Malicious Prosecution, And The Right Available To The Injured Party

By Deborah Iniye Warrie Esq.

FICTIONAL STORY

Theophilus and Sunday were business partners, operating a motorcycle rental agency together. One day, a customer came and sought the sole service of Sunday to convey some goods for him, for a whole day. 

Enraged by the customer’s choice, Theophilus wrote a petition to the National Drug Law Enforcement Agency (NDLEA), alleging that Sunday and the customer illicitly, trafficked narcotic drugs and psychotropic substances. The Agency on receipt of Theophilus’s petition, charged the duo (Sunday and the said customer) to Court.

• What is the meaning of Theophilus action in law?
• What is the position of Nigeria’s Jurisprudence on Theophilus action.?
• How has Theophilus’s action, been addressed, in the international scene.
• What are the legal remedy available for Sunday and the customer?
• All these and more have been addressed in this article.

What is the meaning of Theophilus action in law?

It is called Malicious Prosecution. Malicious prosecution is a common law intentional tort. It entails intentionally and maliciously, instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is brought without probable cause.  In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings.

Origin of Malicious Prosecution

The tort originates in the (now defunct) legal maxim that “the King pays no costs”; that is, the Crown could not be forced to pay the legal costs of a person it prosecuted, even if that person was found innocent. As The London Magazine stated in 1766: “if a groundless and vexatious prosecution be commenced in the King’s name, his ministers who commenced, or advised commencing that prosecution, ought at least to be obliged to pay the costs which an innocent subject has thereby been put to”.

The history of the origin of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I’s reign. Malicious prosecution has its origin in England and evolved in the 18th and 19th centuries. It was an outcome of misusing the due procedure of law since the 18th and 19th centuries in England. Later it spread its wings across the globe, in different countries.

Elements of Malicious Prosecution

1. Prosecution by the defendant

The very first essential element which the plaintiff needs to prove in a suit for damages for malicious prosecution is that he (plaintiff) was prosecuted by the defendant.

2. Absence of probable and reasonable cause

In a suit for damages of malicious prosecution, the plaintiff is also required to prove that the defendant prosecuted him without reasonable and probable cause. The question related to the reasonable and probable cause suit for malicious prosecution should be decided on all facts before the Court.

3. Defendant acted Maliciously

In a suit of damages for malicious prosecution, it is another essential element which the plaintiff has to prove that the defendant acted maliciously/wrongfully in prosecuting him and not with a mere intention for carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but on the other hand, it can be any improper purpose that motivates the prosecutor, such as to gain a private collateral advantage.

4. Termination of proceedings in the favor of the plaintiff

In a suit of damages for malicious proceedings, it is essential to show that the prosecution complained or terminated in favor of the plaintiff. Termination in favor of the plaintiff does not mean the judicial determination of his innocence; it means the absence of a judicial determination of his guilt. Malice need not be a feeling of enmity, spite or ill will, or spirit of vengeance but it can have any improper purpose which can motivate the prosecutor, such as to gain a private collateral advantage.

5. Plaintiff suffered damage as a result of the prosecution

In a suit of damages for malicious prosecution, it is the other essential elements which the plaintiff is required to prove that the plaintiff had suffered the damage and as a result of the prosecution. In a claim for prosecution, the plaintiff can claim the damages on the following three counts

6. Damage to the plaintiff’s reputation as a criminal

One of the important sources of pleasure in a man’s life is a good reputation, and the most traumatizing pain is a bad reputation. The biggest pain in a person’s life is a bad reputation. A bad reputation in society negates the work of a person who is trying towards creating goodwill. Moreover, a bad reputation also brings along the ill will of the society, as well as social non acceptance and this is in direct deprivation of the fundamental right of life.

7. Damage to the plaintiff’s person

The amount of physical injury can also be involved through a maliciously instituted proceeding. Criminal charges often include arrest as an important consequence of the procedure once the law is set. The injury and the damages to the person may have an effect in case of arrest due to malicious prosecution. Also unnecessarily and unjustly the person would have to sacrifice their personal liberty and freedom. Furthermore, this trauma is bound to cause great mental stress to the aggrieved person. Therefore, a malicious prosecution case is capable of causing a great deal of injury to the person who is on the receiving end of a maliciously instituted proceeding.

8. Damage to the plaintiff’s property

An unjust and malicious prosecution means that the person who is accused has to use his resources and money in defending the prosecution. This unnecessary expenditure in large amounts is an injury to his property.

What is the position of Nigeria’s Jurisprudence on Theophilus action?

1. OKOLO & ANOR v. OBI (2017) LPELR-44039(CA) Circumstances where a defendant would be liable for malicious prosecution

“When a report is made to the police against a plaintiff, and the defendant instigates his arrest and or detention, a complaint of false imprisonment could arise. When the report or charge, as instigated by a defendant, is carried on before a judicial officer, a complaint of malicious prosecution may arise; UAC (Nig.) Plc v. Sobodu (2007) LPELR-7740 (CA). Thus, a defendant who maliciously makes a false statement against a plaintiff and causes a judicial act, like the issue of a summons or warrant of arrest, 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; Agi v. First City Monument Bank Plc (2013) LPELR-20708(CA). The elements required to prove the complaint must be evident in the evidence adduced before the trial Court.” Per ONYEKACHI AJA OTISI, JCA (Pp 9 – 9 Paras B – F)

2. ADEBOWALE v. ROBINSON (2018) LPELR-44424(CA) Ingredients that must be established in order for a plaintiff to succeed in an action for malicious prosecution

“For a claimant to succeed in an action for malicious prosecution, he must plead and prove with credible and cogent evidence the following ingredients; (a) That the defendant put the machinery of prosecution on motion. (b) That the result of the criminal action is a favour of the accused. (c) That the defendant has no reasonable cause to prosecute the accused. (d) That the prosecution is as a result of malice. See the case of Balogun V. Amubikahun (1989) 3 NWLR (Pt. 107) 18. The Respondent must prove all the above ingredients concurrently in order to establish a case of malicious prosecution and failure to prove any one of the above ingredients, his claim will fail and be dismissed. The ingredients for the tort of malicious prosecution must be proved.” Per PAUL OBI ELECHI, JCA (Pp 47 – 48 Paras F – D)

“For a claimant to succeed in an action for malicious prosecution, he must plead and prove with credible and cogent evidence the following ingredients; (a) That the defendant put the machinery of prosecution on the motion. (b) That the result of the criminal action is a favor of the accused. (c) That the defendant has no reasonable cause to prosecute the accused. (d) That the prosecution is as a result of malice. See the case of Balogun V. Amubikahun (1989) 3 NWLR (Pt. 107) 18. The Respondent must prove all the above ingredients concurrently in order to establish a case of malicious prosecution and failure to prove any one of the above ingredients, his claim will fail and be dismissed. The ingredients for the tort of malicious prosecution must be proved.”

3. ISHOLA v. ISHOLA & ANOR (2014) LPELR-23082(CA) When will a defendant be liable in a claim for malicious prosecution

“It is decipherable from the foregoing that to be liable for malicious prosecution, the defendant would have done more than merely reporting an incident to the police. If for example at the conclusion of the investigation of the report lodged by the defendant, the police informs him that there was no cause to prosecute the plaintiff but the defendant insists that the plaintiff be charged to Court; or even where the defendant does not himself believe in the truth of his allegation, the said defendant will not escape liability for malicious prosecution. See also Bhagatsingh & Ors. vs. Pandit Tewari (1908) 24 LTR 884.” Per CORDELIA IFEOMA JOMBO-OFO, JCA (Pp 53 – 53 Paras C – E)

How has Theophilus’s action, been addressed, in the international scene.

1. England

England has been the birthplace of the tort law and law of malicious prosecution. As early as the 10th century, the English people understood the need to restrain malicious litigation initiated with vested interests. Back in the 18th and 19th centuries, the law of malicious prosecution matured in England. But, the application of the law of malicious prosecution has two distinctions, first the application exclusively to the criminal law; and second, the extending of application to civil law as well.

2. United States of America

The United States of America has been quite liberal in its usage and codification of the law of malicious prosecution. Historically, and even today it has not limited the scope of the tort to criminal proceedings alone. Also, it has time and again codified the tort in legislation.

There seems to be no specific reason why action should not lie for the institution of unfounded and malicious proceedings before a court or some administrative or domestic tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the person accused. This essentially expresses present-day principles of elucidating the claims regarding malicious prosecution. Broad-spectrum of clarifying is applied to the principles of the tort so as to give maximum benefit or profit to the victim, which in return also acts as an essential deterrent for malicious litigation.

4. New Zealand

New Zealand has codified the means of discharging successful innocent defendants. The possible remedies in New Zealand for all those people who are prosecuted for offenses that they have not committed are an award of costs for tort remedies of malicious prosecution.

• On the 25th of October 2007 a Donegal publican, Frank McBrearty settled his action against the state for personal damages arising from malicious prosecution, wrongful imprisonment, defamation, and wrongful arrest for €3 million, albeit without any admission of liability. Mr. McBrearty was the victim of a police conspiracy to frame him for the murder of one Richie Barron; who had in fact died accidentally. Such a substantial award could encourage a greater number of malicious prosecution actions coming before the courts. See Frank McBrearty & Company Ltd V Commissioner of an Gardi Siochana & Ors [2007] IEHC 373 IN THE HIGH COURT IRELAND.
• BROWNING v. RAY 1968 OK 52 440 P.2d 721 Case Number: 41719 Decided: 04/23/1968 Supreme Court of Oklahoma. RAEFORD E. BROWNING, PLAINTIFF IN ERROR V. D. PORTER RAY, DEFENDANT IN ERROR.

In a malicious prosecution action, a plaintiff may recover for injuries such as mental or emotional distress and injury to reputation which necessarily result from such wrongful acts without specific proof that same have resulted in such harm.

There is a lack of probable cause for the prosecution of one who allegedly committed a crime if the known facts and circumstances are not such as to justify a man of prudence and caution in believing that the accused has committed the offense with which he was charged. We do not find it necessary herein to choose between these two lines of authority relative to mistakes of law. In our opinion, the facts that the incident occurred out of the presence of the defendant and that he hastily filed a complaint against the defendant, without having conferred, insofar as this record presently shows, with an attorney to determine whether a criminal offense had been committed, and the further fact that the county attorney dismissed the purported complaint against plaintiff, indicate that a man of prudence and caution would not be justified in believing a criminal offense had been committed and tend to establish that defendant lacked probable cause to institute the criminal proceeding against the plaintiff.

What are the legal remedies available for Sunday and the customer?

Being a victim of malicious prosecution can cause a wide range of injuries, whether it’s from unsubstantiated criminal charges or a bogus civil claim.

In either case, the plaintiff/victim may claim compensatory and sometimes punitive damages. Compensatory damages consist of both the actual damages that were a direct result of the malicious prosecution (which may include pain and suffering and other non-monetary injuries), and special damages that identify quantifiable monetary losses – such as lost earnings, additional domestic costs such as childcare, etc.). The Plaintiff/Victim also may claim a damaged reputation, loss of future earning potential, attorney fees, court fees.

Conclusion for Litigants. 

Like the popular saying in pidgin goes “no be who go police station first, na dey win case.”

 Litigants must understand that it is not every grievance, or wrong done to you, that you can take to court. The Court in the interest of justice will always question the motive behind your Complaint. This is while you must first consult a lawyer before taking any case to the police station to avoid stories that touch.

Any complaint maliciously filed in order to intimidate, harass, defame, or otherwise injure the other party, is referred to as malicious prosecution, whether it’s Emeka suing Obiora his fellow, motor spare part dealer in order to put the competition out of business, or an unscrupulous politician filing false charges against a journalist who dished out his biggest secret, or Amara suing her husband’s mistress, the rationale behind such suits are sometimes probed, to checkmate any element of malicious prosecution.

Conclusion for Lawyers 

Although both Malicious Prosecution and Defamation claims deal with the publication of false statements the main differences between the two are that a claimant in a malicious falsehood claim is not required to prove damage to reputation and the false statement does not need to have a defamatory meaning.  While Defamation deals strictly with Civil law, Malicious Prosecution deals strictly with Criminal law.

References 

1. https://en.wikipedia.org/wiki/Malicious_prosecution#U.S._use_of_English_Rule
2. https://www.legalserviceindia.com/legal/article-2434-malicious-prosecution.html
3. https://primsol.lawpavilion.com/
4. https://www.dppireland.ie/app/uploads/2019/03/Budapest_Paper_-_Helen_Whately_06052010.pdf
5. https://www.findlaw.com/injury/torts-and-personal-injuries/malicious-prosecution.html
6. https://www.lawblacks.com/2018/01/10/the-difference-between-defamation-and-malicious-falsehood/

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