Malicious prosecution could be defined as a tort arising from unsuccessful criminal or civil proceedings instituted against another party with malice and without probable or reasonable cause. It is also defined as the tort of initiating criminal prosecution or civil suit against another party with malice and without probable cause. Where any person has been maliciously prosecuted, such person may bring an action in tort seeking damages against the accusers. The case of OGBONNA v. OGBONNA & ANOR (2014) LPELR-22308(CA) was instructive on it.

Malicious prosecutions are outright abuse of process and usually damage to the character, person, liberty, property or finance. In the circumstance, the Plaintiff would have illegitimately used the coercive powers of the state to cause harm to another, the Defendant and the coercive powers of the state are, thus, also abused.

For a claimant to succeed in an action for malicious prosecution, he or she must plead and prove the followings;

  1. The prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff;
  2. Termination of the prosecution proceedings was in the plaintiff’s favour;
  3. No reasonable or probable cause for the prosecution;
  4. Evidence of malice on the prosecutor’s part; and
  5. That the plaintiff suffered actual damage.

See the case of EJIKEME V. NWOSU (2002) 3 NWLR (Pt. 754) 356; (2001) LPELR CA/J/76/94

The onus is on the plaintiff to prove each of the elements stated above.

PROCEEDING WAS INSTITUTED BY THE DEFENDANT

For the claim for malicious prosecution, to be liable, a defendant must be actively instrumental in setting the law in motion for the prosecution of the plaintiff.”

In the words of ELECHI  J.C.A  in ADEBOWALE v. ROBINSON (2018) LPELR-44424(CA), an action for malicious prosecution will not lie against a person who merely gave an information to the police by a report or complaint of the commission of an offence which led the police on their own initiative to arrest, and eventually charge another to Court after their investigation of the complaint” see also the case of  INNEH V. ARUEGBON (1952) 14 WACA 73,

Thus, If the evidence did not show that the defendant influenced the police in any way in the decision to prosecute a plaintiff, then the prosecution cannot and will not properly be attributable to the defendant, but the police.

Witnesses are immune from an action in malicious prosecution even if they lie on the witness box. This is because an action for malicious prosecution focuses on the abuse of the legal process, not on defamatory or untruthful statements.

TERMINATION OF THE PROSECUTION PROCEEDINGS WAS IN THE PLAINTIFF’S FAVOUR;

The action for Malicious prosecution will fail if the criminal proceeding was not determined in favour of the plaintiff.

In FADEYI & ANOR V. OWOLABI & ANOR (2014) LPELR- 22475 (CA), where the Appellants were discharged and acquitted on the count at the trial court. The Court of Appeal held that for an action on malicious prosecution to fail, it should be shown that the trial ended in the conviction of the accused.

Where in the criminal proceeding instituted against the plaintiff, a nolle prosequi (prosecutor discontinues prosecution) is entered on behalf of the plaintiff, the plaintiff does not need to positively prove his innocence to recover damages for malicious prosecution as held in the case of  OGBONNA V. OGBONNA &ANOR.

PROBABLE CAUSE

The plaintiff must prove that there was no reasonable cause for the prosecution and was instituted for an improper purpose. See GARBA V. MAIGORO (1992) 5 NWLR (Pt.243) 588. It is however for the plaintiff to establish a lack of reasonable and probable cause not for the defendant to prove its existence.

A failure to fully investigate the facts surrounding a case may be sufficient to prove a lack of probable cause.

DAMAGES

The plaintiff must prove that by the prosecution against him he suffered damages either to his reputation, person or property. He must satisfy the court either that he was corporally punished or imprisoned or that he had been in jeopardy of such punishment or that he incurred cost in the course of the prosecution.

In Conclusion, malicious prosecution entails actions against a defendant who without reasonable or probable cause initiates criminal prosecution against the plaintiff which terminates in the plaintiff’s favour and which also results in damages either to the plaintiff’s reputation, person or property. A person suing for malicious prosecution must prove all of the above elements stipulated in the case EJIKEME V. NWOSU

By Resolution Law Firm

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