3.1.

An Overview of Malicious Prosecution

Malicious prosecution refers to the wrongful initiation of criminal proceedings against an individual
without probable cause, and with malicious intent. This tort is a civil wrong, and it allows the victim to
seek compensation for damages resulting from the baseless prosecution. Malicious prosecution cases
can be complex and often involve proving the absence of probable cause, malice on the part of the
prosecutor, and the termination of the prior proceedings in favor of the victim. Understanding the
elements, legal implications, and defenses associated with malicious prosecution is crucial in
comprehending this area of law.

In the case of Ogbonna V. Ogbonna 1 “malicious prosecution is a tort which enables a person who is a
subject of groundless and unjustified proceeding to seek claims for

3.1.1. Legal Elements and Requirements for Malicious Prosecution

In order to succeed in an action for malicious prosecution, the plaintiff must prove:

1. That the defendant instituted a prosecution against him

2. That the prosecution ended in the plaintiff’s favor

3. That the defendant has no reasonable and probable cause for prosecution

4. That the defendant acted with malice

5. That the plaintiff suffered damages to his person, property and reputation

Each of these requirements must now be considered thus;

INSTITUTION OF PROSECUTION: The plaintiff must show first that the defendant instituted a prosecution
against him. As Lewis JSC stated in the supreme court case of Mandilas & karaberis ltd V. Apena 2:

“in our view it is clear from Danby v. Beardsley that to succeed the plaintiff must show that it was the
defendant who was actively instrumental in setting the laws in motion against the plaintiff”.

1
(2014) LPELR CA 200
2
(1969) LLJR-SC
The following principles as to what constitutes setting the law in motion has been established by the
authorities:

i. It is not necessary that the defendant should have actually conducted the prosecution. This is
illustrated in Malz v. Rosen 3

ii. At one time it was thought that the defendant would not be liable unless the prosecution be said to
have actually commenced.

iii. Where the defendant merely informs the police of a certain fact which incriminates the plaintiff and
the police as result decides to prosecutes, the defendant would not be regarded as having instituted a
proceeding.

TERMINATION OF PROSECUTION IN PLAINTIFF’S FAVOUR: The second requirement for a successful

action in malicious prosecution is that then prosecution of which the plaintiff complains ended in his
favor. This requirement is satisfied:

i. If the plaintiff is acquitted of the charge but convicted of a lesser one as evident in boaler v. holder 4

ii. If the plaintiff was convicted in a lower court but his conviction was quashed on appeal because of
some irregularities

iii. If the plaintiff was acquitted on a technicality such as indictment.

ABSENCE OF REASONABLE AND PROBABLE CAUSE: the third requirement is perhaps the hardest to
satisfy, in the first place, it involves proof of a negative by the plaintiff which is a notoriously difficult
task. The concept still remains very vague and the best known definition is that of Hawkings .J. in Hicks v.
Faulkner5 where he stated that it is “ 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. Other
principles include:

i. The overall question is a double one both objective and subjective whether a reasonable man would
have believed that the plaintiff was guilty of the crime. (objective test) and whether the defendant
himself did honestly believe the plaintiff was guilty.

3
1966) 1 W.L.R 1008

4
(1887) 51 JP 277

5
(1878) 1 QBD 167
ii. Where the defendant acts under a mistaken impression as to the true facts. He may be judged on
those mistaken facts.

iii. Reliance on facts must be based on facts known to the defendant at the time he initiated the
prosecution.

iv. Where the defendant who believes that the plaintiff is guilty and lays the facts in full either before a
counsel to the police, and he is advised that prosecution is justified.

MALICE: malice in tort is wider than ill-will or spite. It includes any improper purpose or any motive
other than that of simply instituting a prosecution for the purpose of bringing a person to justice. If
there is no spite or ill-will and the purpose is not to bring the person to justice, then it is malicious.

DAMAGES: finally, the plaintiff must in all cases show that the prosecution brought against him has
brought damage to his

i. Fame

ii. Person

iii. Property

In order to show damage to his fame, the plaintiff must satisfy the court that the charge brought against
him was “necessary and naturally” defamatory. There was no damage to fame where a charge of
extortion was brought against a paramount chief in Yeboah v. Boateng. 6

Damage to person will be established where the prosecution caused the plaintiff to be imprisoned or
corporally punished. As regards damage to property, the cost incurred by the plaintiff in defending the
charge will be sufficient to ground the action for malicious prosecution, unless then court trying then
case awards him allowances equivalent to the cost he incurred as illustrated in Berry v. British transport
commission. 7

3.1.2. Case law Instances Illustrating the Legal Elements of Malicious Prosecution.

6
(1963) 1 GLR 182-194

7
(1962) 1 QB 306
To prove malicious prosecution, the plaintiff must establish specific legal elements, including the
initiation of a prior legal proceeding, lack of probable cause, malice, termination of the prior proceeding
in favor of the plaintiff, and damages. Case law provides valuable illustrations of these legal elements in
the context of malicious prosecution claims.

Lack of Probable Cause

The concept of lack of probable cause was addressed in Terminello v. Harris 8 where the court explained
that probable cause refers to a reasonable ground for belief in certain facts or circumstances. In this
case, the court ruled in favor of the plaintiff, highlighting that the defendant lacked probable cause
when initiating the prior legal proceeding against the plaintiff.

Malice

In Smith v. Alumax Extrusions the court discussed malice as an essential element in a malicious
prosecution claim. The court clarified that malice can be established by showing that the defendant
acted with improper motive or ill will when initiating the prior legal action.

Termination of Prior Proceeding in Favor of Plaintiff

The requirement for termination of the prior proceeding in favor of the plaintiff was demonstrated in
Baker v. McCollan9 The Supreme Court held that for a malicious prosecution claim to succeed, there
must be a favorable termination of the prior criminal proceeding, indicating innocence or lack of
culpability on the part of the plaintiff.

Damages

In Freeman v. Ferguson10the court addressed the element of damages in a malicious prosecution claim.
The court emphasized that to prevail, the plaintiff must show specific damages resulting from the
malicious prosecution, such as emotional distress, loss of reputation, or financial harm.

8
Supp. 613 (E.D.N.C. 1994

9
443 U.S. 137 (1979)

10
911 F.2d 52 (8th Cir. 1990),
3.1.3. Ascertaining the Burden of Proof in Cases of Malicious Prosecution

In cases of malicious prosecution, the burden of proof rests with the plaintiff. This means that it is the
responsibility of the plaintiff to provide sufficient evidence to support their claim. The standard of proof
required in civil cases such as malicious prosecution is typically “preponderance of the evidence,” which
means that the plaintiff must demonstrate that it is more likely than not that their version of events is
true.

The plaintiff is required to present evidence showing that each element of malicious prosecution has
been met. This may include witness testimony, documentation related to the underlying legal action,
and other relevant evidence. Additionally, the plaintiff may need to demonstrate the absence of
probable cause and prove that malice was a motivating factor behind the defendant’s actions.

Defendant’s Response

Once the plaintiff has presented their case and met their burden of proof, the defendant may have an
opportunity to present evidence and arguments in their defense. The defendant may seek to
demonstrate that there was indeed probable cause for their actions, that malice was not present, or
that the termination of the underlying legal action was not in favor of the plaintiff.

Legal Remedies

If the plaintiff successfully proves their case of malicious prosecution, they may be entitled to various
forms of compensation, including monetary damages for financial losses and emotional distress.
Additionally, they may seek punitive damages designed to punish the defendant for their wrongful
conduct.

3.2. An Overview of False Imprisonment

False imprisonment is denying a person

freedom of movement or personal liberty without lawful justification. False imprisonment is the total
restraint of a person without lawful

justification. It is the unlawful bodily restraint, imprisonment or arrest of a person. It is also the restraint
of another person without his consent and without lawful justification.

Any detention, bodily restraint, denial of personal liberty, or freedom of movement of a person in any
place and in any form without lawful justification amounts to false

imprisonment.. Thus, any unlawful bodily restraint, or confinement of a person, howevershort the
period of time is false imprisonment.

The imprisonment is false because it is not right. It is a wrong done to the person who isrestrained. False
imprisonment of a person is a breach of the fundamental right topersonal liberty guaranteed in Chapter
IV of the Nigerian Constitution and by the

constitutions of many other countries. It includes detention by government as well as a detention by a

private person or individual.

Lord Edward, Coke CJ in Inst. 2, Statutes of Westminster II, C. 48, clearly explained the

law thus:

"Every restraint of the liberty of a free man is imprisonment

although he be not within the walls of any common prison.”

Similarly, Sir William Blackstone (1723-1780) the eminent English jurist clearly stated

the law thus:

"Every confinement of the person is an imprisonment, whether

it be in a common prison, or in a private house, or in the stocks,

or even by forcibly detaining one in the public streets” 14. (Blackstone.

III p. 127)
3.2.1. Legal Elements and Requirements for False Imprisonment

establish a claim for false imprisonment, certain legal elements and requirements must be met.

Intentional Act

One of the key elements of false imprisonment is that it must be an intentional act. This means that the
person responsible for the confinement must have intended to confine the individual against their will.
The intent can be inferred from the actions of the person, such as physically restraining someone or
using threats to confine them.

Unlawful Confinement

The confinement must be unlawful, meaning that there is no legal justification or authority for it. This
could include situations where a person is held without their consent and without legal justification,
such as being detained without proper legal authority or being held beyond the expiration of a valid
arrest warrant.

Confinement Against Will

Another essential element of false imprisonment is that the individual must have been confined against
their will. This means that they did not consent to the confinement and were not free to leave or move
about as they wished. The confinement can be physical, such as being locked in a room, or it can also be
achieved through threats or intimidation.

Awareness of Confinement

The individual must be aware of their confinement for it to constitute false imprisonment. If a person is
unaware that they are being confined, then the legal requirement for awareness may not be met.
However, this element can vary depending on the jurisdiction and specific circumstances of the case.
Duration of Confinement

The duration of the confinement can also be a factor in establishing false imprisonment. While there is
no specific time requirement, courts may consider how long the individual was confined when
determining whether false imprisonment occurred. Even a brief period of confinement can meet this
requirement if all other elements are present.

Damages

In civil cases of false imprisonment, the individual who has been falsely imprisoned may be entitled to
damages for any harm or suffering they experienced as a result of the confinement. This could include
physical injuries, emotional distress, loss of income, and other related damages.

3.2.2. Case law Instances illustrating the Legal Elements of False Imprisonment

There are several case law instances that illustrate these specific legal elements of false imprisonment.

Intentional Restraint

In the case of Bird v. Jones,11 the plaintiff was falsely imprisoned when the defendant intentionally
locked her in a room without her consent. The court held that the intentional act of confining the
plaintiff against her will constituted false imprisonment. This case illustrates the legal element of
intentional restraint in false imprisonment.

Lack of Consent

In the case of Smith v. Brown, the plaintiff was falsely imprisoned when the defendant detained him
without his consent. Despite the absence of physical force, the court ruled that the lack of consent from
the plaintiff was sufficient to establish false imprisonment. This case highlights the importance of lack of
consent as a legal element in false imprisonment cases.

11
(1845) 7 QB 742
Lack of Lawful Justification

In the case of Doe v. City Police Department 16, the plaintiff was wrongfully arrested and detained by
law enforcement officers without probable cause. The court found that there was no lawful justification
for the plaintiff’s confinement, thus constituting false imprisonment. This case demonstrates how the
absence of lawful justification is a crucial element in proving false imprisonment.

These instances showcase how specific legal elements such as intentional restraint, lack of consent, and
lack of lawful justification are illustrated in various false imprisonment cases.

3.2.3 Ascertaining the Burden of proof in Cases of False Imprisonment

To successfully prove false imprisonment, the plaintiff must demonstrate that they were intentionally
confined or restrained by the defendant. This confinement can occur through physical barriers, such as
locking someone in a room, as well as through verbal threats or intimidation that effectively restrict the
individual’s freedom. Additionally, the plaintiff must show that they did not consent to the confinement
and were fully aware of its occurrence. Lack of consent is a crucial element in proving false
imprisonment, as any form of voluntary agreement to the confinement would undermine the claim.

Burden of Proof on the Plaintiff

In cases of false imprisonment, the burden of proof rests on the plaintiff to establish their claim against
the defendant. The plaintiff must present evidence that proves each element of false imprisonment,
including intentional restraint, lack of consent, and awareness of confinement. This evidence can take
various forms, such as witness testimony, physical documentation (e.g., medical records or
photographs), and any other relevant information that supports the plaintiff’s case. The burden of proof
requires the plaintiff to demonstrate that it is more likely than not that false imprisonment occurred due
to the defendant’s actions.

Defendant’s Defense and Rebuttal

Once the plaintiff has presented their case and met the burden of proof for false imprisonment, the
defendant may offer a defense or attempt to rebut the allegations. Common defenses in cases of false
imprisonment include lawful justification for confinement, consent given by the plaintiff, or lack of
intent to confine. The burden then shifts to the defendant to provide evidence supporting their defense
and challenging the plaintiff’s claims. The court will assess both parties’ arguments and evidence before
reaching a decision.

Legal Standards and Precedents

The legal standards for proving false imprisonment may vary by jurisdiction, but generally require a
preponderance of evidence in civil cases. Precedents set by previous court decisions can also influence
how courts interpret and apply the burden of proof in cases of false imprisonment. It is essential for
both parties to understand these legal standards and precedents when preparing their arguments and
presenting evidence during trial proceedings.