Law of Torts
September 12, 2017
THE TORT OF MALICIOUS PROSECUTION
The purpose of litigation is for the
society to have an amicable way of settling disputes and dealing with
criminals. However, if there isn’t a limit to the extent of litigation to
be undertaken by members of the society, they are bound to abuse this process.
It is in order to ensure that the process of litigation is not abused that the
law provides for the tort of malicious prosecution.
The tort of malicious prosecution is an
action for damages brought by one against whom a civil suit or criminal
proceedings has been unsuccessfully commenced without probable cause and for
aims other than bringing the alleged offender to justice. It is not
only limited to criminal proceedings but may also be brought in response to
baseless and malicious litigation and prosecution, whether criminal or civil. A
criminal defendant in a baseless or malicious case may later file a claim in
civil court against the parties who took an active role in initiating or
instigating the original case.
The tort of malicious prosecution is committed where the defendant maliciously and without reasonable and probable cause initiates against the plaintiff a criminal prosecution which terminates in favour of the plaintiff, and which results in the damage of the plaintiff's reputation, personality or property.
A suit for malicious prosecution can be
regarded as a tort action. The claimant seeks compensation for costs incurred
by him in having to defend himself against the baseless and malicious
prosecution instituted or instigated by hew defendant.
The public policy behind the
institution of malicious prosecution is one that seeks to discourage the
institution of baseless and vexatious litigation. This public policy has to
compete with the one that encourages law enforcement officers, judicial
officers and citizens to aid in the administration of justice.
It should be noted that an action for
malicious prosecution is distinct from an action for false arrest or false
imprisonment. If a person is arrested by a police officer without following the
due process, then an action for false arrest would arise. On the other hand, if
a person is unlawfully confined against his/her will, then an action for false
imprisonment could arise. An action for malicious prosecution is thus
appropriate only when the judicial system has been abused.
Elements of Proof In An Action For
Malicious Prosecution
In the case of Alhaji Isa
Tarihu Laigoro vs. Alhaji Jibril Garba (Court of Appeal Jos Judicial
Division) the court held that before an action for malicious
prosecution can be successful, the following ingredients have to be proved:
- That
the prosecution was maliciously instituted.
- That
the defendant acted without reasonable and probable cause.
- The
plaintiff must prove that the action was started at the instance of the
defendant who set the law in motions against him, leading to criminal charges.
- That he
was prosecuted and the criminal prosecution terminated in his favour.
