On page 1044 of the Black’s Law Dictionary (Ninth Edition),  malicious prosecution is stated to mean, the institution of criminal or civil proceeding for an improper purpose and without probable cause.
The tort requires proof of four elements viz: The initiation or continuation of a law suit; law of probable cause for the lawsuit’s initiation; malice and favourable termination of the original lawsuit.
The tort of  malicious prosecution, therefore, 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 favour, and which results in damage in the defendant’s reputation, person or property.
In this tort, the law seeks to hold a balance between two opposing interests of social policy, namely: (a) the interest in safeguarding persons from being harassed by unjustifiable litigation, and (b) the interest in encouraging citizens to assist in law-enforcement by bringing offenders to justice. The courts have always intended to give more weight to the latter interest, with the result that “the action for malicious prosecution is more carefully guarded than any other in the law of torts.” And the number of successful action is small.
Essentials Of Malicious Prosection:
In order to succeed in an action for malicious prosecution, the plaintiff must prove:
That the defendant instituted a prosecution against him;
That the prosecution ended in the plaintiff’s favour;
That the defendant had no reasonable and probable cause for prosecution;
That the defendant acted with malice; and
That he (the plaintiff) suffered damage to his reputable person or property.
Failure to establish any one or more of these requirements will result in the plaintiff’s losing his action for malicious prosecution. Each of the requirements must now be considered in turn.
Institution of prosecution
The plaintiff must show first of all that the defendant instituted the prosecution against him. As Lewis J.S.C. said in the Supreme Court in Mandilas & Karaberis Ltd. V. Apena
In our view it is clearly from Danby v. Beardsley that, to succeed, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff.
The following principles as to what constitutes “setting the law in motion” have been established by the authorities.
It is not necessary that the defendant should have actually conducted the prosecution. It is sufficient for liability if, for example, he laid an information before a magistrate on the basis of which the magistrate then issued a summons against the plaintiff or a warrant for the plaintiff’s arrest. In such a case, the defendant could not escape the liability by pleading that the subsequent prosecution of the plaintiff was initiated at the discretion of the magistrate, nor that it was technically conducted by the police.
At one time, it was thought that the defendant would not be liable unless the prosecution could be said to have actually commenced, for example, by the issue of a summons by the magistrate or by the preferring of a bill of indictment. It was held by the Judicial Committee of the Privy Council in Mohammed Amin v Bannerjee, however that it was sufficient for liability if the proceedings reach a point at which it could be said that the issuing a summons or a warrant, the magistrate inquired into the merits of the charge in open court and eventually dismissed the complaint, or where the prosecutor himself withdrew the charge before a summons or warrant had been issued. For the same reason, it is no defence that the magistrate in issuing a warrant, acted without jurisdiction, since the inquiry to the plaintiff’s reputation is not mitigated by the fact that technically there was no prosecution at all.
Where the defendant merely informs the police of a certain fact which incriminate the plaintiff, and the police as a result decide to prosecute, the defendant will not be regarded as having instituted proceedings since the decision to prosecute is not his and “ the stone set rolling [by the defendant is] a stone of suspicion only.” However, it was established in the leading case of Tewari v. Singh that if the defendant knowingly makes a false accusation to the police or a judicial officer, with the result that an innocent man is sent for trial, he will be liable as prosecutor, even , the defendant had made a knowingly false report to the police to the effect that the plaintiff had stolen some cocnuts from a plantation. The plaintiff was subsequently prosecuted for the offence and acquitted. In action for malicious prosecution brought against him, the defendant argued that it was not he but the police who had preferred the charge on theft, and he had merely given information. The West African Court of Appeal upholding the decision of the trial judge rejected this contention and held the defendant liable as prosecutor, since his report to the police was a complete fabrication.
In Inneh v. Aruegbon, the plaintiff lived in Lagos, whilst her husband and the defendant made report to the police at Benin that the plaintiff has stolen some goods from his house, and he subsequently laid an information to that effect before the magistrate. This was a trumped-up charge devised by the plaintiff’s husband and the defendant in order to procure the return of the plaintiff to Benin so that a summons of adultery could be served on her by her husband. The plaintiff was arrested by the police in Lagos and brought to Benin under a warrant issued by the magistrate. Coussey J.A., with whom the other judges of the West African Court of Appeal concurred, said
It has been argued that if, as is proved, the defendant laid the information against the plaintiff before the magistrate, and the magistrate then issued his warrant as provided by sections 97 and 23 of the Criminal Procedure Code, then the defendant could not be said to have initiated the proceedings, in that he had done nothing more than what was required of him as a citizen in giving information of an offence which had occurred. There might be some force in this argument if it had been established that the defendant did not go beyond giving what he believed to be correct information to the police and genuinely swore to the information on which the warrant was issued. The facts, however, as found by the learned judge, are that the defendant made a charge groundless to his knowledge and which amounted to a gross abuse of the legal process. [Counsel for the defendant], who made his submission on this point with great clarity and referred to the case of Danby v. Beardsley, is not altogether supported in his argument by some of the passages in that report. In that case, it is clear that the defendant had reason to believe that the accusation he was making was, as far as his knowledge went, genuine. In this case, however, it is clear that the defendant could have had no belief in the information which he laid against the plaintiff, because the incident which he alleged had taken place never in fact occurered.
The facts are more approximate to the case of Tewari v Singh where it was held that if a charge is false to the knowledge of the complainant, if he misleads the police to assist him in sending an innocent man for trial, he cannot escape liability because the prosecution has not technically been conducted by him.
Termination of prosecution in plaintiff’s favour:
The second requirement for a successful action in a malicious prosecution is that the prosecution of which the plaintiff complains ended in his favour.
It is an inflexible rule that no person who has been convicted on a criminal charge can sue the prosecutor for malicious prosecution, even though he can prove that he was really innocent and that the charge was malicious and unfounded, for if a person were allowed to sue for malicious prosecution after the criminal trial had ended adversely to him, it would entail a re-opening of the issue of his guilt, and  this would amount to  a challenge to the propriety of the conviction and might lead to the judgment in the criminal court being “blown off by a side-wind.”
Although the plaintiff cannot sue for malicious prosecution if he was convicted, this does not mean that he can only sue if he was acquitted on the merits, for what is required is not judicial determination of his innocence but merely absence of a judicial determination of his guilt . “The crux is not so much whether he has been proved innocent as that he has not been convicted,” the underlying principle being that a man is presumed to be innocent until he is proved guilty. Thus the requirement will be satisfied where, for instance:
The plaintiff was convicted in a lower court but his conviction was quashed on appeal because of some irregularity of procedure;
The plaintiff was acquitted of the charge in question but convicted of a lesser offence;
The plaintiff was acquitted on a technicality such as a defect in the indictment;
The prosecution discontinued the proceedings, or withdrew the charge, even without prejudice to the right to recommence,
The Attorney-General entered a nolle prosequi staying further proceedings on the indictment.
Absence of reasonable and probable cause
This third requirement is perhaps the hardest to satisfy. In the first place, it onvolves proof of a negative by the plaintiff, which is a notoriously difficult task. Secondly, although several attempts have been made to define “reasonable and probable cause,” the concept still remains vague and difficult to apply in individual cases. The best-known definition is that of Hawking J. in Hicks v. Faulkner
I should define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, by which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
Other authorities have established the following principles:
The overall question is a double one, both objective and subjective, namely- (i) whether a reasonable man, having knowledge of facts which the defendant knew at the time he instituted the prosecutor, would have believed that the plaintiff was probably guilty of the crime imputed (an objective test), and (ii) whether the defendant did himself honestly believe the plaintiff was guilty (a subjective test).
Where the defendant acts under a mistaken impression as to the true facts, he “can claim to be judged not on the real facts but on those which he honestly, and however erroneously, believed; if he acts honestly upon fiction, he can claim to be judged on that.
The defendant’s belief must be based upon facts known to him at the time when he initiated the prosecution. Thus, if incriminating facts come to light later which would have constituted reasonable and probable cause for the prosecution, the defendant cannot rely on them to justify his action.”
Where reasonable and probable cause exists at the same time of the institution of the prosecution, but facts come to light later which show that the prosecution is groundless, the defendant will be liable unless he discloses the new facts to the court.

If the defendant, believing in the plaintiff’s guilt, lays the facts fully and fairly before counsel, or before the police, and is advised by either that a prosecution is justified, the defendant will normally be held to have had reasonable and probable cause for the prosecution; though there is no invariable rule to this effect.
The fact that the plaintiff was committed for trial by a magistrate, or even that e was convinced at first instance and only acquitted on appeal, is not conclusive that there was reasonable and probable cause of the prosecution, for the committal or the original conviction may have been procured by fraud, or evidence of which the defendant was unaware when laying the charge.
Although some of this above propositions are formulated in such a way as to imply that reasonable and probable cause is a defence, this is of course a misleading interpretation, since it is for the plaintiff to establish absence of reasonable and probable cause, not for the defendant to establish its presence. In order to establish that the defendant had no belief in the plaintiff’s guilt, the plaintiff must adduce sufficient evidence from which an inference may be drawn as to what the defendant actually believed. It may be sufficient for the plaintiff to sow, for example, that the facts of which the defendant had knowledge pointed so overwhelmingly to the plaintiff’s innocence that no reasonable person could possibly have believed him to be guilty.
A case which illustrates the requirement of absence of reasonable and probable cause in addition to some of the other elements of malicious prosecution is the decision of the Supreme Court of Ghana in Yeboah v Boateng. The background to this case was that the plaintiff, a paramount chief, had been offended because the defendants, who were his stool tenants, had paid dues to another traditional ruler without the plaintiff’s consent. With the concurrence of the parties an arbitration was held at which the defendants were ordered to apologise to the plaintiff before the elders and to pacification fees, which they did. The defendants then made a complaint to the police to the effect that the plaintiff had extorted the money from them. The police decided not to prosecute and the words, “Police cannot interfere. Nothing criminal disclosed,” were recorded in the station diary. Being dissatisfied, the defendants instituted a private prosecution before the district magistrate, who found that prima facie case had been made out, and committed the plaintiff for trial. Subsequently the Attorney – General entered nolle prosequi, which resulted in the discharge of the plaintiff. The plaintiff then sued the defendants for malicious prosecution.
The Supreme Court of Ghana held, inter alia:
That the defendants were clearly the prosecutors;
That the entry of a nolle prosequi by the Attorney-General which resulted in discontinuance of the prosecution, was a sufficient termination of the proceedings in the plaintiff’s favour;
That the fact that the defendants have persisted in the prosecution of the plaintiff after the police had informed them that the facts did not disclose the commission of any criminal offence was not in itself sufficient evidence of malice or of reasonable and probable cause; but since it was clear that the defendants knew that the payment of pacification fees was lawful according to custom , they could not genuinely have believed in the plaintiff’s guilt, and they could not therefore have had reasonable and probable cause for the prosecution.
That the fact that defendants had prosecuted on the advice of a solicitor did not protect them, since they had not disclosed to the solicitor the relevant fact that a valid arbitration had been held, and that the money they paid was by way of pacification to the plaintiff in accordance with the established custom.
Malice:
As in tort of defamation, malice in this tort has a wider meaning that “spite,” “ill-will or desire for vengeance, “for it includes any improper purpose or any “motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice”. Anger or indignation aroused by an imaginary crime is clearly not sufficient, since these are emotions upon which the law sometime relies in order to secure the prosecution of offenders. Nor is it malice to launch a prosecution in order to satisfy the rule in Smith v. Selwyn, which requires that where a felony, such as an assault, has been committed, no civil action may be brought by the victim until the offender has first been prosecuted. If, on the other hand, the prosecutor has no honest belief of in the guilt of the accused, this will be normally be conclusive both of lack of reasonable and probable cause and of malice are: where a landlord institutes criminal proceedings against his tenants as a device to procure the latter’s eviction from the premises, where a prosecution is brought against a man inorder to punish him for a given evidence against the police on a previous occasion; where a prosecution is brought n  order to blackmail or to extort money from the accused; and where the purpose of the prosecution is to recover a debt from the accused where recourse should properly be had to the civil and not to be criminal in the process.
Relationship between malice and lack of reasonable and probable cause
Although malice and lack of reasonable and probable cause are two separate elements and both must be proved, there is an overlap between the two in the sense that proof that the defendant had no genuine belief in the plaintiff’s guilt will constitute evidence both of lack of reasonable and probable cause and of malice. However, it is well settled that proof of malice does not supply evidence of lack of reasonable and probable cause, thus, however malicious the defendant may have been, he will not be liable for malicious prosecution if he had reasonable cause for believing the plaintiff to be guilty of the crime charged. This is well illustrated by  Usifo v. Uke. The case arose from a dispute between two villages, called  Okpara and Kukori, belonging to a clan knows as Agbon. Both villages claimed the right to select the Ovie, the supreme head of the clan. When the defendant, who were from Okpara, learned that Kukori people were about to elect the plaintiff as Ovie, they immediately laid a complaint pn oath before a magistrate, seeking to have the plaintiff and certain other persons from Kukori bound over to keep the peace, on the groumd that any meeting they might hold to crown the plaintiff as Ovie would likely result to a breach of the peace. The plaintiff retaliated by lodging a similar complaint against the defendants. The magistrate bound over both parties “to keep the peace pending in the completion of this enquiry.” The plaintiff and his aides nevertheless went ahead with the crowning ceremony, which passed off without any trouble or disturbance. The defendants then lodged a further complaint before the magistrate as a result of which the plaintiff and four of his associates were summoned before the court and charged with having conducted themselves in a manner likely to cause a breach of peace, which was an offence punishable under section 249(4) of the Criminal Code. The accused were tried and convicted, but their convictions were quashed on appeal. The plaintiff then sued the defendants for malicious prosecution. Counsel for the plaintiff argued before the Supreme Court that once malice is established, very little evidence is required to establish absence of reasonable and probable cause, and that since the evidence showed that the defendants were prompted not by a desire to serve the ends pf justice, but by spite and by a determination to prevent, at all costs, the plaintiff from being crowned, and even possibly to “uncrown” him after the event, there could not be any reasonable and probable cause for the charge. De Lestang, Ag. F.C.J., delivering the judgment of the Supreme Court, rejected this argument ,saying: The motive for the prosecution and the other matters referred to by [counsel] for the plaintiff] clearly go to show malice which indeed the learned trial judge found proved. They do not, in my view, establish want of reasonable and probable cause…….As we said in Johnstone v.Sutton, ‘From the most express malice, want of probable cause cannot be implied,’ [Counsel’s] further submission that the fact that the prosecution was actuated by malice and instituted with the object of preventing the plaintiff from being Ovie showed conclusively that the prosecutors did not believe in the guilt of the plaintiff, I am unable to accept. While I am inclined to the view that, generally speaking, absence of the honest belief in the guilt of the accused would go a long way to establishing want of reasonable and probable cause, honesty of belief must not be confused with honest of motive. As Denning L. J. said; ‘Even though a prosecutor be actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution…….’It seems to me that there is nothing to show that, not withstanding their ulterior purpose, the defendants did not genuinely believe in the guilt of the plaintiff, nor that it was not reasonable for them to have such a belief. On the contrary there are indications that they probably did, and have good reason so to believe.
Indications of such belief were supplied by the facts that (i) both sides expressed an oath that if a meeting were held for the purpose of crowning the plaintiff, a breash of the peace would ensue, and prevent any such meeting and the parties so understood it, and since he asked the police to attend at the ceremony. It was therefore clear that the defendants did have reasonable and probable cause for believing that the plaintiff was guilty of offence with which he was so charged, even though, as was equally clear, they had acted maliciously.
Damage:
Finally, the plaintiff must in all cases how that the prosecution brought against has brought damage either (i) to his fame; or (ii) to his person; or (ii) to his property.
In order to show damage to his fame, the plaintiff must satisfy the court that the charge brought against him was “necessary and naturally” defamatory. Thus, damage to fame was established where the plaintiff was wrongfully accused of having travelled on a bus without paying the fare, since the accusation implied that he was a dishonest person and a cheat; similarly there was damage to fame where a charge of extortion was brought against a paramount chief. But there will be no such a damage where a landlord is prosecuted for having failed to carry out statutory duty to cleanse his tenant’s rooms, since the charge does not necessarily carry a defamatory imputation; nor, for the same reason, will there be a damage to fame where, for example, the plaintiff is prosecuted for riding a bicycle without a rear light; or for puling the alarm lever in a train without lawful excuse; or for unlawful fishing in a stream.
Damage to the person will be established where the prosecution caused the plaintiff to be imprisoned or otherwise corporally punished, or where it put him in jeopardy of such punishment. As in case of slander actionable per se, the crime for which the plaintiff was charged must have been one punishable by imprisonment in the first instance, and not one punishable by imprisonment only in default of payment of fine or other penalty.
As regards damage to property, the costs incurred by the plaintiff in defending the charge will be sufficient to ground the action for malicious prosecution, unless the court trying the offence awarded him allowance equivalent to the costs he actually incurred. It seems, therefore, that damage will be most easily established under this head, and in most cases it will be unnecessary to prove damage to fame or to the person.

By: King Onunwor