JUDICIAL DISCRETION

Date06 February 2019

(1) "Coke well said in Rooke’s case (supra) Judicial discretion is "...... a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections. " - Per Nnaemeka-Agu, J.S.C. in Oyeyemi v. Irewole Local Govt. Suit No. S.C. 68/1991; (1993) 24 N.S.C.C. (Pt. 1) 94 at 102.

(2) "Granting an interlocutory injunction when the area of land is not properly defined is a wrong exercise of judicial discretion. Judicial discretion is a term applied to the unrestricted power of a Judge or Court and means discretion bounded by the rules and principles, of law and not arbitrary, capricious or unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial judgment based on facts and guided by law or the equitable decision of what is just and proper under the circumstances." - Per Adekeye, J.C.A. in Oladejo v. Adeyemi Suit No. CA/I/193/ 95; (2000) 3 N.W.L.R. (Pt. 647) 25 at 41.

(3) "I think on this point I should restate, without absurdity, what I said in Folorunsho v. Folorunsho (1996) 5 N.W.L.R. (Pt. 450) page 612 at page 620 paragraphs G-H: - " my understanding of the term ‘judicial discretion’ is that it is a term applied to the discretionary action of a Judge or Court and means discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances. It is a legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the Judge, but to that of the law. It is an act, which has no hard and fast rule governing the conduct of the Judge as to which course to adopt. Discretionary act is an antithesis of defined rule as the latter will eliminate the former." - Per Muhammad, J.C.A. in Mohammed v. C.O.P. Suit No. CA/J/145C/98; (1999) 12 N.W.L.R. (Pt. 630) 331 at 340.

(4) "It is a familiar and settled concept that the question of the exercise of discretion is governed by several factors, at the same time. The factors, which are not necessarily constant, change with changing circumstances and times and cannot be regarded as immutable and applicable for all times. An exceptional circumstance may be a single factor or a combination of factors. In such a situation of variable factors and circumstances it is not possible to adhere to binding judicial decisions. In Odusote v. Odusote (1971) 1 All N.L.R. 219 at p. 222, this Court observed and it has always been the view that the exercise of judicial discretion depends on the facts and circumstances of each case and, in matters of discretion, no one case can be...

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