Tort of Malicious Prosecution by Mohammed Dahamani

Tort law_ with regards to malicious prosecution, as a reader or a law student there is need for you to understand malicious prosecution and when the defendant will be held to have committed malicious prosecution. Malicious prosecution which is a tort that stands on its own and this tort is not, however, actionable per se and damage must be proved. Indeed, if someone has been prosecuted without any cause or with malice, and he/she has been acquitted by the court of law. The right action to take against the prosecutor or the plaintiff is tort of malicious prosecution. It is a Tort to institute criminal proceedings against an innocent man, if they are instituted without reasonable and probable cause and from motives of Malice.

Essential requirements or ingredients with regards to malicious Prosecution

In Yeboah and Others v. Boateng VII, and also, in Gyimah v. Donkor, it was established by the Court that, in order to succeed in malicious prosecution, the plaintiff had established all the ingredients of malicious prosecution:

That the defendants instituted criminal proceedings against him or was actively instrumental in putting the law into force against him in proceedings which terminated in his favour.
That the defendants acted without reasonable and probable cause and was guilty of malice.
That the plaintiff suffered damage as a result of the prosecution.

In Sweet and Maxwell 6 ed, by Paula Giliker on tort that the tort of malicious prosecution has four requirements: (i) the defendant has prosecuted the claimant, (ii) maliciously (i.e. with some wrongful or improper motive), (iii) without reasonable and probable cause, and (iv) the prosecution ended in the claimant’s favour. (This may be by acquittal, discontinuance by the prosecution, conviction quashed on appeal or on technical grounds).

First ground to be proved by the plaintiff

To begin with, “the defendant has prosecuted the claimant”, the plaintiff has to prove that at the criminal trial he/she was prosecuted by the defendant. However, in Abrath v. North-Eastern Ry. CO, in the Court of Appeal, Bowen, L.J established that: In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made. Herein, the onus of proving this, i.e. that there was no reasonable cause for prosecuting, is on the plaintiff. In Gyimah v. Donkor supra, the plaintiff was able to prove to the court that, the defendant went to the police to make a false charge that the plaintiff had threatened to kill him, taking with him as witnesses to the alleged threats two female relations. The plaintiff was duly prosecuted for threatening the defendant with unlawful harm, and was acquitted and discharged. Hence, the defendant was liable for malicious prosecution.

In Ahevi v. Akoto IV , it was clearly accepted by the court that the plaintiff had the onus of proving that defendant has prosecuted him in the charged with a criminal offence. One of the classic cases with regards proving that the defendant initiated the criminal proceedings against the plaintiff and not the police is in the case of Martin v Watson in his leading judgment, held that: Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. This principle established by Lord Keith applied in cases like, Mahon v Rahn (No.2), and Copeland v Commissioner of Police of the Metropolis. Note, if the police used their independent investigation to prosecute the plaintiff the complainant will not be held liable for malicious prosecution, since there is probable cause or ground for it, no action for malicious prosecution.

Second and third ground to be proved by the plaintiff

With regards to the second to be established by the plaintiff is that, the defendants acted without reasonable and probable cause and was guilty of malice or acted maliciously. In Yeboah and Others v. Boateng VII supra that the test whether the defendant had reasonable and probable cause is objective and is determined by the court on the evidence before it. The yardstick is always the conduct of the reasonable man in the particular circumstances of the case. Also, in State Fishing Corporation v. Fynn, the second appellant was making the complaint to the police, he knew his complaint contained nothing but falsehood. Since to his knowledge the complaint was not true, it meant he lodged the complaint without himself having an honest belief in the truth of the complaint and he could not therefore be said to have acted on reasonable and probable cause.

In Soadwah Alias Sondura and Others v. Obeng and Others Per Siriboe J.S.C. Reasonable and probable cause means 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 which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed. Hence, if the defendant had no reasonable ground or the defendant had acted without just cause, falsely or fraudulently and maliciously, herein the defendant will be held liable for malicious prosecution, Martin v. Watson applies. In Nkrumah v. Foli and Another, established that “malice had been expressed to mean the presence of some improper and wrongful motive which actuated the person suing to use the legal process not for the purpose of genuine adjudication of an issue but for some collateral purpose and thus to abuse the legal process”.

The fourth ground to be proved by the plaintiff

The plaintiff needs to establish or prove that, “the prosecution ended in the claimant’s favour” in Yeboah v. Boateng VII. (as he then was) said: The first duty of a plaintiff in an action for malicious prosecution is to prove that the defendant instituted criminal proceedings against him or was actively instrumental in putting the law in force against him in proceedings which terminated in his favour. No action for malicious prosecution, if the criminal proceedings does not end his/her favour or the plaintiff. In a situation, where by the plaintiff has been convicted on a criminal charge cannot institute an action for malicious prosecution against the prosecutor. In Yeboah v. Boateng supra it was established that, for the purposes of an action for malicious prosecution the entry by the Attorney-General of a nolle prosequi would be sufficient termination of the criminal proceedings in favour of the accused person. Note, nolle prosequi is sufficient with regards to termination of criminal proceedings in favour of the plaintiff.

In Reynolds v Kennedy, that no action could lie if the claimant had been convicted, even if his conviction was later reversed on appeal, the reason apparently being that the original conviction showed conclusively that there was foundation for the prosecution. Herein, if the plaintiff conviction stands, then he/she cannot sue for malicious prosecution

Damages
To succeed in malicious prosecution must prove that he/she has suffered loss of liberty, reputation and financial loss as a resulted of the prosecution initiated against him/her in the criminal proceedings and ended or terminated or acquitted in favour of him/her. In Gyimah v. Donkor supra, it was established that, as a result of the prosecution the plaintiff had suffered damage to his reputation and credit and status as a chief, damage to his liberty and damage to his property in that he was compelled to expend money in necessary expenses to acquit himself. Judgment will therefore be entered for the plaintiff and against the defendant for the sum of ¢3,360. 00 with costs assessed at ¢350. 00.

In the classical case of Savile v. Roberts, laid down three heads of damage, namely, damage to reputation and credit, damage to life or liberty, and damage to a man’s property as where he is compelled to expend his money in necessary expenses to acquit himself of the crime of which he is accused. Proof of any of these three types of damage would be sufficient to ground an action. If and only the plaintiff is able to establish that he/she has suffered damage to reputation and credit, damage to life or liberty his entitled to be awarded accordingly by the Court.

The position of Law
Generally, if the plaintiff is able to establish all the essential ingredients or requirements of malicious prosecution, then he or she is to succeed in malicious prosecution as a tort that stands on it own. However, if the plaintiff is unable to established the general requirements of malicious prosecution, his/her action with regards to malicious prosecution will fail. In Nkrumah v. Foli and Another supra, the plaintiff here failed to prove a single ingredient of malicious prosecution and his action of malicious prosecution failed.

Also, in the above case it was further established that, a person could not be held liable for the criminal prosecution of another person against whom he had lodged a complaint of commission of a criminal offence unless that person had played such a preponderant and over-bearing role in setting the machinery of the law in motion against the alleged offender. Therefore, helping the police to procure evidence or querying any delay in the case, was not sufficient to make him liable for instigating the prosecution. It was further established in the above case that; any person who lodged a complaint of the commission of a crime was obligated to ensure that the complaint was based upon either reasonable grounds or reasonable and probable cause; the complaint must not be false and baseless; it must have some reasonable foundation. Herein, he would be guilty of lodging the complaint without reasonable and probable cause.

Add to that, in Ongen v. Leventis & CO. LTD, it was established that: a person reporting a theft to the police does not become answerable for malicious prosecution as himself the prosecutor unless he has authorised or requested the prosecution on the particular charge brought, but even though the prosecution was not technically conducted by him, he cannot escape liability for malicious prosecution if the charge was false to his knowledge, if he brought suborned witnesses to support it and if he influenced the police to assist him in sending an innocent man for trial. Therefore, if the defendant influenced the police to assist him in sending the plaintiff for trial, the informer cannot escape liability for malicious prosecution.

Conclusion
To conclude, tort of malicious prosecution is a tort that stands on it own. if the person be ever so innocent, an action for malicious prosecution will not lie if there were a probable cause of prosecution. Malicious prosecution is not an easy for the plaintiff to establish all the general requirements and if the plaintiffs is able to established all the essential requirement then is entitled to succeed in his/her action of malicious prosecution against the defendant.

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WRITER: DAHAMANI MOHAMMED
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