 MALICIOUS PROSECUTION

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 Is the institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause . 

 Alternatively malicious prosecution may refer to institution of unsuccessful criminal proceeding maliciously and without reasonable and probable cause. When such prosecution cause such damage to the party prosecuted it is a tort for which he can bring an action. 

 Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.

 This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons.

 The foundation lies in the triangular abuse of the court process of the court by wrongfully setting the law in motion and it is designed to encourage the perversion of the machinery of justice for a proper cause the tort of malicious position provides redress for those who are prosecuted without cause and with malice. 

 In order to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result of the prosecution .

 COMMENCEMENT OF MALICIOUS PROSECUTION

 The Prosecution is not deemed to have commenced before a person is summoned to answer a complaint.

 In Khagendra Nath v. Jacob Chandra , there was mere lodging of ejahar alleging that the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that something should be done. The plaintiff was neither arrested nor prosecuted.

 It was held that merely bringing the matter before the executive authority did not amount to prosecution and therefore the action for malicious prosecution could not be maintained. There is no commencement of the prosecution when a magistrate issues only a notice and not summons to the accused on receiving a complaint of defamation and subsequently dismissed it after hearing both the parties.

 ELEMENTS OF MALICIOUS PROSECUTION

 The tort of malicious prosecution provides redress for those who are prosecuted without cause and with malice. In order for the tort of malicious prosecution to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice, and the case was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result of the prosecution. 

 In an action of malicious prosecution the plaintiff must prove:-

 1) That the plaintiff was prosecuted by the defendant

 There must have been a prosecution initiated by the defendant. The word ‘prosecution’ means a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in motion and the law is set in motion only by an appeal to some person clothed. The person to be sued is the person who was ‘actively instrumental in putting the law in force. There was a conflict on the question whether there is prosecution of a person before process is issued calling upon him to defend himself. One view was that a prosecution began only when process was issued and there could be no action when a magistrate dismissed a complaint under section 203 of the code of criminal procedure. The other view was that a prosecution commenced as soon as a charge was made before the court and before process was issued to the accused.

 The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra Kumar Bannerjee .The defendant had filed a complaint before the magistrate charging the plaintiff with cheating. The magistrate thereupon examined the complainant an oath and made an inquiry under s 202 of the code of criminal procedure. Notice of the inquiry had been issued to the plaintiff who attended it with his counsel and incurred costs doing so. The magistrate finally dismissed the complaint under section 203 of the code. 

 In these circumstances the Privy Council held that there was a prosecution .The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution, the test is whether such proceedings have reached a stage at which damage to the plaintiff results. A mere presentation of complaint to a magistrate who dismissed it on the ground that is disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to prove that damage actually resulted.

 In the case of Martin v. Watson   the House of Lords held that it is not necessary that defendant should be the prosecutor in any technical sense. What matters that he should in substance be the person responsible for the prosecution being brought. In this case the defendant made various charges to the police that the claimant had indecently exposed himself to her and this lead to the prosecution of the claimant at which no evidence was offered against him.

 In another case Yohana s/o Miyuni v. Isaya s/o Bakobi , The plaintiff sued the defendant for spoiling his reputation, maliciously imprisoning him and uprooting his crops. The parties were neighbor and had numerous disputes over the right of each in relation to the hand of the other. In the cause of one dispute the defendant made a report to the police that the plaintiff had threatened him and the plaintiff was arrested and remanded for two days. The criminal proceeding was terminated on the plaintiff’s favor.

 2) That the proceeding complained was terminated in favour of the plaintiff

 The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it is terminated and while it is pending. The termination may be by an acquittal on the merits and a finding of his innocence or by a dismissal of the complaint for technical defects or for non-prosecution. 

 If however he is convicted he has no right to sue and will not be allowed to show that he was innocent and wrongly convicted. His only remedy in that case is to appeal against the conviction. If the appeal results in his favour then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.

 In the case of Festo v. Mwakabana  , the appellant having a dispute over ownership of land with his neighbour, harvested maize growing on the land. The respondent preferred a criminal complaint against the former. The appellant was tried and convicted by the trial magistrate but acquitted on appeal. The judge observed that it could not be disputed that so far as plaintiff was concerned the criminal proceedings had been terminated in his favour thereby satisfying. The essential requisite condition for bringing an action for malicious prosecution. 

 in the case of Reynolds v. kennedy , it was held  that no action would lie of the claimant had been convicted even if his conviction was later reversed on appeal. The reasons apparently being that the original conviction showed conclusively that there was foundation for the prosecution. However this is no longer be regarded as good law.

 3) That the prosecution was instituted against without any just or reasonable cause.

 ‘Reasonable and probable cause was defined in the case of Hicks v. Faulkner  as “an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed”.

 In the case of Satyakam v. Dallu the defendant, an illiterate, engaged the plaintiff, as his advocate in a dispute of his landed property. After the decision of this case, there was another dispute of some other property of the defendant and the plaintiff took up the case of the opposite party.

 The defendant object to the conduct of the plaintiff and filed to a complaint in the Bar council of India alleging professional misconduct. The Bar council gave the benefit of doubt to the plaintiff and dismissed the complaint. There after the plaintiff filed a suit for malicious prosecution against the defendant. 

 The court observed that because of similarity between the two litigation and also high traditions of the legal professional, the plaintiff should not have accepted the case against the old client.  Since there was reasonable cause and no Malice on the part of the defendant, it was not the case of malicious prosecution. 

 4) The defendant acted maliciously

 For the purpose of malicious prosecution, malice means having any other motive apart from that of bringing an offender to justice. Thus is the presence of some other and improper motive that is to say the legal process in question for some other than its legally appointed and appropriate purpose.

 In the case of Allen v. Flood, a general rule was propounded that an act lawful in itself does not merely become unlawful because of the bad motives of the actor and some of them  lordships in the House of Lords suggested that Malicious prosecution was not really an exception to this rule. 

 The settled rule is that Malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an existence of Malice that is to say the Burden of proof lies upon the plaintiff. . Anger and revenge may be proper motives if channeled into the criminal justice system. 

 The lack of objective and reasonable cause is not an evidence of malice but lack of honest belief is an evidence of malice.

 In Peter Ng’homango v. Gerson M.K Mwanga  .The court of  appeal established malice when it found out that the principal of the college of Mpwapwa was in conflict with Peter (a tutor) stemming from the fact that Peter was a good and a very nice singer. 

 Evidence of Malice

 Malice may be proved by previously strained relations, unreasonable or improper conduct like advertising of the charge or getting up false evidence.

 Though mere carelessness is not per se proof of malice unreasonable conduct like haste, recklessness or failure to prove enquiries would be some evidence.

 When there is absence of some reasonable cause owing to defendant’s want of belief in the truth of his charge is the conclusive evidence of malice. However the converse proposition is not true because a person may be inspired by malice and also has a reasonable belief in the truth of his case.

 There may be malice either in commencing a prosecution or continuing one, honestly began. The mere fact that criminal prosecution resulted in acquittal or discharge of the accused will not establish that the defendant had acted with malice.

 5) That the plaintiff suffered some damage.

 It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint of. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. 

 The damages may not necessarily be pecuniary. According to HOLT C.J., ‘classic analysis in Savile v. Robert, there could be three sort of damages any one of which could be sufficient to support any action of malicious prosecution.

 1) The damage to a man’s fame as where the matter whereof he is accused is scandalous.

2) The damage done to a person as where man is put to a danger of losing his life, limb or liberty

 3) The damage to a man’s property as where is forced to expend money in necessary charges, to acquit himself of the crime of which he is accused.

 The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessing damage the court to some extent would have to consider

 1) The nature of the offence the plaintiff was charged of

 2) The inconvenience to which the plaintiff was charged to

 3) Monetary loss and

 4) The status and prosecution of the person prosecuted

 Malicious Civil Proceeding

 An action will not lie for maliciously and without reasonable and probable cause instituting suit the reason stated to be is that “ such a case does not necessarily and naturally involve damage to the party sued.

 The civil action which is false will be dismissed at the hearing. The defendant’s reputation will be cleared against all imputations made against him and he will be awarded costs against the opponent. The law does not award damage for mental anxiety, or extra costs incurred beyond those imposed on unsuccessful parties.