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere. But there are exceptions whereby this Court is entitled to impeach the exercise of judicial discretion by the lower Court. Thus, an appellant Court may interfere with exercise of judicial discretion if it shown that there has been a wrongful exercise of the discretion such as where the trial Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere.
See ENEKEBE VS ENEKEBE (1964) 1 All NLR 102 at 106, DEMUREN VS ASUNI (1967) 1 All NLR 94 at 101, MOBIL OIL VS FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 97 at 141, SOLANKE VS AJIBOLA (1968) 1 All NLR 46 at 52.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. I must say that, it is a hard matter of law, facts and circumstances which the Court considers without being emotional sensitive or sentimental.
See ADAMU SULEIMAN & ANOR VS C.O.P. PLATEAU STATE, 33 NSCQR (Pt. 2) 735 at pp. 758 -759.
In EKWENUGO VS F.R.N. Supra the Court held that:
"The issue of grant of bail by a trial Court calls for due exercise of discretion which entails the application of common sense based on a given set of facts and attendant circumstances in accordance with justice. The discretion must be exercised not only judicially, but judiciously as well."
See also UNIVERSITY OF LAGOS VS OLANIYAN (1985) 1 NWLR (Pt. 1) 156 SAFFIDINE vs C.O.P. (1965) 1 All NLR 54 UGBOMA VS OLISE (1971) All NLR 8 and ODUSOTE VS ODUSOTE (1971) All NCR 219.
On the part of this Court, Section 118(2) of the Criminal Procedure Act, in my view makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in an affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously. See BAMAIYI VS THE STATE (2001) 8 NWLR (Pt. 715) 270 EKWENUGO vs F.R.N. (2001) 6 NWLR (Pt. 708) 171 DANTATA VS POLICE (1958) NRNLR 3.
The above is all that relates to the preliminary objection. There is no argument in support of the said issues raised in the notice of preliminary objection. The only reasonable conclusion would be that it has been abandoned. It is not the duty of the Court to proffer argument for the respondents in support of the notice of preliminary objection or the issues raised therein.
Generally, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility, unless the document is primarily inadmissible in law. This is because a document must first be admissible before it can be acted upon by the trial Court, whether or not objection was raised at the point of tendering the document. The Apex Court, per Musdapher, JSC (as he then was) in Omega Bank Nigeria Plc v O.B.C. Ltd (2005) LPELR-2636(SC), (2005) 8 NWLR (PT 928) 547, at pages 28-29 of the E-Report, unequivocally stated:
The law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. SeeKale v Coker (1982) 12 SC 252; Alade v. Olukade (1976) 2 SC 183.
The grant or award of costs is discretionary if not provided in any Rules of Court and this Court, hardly interferes. Worse still, there is no leave sought or applied for by the Appellant or granted by the court below or this court. The consequence is now firmly settled. See also the cases of Asims (Nig) Ltd. V. Lower Benue River Basin Development Authority (2002) 8 NWLR (Pt.769) 349 C.A. and Unifam Industries Ltd. V. Oceanic Bank International (nig) Ltd. (2005) 3 NWLR (Pt.911) 83 @ 102 C.A – per Aderemi, JCA (as he then was).
I note even that Section 12 of the Court of Appeal Act, Cap. 75 Laws of the Federation, 1990 on award of costs, provided as follows:
"The Court of Appeal shall have power to award costs in all civil proceedings in the Court of Appeal and subject to the provisions of any other law and to rules of court, it shall be in the discretion of the Court of Appeal to determine by whom and to what extent the costs shall be paid".
Adewunmi & ors v. Oketade LGC(5/3/2010) C
It is a principle of our law that ordinarily a court has a discretion to grant or refuse stay of execution pending an appeal or hearing of a substantive suit as the case may be but the discretion must be exercised both judicially and judiciously bearing in mind the equal rights of the parties. Onyemelukwe v. Attamah (1993) 5 NWLR (pt. 293) 350 at 361; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621.
For this Court and indeed any appellate Court to grant such prayer the applicant must establish good, substantial or exceptional reasons or circumstances explaining satisfactorily, the delay in filing his brief as would justify the grant of such extension of time applied for.
In actual fact, the bottom line is that in granting such extension of time, the Court must have in its mind the aim of doing substantial justice to the parties, because that is the cardinal determining factor. See Chief T.O.S Benson vs Nigeria Agip Oil Co Ltd [1982] 5 SC 1.
It therefore follows, that in order to justify the exercise of the Court's discretion in extending the time, there must be some material upon which to base the exercise of that discretion. See Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC 145; Elobisi v. Onyeonwu (1989) 5 NWLR (Pt. 120) 224: Doherty v. Doherty (1964) 1 All NLR 299: Ogar v. James (2001) 10 NWLR (Pt.722) 621 and Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275.
In further emphasis, the grounds predicating the application as well as the affidavit deposing to the facts thereon must be convincing so as to warrant the exercise of discretion in favor thereof. See also Nwosu v. Nwabueze (2011) 15 NWLR (Pt.1271) See page 467.
Under Order 2 Rule 31 of the Supreme Court Rules this Court may extend the period prescribed under Order 6 Rule 5(1) (c) for filing brief. This is a discretion which must be exercised judicially and judiciously. That is with correct and convincing reasons and not arbitrarily or at the whim and fancies of the judge.
The learned trial Judge rightly adjudged the Appellant a trespasser in the circumstance and the award of damages against the Appellant was not made in error or a misconception of the principles guiding the award of damages. An Appellate Court would exercise restraint in interfering with the exercise of discretion by the trial Court except when it is manifest that it was wrongly exercised such as taking into account irrelevant factors showing malafide or that the award was made arbitrarily. See the cases of Rewane v. Okotie-Eboh (1960) SCNLR (Page 461) and ACB Ltd v. Ajugwo (2012) 6 NWLR (Part 1295) page 130 paras F – G.
In the instant case, the award of damages in favour of the Respondent cannot be termed outrageous or done malafide.
The trial Court appeared to have robbed itself of right of discretion, which every Court has, in determining what is due and payable as general damages and/or punitive/aggravated damages, and which must be exercised judicially and judiciously. See Ogbonna Vs Ogbonna (2014) LPELR 22308 CA Incar Motors Vs Benso (1975) 3 SC 177; Hansiatic Ind. Ltd Vs Usang (2003) FWLR (Pt.149) 1563.
It has long been settled that a Nigerian Court has the ability and the power in its discretion to award damages or costs in foreign currency. See the cases of Salzgitter Stahl GMBH vs. Tunji Dosunmu Industries Ltd (2010) 11 NWLR (pt. 1206) 589; Afribank Nig. Plc vs. Akwara (2006) 5 NWLR (pt. 974) 619; Harka Air Services (Nig) Ltd vs. Keazor (2006) 1 NWLR (pt. 960) 160; Teju Investmant and Property Company Limited vs. Alhaja Moji Subair (2016) LPELR 40087 (CA) and Saeby Jernstoberi M.F.A/S vs. Olaogun Ent. Ltd (1999) 14 NWLR (pt. 637) 128 @ 146amongst many others.
No discretion in one case can be a precedent to another
Click the link below to read the full judgment
Dokubo-Asari v. F.R.N, LGC(8/6/2007) SC (E)
"The proper role of a Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the appellate court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the Appeal Court."
Click the link below to read the full judgment
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
It is a settled principle of law that except where a miscarriage of justice has been established or that there is a violation of some principles of law or procedure; or that the discretion is known to have been wrongly exercised, or where the exercise was tainted with some illegality or substantial irregularity, an appeal court seldom interferes with the learned trial Judge's exercise of discretion.This is because discretion is of the trial Court and not of the appellate court hence it cannot substitute its own discretion
Click the link below to read the full judgment
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
The Law is settled that an application of this nature is not granted as a matter of course. A grant or refusal of an application is purely at the discretion of the Court which discretion must be exercised, judiciously, and judicially upon sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817)545 at 558 Para B, Ogbuchi v .Governor of Imo State (1995) 9 NWLR (Pt. 417) 53, University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143 at 148.
The task before the lower Court demands answers as to whether the trial Court's decision in favour of the appellant is arrived at in spite of the likelihood of or actual conflict in the affidavits of the contending parties. By Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009, the trial Judge is not bound to determine any question of construction if in his opinion it ought not to be determined on originating summons. It is however glaring from the applicable rule that the Judge's power thereunder is discretionary. As with all discretionary powers, it must be exercised judicially and judiciously, that is to say, the exercise is done on the basis of correct and convincing reasons.
It must be restated that in exercising his discretion on a given issue, the Judge is bound by the rules governing the issue. It is not for him to act arbitrarily. Thus where a trial Judge is not shown to have erred in principle his exercise of discretionary power should not be interfered with unless the appellate Court decides that the exercise has occasioned miscarriage of justice. See Mobil Oil Nig Ltd v. Nabsons Ltd (1995) 7 NWLR (Pt. 407) 254, Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129, Akinduro v. Iwakun (1994) 3 NWLR (Pt. 330) 106 and S.P.D.C. Nigeria Ltd v. Ojiowhor Monday Amadi & ors 2011 LPELR-3204 (SC).
The arguments advanced by counsel were rejected by the High Court and Court of Appeal.
On a further appeal to the Supreme Court, it was held that before granting leave or consent to file an information, a Judge must be satisfied that the depositions in support of an application for the leave or consent disclose an offence and that the trial will not amount to abuse of process. InAbacha v. State (2002) 11 NWLR (Pt. 779) 437, Belgore JSC (as he then was) explained what the trial Judge should take into consideration in exercising his discretion to grant leave to prefer a charge against an accused when he said at page 483 –
"There must be clear particulars and facts to justify the exercise of discretion. It is not the law neither is it the justice, to say once the application is made on information, and all necessary documents are attached, without more, the application to prefer charge must be granted ... There must be facts in the proofs of evidence to justify the grant of the application. Otherwise indictments will always be allowed to be tried where enough particulars are absent in the proofs of evidence. I must not be understood to hold that guilt of the accused must be established before approving the information to file the indictment; far from it. There must be prima facie case to be tried and the accused must be sufficiently linked to be in a situation where an explanation is necessary from him at the trial.
In the first place, a trial Court always has the discretion to grant or refuse leave to prosecution to frame a charge against an accused person. Where a party feels that a trial Court wrongfully exercised its discretion in granting or withholding such leave, that party which feels aggrieved by such wrongful exercise of discretion has the right to appeal on that. In this instant case the present appellant failed to appeal against such exercise of discretion by the trial Court.
After an application which can only be granted at the discretion of the Court is dismissed, that ought to be the end of the matter, but this being the top Court, an applicant should file an application seeking an order of Court setting aside the order of dismissal. Such an application calls on this Court to exercise its discretion in the applicants' favour, and under the inherent jurisdiction of this Court. This is so because the order of this Court dismissing an identical application on 11/4/2076 still subsists. The order of dismissal must be set aside before an identical application can be heard. In the circumstances, it is premature to file this application when order of dismissal has not been vacated.
As rightly submitted by both learned counsel, an application of this nature calls for the exercise of discretion by the Court. As with all discretionary reliefs the Court must act judicially and judiciously taking into account all the circumstances of the case and in accordance with the prescribed rules of law. In the case of University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156 @ 175 A-E cited by learned counsel for the appellants, this Court held that in exercising its discretion in an application for the trinity prayers, the Court must be satisfied on two grounds:
a) with the plaintiff's/applicant's explanation of their failure to appeal within the prescribed period; and
b) whether the grounds of appeal prima facie show good cause why the appeal should be heard.
Learned counsel was also correct when he submitted that the two conditions must be satisfied conjunctively. See: Ikenta Best (Nig.) Ltd. v. A.G. Rivers State (2008) 6 NWLR (Pt.1084) 612: Williams v. Hope Rising Voluntary Funds Society (1982) 1- 2 SC (Reprint) 70. The only exception being where the grounds of appeal raise the issue of lack of jurisdiction and it prima facie appears to be so. Since jurisdiction is the live wire of any adjudication and the authorities are settled that an issue of jurisdiction may be raised at any stage of the proceedings or even for the first time on appeal to the Supreme Court, it might not be necessary to inquire into the reason for delay in bringing the application, as a challenge to the Court's jurisdiction is a good ground for hearing the appeal. See:Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527 @ 541-542 H-A & 543: In Re Adewumi & Ors. v. Osibanjo & Ors, (1988) 3 NWLR (Pt.83) 483 @ 497 A – D & 506 C: Co-Operative and Commerce Bank v. Ogwuru(1993) 3 NWLR (Pt.284) 630.
Your Lordships, just quite some few weeks ago, this Court was faced with the same question in Appeal No. SC. 693/2013 delivered on the 11th of December, 2015. Except for matters of details and some obvious dissimilarities, this appeal is on all fours with SC.693/2013. In SC.693/2013, which I happened to write the lead judgment, I made the following comments, among others: "Secondly, a motion to regularize the payment of the shortfall was withdrawn by the learned SAN, Mr. Layonu, for the appellants and it was stuck out by the Court below. This, perhaps, influenced the mind of the Court below to strike out the appeal. It is true that such a decision is always placed within the discretionary powers of a Court. Exercise of discretion, however, must always be judicial and judicious. A discretionary decision based on a principle that inadequate/shortfall of fling fees is fatal to an appeal is certainly a wrong exercise of discretion. It is settled law that a Court of law will not allow the provisions of an enactment to be read in such a way to deny access to Court by citizens. Thus, it is not the intention of the law to deny any litigant access to justice. A rule of Court stands to guide the Court in the conduct of its business and it must not hold as a "mistress" but as a hand maid. See: Onwuchaka v. NDIC (2002) 5 NWLR (Pt. 760) 371 at 393; Chrisdom Ind. Co. Ltd. v. AIB Ltd. (2002) 8 NWLR (Pt 768) 152 at 178 C & D; KTC Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at 296; Chime v. Chime (2001) 3 NWLR (Pt.701) 527 at 553. The established practice of the Courts is to lean towards granting a litigant access to Court rather than denying him of such access. The principle of the law as settled by this Court, as seen supra, in relation to settlement of insufficient filing fees on documents placed before the registry of a Court is for the Court to direct that such insufficient, inadequate, shortfall be remedied. The striking out of the appeal at the...
"The court at the time of making any judgment or order, or at anytime afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding seven and a half per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards."
We think there is considerable force in these submissions. We must not, however, be taken as accepting the wider proposition implied in the submissions that in all cases of this kind, a court is bound to grant adjournment. The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For in matters of discretion, no one case can be authority for another and "the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion" per Kay L.J.
Odusote V. Odusote:LGC(7/6/1971)A
Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA).
And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly. The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.
Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.
An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power. PER SENCHI, J.C.A.
Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA).
And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly. The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.
Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.
An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power. PER SENCHI, J.C.A.
Where the Court has the discretion to dismiss an appeal for want of diligent prosecution, the Court can look into the conduct of the party in breach of the rule right from the time the writ was issued as an appeal in law is a continuation of the original cause of action. Ajayi v Omoregbe (1993) 6 NWLR (Pt.310) 512 at 527. JOHN INYANG OKORO, J.S.C.
Moreover, the law is trite that the prosecution has discretion to call witnesses of its choice. The prosecution is under no constitutional or statutory duty to call a particular witness or witnesses. It has no duty to call a particular number of witnesses. An accused person cannot dictate to the prosecution witnesses it should call to prosecute him. So also the defence. The prosecution cannot dictate to the accused what number of witnesses or particular witnesses it should call to defend the case. An accused person has the liberty to call relevant witnesses of his choice to defend himself.
See Idiok v The State (2008) 13 NWLR (pt 1104) 225, State v Olatunji (2003) 14 NWLR (pt 839), Osetola & Anor v The State (2012) 17 NWLR (pt 1329) 251, Chukwu v The State (1992) 1 NWLR (pt217) 255. PER JOHN INYANG OKORO, J.S.C
The popular adage is that you cannot place something on nothing and expect it to stand. See: Skenconsult Vs Ukey (1981) 1 SC 6; Madukolu Vs Nkemdilim (1962) 1 SCNLR 341; U.A.C Ltd vs Mcfoy (1961) 3 ALL ER 1169. The appeal filed by the appellants at the Court below against the judgment of the trial Court in ID/2595/92, was dismissed on 25/2/2008 under Order 8 Rule 18 of the Court of Appeal Rules, 2007, for failure to compile and transmit records. Order 8 Rule 20 of the said Rules provides: “20.
An appellant whose appeal has been dismissed under this rule may apply by notice of motion that the appeal be restored, and any such application may be made to the Court, who may in its discretion, for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C
Most importantly is the fact that stay of proceedings is a discretionary power of the Court. It is not exercised as a matter of right and definitely cannot be exercised in favour of a Contemnor. A Contemnor who does not obey or is in disobedience of a Court order cannot be entitled to be granted the indulgence of the exercise of the equitable jurisdiction of a Court of law. A party in disobedience or in contempt of the order of a competent Court of law cannot be allowed any relief sought in equity as he that comes to equity must come with clean hands. See GOVERNOR OF LAGOS STATE V.
OJUKWU 1986 1 NWLR where the Supreme Court of Nigeria deprecating such an erring and aberrant party or litigant held that the Court cannot exercise its equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching the Court is merely one that is out to taunt the Court. May that day never come when a judicial officer shall lend judicious helping hand to a taunting and disobedient litigant. Certainly, the Appellant herein could not be granted such judicial help. PER ONYEMENAM, J.C.A.
“It is trite that where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, the Court shall aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is instituted so as to bring it in line with the evidence even without any formal application.” To underscore the desirability and enthronement of substantial justice, the Courts have the discretion where a plaintiff had sued in a personal capacity instead of a representative capacity allow the plaintiff to amend the process to reflect the evidence and the Court proceed thereafter to enter judgment for the plaintiff as representing his family or community.
I rely on the following cases: OSUNRINDE & 7 ORS vs. AJAMOGUN (1992) 6 NWLR (Pt. 246) 156; (1992) 7 SCNJ (Pt.1) 79 @ 114-115. In fact, in the case of PRINCE LADEJOBI & 2 ORS vs. OTUNBA OGUNTAYO & 9 ORS (2004) 7 SCNJ 298 @ 310-311, (2004) 18 NWLR (PT 904) 149. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C
With respect to the argument by learned counsel to the Appellant that the learned trial Judge has discretion to grant leave to the defendant to defend, therefore since leave was not granted, the learned trial Judge was not obliged under the rule of Court to transfer the matter to the general cause list, counsel to the Respondent submitted that a trial Judge has no discretion here but to follow the rule and the provisions strictly.
He submits that by Order 23 Rule 4, a trial Court can only refuse to grant leave to defend where he finds no defence on the merit or triable issues disclosed in the affidavit of the defendant and must then enter judgment for the plaintiff. He referred to the case of Amede vs UBA (2008) 8 NWLR (pt 1090) 623. JOHN INYANG OKORO, J.S.C.
THE CONSIDERATION OF AN ACTION BROUGHT UNDER THE UNDEFENDED LIST There is no provision in the rules which allows the Court to dismiss the suit where the affidavit in support of notice of intention to defend discloses triable issues.
In the words of my learned brother, Galadima, JSC in the case of Intercontinental Bank Ltd v Brifina (supra), he observed as follows:- “In consideration of an action brought under undefended list by the plaintiff, the trial Judge is faced with a decision whether to hear the case or transfer it to the general cause list.” It follows therefore that in an action brought under the undefended list there are only two options available to the Court which are either that the suit be heard under the undefended list procedure or transferred to the general cause list. JOHN INYANG OKORO, J.S.C.
Herein, the issue purportedly raised suo motu by the learned trial Judge is the grant of joint custody of Golden to the Appellant and the Respondent. In plethora of authorities, it has long been settled that in any matter relating to the custody or guardianship of children, the interest and welfare of the child shall be of first and paramount consideration. See OKIDE V. OKIDE (2020) LPELR-49989 (CA), YANGE V. MUSA (2018) LPELR-45269 (CA). In other words, the child’s interest and welfare is the guiding principle in an action for custody of children.
SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT, 1970 71(1) provides thus: “In the proceedings with respect to the custody, guardianship, welfare advancement or education of the children of marriage, the Court shall regard the interest of those children as the paramount consideration, and subject thereto, the Court may make such order in respect of those matters as it thinks proper.” Similarly, this Court has in the case of OBAHAYA V, OBAHAYA (2022) LPELR-57141 (PP, 19-20, PARAS. D-C) (CA) Per ONYEMENAM, JCA stated thus:
“The principle of law is settled and which is that; in proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the Court shall regard the interests of those children as the paramount consideration and subject thereto, the Court may make such order in respect of these matters as it thinks proper. See SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT.
Thus, in awarding custody of a child, the Court will consider the care of the child’s person, morally, physically, and mentally, Hence, the welfare and the interest of the child must be accorded paramountcy where an order of custody of the child is to be made. In fact, the welfare of children of a marriage is not only of paramount consideration but a condition precedent for the award of custody.
Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.” Therefore, it follows that custody imposes a responsibility that should not be taken lightly. The primary consideration would always be what is in the best interest of the child, notwithstanding any form of agreement purportedly reached by the parties prior to the proceedings in a custody matter. In deciding what order would be in the best interest of the children of the marriage, some of the factors to be borne in mind include inter alia;
(1) retention of existing position (2) personality and character of the parties (3) sex and age of the children (4) education (5) accommodation and material advantages (6) stability of home life (7) the parties conduct, etc. Usually, the retention of existing position appears to be the premier consideration. The Court should constantly bear in mind that it is mostly necessary to keep siblings together and not to split the family up more than necessary.
On the factor of accommodation and material advantages, the fact that one party is in a position to give the child a better start in life than another does not give him/her a prior claim. The happiness of a child not his material prospects would be the Court’s main concern. Nevertheless, a person’s financial position cannot be ignored entirely. The amount of time and energy that a parent can devote to the child’s care and upbringing is of utmost importance.
This may mean that a mother who can spend the whole of her time with her child will necessarily have an advantage over a father who will be out to work all day no matter the type of alternative arrangements he can make for the child especially if the child is still a minor. Furthermore, the fact that the child has lived for some time with one parent without complain may in itself be a good reason for not moving him. The stability of the child’s home is important. The Court also tries to avoid imposing yet another move on a child who had already been moved about a great deal.
PER ONYEMENAM, J.C.A.
It is now trite that the discretion of the Court must be exercised judiciously and judicially, and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and to do justice thereupon. See Bello vs. Yakubu (2008) ALL FWLR (Pt. 429) 4 75. In United Bank for Africa Vs.
GMBH & Co. (1989) 3 NWLR (Pt. 110) 374, Oputa JSC, goes further to state that: “Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision”. PER BARKA, J.C.A.
In the case of AFRICA PRUDENTIAL REGISTRARS PLC V SPDC WEST MULTI-PURPOSE CO-OPERATIVE SOCIETY LIMITED (2019) LPELR-50693, this Court held as follow:- “And it is settled law beyond adventure that the exercise of the Court’s discretion must be done judicially and judiciously, which entails the application of legal principles to relevant facts and materials placed before it, in order to arrive at a just and equitable decision.” See also ANACHEBE V IJEOMA & ORS (2014) LPELR-23181 (SC); UNION BANK OF NIGERIA PLC V ASTRA BUILDERS (W.A) LTD (2010) LPELR-3383 (SC) and CO-OPERATIVE & COMMERCE BANK (NIG) LTD V EMEKA OGWURU, (1993) 3 NWLR (pt 284) 630.
Thus, the Appellant at the lower Court have the onerous responsibility of presenting relevant facts that will persuade the Court to exercise its discretion in his favour to award such general damages to assuage the loss suffered by the Appellant. Thus, the Appellate Court will only interfere with a lower Court’s exercise of its discretion where such interference becomes absolutely necessary where the exercise was not done judicially and judiciously. See IKENTA BEST (NIG) LTD V A. G RIVERS STATE, (2008) LPELR-1476(SC). PER SENCHI, J.C.A.
Award of general damages is purely within the discretion of the Court. See ODULAJA V. HADDAD (1973) 11-12 SC 357, the lower Court expressly without mincing words said the Court used its discretion judiciously and judicially and awarded damages, general damages need not be specifically asked for by a litigant, as rightly held by the lower Court, upon general appraisal of the matter, the Court may in its discretion award what is determined to be just and appropriate.
General damages are such as the Court may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. See ODOGWU V. ILOMBU (2007) 8 NWLR (Pt. 1037) 4881, NICON HOTELS LTD V. NENE DENTAL CLINICS LTD (2007) 13 NWLR (Pt. 1051) 237 . PER TIJJANI ABUBAKAR, J.S.C.
Now, the 5th Respondent/Applicant has rightly submitted that it seeks a discretionary relief from the Court and that it is not granted as a matter of right. It therefore behoves upon it to furnish sufficient materials for discretion to be exercised in its favour by a grant of the application. There are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs.
CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11. PER OGAKWU, J.C.A.
In the course of exercising its judicial discretion, the Court ought to ensure that an applicant who bears the burden of establishing the required conditions for the grant of an injunction has done so to its satisfaction. The conditions for the grant of an interlocutory injunction are: i. That the applicant has a recognizable legal right to be protected in the substantive suit. See AYORINDE VS. AG. OYO STATE (1996) 3 NWLR (PT. 434) 20 and ACB LTD. VS. AWOGBORO (1996) 3 NWLR (PT. 437) 383. ii. That there are serious issues to be decided in the substantive suit. See KOTOYE VS.
CBN (Supra), OKOMO VS. UMOETUK (2004) 10 NWLR (PT. 882) 52 and NIGERIAN CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (PT. 12) 306. iii. Damages would not be an adequate compensation for the injury as a result of refusal of an injunction. See KOTOYE VS. CBN (Supra), ORJI VS. ZARIA INDUSTRIES LTD. (1992) 1 NWLR (PT. 276) 124 and UNION BEVERAGES LTD. VS. PEPSI COLA IND. (1994) 3 NWLR (PT. 350) 1.
iv. That the balance of convenience is on his side. See BUHARI VS. OBSANJO (2002) 17 NWLR (PT. 850) 587.
v. That the applicant’s conduct is not reprehensible. See PETER VS. OKOYE (2002) 3 NWLR (PT. 755) 211. vi. That the applicant must give a satisfactory undertaking as to damages. See KOTOYE VS. CBN (Supra) and ITAMA VS. OSARO-LAI (2000) 6 NWLR (PT. 661) 515. vii. That granting an injunction is necessary to preserve the subject matter of the dispute. See AG. ANAMBRA STATE VS. OKAFOR (1992) 2 NWLR (PT. 224) 396.
The applicant seeking an interlocutory injunction must depose to facts in his affidavit in support fulfilling the requirements for its grant hence the basis of the grant or refusal of the application is predicated on the facts deposed to in an affidavit. PER LAMIDO, J.C.A.
It is trite that an Appellate Court will not interfere with the discretion of a lower Court properly exercised.
It will however interfere in the following instances: (1) Where the discretion was not exercised in accordance with the law. (2) Where the discretion of the lower Court is perverse. (3) Where the lower Court acted under a misapprehension of the law. (4) Where the lower Court acted under a misapprehension of the facts. (5) Where the lower Court omitted to take into account matters that are relevant. (6) Where the discretion is exercised on wrong or inadequate materials. (7) Where it is in the interest of justice to interfere or prevent miscarriage of justice. See WAZIRI VS.
GUMEL (2012) 9 NWLR (PT. 1304)185; UKWU VS. BUNGE (1997) 8 NWLR (PT. 518)527; IN RE ALASE (2002) 10 NWLR (PT. 776) 553 AND CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT. 593) 115. PER AYODEJI, J.C.A.
The Applicant must satisfy the Court that the delay in bringing the Application is not willful or inordinate and there are good and substantial reasons for failure to appeal within the prescribed time and its grounds of appeal must prima facie show good cause why the appeal should be heard. The two conditions must co-exist; if one is missing, the Application must fail and be dismissed – Nwora V. Nwabueze (2011) 15 NWLR (Pt. 1271) 467 . AMINA ADAMU AUGIE, J.S.C
It is elementary law that the sentence to be imposed upon conviction for an offence is at the discretion of the trial Court. Every trial Judge is endowed with the discretion to impose punishment provided by law on a convict. The discretion must however be exercised judiciously and judicially. See OKECHUKWU V. STATE [1993] 9 NWLR (Pt. 315) 78 at 94-95; EROMOSELE V. FRN (2018) LPELR-43851 (SC). Therefore, in order to demonstrate that the discretion was judicially and judiciously exercised, a trial Judge must state the factors that influenced his decision in imposing sentence. See IORTIM V.
THE STATE [1997] 2 NWLR (Pt. 490) 771 TIJJANI ABUBAKAR, J.S.C