Malicious Prosecution

Malicious prosecution is bringing criminal pro
ceeding against a person without reasonable and  probable  cause and which proceedings end in favour of the  accused. It  is criminal prosecution of another person not for  the purpose of bringing him to justice, but for any improper reason. In other words, malicious  prosecution, is the criminal prosecution of a person  maliciously and without reasonable and probable  cause and  which prosecution terminates  in favour of the accused.
Maliciously prosecution is a trespass to person. Essentially  malicious prosecution  is: setting in motion  (2) maliciously and without reasonable and probable  cause (3) criminal  proceedings against another person  (4) which however, terminates in this person’s favour.
Malicious prosecution is a malicious  use of legal process. It is a vexatious  proceeding. It is an abuse of legal process. Once the wrongful prosecution has ended in the plaintiff’s favour he or she may sue in tort for  damages.
The Purpose of The Tort  of Malicious Prosecution. The purpose of the tort of malicious prosecution  is to prohibit unlawful prosecution and provide remedy for a person who has been unjustly prosecuted. It is a tort designed to protect  a person  who has been prosecuted without reasonable and probable cause. In  tort of malicious, prosecution, the  law seeks to maintain  a balance between the two  opposing interest and philosophies. These are: 1. The public policy and need to encourage  people  and society to assist in the law enforcement process  through the volunteering  of information to the police and other law enforcement agencies and help  bring law breakers  to justice; in  order to protect  society, on the one  hand; and  2. The need to protect and safeguard persons  from  being  harassed by malicious  wrongful and unjustifiable prosecution on the other hand. In the effort to balance these two noble policy objectives, the courts have tended a little in favour of the general interest of society leading to a situation  whereby “the  action for malicious prosecution is more carefully guarded than any other in the law of torts.
Accordingly, because of the need to protect an honest and innocent prosecutor, the law requires that several elements be proved by a plaintiff,  in order to succeed  in a claim of malicious prosecution. As a result, the situation that the number of successful litigation in malicious prosecution is not very many. To enhance his chances of success, a plaintiff  may add additional  claim for trespass to person and defamation.
The Element of Malicious Prosecution: What a Plaintiff  Must Prove: whenever a plaintiff brings  legal action against a defendant alleging malicious prosecution by the defendant  in earlier action, he must prove the four essential elements in order to succeed. The four essential elements of malicious prosecution were restated by the Supreme Court in the case of Balagun V. Amubikanu (1989)  ZNWLR Pt 107 P.18. They  are that the defendant initiated or imitated  the prosecution against him (2) That the prosecution  terminated in the plaintiffs favour (3)That the defendant  had no reason or probable  cause  for the prosecution and (4) that the defendant  acted maliciously.
Failure to establish any of the ingredients is always fatal to the plaintiff’s claim. However, in many cases, especially in obvious cases of malicious prosecution, it is not in dispute whether  the plaintiff has suffered damage  as the fact of damage is not usually contested, once the tort  of malicious damage  prosecution has been proved.

Chidi Enyie