Malicious Prosecution

Malicious prosecution, as the name implies, arises where the defendant maliciously, and without reasonable and probable cause, initiates a criminal proceedings against a plaintiff, which proceedings later ends in favour of the plaintiff.

Further more, it is a common law intentional tort. Like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution.

The tort of malicious prosecution is committed where the defendant maliciously and without reasonable and probable cause initiates against the plaintiff a criminal prosecution which terminates in the plaintiff’s favour, and which results in damage to the plaintiff’s reputation, person or property.

In this tort, the law seeks to hold a balance between two opposing interests of social interests of social policy, name:

  • The interest in safeguarding persons from being harassed by unjustifiable litigation, and
  • The interest in encouraging citizens to assist in law-enforcement by bringing offenders to justice. The courts have always tended to give more weight to the latter interest, with the result that “the action for malicious prosecution is more carefully guarded than any other in law of torts, and the number of successful action is small.

See also Defenses to Trespass to the Person. False Imprisonment, Trespass to the person, Strict Liability and Mental Elements in Tort.

Essentials of Malicious Prosecution

To succeed in an action for malicious prosecution, the plaintiff must prove:

  1. That the defendant instituted a prosecution against him;
  2. That the prosecution ended in the plaintiff’s favor;
  3. That the defendant had no reasonable and probable cause for prosecution;
  4. That the defendant acted with malice; and
  5. That he (the plaintiff) suffered damage to his reputation, person or property.

Failure to establish any one or more of these requirements will result in the plaintiff’s losing his action for malicious prosecution. See the case of Aubin V. Ehunaku (1960) G.L.R. 167, at p. 168.

Each of the requirements must now be considered in turn.

Institution of prosecution

The plaintiff must show first of all that the defendant instituted the prosecution against him. As Lewis J.S.C. said in the Supreme Court in Mandilas & Karaberis Ltd. V. Apena (1969) N.M.L.R. 199 pg. 203: (1969) 1 All N.L.R. 390, at p.394
“…in our view it is clear from Danby V. Beardsly that, to succeed, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff…”

The following principles as to what constitutes “setting the law in motion” have been established by the authorities:

  1. It is not necessary that the defendant should have conducted the prosecution. It is sufficient for liability if, for example, he laid an information before the magistrate on the basis of which the magistrate issued a summon against the plaintiff or a warrant for his arrest. See the case of Inneh V. Aruegbom (1952) 14 W.A.C.A. 73; In such a case, the defendant cannot escape liability by pleading that the subsequent prosecution of the plaintiff was initiated at the discretion of the magistrate, nor that it was technically conducted by the police. See the case of Malz V. Rosen (1966) W.L.R. 1008.
  2. At one time it was thought that the defendant would not be liable unless the prosecution could be said to have actually commenced, for example, by the issue of a summons by the magistrate or by the preferring of a bill of indictment.

It was held by the Judicial Committee of the Privy Council in Mohammed Amin V. Bannerjee (1947) A.C. 322. However, that it was sufficient for liability if the proceedings reached a point at which it could be said that the plaintiff’s reputation was prejudiced, for instance where, without issuing a summons or warrant, the magistrate inquired into the merits of the charge in open court and eventually dismissed the complaint; or where the prosecutor himself withdrew the charge before a summons or warrant had been issued.

For the same reason, it is no defense that the magistrate, in issuing a warrant, acted without jurisdiction, since the injury to the plaintiff’s reputation is not mitigated by the fact that technically there was no prosecution at all.

Termination of prosecution in plaintiff’s favor

The second requirement for a successful action in malicious prosecution is that the prosecution of which the plaintiff complains ended in his favour.

It is an inflexible rule that no person who has been convicted of a criminal charge can sue the prosecutor for malicious prosecution, even though he can prove that he was really innocent and that the charge was malicious and unfounded, see the case of Basebe V. Mathews (1867) L.R. 2 C. P. 684. For if a person were allowed to sue for malicious prosecution after the criminal trial had ended adversely to him, it would entail a re-opening of the issue of his guilt, conviction and might lead to the judgment in the criminal court being “blown off by a side-wind”. See the celebrated English case of Vanderbergh V. Blake (1661) 145 E. R. 447, per Hale C.J

Although the plaintiff cannot sue for malicious prosecution if he was convicted, this does not mean that he can only sue if he was acquitted on the merits, for what is required is not judicial determination of his innocence but merely absence of judicial determination of his guilt.

The crux is not so much whether he has been proved innocent as that he has not been convicted, the underlying principle being that a man is presumed to be innocent until he is proved guilty.

Thus the requirement will be satisfied where, for instance:

  • The plaintiff was convicted in a lower court but his conviction was quashed on appeal because of some irregularity of procedure. See the case of Hermiman V. Smith (1938) A.C. 305; Romegialli V. Maroeau (1963) 42 D. L. R. (2d) 481.
  • The plaintiff was acquitted of the charge in question but convicted of a lesser offence. See the case of Boaler V. Holder (1887) 51 J.P. 227.
  • The plaintiff was acquitted on a technicality such as a defect in the indictment.
  • The prosecution discontinued the proceedings; see the case of Wicks V. Fentham (1791) 100 E.R. 1000; or withdrew the charge, even without prejudice to the right to recommence; see the case of Casey V. Automobiles Renault of Canada Ltd.(1965) 54 D.L.R. (2d) 600
  • The Attorney-General entered a nolle prosequi staying further proceedings on the indictment. See the case of Gilchrist V. Gardner (1891) 12 N.S.W.L.R; Khoury V. Tabbara (1953) 14 W.A.C.A 246; Yeboah V. Boateng (1963) 1 G. I. R. 182.

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