KNOW YOUR RIGHTS ON MALICIOUS PROSECUTION AND ITS REMEDIES

[Olajire Deborah]

Malicious Prosecution And Remedies
It is wrongful to level wrong allegations against another person which results in the arrest and prosecution of the victim. For instance, Mr. A alleged that Mr. B stole his car, which allegation he knew to be false but leveled it because he wanted to “punish” Mr. B. As a result of this allegation, Mr. B was arrested by the police and charged to court. After a period of trial, the court finds that the allegation cannot be substantiated by evidence and, therefore, discharged and acquitted Mr. B. Following After his dischargeacquittal, Mr. B is entitled to sue Mr. A to claim damages for the malicious prosecution.

Please take note, however, that to be able to succeed in a legal action for malicious prosecution, the victim must be able to prove the following five elements:

1) that the defendant acted with malice. Malice here is taken to mean that the defendant acted not only out of ill-will, hatred or anger but out of an improper purpose. For instance, a landlord levels a false allegation against his tenant with the aim of ejecting him from an apartment, and the allegation leads to a criminal prosecution. If acquitted by the court on this allegation, the tenant can easily show that the landlord acted with malice and bring an action to claim damages for malicious prosecution against the landlord.

2) that the defendant was the initiator of the action that resulted in the malicious prosecution. To initiate the action here means to actively participate in the process leading to the prosecution of the victim. We all know that the power to prosecute offenders is given to the police by law. Where, for instance, Mr. A innocently and truthfully reports a fact or supplies information to the police upon which the police acted and prosecuted the victim, Mr. A will not be held liable for malicious prosecution. But if, for instance, Mr. A intentionally fabricated the report, manipulated evidence and supplied witnesses upon which the police acted, then the defendant will be taken to have initiated the legal process for the malicious prosecution.

3) that there was no reasonable cause for the prosecution. For instance, Mr. A alleges that Mr. B stole a car, knowing fully well that Mr. B is blind and, therefore, cannot drive. If Mr. B is consequently prosecuted for the crime and acquitted, Mr. A will be liable in a civil action by Mr. B for malicious prosecution.

4) that the criminal case terminated in his favour. Termination here means that the court must have given a final judgment on the criminal case. It includes where the case was later withdrawn, or the victim was acquitted on technical grounds, or where the Attorney General of the Federation or the State has stopped the prosecution, or where he was convicted by a lower court but acquitted on appeal. It also includes where, for instance, the accused was charged with armed robbery but convicted of a smaller offence like stealing. The victim is entitled to say that the case terminated in his favour in any of these instances and, therefore, sue the defendant for malicious prosecution. Note, however though, that the victim cannot sue for malicious prosecution where he was convicted in the criminal case, even if the conviction was based upon the false evidence supplied by the defendant.

5) that he suffered damage to his person, reputation or property as a result of the malicious prosecution. Unlike other civil wrongs like assault or false imprisonment which requires no proof of any suffered damage, a victim of malicious prosecution must be able to prove to the court that he suffered some damage as a result of the malicious prosecution. For instance, he can show that the malicious prosecution has put him in ridicule before other members of the society, or that he was unduly detained or suffered physical injuries as a result of the malicious prosecution.

So, a victim of malicious prosecution must be able to prove the five elements above before he can succeed in a claim for damages against the defendant.

I want you to note that the claim for damages may not be sustained against the police who arrested, detained and prosecuted the victim upon the false report. It is taken that the police merely exercised their constitutional power to investigate or prosecute a crime. It is the initiator of the prosecution that will be held liable for damages. The possible exceptions to this include where a policeman was the initiator of the malicious prosecution, or instances where the police go about “raiding” suspects and charging them to court for “wandering,” an offence which is unknown to law.

Again, where the victim was merely discharged by the court, e.g., for lack of diligent prosecution, this may not be taken as a termination of the prosecution. There is a difference between ordinary discharge by the court and discharge and acquitted. This is because a discharge without acquittal is only a temporary release ordered by the court. The prosecution may be resumed anytime in the future whenever the prosecutors are ready. So a victim who was merely discharged and not acquitted by the court in the criminal case may not be able to bring a civil action to claim damages for malicious prosecution. (For a detailed discussion of the difference between discharge and acquittal and their implications, please get a copy of one of my other books, Know Your rights Against the Police And In Court In Criminal Matters)

Remedies
1. The victim of malicious prosecution is entitled to bring an action to claim damages for the prosecution, in so far as he can prove the five elements listed above.

2. The victim is equally entitled to have the defendant charged by the police for giving false information to the police, which is also a criminal offence.

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