Mr. Talba was handed a suspension on April 26 for failing to exercise his discretion judicially and judiciously in a matter involving John Yusufu, a Director of Pension, convicted of theft.Mr. Talba had in his judgment delivered on January 28, ordered Mr. Yusufu to pay a N750,000 fine, after he pleaded guilty to conspiring with six others to steal about N23 billion from the Police Pension Fund.
The NJC was unable to establish the allegations of travesty of justice and mockery of the judiciary leveled against him.
The law allows a judge to impose the maximum sentence, as well as to impose a minimum sentence. A judge cannot then be called upon to explain his reasons for imposing a minimum sentence. It is discretion granted him by the enactment. It was a plea bargain arrangement that was brought to him and the accused pleaded for the least sentence based on the bargain.The judge not only sentenced him but also recovered properties he looted worth over 30 Billion Naira.
If the punishment meted on Talba is just for not exercising his discretion judicially and judiciously then the NJC acted wrongly.It means about 90 percent of judges will then be susupended for wrong use of discretion.Wrong application of discretion is an error of law and where one has defaulted in this respect the next thing to do to challenge it is by going on appeal not by petition for misconduct. Use of discretion is not a misconduct. It is at best an error of Law or misapprehension of facts.
In Ogolo v. Ogolo (2006) 2 SC (pt 1) 61 at 65 the Supreme Court held on use or misuse of discretion:”This court can only interfere with the exercise of discretion by a lower court where there is a want of material upon which the court below acted. This is because while the text for want of material is objective, that of want of sufficiency is subjective. It is settled law that a discretion properly exercised by the trial court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the discretion differently. – See also UMEH V.IWU (2007) 6 NWLR (Pt.1030) 416
“The law is well settled that an appellate court will not interfere with the exercise of discretion by a lower court simply because faced with a similar application, it would have exercised the discretion differently. See – University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (Pt. 1) 156 at 163; and Worbi & Others v. Asamanyuah & Others (1955) 14 WACA 669 at 671. But it may do so in special circumstances such as where the discretion was exercised on wrong or insufficient material or where no weight or insufficient weight was given to relevant consideration or where the tribunal acted under misconception of law or under misapprehension of fact and in all other cases, where it is in the interest of justice to so interfere. see Atiku v. Yola L.G. [2003] 1 NWLR (Pt. 802)pg. 487
Talba was not found guilty of corruption or misconduct.So where then is basis for handing punishment to a judge not guilty of misconduct or corruption?This decision is unfair.This is a judge who has about 13 children. How can he feed them with no salary for 1 year?
What the NJC did was to usurp the functions of the Courts which is the only venue where decisions made by judges based on wrong use of discretion can be reviewed.
Osuagwu Ugochukwu Esq
Anti-Corruption Attorney
Abuja
