N.B. This article is particular to Nigeria.
The tort of malicious prosecution is committed where the defendant maliciously and without probable cause, initiates against the plaintiff a criminal prosecution which terminates in the plaintiff’s favor and which results in damage to the plaintiff’s reputation.
According to the OXFORD LEARNED DICTIONARY, malicious refers to
“Pertaining to or as a result of malice or spite”
In the case of Ogbonna V. Ogbonna (2014) LPELR CA 200 “malicious prosecution is a tort which enables a person who is a subject of groundless and unjustified proceeding to seek claims for damages”
In line with this, malicious prosecution is when the defendant without reasonable and probable cause prosecutes the plaintiff and then case has ended in the plaintiff’s favor with damages to the person and his reputation. Although prosecution has to do with crime and criminal act, malicious prosecution is civil in nature.
In this tort, the law seeks to hold a balance between two opposing interest of social policy namely
- The interest of safeguarding persons from being harassed by unjustifiable litigation.
- The interest I encouraging citizens to assist in law enforcement by bringing offenders to justice.
ESSENTIALS OF MALICIOUS PROSECUTION
In order to succeed in a nan action for malicious prosecution, the plaintiff must prove:
- That the defendant instituted a prosecution against him
- That the prosecution ended in the plaintiff’s favor
- That the defendant has no reasonable and probable cause for prosecution
- That the defendant acted with malice
- That the plaintiff suffered damages to his person, property and reputation.
Failure to establish any one or more of these requirements will result in the plaintiff losing his action for malicious prosecution.
Each of these requirements must now be considered in turns –
- INSTITUTION OF PROSECUTION: The plaintiff must show first that the defendant instituted a prosecution against him. As Lewis JSC stated in the supreme court case of Mandilas & karaberis ltd V. Apena:
“in our view it is clear from Danby v. Beardsley that to succeed the plaintiff must show that it was the defendant who was actively instrumental in setting the laws in motion against the plaintiff”.
The following principles as to what constitutes setting the law in motion has been established by the authorities:
i. It is not necessary that the defendant should have actually conducted the prosecution. This is illustrated in Malz v. Rosen
ii. At one time it was thought that the defendant would not be liable unless the prosecution be said to have actually commenced. This was the courts holding in Gregory v. derby
iii. Where the defendant merely informs the police of a certain fact which incriminates the plaintiff and the police as result decides to prosecutes, the defendant would not be regarded as having instituted a proceeding as seen in Fitzjohn v. Mackinder
- TERMINATION OF PROSECUTION IN PLAINTIFF’S FAVOUR: The second requirement for a successful action in malicious prosecution is that then prosecution of which the plaintiff complains ended in his favor. This requirement is satisfied:
i. If the plaintiff is acquitted of the charge but convicted of a lesser one as evident in BOALER V. HOLDER
ii. If the plaintiff was convicted in a lower court but his conviction was quashed on appeal because of some irregularities
iii. If the plaintiff was acquitted on a technicality such as indictment
- ABSENCE OF REASONABLE AND PROBABLE CAUSE: the third requirement is perhaps the hardest to satisfy, in the first place, it involves proof of a negative by the plaintiff which is a notoriously difficult task. The concept still remains very vague and the best known definition is that of Hawkings .J. in Hicks v. Faulkner where he stated that it is “ an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds of the existence of a state of circumstances. Other principles include:
i. The overall question is a double one both objective and subjective whether a reasonable man would have believed that the plaintiff was guilty of the crime. (objective test) and whether the defendant himself did honestly believe the plaintiff was guilty.
ii. Where the defendant acts under a mistaken impression as to the true facts. He may be judged on those mistaken facts.
iii. Reliance on facts must be based on facts known to the defendant at the time he initiated the prosecution.
iv. Where the defendant who believes that the plaintiff is guilty and lays the facts in full either before a counsel to the police, and he is advised that prosecution is justified.
- MALICE: malice in tort is wider than ill-will or spite. It includes any improper purpose or any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice. If there is no spite or ill-will and the purpose is not to bring the person to justice, then it is malicious.
- DAMAGES: finally, the plaintiff must in all cases show that the prosecution brought against him has brought damage to his
In order to show damage to his fame, the plaintiff must satisfy the court that the charge brought against him was “necessary and naturally” defamatory. Thus, damage to fame was established in Rayson v. Smith. There was no damage to fame where a charge of extortion was brought against a paramount chief in Yeboah v. Boateng.
Damage to person will be established where the prosecution caused the plaintiff to be imprisoned or corporally punished. As regards damage to property, the cost incurred by the plaintiff in defending the charge will be sufficient to ground the action for malicious prosecution, unless then court trying then case awards him allowances equivalent to the cost he incurred as illustrated in Berry v. British transport commission.
Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)