The tort seeks to protect two conflicting interests:
a) On one hand, social policy demands that criminals are prosecuted, and again that individuals be free to help in this exercise.
b) On the other hand, it is equally important that the individual’s freedom from unnecessary arrest and prosecution should be protected.
NB: In false imprisonment, the assumption is that the defendant departed from due process. In malicious prosecution, it is assumed the process is regular but has been perverted.
NB: For purposes of limitation, time does not start to run in an action for malicious prosecution until the plaintiff s acquittal
According to the decision in Musa v. Limo-Wulana (discussed below), to succeed the plaintiff must prove five elements namely:
(a) that the defend initiated a prosecution against him
(b) that the criminal proceedings terminated in the plaintiff’s favour
c) that the defendant undertook or instigated or procured the prosecution; with no reasonable or probable cause;
d) that the defendant acted maliciously; and
e) that the plaint If suffered damage as a result of the prosecution.
We shall take these elements seriatim.
(1) Proof of prosecution by the defendant
The plaintiff must prove that he has been prosecuted by the defendant. This means proof either that: (a) the defendant himself conducted the prosecution; or (b) procured, instigated, directed, ordered or was actively instrumental in the prosecution being set in motion. This requirement may be illustrated by the decision in Soadwah v. Obeng. The appellant had, in a letter to the police, complained that the respondents had broken into his room and stolen his properties while he was away from home. He, in writing the letter, supported by affidavit, had relied on information given him by his son and^ uncle. He called for immediate investigation and police action. The police conducted their investigation. The investigation officer advised against prosecution, but his superior, the Assistant Commissioner of Police of Sunyani, thought otherwise and ordered a prosecution. The prosecution of the respondents on stealing from the appellants’ home ended in their acquittal and discharge. Thereupon, the respondents brought an action in the High Court Sunyani against the appellant for malicious prosecution. The trial judge, concluding that the appellant “was instrumental in putting the law in force and instigated the prosecution,” found for the respondents. The appellants appealed. It was held, allowing the appeal, that the respondent had failed to prove as the evidence clearly showed, that it was the appellants and not the police who initiated the prosecution.
The requirement is therefore that the plaintiff must establish that the defendant actively instigated the prosecution or was instrumental in getting the proceedings going. If the defendant merely reported the matter to the police who do their own investigations before charging the plaintiff, the defendant is not liable as in Soadwah v. Obeng. The point is further brought out by the case of Danby v. Beardsley. The plaintiff had been in the service of the defendant (doctor) as groom and gardener and left. While gardener, he lent to his successor two pairs of horse-clipping machines to clip the horses. When he resigned, he took them away. The defendant who had seen the machines in his stables thought they were his. When he did not see them again, he asked his groom about them and was told the plaintiff had taken them away, and that they belonged to the plaintiff. Nevertheless, the defendant sent for the police. He told them he had lost two pairs of clippers and that they had last been seen with the plaintiff. The police made further inquiry and also searched the plaintiff and found two pairs of clippers similar to the ones supposedly lost. Without further communication the defendant, police arrested the plaintiff and charged him with the offence. In an action, for false imprisonment and malicious prosecution by the plaintiff, it was held that malicious prosecution must fail because there was no evidence that the defendant had been instrumental in putting the criminal law into force and therefore was not the prosecutor. We may also recall that in Onogen v. Leventis,3 the employers were held not to have actively instigated the arrest and therefore were not liable for malicious prosecution.
If you knowingly make a false complaint which results in A being prosecuted, the first requirement is satisfied. In Musa v. Limo-Wulana,the appellant made a complaint against the defendants that they had been unlawfully fishing in the village dam, the only source of drinking water for the village. They were acquitted and discharged and brought action. No evidence was led by the appellant on whether they suffered damage.
The Court of Appeal restated the five requirements which a plaintiff for malicious prosecution must prove to succeed. On damage, the Court of Appeal quoted Saville v. Roberts with approval. But to go with the police to point a person out is not to prosecute him: see Nkrumah v. Foli. But where the informant lies to obtain the prosecution there is malicious prosecution. In Martin v. Watson, the House of Lords held that an informant who falsely and maliciously gives information to the police can be said to have initiated prosecution for purposes of malicious prosecution. See also Walters v. Pacific Delivery Services Ltd.
The prosecution which is the basis of a malicious prosecution action must be a criminal prosecution. But note the exception where bankruptcy and winding up proceedings which are civil actions were held sufficient to support an action in malicious prosecution. The case is Quartz Hill Mining Co. v. Eyre. In this case, the defendant, a shareholder of the plaintiff’s company, instructed brokers to sell his shares, and signed a transfer. Later, the brokers told him they were finding it difficult to sell the shares but they did not transfer them back to the defendant. After waiting for ten or eleven days, he brought a petition for the winding up of the company on the grounds that there was fraud in the formation of the company and also that it could not carry on business for profit. At that time, the company had property of a large amount and its debts were insignificant. The defendant had also ceased to be a shareholder, his shares having been sold by the brokers unknown to him. When he discovered his shares had been sold, he gave notice to withdraw the petition which was ultimately dismissed without costs. The company sued him for falsely and maliciously and without reasonable and probable cause bringing the petition.
At the trial, no proof of damage to the company was given beyond the costs of defending itself against the petition and upon this ground the company’s action was dismissed. On appeal, it was held that malicious prosecution would lie because the petition was injurious to the credit of the company. There was want of reasonable and probable cause since it was a going concern contrary to the petitioner’s claims; so the jury ought to have been asked whether the petitioner was actuated by malice. Here an action which is normally civil was allowed to support a suit in malicious prosecution because apparently its effect on the company was similar to that of a criminal prosecution
2. Termination in the plaintiff’s favour
This element means that the plaintiff must have been acquitted and discharged of the offence. This is because the tort relies on termination, in the plaintiff’s favour, of the criminal proceedings. For this reason, it is irrelevant whether the conviction is one against which there is no right of appeal or one which has been obtained by the fraud of the prosecutor. The last point is illustrated by the decision in Base-Be v. Mathews. Here the plaintiff alleged that the defendant falsely and maliciously and without reasonable and probable cause, initiated prosecution against the plaintiff before a justice of peace, where he was charged with assaulting and beating her and was convicted, fined and costs were awarded against him, there being no appeal from the said conviction. It was held that the rule that, for a plaintiff to succeed in an action in malicious prosecution, he must show that the criminal prosecution terminated in his favour applies even to convictions for which there was no appeal.
Termination in his favour also means that the plaintiff was not convicted of the particular offence preferred against him. If convicted of a lesser offence, proceedings have terminated in his favour, e.g. manslaughter for murder or dishonestly receiving for stealing. The authority is Boaler v. Holder. In that case, the plaintiff was indicted under section 4 of the Newspaper Libel Act for publishing a libel knowing it to be false. He was committed for trial. At the trial, the jury found him guilty of publishing die libel, but found that he did. not know it was false. This, in fact, amounted to a verdict of not guilty. But the plaintiff was sentenced to a term of imprisonment. On his release, he brought an action for malicious prosecution against the defendant. The judge withdrew the case from the jury, when it was shown that the plaintiff had been convicted. On appeal, Day J decided that there should be a new trial, because the plaintiff who had been charged with the graver offence under section 4 had been convicted of the lesser offence under section 5. This conviction was no bar to an action for malicious prosecution under section 4. Wills J concurred. He pointed out that the plaintiff had not been convicted of the offence for which he was put on his trial. He noted that to put a man on his trial for a much graver offence than you have any chance of convicting him is a legal wrong. In his view therefore the plaintiff had made out that he had been put on his trial wantonly and that there was an absence of reasonable and probable cause for the actual charge brought against him.
But where a plaintiff is bound to be of good behaviour, that is fatal to malicious prosecution. Where he or she is convicted in a court of first instance but acquitted on appeal that is termination in his favour.
An entry of nolle prosequi by the Attorney-General, as he may be entitled to do under article 88 of the Constitution, 1992, or an officer lawfully authorised by him is termination in the plaintiffs favour, although nolle prosequi carries with it liberty to prosecute on the same facts and charge later.
Before 1963, our law which followed the English law, was not clear on the matter. For, in England, it was the law that entry of nolle prosequi was not sufficient termination in the plaintiffs favour — Goddard v. Smith. But, it was held in an Australian case that it was: Gilchrist v. Gardener} Our law became saddled with these two conflicting positions.
The West African Court of Appeal preferred the Australian view in Malek Khoury v. Tabbara.
In this case, the plaintiff-appellant brought the action for malicious prosecution against the respondent-defendant for maliciously and without reasonable and probable cause preferring against him, a charge of obtaining by false pretences a sum of money. He averred that the proceedings were terminated when the Solicitor-General entered a nolle prosequi. He asserted that this satisfied the requirement, for malicious prosecution, of termination in the plaintiff’s favour of the prosecution. The learned trial judge felt himself bound by Goddard v. Smith, to dismiss the action and the plaintiff appealed. It was held, relying on the alternative Australian case of Gilchrist v. Gardener that the appeal should be allowed. Foster-Sutton P (concurred in by Coussey J.A. and Kingsley J as they then were) said he preferred the reasoning in the latter case to the earlier one, as an exception to the general rule that, in a malicious prosecution action, the plaintiff must prove termination of criminal proceedings in his favour.
The situation remained uncertain until 1963, when the Supreme Court settled the issue in Nana Akuamoah Boateng v. Yeboah. In that case, the appellants had been successfully sued in the High Court, Accra. They appealed to the Supreme Court on two main grounds: (a) They had reasonable and probable cause for the prosecution, and (b) they had acted without malice.
The facts were that the respondent was the Omanhene of Kwahu. He lodged a complaint against the appellants that they had paid dues to the Adontenhene of Abetifi without his consent. An arbitration presided over by the Krontihene was held. The arbitration found the appellants wrong, and they apologised to the Omanhene. They paid pacification fees in accordance with custom and also provided some drinks (schnapps). Then the appellants complained to the police that the respondent had extorted money from them. The police refused to take any action, as they felt that the complaint disclosed nothing criminal. The appellants instituted a private prosecution in the district magistrate’s court. That court found that a prima facie case had been made out and committed the respondent to stand trial. The Attorney-General subsequently entered a nolle prosequi. After that, the respondent instituted this action against which appellants appealed. The appeal was dismissed. The Court of Appeal was of the view that, having regard to the circumstances, malicious prosecution had been made out. The appellants knew that all that had happened was the application of customary law, so the respondent had not extorted the money. Even though the prosecution was after counsel’s advice and was in fact conducted by counsel, yet the fact that counsel was not told of the arbitration, the fact that they were found guilty by the said arbitration and the moneys paid were for pacification, rendered the involvement of counsel worthless. So, on the evidence, it was reasonable to conclude that there was want of reasonable and probable cause from which, in the circumstances an inference of malice could be made. On damage, the Court of Appeal held that the prosecution damaged the fame and reputation of the respondent.
3. Absence of reasonable and probable cause
.
The plaintiff must prove that the defendant prosecuted him without reasonable and probable cause. The plaintiff may establish this in one of two ways. By showing that:
a) the prosecutor (whether the defendant himself or herself or a surrogate in law) had no honest belief in the plaintiff’s probable guilt when he prosecuted him; or
b) the prosecutor had such belief but that the facts would not lead an ordinarily prudent and cautious person to that conclusion, i.e. the plaintiff was rash in his judgment.
Reasonable and probable cause was explained in Hicks v. Faulkner. The defendant was the landlord of a house in the Belgrave Road, St. John’s Wood. The father of the plaintiff was tenant of that house. In February 1879, the defendant brought an action in the county court against the plaintiff’s father for alleged arrears of rent. The father’s defence was that he had given up the premises before the alleged rent accrued. To support this claim, the father called the plaintiff who swore that he had, at his father’s request, given the key to the defendant. After that action, the defendant indicted the plaintiff at the Central Criminal Court for perjury. The plaintiff was acquitted. He then brought a malicious prosecution action against the defendant. Judgment was given in favour of the defendant. Subsequently the plaintiff obtained a rule nisi for a new trial (i.e. the plaintiff appealed) on two grounds, namely that: (a) the judge misdirected the jury; and (b) the verdict was against the weight of evidence.
Now the disputed direction was as follows: “The judge told the jury alternatively that if they could not arrive at a conclusion as to which of the parties was speaking the truth, the plaintiff had not made out his case and defendant was entitled to judgment; if they thought that the plaintiff did give up the key but the defendant, owing to a defective memory, had forgotten the occurrence and went on with the prosecution honestly believing that the plaintiff had sworn falsely and corruptly, then the jury would not be justified in saying that the defendant maliciously and without reasonable and probable cause prosecuted plaintiff, and defendant would be entitled to judgment.”
The rule was discharged on the grounds that this direction was right (i.e. the appeal failed).
Hawkins J in this case provides us with a definition of reasonable and probable cause which has been approved and used by many courts in the common law world ad infinitum: “An honest belief in the guilt of the accused based upon full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious (i.e. one not RASH) man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be: first an honest belief of the accuser in the guilt of the accused; Secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; Thirdly, such secondly-mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant’s situation so to believe; Fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for the belief in the guilt of the accused. …”
Turning to the facts of the case before the court, he posed the following rhetorical question: “If a man has never had reason to doubt, but on the contrary, has ever had reason to trust the general accuracy of his memory, and that memory presents to him a vivid apparent recollection that a particular offence took place in his presence within a recent period of time, is it not reasonable to believe in the existence of it?”
NB: This does not mean that the accuser is always justified in relying on his memory or the trustworthy statement of an informant. At all times, the question will be whether it was reasonable to do so. So it will be unreasonable to rely on a memory known to be unreliable or an untrustworthy informant.
From Hawkins J definition, it is clear that reasonable and probable cause depends on or has two elements namely,
a) facts (objective aspect of the test); and
b) the genuineness of the defendant’s belief based on them (the subjective aspect).
In the case of (a), the relevant facts are those known to the defendant at the time the prosecution was initiated i.e. he cannot avoid liability by pointing to facts showing that the plaintiff was guilty, if these were not known to him until later: see Delegal v. Highley
In the case of (b), the question is: Did the defendant honestly believe in the plaintiffs guilt or not; nor did he honestly believe that there was reasonable and probable cause. This is because the existence of reasonable and probable cause is a question of law for the judge, as was held in Glinski v. Mclver. The defendant’s knowledge of facts negativing the plaintiff’s guilt is relevant to the honesty of his belief.
Another relevant consideration is taking legal advice: Abbott’s Case; see Boateng v. Yeboah.These last two cases decided that provided counsel is fully briefed and apprised of the full facts, the interposition of legal advice before the prosecution will absolve the defendant of liability. In other words, the advice will meet the reasonable and probable test.
Conviction at first instance may not be conclusive evidence of reasonable and probable cause where quashed on appeal — for the conviction may have been procured by perjured evidence.
Hawkin’s definition was adopted by the House of Lords in Herniinan v. Smith and also by the Ghana Court of Appeal in Yeboah v. Boateng. In Herniinan v. Smith, the plaintiff, together with one Richard, was charged with conspiracy to defraud the defendant and with obtaining money from him by false pretences on four different occasions. They were convicted at first instance trial and sentenced each to twelve months’ imprisonment. The conviction and sentence were set aside by the Court of Criminal Appeal. The court felt that there was not sufficient evidence in the case of the plaintiff to go to the jury and that, in the circumstances, it would be safer to quash die conviction of Richard as well. Thereafter, the plaintiff brought an action for malicious prosecution against the defendant. The case was tried by Talbot J and a common jury and judgment was entered for the defendant.
The judge had left the following three questions to the jury, which they answered in the affirmative:
1) Has it been proved that the defendant commenced and proceeded with the prosecution without any honest belief that the plaintiff was guilty of fraud?
2) Has it been proved that the defendant failed or neglected to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution?
(3) Has it been proved that the defendant, in commencing or proceeding with the prosecution, was actuated by motives other than a desire to bring to justice one whom he honestly believed to be guilty? The jury answered all three questions in the affirmative.
The judge held that there was no reasonable and probable cause for the prosecution and entered judgment for the plaintiff. The defendant appealed and the Court of Appeal set aside the judgment of the court of first instance. The Court of Appeal was of the view that the evidence did not justify the learned judge leaving the first two questions to the jury. In their opinion, there was no want of reasonable and probable cause.
The plaintiff appealed to the House of Lords. The House of Lords, per Lord Atkin, approved Hawkins J’s definition of reasonable and probable cause — Hicks v. Faulkner. But Lord Atkin disagreed with Hawkins J’s statement in the above case that the reasonableness of the accuser’s belief in the existence of the facts on which he acted was a question of fact for the jury. Lord Atkin also felt that the additional question of whether the facts so believed amount to reasonable cause for believing the accused to be guilty was also one for the judge, i.e. it was a question of law. Given that view, he agreed with the Court of Appeal that there was no want of reasonable and probable cause for the prosecution. He continued thus:
“… It was further said that he should have asked for a further explanation from Hemiman. No doubt circumstances may exist in which it is right before charging a man with misconduct to ask him for an explanation. But certainly there can be no general rule laid down, and where a man is satisfied, or has apparently sufficient evidence, that in fact he has been cheated, there is no obligation to call on the cheat and ask for an explanation which may only have the effect of causing material evidence to disappear or be manufactured. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes his action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution. …”
The requirement of reasonable and probable cause was further explained in Glinski v. Mclver. In this case on 13 September 1955, defendant, a Criminal Investigation Department detective sergeant, arrested the plaintiff, believing him to be involved in a series of frauds on textile manufacturing houses and going under a different name (Davies). The plaintiff was not picked out at an identification parade as the man known as Davies and was subsequently released. On September 21, 1955 a solicitor working with the legal department of the New Scotland Yard delivered to counsel a brief for the prosecution of certain persons and also advise on “Glinski aspect of the matter.” On 22 September, the plaintiff gave evidence for the defence at a criminal trial. The police believed he had, at that trial, perjured himself. The solicitor after consultation with counsel (the defendant was present), issued a warrant for the arrest of the plaintiff and charged him with conspiracy to defraud. The plaintiff alleged that the defendant told him he was being tried for giving evidence at ihe oilier trial. He was tried on the conspiracy charge and acquitted. He sued the defendant for damages for false imprisonment and malicious prosecution.
The judge put the following questions to the jury on the malicious prosecution action:
a) Has it been proved that the police officer, in starting the prosecution of the appellant for conspiracy to defraud was actuated by malice, that is, any motive or motives oilier than a desire to bring the appellant to justice? Yes.
b) Did the police officer honestly believe on the relevant date (29 September) that the appellant was guilty of the offence of conspiracy to defraud? No.
The judge decided there was no reasonable and probable cause for the prosecution. The defendant appealed to the Court of Appeal which allowed the appeal.
The plaintiff then appealed to the House of Lords. It was held, dismissing the appeal, that:
(1) The second question should not have been left to the jury because, though it is the law that malice can, in appropriate cases, be inferred from an absence of reasonable and probable cause for prosecution, it is also the law that want of reasonable and probable cause should be established by itself and should not be inferred from the existence of malice.
Per Viscount Simonds: “A prosecutor who relies on competent legal advice cannot be said to lack reasonable and probable cause for a prosecution just as a prosecutor is justified in acting on information about facts given him by a reliable witness.”
Lord Denning thought that the word “guilty” in Hawkin J’s definition could be misleading. All that a prosecutor must satisfy himself on is whether there is a proper case to lay before a court. He is concerned to bring every man who should be put before court, but he is not concerned to convict him.
4. Malice:
The plaintiff must prove that the defendant was actuated by malice in prosecuting him. Malice covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice. According to Lord Devlin in Glinski v. Mclyer, malice relates to the prosecutor’s motive. This means that the prosecution must have been with ill-will or spite. Prosecution of the plaintiff on any motive other than bringing him to justice is malice.
Thus to succeed in an action for malicious prosecution, as Weir notes26 the plaintiff must show that the defendant was both a knave and a fool. The performance of a duty required by law cannot evidence malice — Abbots case. See Lord Devlin in Glinski v. Mclver where the defendant prosecutes with two motives, i.e. one genuine, one malicious; the court has to determine which motive predominated in the making of the decision to prosecute in order to decide whether an action in malicious prosecution will lie.
5. Damage
Being an action on the case, the plaintiff must prove damage as a result of the prosecution to succeed. Chief Justice Holt laid down the heads of damage recognised under this tort in the case of Saville v. Roberts. Here the plaintiff alleged that the defendant maliciously and wickedly, intending to oppress the plaintiff, caused him to be maliciously indicted of a riot. And that he was acquitted. He alleged injury was caused to his name and he was put to expenses in defending himself. Chief Justice Holt held that there are three sorts of damages, any one of which is sufficient to support the action.
a) damage to his name, (i.e. necessarily and naturally affects the fair fame of the person) if he is accused of scandalous matter;
b) damage to his person where he could lose his life, or liberty (if he is, for example, imprisoned); and
c) damage to his property, if he is made to incur charges and expenses for his defence.
What amounts to damage was explained in Wiffen v. Bailey. In that case the plaintiff, as occupier, was asked to clean certain rooms in his house considered dirty. When he failed to do this, Bailey, acting on die instructions of the defendant counsel, preferred a complaint before the Romford Justices. At the hearing, the justices dismissed the complaint and awarded the defendant costs. The plaintiff in the trial had, in defending himself, incurred further costs. He brought the present action for malicious prosecution against defendants. At the hearing, the jury found that the defendants were actuated by malice in bringing the complaint and the judge ruled that there was no reasonable and probable cause. The defendants appealed. It was held that the difference between solicitor and client costs and party and party costs was not legal damage for purposes of an action in malicious prosecution. So the appeal was allowed (Coram: Buckley, Phillimore, and Pickford, L.J.J.). The court felt that there was no damage within the heads of damage listed by Chief Justice Holt in Savillle v. Roberts, to support an action in malicious prosecution.
But in Berry v. B.T.C., the plaintiff pulled the communications cord, while travelling on a train between Brighton and Lancing. He was charged with a breach of section 12 of the Regulation of Railways Act, 1865, convicted and fined. On appeal, her conviction was quashed and she was awarded fifteen guineas costs. She brought an action for malicious prosecution claiming, inter alia, that, by reason of the charge, she had been injured in her reputation and had been held up in ridicule and suffered pain of mind, and had been put to expense in defending herself. The defendants put up the defence that the statement of claim disclosed no damage of which the plaintiff was entitled to complain at law and thus disclosed no cause of action. Diplock J. upheld the defendant’s contention and dismissed the claim with costs. The plaintiff appealed on the ground that the judge misdirected himself both in substance and in law. It was held, allowing the appeal, that the expenses incurred by the plaintiff in the course of her defence in the court of summary trial and before the recorder, over and above the sum of 15 guineas awarded her, were sufficient to support an action for malicious prosecution (£64 2s, £29 17s). Thus, a distinction was drawn between the position in respect of criminal proceedings and civil proceedings.