THE TORT OF MALICIOUS PROSECUTION
M.B Adewusi-Bakare
The tort of malicious prosecution provides the available remedy against anyone who sets the law in
motion against another person with malicious intents when he/she knows there exist no cause of action
to support the allegation. Thus, this tort 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 favor and which causes damage to the plaintiff’s reputation, property / person. 1
The plaintiff in the court action for malicious prosecution, must establish the following:
* That the defendant instituted a criminal prosecution against him;
* That the defendant had no reasonable and probable cause for the prosecution;
* That the defendant acted maliciously;
* That the prosecution terminated in the plaintiff’s favor; and
* That he suffered damage thereby.
(1) Institution of Prosecution
To discharge this burden of proof, the plaintiff needs to establish by credible evidence that the
defendant was instrumental in setting the law in motion against him. It is sufficient if the plaintiff can
prove that the defendant laid an information before the magistrate against him whereby he was
summoned to the court, or, that the defendant knowingly makes a false accusation to the police or to
the judicial officer as a result of which the plaintiff was sent for trial, and was acquitted. The defendant
(not the police) will be held liable.
The essence of this tort is that, it is necessary in the interest of the society that innocent persons
should be protected from wrongful arrest and process engendered by the false and malicious alerts of
others, On the other hand, it is imperative that everyone in the society should feel free to contribute
his own quota towards ridding the society of crime by bringing criminals to justice. Hence the
cumbersome burden of proof placed on the plaintiff.2
1
Kodilinye and Aluko [1999] Nigerian Law of Torts 2nd Edition, Spectrum Books Limited,
Ibadan page 26
2
Tempest v. Snowden, (1952) 1K.B. p.130,135
(2) Absence of Reasonable and Probable Cause for Prosecuting the Plaintiff
The plaintiff must adduce sufficient evidence from which an inference may be drawn to the effect that
the defendant had no belief in the plaintiff’s guilt. Hence, the issue of lack of reasonable and probable
cause should be evaluated based on all information presented to the court. However, the withdrawal
of a prosecution or the acquittal of an accused person does not imply the absence of reasonable and
probable cause. On the other hand, the defendant can defend himself by proving that he had
reasonable and probable cause for initiating the prosecution (subjective test) or that a reasonable
person would, if given the same facts at the disposal of the defendant, believe that the plaintiff has
committed the alleged offence (objective test) See Yeboah v. Boateng.3
(3) That Defendant was Actuated by Malice
According to the Black Law Dictionary, malicious prosecution is such prosecution "instituted with the
intention of injuring the defendant and without probable cause." 4 Thus, malice implies an improper
motive or ill-will or a desire for vengeance other than simply instituting a prosecution for the purpose
of justice. Malice can be inferred from a lack of honest belief in the particular charge. See Usifor v.
Uke.5
(4) Termination of Proceedings in favor of the Plaintiff
Once a man has been convicted on a criminal charge, he cannot sue the prosecutor for malicious
prosecution. The rationale for this is that, it will lead to a re-opening of the question of his guilt or a
challenge of his conviction. But where the proceedings ended in his favor and he was acquitted, he
may succeed in his action for malicious prosecution. However, while the case is still pending, no
action can be taken, as no one can claim that the lawsuit is unreasonable. See Yeboah v. Boateng
(Supra),
(5) Plaintiff suffered Damages as a result of the Prosecution
The plaintiff must prove that the prosecution instituted against him caused damages either to his
reputation, or property / person. See Tempest v. Snowden (Supra).
3
(1963) 1 GLR. 182
4
Black Law Dictionary (Revised 4th Edition; Minn, West Publishing Co. London (1968)
5
(1958) 3 F.S.C. p.58
Damage to the person will be established where the prosecution was naturally defamatory or where it
caused the plaintiff to be imprisoned or to be corporally punished. See Wiffen v. Bailey.6
The defence for anyone sued for malicious defamation:
(i). If the prosecution was at the discretion of the Police or judicial officer because of the existence of
some probable cause. However, this is negated when the tortfeasor insisted on the prosecution of the
victim or sponsors the trial.7
(ii). Judicial immunity to initiate such proceedings.
6
(1915) 1K.B. p.600
7
Rayson v. South London Tramways co. (1983)2 QB 304
