Judicial Discretion in Sentencing Vis-à-Vis the Specific Provisions of Law


By Amusan Tawfiiq ’Lekan


The phrase “Judicial Discretion” was defined in the Black’s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, to mean: “The exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right”.

It follows therefore that a judicial officer exercising a judicial discretion is to act according to the rules of reason and justice, not according to private opinion and according to law and not humour.  See the case of Olumegbon & Ors. v. Kareem (2002) LPELR-2624-SC


In a criminal trial, the sentencing judge has a duty imposed by law to critically look into the penal section housing the penalty provided for the offence for which the accused person is being prosecuted to see whether it is one that admits of an exercise of discretion or it is one that doesn’t admit of an exercise of discretion. If it is such that doesn’t, then the one and only thing it means is that the Judge must go ahead and sentence the accused strictly in accordance with the provisions of the law without any sideline, prevarication or alteration.

But if it is such that admits of an exercise of discretion, then the Judge could go ahead to sentence the accused as it may appear just to him– inasmuch as the sentence is within what the law has provided— having regards to certain factors including but not limited to the culpability of the accused person (whether high or low), the severity of the offence committed by the accused person, the age of the accused person, the conduct of the accused person after the commission of the offence, whether the accused person is a first time offender, whether the accused person admitted to committing the offence without stressing the court to dissipate precious judicial time into conducting a full trial and so on.


  • UNQUALIFIED PENAL PROVISIONS (which admit of discretion)

Exemplifying the latter explanation is a situation whereby the sentence prescribed upon conviction in a criminal charge is just a term of years of imprisonment or payment of fines without any further additional, special qualification— particularly setting a minimum limit. This exactly is what is meant by the unqualified nature of such penal provisions. Adding flavour to this explanation, the Supreme Court per Aderemi JSC in the case of Tanko v State 2009 LPELR 3136 (SC) held as follows;

“Where the sentence prescribed upon conviction in a criminal charge is a term of years of imprisonment, then some extenuating factors such as the age of the convict, whether he is a first offender etc can be taken into consideration by the trial judge in passing the sentence on the convict. Indeed, the trial judge in my view has the discretion to employ these factors to reduce the years of sentence”.

Another equally relevant example is the case of Olanipekun v. State (1979) 3 LRN 204, wherein the accused was convicted of the offence of causing death by dangerous driving contrary to Section 4 of the Federal Highway Act. By the section, a person who commits an offence under the section “shall be guilty of an offence and liable on conviction to imprisonment for a term of seven years”. The trial Judge imposed a sentence of seven years on the accused as, according to His Lordship, he had no discretion to reduce the sentence. Overruling the trial Court on this point, the Court of Appeal held that the seven years prescribed in the said section was the maximum and the trial Judge was at liberty to impose less having regard to Section 17 (1) of the Interpretation Act.

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It will therefore be easier for the sake of understanding to say that, unless where the law has clearly stated otherwise— by going ahead to include further specific qualification into the wordings of the applicable penal sections or being clearly categorical with the choice of the expected sentence upon conviction— sentencing generally is to be done in accordance with the discretion of the sentencing judge, having regard to the special facts and circumstances of the individual case before him.

  • QUALIFIED PENAL PROVISIONS (which do not admit of discretion)

It is of utmost importance to note here that the specific qualification being talked about— which is capable of making a sentence mandatory just as already alluded to— could be in form of the wordings of the penal section or the categorical nature of the applicable sentence upon conviction. One of the very many instances is where the law creating an offence prescribes a minimum or maximum punishment for that offence, the discretion of the court becomes limited. These minimum or maximum punishments are mandatory and therefore the courts cannot pronounce a sentence lesser or heavier than that which is already prescribed by the law.

For example, Section 1 (1) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, provides that:

“Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.”

Having the opportunity to interpret the above provision, the Supreme Court per Onnoghen, JSC (as he then was) in Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530 at 552 C – D has the following to say;

“An accused person convicted of an offence of robbery simplicita is liable to a term of imprisonment for not less than twenty one years as provided under section 1(1) of the said Robbery and Firearms (Special Provisions) Act. The above provision provides for the minimum term of imprisonment not the maximum as it confers the discretion on the court to impose a term of imprisonment of twenty one years and above or more. The court in the circumstances may impose 21, 22, 23 – 100 years terms of imprisonment.” (Emphasis, mine).

Similarly, in the case of Dada v. Board of Customs & Excise (1982) 2 NCR 79, the accused was convicted under Section 44 (1) (b) of the Customs and Excise Management Act. The punishment for the offence of unlawful importation under the subsection is 5 years imprisonment without the option of fine. The trial Judge sentenced the accused to 2 years imprisonment. The accused appealed against the sentence contending that he should have been given an option of fine. His appeal was dismissed.

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The Court of Appeal maintained that the provisions of the CEMA being specific provisions, override the general powers given to the Court under Section 382 (1) of the CPA or Section 23 (1) of the CPC. It could therefore be seen clearly in this case that the only qualification (or put simply, a restriction) in the applicable penal section was on the part of fine, and that was why the Judge could discretionarily reduce the sentence but couldn’t supplant the imprisonment with an option of fine.

On the second part of the qualification or the categorical nature of a penal section are Capital Offences which generally prescribe death penalty on conviction. In the case of Musa v State 2014 LPELR 22912 CA, the accused person was convicted by the trial court for the offence of culpable homicide and upon the entering of allocutos got sentenced to 14 years imprisonment. On an appeal to the Court of Appeal, Jauro, JCA, in determining whether a judge has jurisdiction to listen to allocutus and the discretion to reduce death penalty to a term of years once the accused person has been found guilty held as follows;

“Once a Judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A Judge has no jurisdiction to listen to allocutus and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under section 221 of the penal code. The sentence of 14 years imprisonment after finding the accused guilty of culpable homicide was wrong. It is a material irregularity in the proceedings of the trial court and this court could remedy it so that substantial justice might be done”. (Emphasis mine).

See also the case of State v. John (2013) 12 NWLR (Pt. 1368) 337 at 364 whose facts and surrounding circumstances are identical and on all fours with those in the case of Musa v State (supra).


The only available remedy in a situation where the sentencing principles that characterize the above-produced dichotomies in penal provisions are either not upheld at all or wrongly upheld by the trial court is the necessary and attendant intervention by the relevant higher Courts sitting in their appellate jurisdictions which ranges from High Court, Federal High Court, Court of Appeal up to the Supreme Court.

All those courts are empowered by their relevant enabling statutes to step in (in criminal appeals) and do rightly whatever wrong which might have been occasioned as a result of the sheer non-abidance by the rules of sentencing by any Court directly under them in hierarchy. Chorusing in that regard as well are the relevant Criminal Procedural laws such as ACJA, ACJL (or CPCL/CPL) of various states.

However, before such appellate jurisdiction could be ripe for an exercise, there must have been a complaint (either by way of an Appeal from the defence or a Cross-Appeal from the Prosecution) specifically on the said sentence. Where the appeal is only on conviction, the appellate court will not be seized of jurisdiction to review the sentence either upward or downward.

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For instance, in Afor Lucky v. The State (2016) LPELR-40541 (SC), the Supreme Court per Ngwuta JSC expressed its angst and distaste not only because of the optional 5 years imprisonment (with hard labour) or N300,000.00 fine which was meted out on the appellant who was charged with and convicted of the offence rape but also for the helpless circumstance which obviously didn’t make it possible for the Supreme Court to review the sentence. Quoting Mi Lord in extenso, the Supreme Court held;

“With respect to His Lordship, the sham of prison term he imposed on the appellant is an attack on law and moral basis for prison term. The young and old, who have a miserable sum of three hundred thousand naira to throw about can ravage young mothers at will. Not only that the brute violently, as in armed robbery, took away the pride of that innocent girl, the act of rape is a major dent on her psyche and will so remain for life …. I was tempted to revisit the sentence in this case but that would have violated the principle that appellate Court cannot disturb a sentence imposed unless there is an appeal against the sentence.” (Emphasis mine).

Likewise, in the case of Omokuwajo v. FRN (2013) LPELR-20184 (SC), the Court of Appeal suo motu— that is, on its own— increased the sentence of an appellant who had had an unsuccessful attempt at having its conviction set aside. Appealing further to the apex court, the Supreme Court, per Mahmud Mohammed, JSC allowed the appeal with respect to the increased sentence and held as follows;

“… it would appear that the converse was the case at the Court of Appeal where in the absence of any appeal by the appellant or a cross-appeal by the respondent on the adequacy or inadequacy of the sentence passed on the appellant by the trial court, the Court of Appeal suo motu went into the issue to increase the sentence without affording the parties a hearing. The order of the court in this respect being in breach of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, cannot be allowed to stand”.


The very essence of the proper exercise of judicial discretion is deeply rooted in the belief that it be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humour or sentimental disposition. Compliance with well laid down rules, reason and forensic logic are veritable handmaids for proper exercise of a judicial discretion for the sole purpose of attainment of justice to the parties. See the case of ANPP v. R.E.C., Akwa Ibom State (2008) 8 NWLR (Pt.1090) 453 at 512-513

Amusan Tawfiiq ’Lekan is a 500L Student of the Faculty of Law, Bayero University, Kano. He can be reached via Tawfiiqamusan001@gmail.com as well as +2348108012253.


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