Malek Khoury V. Kamel Tabbara (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—Malicious prosecution—Criminal proceedings terminated by nolle prosequi.

Facts

The appellant (plaintiff below) sued the respondent (defendant below) claiming damages for malicious prosecution on the ground that the respondent wrongfully charged him with an offence for which he was arrested and committed for trial, the proceedings being terminated by the Crown entering a nolle Prosequi.

The respondent, relying on Goddard v. Smith, 6 Mod. 261, maintained that the nolle prosequi was not a termination of the proceedings in appellant’s favour and the action for damages did not lie.

The trial Judge agreed and dismissed the action. Plaintiff appealed and relied on the contrary view in Gilchrist v. Gardner (Australia, 12 N.S.W. Rep., cases at law, 184) that the action did lie as, if a plaintiff could not sue for malicious prosecution after a nolle prosequi, he was deprived of his only chance of clearing his character.

Held

The general rule that the criminal proceedings must have terminated in favour of the plaintiff suing for malicious prosecution is subject to this qualification, namely that those proceedings were capable of such termination.

A nolle prosequi terminates criminal proceedings and justice requires that the
accused person should be entitled to sue for malicious prosecution to clear his
character.

Appeal allowed; case remitted for trial.