TORT 2.5 MALICIOUS PROSECUTION
TOPIC FIVE: MALICIOUS PROSECUTION.
Malicious prosecution occurs where Mr A (defendant) maliciously sets the criminal law in motion against the Mr B (plaintiff) but the criminal prosecution terminated in Mr B’s favour. In such a case, Mr B can sue Mr A for Malicious prosecution and can be entitled to compensation for damage to his (i.e. Mr A-plaintiff) reputation, person or property.
Lemme give an amateur introduction. Tobe asks Tayo’s girlfriend (Funke) out and starts dating her. Tayo gets angry and promises to make him cry. Two days later it was reported that Funke was assaulted on her way to Honours hostel in the Night. Tayo, (wanting to retaliate without reasonable cause) reports to the police that he saw Tobe assaulting Funke. The police sues Tobe to court but the Court discharges and acquits Tobe due to lack of evidence. Tobe can sue Tayo for malicious prosecution.
Although in practice varying scenarios can arise.
Now note the following:
:: The Law seeks to encourage citizen participation in the volunteering of information and the apprehension of criminals but it frowns at unreasonable and unjustified instigation of criminal proceedings against a person. Especially where it ends in his favour.
:: The elements of malicious prosecution were rightly stated by the court in Balogun V Amubikanhu;
- The defendant instituted a prosecution against the plaintiff.
- The prosecution ended in favour of the plaintiff.
- The defendant had no reasonable and probable cause for prosecution.
- The defendant acted with malice.
- The plaintiff suffered damage. May be to his person, property or reputation.
NB: In exam, you should highlight/discuss these elements (as time permits) where malicious prosecution applies.
Let us take them one by one:
That the defendant instituted prosecution against the plaintiff: The court in Mandilas and Karaberis Ltd V Apena said this means that the defendant must have been actively instrumental in setting the law in motion against the plaintiff. This can occur by knowingly volunteering incorrect information to law enforcement officers. See for example Inneh V Aruegbon, where the husband lied to the police that his wife had stolen. This was in a bid to make her return from Benin where she travelled to. She was arrested and brought back. Tewari V Singh, Yeboah V Boateng.
That the Prosecution Terminated in the Plaintiff’s favour: There must have been a previous suit which terminated in favour of the plaintiff before a suit for malicious prosecution can be instituted. As the malicious prosecution suit is predicated on the fact that the defendant was (unreasonably/unjustifiably) was instrumental in the instigation of the first suit. The termination in favour of the plaintiff may have be by discharge and acquittal. May be on technical or substantive grounds. It may be by a nolle prosequi as was seen in the case of Yeboah V Boateng, all that is required is that a conviction was not secured. See the following cases; Tewary v. Singh, Payin V Aliuah, Inneh V Aruegbon, Turner V Ambler.
The defendant had no reasonable and probable cause for prosecution: “no Reasonable and probable” means the defendant had no honest belief in the guilt of the plaintiff but still went ahead to instigate or encourage the suit-Hicks V Faulkner (this is the subjective test). Then the court asks whether a reasonable man with full knowledge of facts would have instigated the accusation on the plaintiff.
The defendant must have acted maliciously: Meaning that the defendant had no honest belief in the guilt of the accused but still initiated/instigated proceedings from an improper motive which is not in furtherance of justice. See the amateur scenario painted at the beginning of this topic. See also Balogun V Amubikahun. See also Turner V Ambler where malice was construed where the landlord instituted proceedings against the tenant in order to procure their eviction from the premises.
The plaintiff suffered Damage: Generally, the plaintiff is presumed to have suffered an injury or damage though, sometimes he may be required to prove. He can do this by proving injury to his person (Wiffen V Bailey), property or reputation-Yeboah V Boateng.
Before I conclude, you should Note: that the defence of honesty can avail the defendant-Usifo V Uke. i.e. if he honestly had a reasonable and probable belief that the plaintiff is guilty and he reports to the police (i.e. (or) instigates prosecution of the plaintiff) he may still be exculpated. I.e. not liable. But if the defendant later finds out facts which make his allegation groundless, he must update the officers/court.