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DURU Onyekachi Free Law Lecture Series: No. 9

Summary Notes on Malicious Prosecution

The Tort of Malicious Prosecution is committed where the defendant maliciously and without
reasonable and probable cause initiate against the plaintiff, a criminal prosecution which terminate
in the plaintiff’s favour and which result in damage to the plaintiff’s reputation, person or
property. The Tort seeks to strike a fair and acceptable balance between the two opposing interest
of social policy namely;

a) The interest in safeguarding person from being harassed by unjustifiable litigation; and,

b) The interest in encouraging citizens to assist in law enforcement by bringing offenders to

This is done by way of the following essentials, which constitute the ingredients of the Tort:

1) That the defendant instituted or instigated a prosecution against the plaintiff.

2) That the prosecution ended in the plaintiff’s favour.

3) That the defendant had no reasonable or probable cause.

4) That the defendant acted with malice.

5) That the plaintiff suffered damaged to his reputation, person or property.

In Amin v. Bannerjee & Ors, the court reiterated the position above when it held that in an
action for Malicious Prosecution, the plaintiff must proof that the proceeding instituted against
him were malicious without reasonable or probable cost and that it terminated in his favour and he
has suffered damaged. To establish instigation of prosecution, the plaintiff must show that it was
the defendant who was actively instrumental in setting the law in motion against him. In Balogun
v. Amubikahun, the Supreme Court held that to prosecute in this context means to set the law in
motion whereby an appeal is made by the defendant to some person with judicial authority in
regard to the matter in question. Thus, merely reporting a matter to the authority is not enough

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except the defendant knowingly makes a false accusation to the police or a judicial officer with
the result that an innocent man is sent for trial: Tewain v. Singh.

In Payin v. Aliuah, the defendant had made a knowingly false report to the police to the effect
that the plaintiff has stolen some coconut from a plantation. It was held that the defendant was
liable as prosecutor for the accused’s trial since his report to the police was a complete
fabrication. It is no defence that the prosecutor withdrew the charge before summons or warrant
was issue by the Magistrate: Cassey v. Automobiles Renault of Canada Ltd. It was also no
defence that the Magistrate acted without jurisdiction: Anold v. Johnson.

Secondly, favourable termination of the prosecution can be described as trial which came to
an end without conviction being pronounced. The underlying principle is that a man is deemed to
be innocent until he is proved innocent. So what is required is not a judicial determination of his
innocence; but merely, absence of judicial determination of his guilt. The requirement is satisfied
if;

a) He is discharge on merit;

b) The plaintiff was convicted in a lower court; but, his conviction was quash on appeal
because of irregularity of procedure;

c) Where the plaintiff was acquitted of the charge in question but convicted of a lesser
offence;

d) Where the plaintiff was acquitted on technicality such as a defect in the indictment;

e) Where the prosecutor discontinued the proceeding or withdrew the charge even without
prejudice to the right to recommence;

f) Where the AG enters a nolle prosequi staying further proceedings on the indictment; and,

g) Where the charge was struck out for want of prosecution or lack of diligent prosecution.

Thirdly, in Hicks v. Faulkner, Hawkins J. defined reasonable and probable cause as an

having in his position as a reasonable and sane person a set of fact which to an ordinary man will
lead to the conclusion that the plaintiff has committed a criminal offence. It is for the plaintiff to
establish the absence of reasonable and probable cause not for the defendant to establish its
presence. The test is objective and subjective.

In Ojo v. Lasisi, the court held that the defendant had reasonable and probable cause based on
the following facts: The house of the appellant and the defendant where the only house within the
area and the two houses shared a common wall fence. Only one bedroom in the house of the
respondents was searched as the respondent claimed that they did not have the keys to the other
rooms and lastly, a lady with them ran away when the police came.

Fourthly, Malice exists unless the predominant wish of the accuser is to vindicate the law:
Stevens v. Midland Counties Ry Co.. It includes any improper motive or purpose or any motive
other than that of simply instituting prosecution for the purpose of bringing a person to justice. It
is wider than spite or ill will and desire for vengeance. Examples of an improper purpose
amounting to malice are:

a) Where a landlord institutes criminal proceedings against his tenants as a device to procure
the latter’s eviction from the premises: Turner v. Ambler; and,

b) Where a prosecution is brought against the man in other to punish him for having given
evidence on a previous occasion: Glinski v. Mclver.

Further, from the most express malice, want of reasonable cause cannot be implied: Usifo v.
Uke. Thus, no matter how malicious the defendant may have been, he will not be liable for
malicious prosecution if he had reasonable and probable cause for believing in the guilt of the
plaintiff. On the other hand, the absence of reasonable and probable cause is in itself sufficient
evidence of malice, especially in those cases where there is sufficient evidence that there was no
genuine belief in the complaint made. However, honesty of believe must not be confused with
honesty of motive.

Damage shows that this tort is not actionable per se. In Savile v. Roberts, it was held that
damages may be claimed in an action under three heads;

a) Damage to property

b) Damage to person

c) Damage to reputation
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In Amin’s Case the court held that to found an action for damages for malicious prosecution,
based on criminal proceedings the test is not whether the criminal proceedings have not reached a
stage at which they may be correctly describe as a prosecution; the test is whether such
proceedings have reached a stage at which damage to the plaintiff occurs. For example, without
issuing summons or a warrant the Magistrate inquired into the merit of the charge in open court
and eventually dismisses the complaint. Damage to person is established where the prosecution
caused the plaintiff to be threatened with imprisonment and damage to property relates to the cost
incurred by the plaintiff in defending the charge.

Lastly, in order to show damage to fame, the plaintiff must show that the charge was
necessarily and naturally defamatory (moral stigma). In the case of Rayson v. South London
Tramways Co., damage to fame was establish where the plaintiff was wrongly accused of
traveling on a bus without paying the fair, since the accusation implied that he was a dishonest
person and a cheat. Also, in Yeboah v. Boateng, there was damage to fame where a charge of
extortion was brought against the paramount chief. But there will be no such damage where a
landlord is prosecuted for having failed to carry out a statutory duty to cleanse his tenant’s room:
Witten v. Bailey; since the charge does not necessary carry a defamatory imputation, nor for the
same reason will there be damage to fame where the plaintiff is prosecuted for riding a bicycle
without a rear light or for pulling the alarm lever in a train without lawful excuse: Berry v.
British Transport Commission.