The Tort of Malicious Prosecution
The tort of malicious prosecution has a rich and complex history that is central to its current form. It
evolved over centuries to address the specific wrong of a person being subjected to a groundless and
maliciously motivated legal proceeding. Its historical nature helps explain key elements of the tort and
the challenges of its application in modern law.
Origins in English Common Law
The historical roots of malicious prosecution can be traced back to English common law, where early
remedies existed to protect individuals from frivolous and vexatious litigation. One early concept was
the writ of conspiracy, which was used to address situations where two or more people conspired to
bring a false and malicious charge. The modern tort, however, is more directly tied to the gradual
recognition of a personal right to be free from unjust prosecution.
A key historical factor was the nature of the legal system itself. In the 17th and 18th centuries, private
citizens, rather than public prosecutors, were often responsible for initiating criminal charges. This
created a need for a remedy to prevent individuals from using the legal system for personal vendettas or
improper purposes. The tort of malicious prosecution developed as a response to this problem,
providing a cause of action for a person who was unjustly prosecuted.
A central principle underpinning the tort's development was the legal maxim that “the King pays no
costs.” This meant that the Crown could not be forced to pay the legal costs of an innocent person it
prosecuted. The tort of malicious prosecution arose as a way to hold the private individuals who
initiated such vexatious proceedings accountable for the harm they caused.
Key Elements Shaped by History
The historical context of the tort is reflected in its essential elements, which a plaintiff must prove to
succeed in a claim:
Prosecution by the Defendant: This element directly reflects the tort's origins in a system of private
prosecutions. The plaintiff must show that the defendant was the one who initiated or continued the
legal proceedings.
Termination in Favor of the Plaintiff: The historical development of the tort required that the legal
proceedings against the plaintiff must have ended in their favor. This ensures that the tort is not used to
challenge a conviction and reflects a policy of not allowing a collateral attack on a court's judgment.
Absence of Reasonable and Probable Cause: This is a critical element. Historically, courts recognized that
citizens should be encouraged to report potential crimes. Therefore, the tort does not punish someone
for simply being mistaken. The plaintiff must prove that the defendant initiated the prosecution without
a reasonable and probable basis for believing the accused was guilty.
1
Malice: The requirement to prove malice is perhaps the most historically significant element. Malice, in
this context, is a wrongful or improper purpose for bringing the prosecution. It goes beyond mere ill-will
or spite and includes using the legal process for a purpose other than furthering justice. This high
standard was historically justified as a way to encourage private citizens to assist in bringing criminals to
justice without fear of being sued for an honest mistake. The burden of proving malice has made
malicious prosecution a difficult tort to win.
The Modern Evolution and Challenges
While the tort of malicious prosecution originated in the context of criminal proceedings, its historical
nature has been challenged and adapted over time, particularly in modern legal systems where public
prosecutors handle most criminal cases.
Public vs. Private Prosecution: The shift to state-run public prosecution systems has raised questions
about the tort's relevance. Modern law has had to grapple with whether and how to apply the tort to
state actors, such as police officers and public prosecutors. In some jurisdictions, the tort is applied to
state officials, while others have developed different mechanisms, such as constitutional claims, to
address state misconduct.
Civil Proceedings: Historically, the tort was generally confined to criminal cases. However, in recent
years, courts in some jurisdictions have extended the tort to cover maliciously initiated civil proceedings.
This has been a controversial development, as it raises concerns about deterring legitimate litigation and
creating “lawsuits about lawsuits.” The extension of the tort to civil proceedings demonstrates its
continued, albeit evolving, role in addressing the misuse of legal process.
Conclusion
In summary, the historical nature of malicious prosecution is not just a matter of academic interest; it
fundamentally defines the tort. Its elements, particularly the high bar of proving malice and lack of
probable cause, are direct legacies of a legal system that relied on private individuals to initiate criminal
proceedings. As legal systems have changed, the tort has had to evolve, leading to debates about its
application to modern public prosecutions and its expansion into the realm of civil litigation.
Purpose of the Tort
It helps in the protection of innocent people from false accusation
According to Black’s Law Dictionary1, defines malicious prosecution as the institution of criminal or civil
proceeding for an improper purpose and without probable cause. It is further explained in the case of
Olango v Attorney General and another 2 in which it is explained as a tort which is committed where
there isn’t legal reason for instituting criminal proceedings. This tort is committed where the defendant
1
8th edition page 3041
2
Civil suit 681 0f 2016[2020]UGHCCD
2
maliciously and without reasonable and probable cause initiates against the plaintiff, a criminal
prosecution which terminates in the plaintiffs favor and which results in damages to the plaintiffs
reputation, person or property. This tort aims at safe guarding a person from being harassed by
unjustifiable litigation. For this tort to be accountable, the claimant has to fulfill the following
ingredients as laid down in the case of Edirisa Semakula v Attorney General3, where the court held that
there was no reasonable and probable cause for arresting the plaintiff. His arrest and detention was
therefore high and illegal and one the detention or the imprisonment is established, the burden shifts to
the defendant to show that it was reasonably justifiable and laid down these ingredients for malicious
prosecution;
1. That the defendant prosecuted the plaintiff.
The rule is that the defendant must have been actively instrumental in instigating the proceedings.
Who qualifies as a prosecutor?
According to Law of Tort by Winfield and Jolowicz, a prosecutor refers to a person who initiated or was
actively instrumental in setting the legal process in motion against the plaintiff.
However, in the case of Savile v Roberts4, where the defendant Robert personally initiated criminal
proceedings against Savile. He falsely accused Savile of riot and trespass; the cause went to trial and
Savile as acquitted. Savile then sued Robert for malicious prosecution. The court held that Robert was
liable because he prosecuted without reasoning and probable cause. He acted with malice and the case
ended in Savile׳s favor.
Furthermore, in the case of Martin v Watson, where the defendant constantly called the police and
falsely accused the plaintiff of indecently exposes himself to her indecently. Based on her statement, the
police arrested and prosecuted Watson. Later, Watson was found not guilty and sued Mrs. Martin for
malicious prosecution. The court held that even though the police actually filed the charges, the
defendant was a prosecutor in this case because she made constant complaints she knew were false and
caused the police to act and therefore she was liable for malicious prosecution.
2. That the criminal proceedings terminated in favor of the plaintiff
The legal action initiated by the defendant must have ended in favor of the plaintiff. This means that the
plaintiff was not convicted or found liable in the initial case. The following are the examples of
proceedings terminated in the plaintiffs favor;
Acquittal of the plaintiff on the merit of the case
Termination of the case where conviction is quashed for technical reason such as a misdirection
of the jury by the trial judge.
3
C.S No.6/7S (1976)
4
(1698) 12 Mad 208
3
A case to illustrate this is Maxwell v Republic, the case involved a malicious prosecution against the
government. The plaintiff Maxwell had been charged with criminal offences and later acquitted. He
subsequently sued the government for malicious prosecution. It was held that if the prosecution
proceedings are terminate in a way that means the accused person is not actually found guilty by a
court, the plaintiff doesn’t need to positively prove their innocence in order to recover damages for
malicious prosecution. Furthermore, in the case of Mbowa v East Mengo Administration5 , where it was
held that the criminal proceedings must have been terminated I the plaintiffs favor, that is the plaintiff
must show that the proceedings were brought to a legal end and that he has been acquitted of the
charge.
3. That the defendant had no reasonable or probable cause .
This simply means that the person who initiates the criminal proceedings had no good reason for
starting the case. Tor this ingredient to stand, the defendant must have acted without facts or ignored
the truth or lied just to get one into trouble. If a person has a genuine belief and some evidence, even if
they were wrong that might not be malicious prosecution but if they guessed, assumed or acted out of
hate or revenge, then this ingredient is satisfied.
Reasonable cause. These are facts that would make an ordinary person believe that the accused
committed.
Probable cause. This is where a person truly believed (honestly) that a crime was committed but then
their belief must be based on actual facts or information not rumors, jealously or assumptions.
To prove malicious prosecution, you must show that the defendant had no solid facts, and they acted
without careful thought or genuine belief.
This was illustrated in the case of Mugabi v Attorney General6, where the plaintiff legally purchased a
motorcycle and had documentation to prove ownership. Despite this, he was arrested and prosecuted
for theft. The police failed to conduct a proper investigation and ignored clear evidence of ownership.
The court found out that the prosecution lacked reasonable and probable cause as the police acted
without verifying the facts. The plaintiff was acquitted and the court held that the prosecution was
malicious.
Furthermore in the case of Commonwealth Life Assurance Society Ltd v Smith7, where the plaintiff
Smith sued the commonwealth Life Assurance for malicious prosecution after he was wrongfully
accused of embezzlement and subsequently acquitted. The issue was whether the insurance had
reasonable and probable cause to believe that smith was guilty of embezzlement. The court found that
the insurance company did not have reasonable and probable cause to believe that smith was guilty. It
emphasized that reasonable and probable cause requires a belief that is based on reasonable and
cautious mans belief in the guilt of the accused not merely a suspicion.
5
(1972) EA 352
6
Civil suit No. 133 of 2002
7
(1938)57 CLR 527
4
4. That the defendant acted maliciously.
In Winfield and Jolowicz tort defines malice is seen as some other motive than a desire to bring to
justice a person whom the (accuser) honestly believes to be guilty.
Malice is neither anger nor revenge but rather where the accusers primary purpose is something other
than upholding the law. The burden of proving malice is on the claimant’s side. This was illustrated in
the case of Edirisa Semakula v Attorney General8, whereby on February 1974, Edirisa travelled to Jinja
to buy sugar for his society, while in transit he was arrested by the army who took him and interrogated
him, Edirisa was able to prove that he lawfully purchased the sugar, however, he was detained for three
days and he was also beaten on realizing him, his sugar wasn’t returned to him. The court observed that
there was a clear indication of malice and the army men were not acting genuinely from the facts it’s
seen that Edirisa went to prove that hr lawfully purchased the sugar but however, the army men
detained him without reasonable cause which pointed to malice.
Furthermore, in the case of Bukenya v Attorney General9, where the plaintiff was arrested and
prosecuted by the state agents who happened to be the police without sufficient evidence or even
reasonable cause. He was detained and subjected to criminal proceedings that were eventually
terminated in the plaintiffs favor. The plaintiff then sued the Attorney General for malicious prosecution.
The court ruled in the favor of Bukenya, the plaintiff and held that the Attorney General was liable in
tort for the wrongful actions stating that the prosecution was malicious and even lacked probable cause
and therefore, the plaintiff was awarded damages.
5. That the defendant suffered damages to his reputation, person or property .
The plaintiff must have suffered some form of harm or damages as a result of malicious prosecution.
This could reputational damage, legal costs, emotional distress and damage to the person’s property
and as regards reputation the fact it could have defamatory sense is not enough. It may be sufficient if
the prosecution cause the plaintiffs imprisonment. In the case of Maxwell v Republic10, where the court
noted that damages can be substantial if the plaintiff has suffered significant harm. Furthermore, in the
case of Commonwealth Life Assurance Society Ltd v Smith11, where the court held that if the plaintiff
had reasonable and probable cause to believe the plaintiff was guilty damages may be limited.
DEFENSES FOR MALICIOUS PROSECUTION
1. Statutory Limitations.
It refers to the limit within the time limit which a plaintiff must bring a lawsuit against a defendant for s
tortuous act. If the plaintiff fails to file the law suit within the specified period, the defendant can use
8
(1976) HCB 29
9
(1986) HCB 67
10
(1995)HCA 62
11
(1938) 57 CLR
5
the statute of limitations as defence to dismiss the case. The limitation Act 2010 sets out the time limits
for bringing various types of tort claims for example;
Action for libel or slander is two years from the date of publication as under section 412
Action for personal injuries is three years from the date of injury as under section 513
Actions for property damage is six years from the date of damage as under section 614
If this defence is raised by the defendant, the court will then consider whether the plaintiff has /had a
valid reason for delaying the law suit and if the court finds that the plaintiff has a valid reason for
delaying the suit, it may extend the time limit such as;
Lack of knowledge of the tortuous act
Disability or incapability
Concealment of the tortuous act by the defendant
This was evidenced in the case of Mwesigwa v Kampala Capital City Authority15, where Mwesigwa a
pedestrian was injured in a road accident on January 10th 2015 in Kampala. The accident was caused by
negligence of the KCCA which had failed to maintain the road properly. Hs suffered severe injuries
including a broken leg and head trauma, and was hospitalized for several months. Mwesigwa did not file
a law suit against KCCA until February 10th, 2020 five years after the accident. The High court of Uganda
considered the plaintiffs claim and the defendant’s defense f statute limitations as it found out that the
plaintiff had exceeded the three year term limit for personal injury claims under the limitation Act 2010.
However, the court also found that the plaintiff had a valid reason for delaying the law suit as he had
been undergoing medical treatment and was unable to persue legal action earlier thus the court
extended the time limit and allowed the plaintiffs claim to proceed. The court found out that the
defendant was liable for the plaintiff’s injuries and awarded damages of UGX50, 000,000(USD 13,500)
2. Immunity
For instances, the president of the Republic of Uganda cannot be sued until he ceases to be the
president of Uganda as per Article 98(4)16,which provided that while holding office the president shall
not be liable to proceedings to any court.
3. Limitation of actions
According to section 317, which provides that suits of tort must be brought within six years from the date
that cause of action arose. However, there are also expectations to limitation like if a party as stopped
from bringing a suit due to insanity, duress, mistake it may be waived and the suit is considered still
viewable.
12
Of the Limitation Act 2010
13
Of the limitation Act 201o
14
Of the limitation Act 2010
15
(2018)
16
Of the 1995 constitution of Uganda
17
Of the limitation Act 2010
6
4. Probable cause.
Probable cause can be raised as a defense against the action of malicious prosecution by the defendant.
Probable cause was defined in the case of Hicks v Faulker18, as an honest belief on the guilty of the
accused based upon full conviction founded upon reasonable grounds of existence of state of
circumstances which assuming them to be true would have led any prudent and conscious man place in
the position of the accused would reach a conclusion that the plaintiff has committed the offence.
Therefore, the defendant will be able to raise the defense if the reasoning in Hicks v Faulker is reached.
REMEDIES TO MALICIOUS PROSECUTION.
Damages
Damages provided to the victim are meant to restore satisfaction for the wrongs done onto them. Here,
damages may also be monetary for compensation for emotional distress, defamation or anxiety caused.
These damages may also be for punishing the wrongdoer and deter similar conduct in the future. In the
case of Mwesigwa v Kampala capital city Authority19, where the court found out that the defendant
was liable for the plaintiff’s injuries and awarded damages of UGX 50,000,000(USD 23,500).
Injunctions.
A court may grant an injunction to prevent the wrongful party from continuing to bring baseless or
harassing law suit in the future.
Filing a civil Lawsuit for Malicious Prosecution
The person who was wrongfully prosecuted can file a civil suit for malicious prosecution. To succeed in
such a claim, the plaintiff must generally prove;
The original case was terminated in their favor
The defendant initiated the original case without probable cause.
The defendant acted with malice
The plaintiff was prosecuted by the defendant
The plaintiff suffered harm as a result of the prosecution.
CONCLUSION
The tort of malicious prosecution is committed where there is no legal reason for instituting criminal
proceedings. It occurs as a result of abuse of the minds of judicial whose responsibility is to administer
justice. Therefore, every person has the right to bring offender to justice thus that does not mean any
innocent person should be brought before the law unnecessarily. It is in order to check false accusation
of innocent persons and is what the tort of malicious prosecution seeks to protect.
18
supra
19
(2018)
7
REFERENCES
The 1995 constitution of Uganda as amended
The Limitation Act 2010
Case law
G.Kondilinye and Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Pulisher,1999
Bodunde Bankole Tort: Law of Wrongful conduct: Lip service Punishment(1998), Lagos
