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MALICE AS AN INGREDIENT OF MALICIOUS PROSECUTION

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Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) 381 at 397, B per Achike JSC: ‘Appellant’s case was bound to fail in any event because, as pointed out by the learned trial Judge, he failed to discharge the onus on him of proving two ingredients of the action of malicious prosecution, namely, (1) absence of reasonable and probable cause in the prosecution of the Appellant, and (2) proof that there was malice, i.e. in the sense that the prosecution of the Appellant was actuated by the malice of Respondent against the Appellant.’

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malicious prosecution

INGREDIENTS OF MALICIOUS PROSECUTION

Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 26, B—D per Belgore JSC: ‘In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set in motion against the plaintiff, the law leading to a criminal charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiffs favour. Thirdly, the plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was completely without reasonable and probable cause. Finally that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them.’

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EXAMPLE OF MALICE IN MALICIOUS PROSECUTION

Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 28, C—D per Belgore JSC: ‘It would appear that the malice was the land case between the appellant and the respondent and by prosecuting the respondent, the appellant might be able to coerce him into submission. Once, however, the defendant could show reasonable and probable cause, malice may also be absent. Hemiman v. Smith (1938) A.C. 305. The appellant clearly manifested malice and there is no mitigating aspect of this malice to justify any interference with the decision of the two lower courts.’

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HONEST BELIEF IN MALICIOUS PROSECUTION

Relied upon in Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 34, D—E, is Meering v. Graham-White Aviation Co. 122 L.T. 44, 55, 56 where Atkin, L.J. said, ‘Honest belief seems to be the substantial thing that has always to be decided and such belief must be not merely belief by the prosecutor of the guilt of the person, but it must be a belief that the prosecutor will be able to adduce sufficient evidence before a jury or the court as would justify the court in convicting the accused.’

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AWARD OF DAMAGES IN MALICIOUS PROSECUTION

In Emberga v. Tyowula (1996) 7 NWLR (Pt. 459) 213 at 235, B per Muntaka-Coomassie JCA: ‘once the ingredients of malicious prosecution under our law are proved the question of amount of damages to be awarded the victim or victims of such prosecution flows as a matter of course.’

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SETTING THE LAW IN MOTION IN MALICIOUS PROSECUTION

Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 27, B—C per Belgore JSC: ‘In Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in this case, and through the same mischievous lying, the police not only make an arrest of the incriminated person, but prefer a charge against him and take him to court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person. The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense.’

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CRIMINAL COMPLAINT BEING FABRICATED IN MALICIOUS PROSECUTION

Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 26—27, H—A per Belgore JSC: ‘It is true the police arrested the respondent and locked him up like any other criminal in their cell and was released on bail the second day. It is also evident that the police charged the respondent before a Magistrate Court. But the real force behind the whole matter is the appellant. He knew very well that the whole criminal complaint was a fabrication and that the arrest, remand in police custody and subsequent trial of the respondent was an unmitigated abuse of judicial process. He it was that technically set the whole prosecution in motion. He made sure the respondent was persecuted for daring to face him in a land case and part of the scenario is this trial in the Magistrate Court. It was the appellant that set in motion the law by appealing to the police to arrest, charge and take the respondent to the police. He approached the police, knowing they had cloak of authority to frame a criminal charge. He was actively instrumental in doing this charge. He was actively instrumental in doing this.’

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