LEGAL PRINCIPLE: CRIMINAL PROCEDURE — Leave to Prefer Charge — Exercise of Discretion — Judicial and Judicious Exercise Required
PRINCIPLE STATEMENT
The trial judge has discretion to grant or refuse leave to prefer a charge, but the discretion must be exercised judicially and judiciously. He must take into consideration all materials placed before him, including the relevant law.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Ohwovoriole v. FRN & Ors (2003) NLC-3922001(SC) at p. 5; Paras C–E.
"The learned trial Judge has the discretion to grant or refuse leave to prefer the charge but the discretion as usual, must be exercised judicially and judiciously. In that exercise, he must ensure that he has taken into consideration all the materials placed before him including the relevant law applicable thereto."
EXPLANATION / SCOPE
Leave to prefer a charge requires judicial discretion. The principle applies to criminal procedure. The judge must consider all materials. The rule protects against unwarranted prosecution. The judge must act judicially. The principle is well-established.