The Tort of Malicious Prosecution in Nigeria (Creating A Balance Between Crime Reporting and Malicious Accusations)

The Tort of Malicious Prosecution in Nigeria (Creating A Balance Between Crime Reporting and Malicious Accusations)

By Jeremiah E. Aneji.


The Nigerian justice system recognizes the rights of individuals to register formal complaints to relevant authorities when an offense has been committed against his/her person or property. It also recognizes the civic duties and obligations to report the commission of a crime to the appropriate authorities even when one is not the victim or object of the said offence. This mostly to be emphasized given the current security challenges and a sharp rise in the crime rate that has now bedeviled the entire nation as we are more than ever enjoined to report suspicious activities once it is drawn to our attention.

While this on the surface may seem like an easy thing to reckon with, it has been shown over the years that while many with good intentions and in good faith would report the actual commission of a crime, a few others would out of their malicious intent make false and baseless claims against innocent persons. The authorities in turn then initiates criminal proceedings against the suspects making them undergo the rigors of the criminal justice systems only much later to discover that such accusations were baseless and without any reasonable cause save for a malicious intent to use the state apparatus to inflict pain and distress on a perceived enemy. These instigators have often used the police, army or navy to recover debt, which is purely within the jurisdiction of the civil courts and hunt down real or imaginary opponents with trumped up charges whose prosecution they seem to abandon midway into trial.

The big question now becomes how we balance the rights of citizens to make honest complaints to law enforcement of acts of criminalities on the one hand and the right of others not to be maliciously subjected to furious allegations, the rigors of criminal proceedings/state prosecution.

The answer to the above question is seen in the protection the law offers in the tort of malicious prosecution. Malicious prosecution simply put, is that remedy available in tort against anyone who sets the law in motion against another with malicious intents when he/she knows there exist no cause of action to support the allegation.¹

It intent was to strike a balance between the freedom of action that anyone should have to set the law in motion and to bring criminal to justice of the one hand and the necessity to check lying accusations against innocent people.²

By it definition, it is that remedy available in tort against anyone who sets the law in motion against another with malicious intents when he/she knows there exist no cause of action to support the allegation.³

The essence of this article is to take a cursory look at balance and thin line between a genuine criminal complaints or the civic duty to report a crime viz-a-viz the rampant use of the Nigerian Police to intimidate perceived enemies or dabble into areas of civil interest in the light of the liabilities associated with Malicious Persecution.

In doing this, we shall be articulating our views under the following subheadings:

  1. The Personal rights to make criminal complaints or report criminal activities.
  2. The rights to be protected the drill of a baseless criminal prosecution
  3. Recommendations to check Malicious Prosecution.
1. The Personal Rights To Make Criminal Complaints or Report Criminal Activities.

The right of anyone to make formal complaint to the law enforcements or directly to the courts in sacrosanct and is well spelt out in Section 88(1) of the Administration of Criminal Justice Act 2015 which applies to the Federal Capital Territory, Abuja provides that for the right of a person to make a complaint any other person alleged to have committed or to be committing an offence. This provision is replicated in the administration of criminal justice laws of the various states.

In furtherance of the above, there are many avenues through which one can engage to seek redress especially where a crime has been committed against him/her. One of such ways is to visit the nearest law enforcement agency, make his/her complaint. This can either be through a petition or an oral complaint which is later reduced into writing. The other option would be to make a formal complaint to the magistrate in court, the court having heard your fact and thinks there is a reasonable cause may refer same to the police for further investigation and would rely on the report of the police to frame a charge against the defendant.

When these complaints are made, the maker is said to have set the law in motion which would ordinarily lead to the prosecution of the offender. If such criminal complaint was brought in good faith and in the honest discharge of his/her civic duty, the complainant is protected by the law even when it turned out that he was mistaken as to the true facts of the alleged criminal conduct as long as it is shown there was a probable cause for such alarm. Probable cause in this sense would mean and honest belief in the guilt of the suspect.

Where however the complaint is brought in bad faith, with the intention to injure the other or use the law enforcement as a tool to harass another on baseless claims and falsehood, that person would be liable under the tort of malicious prosecution. This lays emphasis on the need to protect the innocent from being hounded and harassed with drills of criminal trial just to settle scores.

2. The Rights To Be Protected The Drill Of A Baseless Criminal Prosecution –

Haven recognized as earlier pointed the potentials for malicious instigation of the police or law enforcement to prosecute the innocent on baseless accusations just for the pleasure of seeing them suffer loss, the courts initiated what overtime became known as the “tort of malicious prosecution”. Malicious prosecution according to the Black Law Dictionary is that prosecution “instituted with the intention of injuring the defendant and without probable cause.”

Ese Malemi however went further to define it as the “bringing of criminal proceedings against a person without reasonable or probable cause, and which proceedings end in favour of a person.”

One of such practical scenario was in the case of Balogun v. Amubikanhu where Mr. Balogun had reported a group of persons to the Police for conspiracy to kill him and steal his property. These allegations were baseless and untrue; being in privileged position he instigated the police to prosecute them in court. The court discharged and acquitted the defendants as it was shown that there was no basis to support such allegations. The victims of the shambolic trial sued for malicious prosecution and were awarded damages.

It should be noted that this not only applies to trial in a criminal court but expands to quasi-judicial panels and tribunals. Where it is established that the purpose was to ridicule the victim maliciously without probable cause, he/she can maintain an action against the instigator for malicious prosecution.¹⁰

Elements of Malicious Prosecution

A. The Initiation Of Or Instigation Of Prosecution Or Criminal Against Another – Initiation of criminal prosecution does not in all cases implies when one makes a direct criminal complaint to a Magistrate or a judicial officer or even conduct proceedings himself. The simple fact of writing a petition or making an oral complaint to law enforcement and standing by the complaint until a charge is proffered against that person automatically places you in the position of haven initiated the criminal prosecution or set the law in motion for the same purpose of prosecution.¹¹ It should be noted that although one may not be held for malicious prosecution if the judicial process has not been initiated, he may be held liable for Abuse of Legal Process where any judicial steps has been taken like the obtaining of a search warrant or warrant of arrest on the basis of his malicious deception that misled a tribunal to issue a search warrant.¹²

B. This in itself is a good thing to do, only if it is done in good faith and where there is reasonable or probable cause to do so.

C. This Initiation of the Prosecution was with the intent to injure the other or his/her reputation – where it is shown that the essence of instigating or setting the law in motion against the other person was done maliciously so as to ensure the person suffers pain or is sent to jail for no just  This is most especially seen where the instigator himself does not belief in the guilt of the plaintiff but only intend to punish him.¹³

D. There was no reasonable and probable cause for prosecution – Where it is proven that there is no reasonable grounds at all for the complaint or petition, especially where is it shown that the facts upon which the complaint was made were false to the knowledge of the initiator of the criminal proceedings. It should be noted that it is not an excuse or defence to say that if the Police or prosecuting authorities had done their due diligence, they would have resorted not to prosecute in the first place.¹⁴

E. The proceedings ended in favour of the victim – Where the court found the allegations to be baseless and without any iota of prove and dismissed or struck same out in favour of the accused.

Where all of these elements characterizes a complaint which later metamorphosed into a baseless and shambolic criminal trial/prosecution the complainant would be liable in civil courts for damages. The defence for anyone who has been sued for malicious defamation would be any of the following:

A. The prosecution was at the discretion of the Police of the police or judicial officer because of the existence of some probable cause – This is negated when the tortfeasor insisted on the prosecution of the victim and or sponsors the trial with the assurance that he would do anything within his power to ensure the guilt of the person.¹⁵

B. Judicial immunity to initiate such proceedings.

3. Recommendation To check Malicious Prosecution

In addressing the challenge we face in our desire to consistently creating a balance between encouraging the report of crimes upon reasonable suspicious and the need to checkmate the use of state apparatus as a malicious weapon against the innocent mostly on account of mere civil discourse or in the absence of any genuine probable cause, we would recommend that some form of cost be awarded against the nominal complainant in very obvious case of malicious falsehood with intent to embarrass or punish the Defendant.

This should only apply to cases where the malice is undoubtedly obvious and the prosecution was bent on inflicting pain on an innocent defendant in the obvious clear facts of his innocence. In making this award, at the close of the parties adoption, the court before delivering its ruling, or maybe a no case submission, may on its own or at the instance of the Defendant, order for a trial within trial to determine whether or not the nominal complainant should not be held liable for malicious prosecution. Where the nominal complainant or complainant in the case of a private prosecution would be ordered to pay damages/compensation to the defendant who was made a victim of the malicious and baseless proceedings.

The above recommendation is premised on the peculiar circumstance of the sluggish Nigerian Judicial system which often discourages the litigants from pursing their right to certain compensation in the civil courts. Having gone through the tedious judicial process of a criminal trial, most victims of malicious prosecution may not be able to afford to financially commit to a civil proceeding for malicious prosecution.


While we encourage people to speak up and exercise their rights to approach the courts or statutory authorities in the event of a violation of the rights or in the event of a criminal attack on their person or property, this privileged must be exercised in good faith. The institution of states and law enforcement agencies should not at anytime be used as a tool to settle personal scores or carry out malicious intent on a false basis. Where this happens the victim is entitled to damages and the perpetrator made liable.


  1. The Administration of Criminal Justice Act, 2015 (Laws of the Federation: Nigeria)
  2. Black Law Dictionary (Revised 4th Edition; St Paul Minn, West Publishing Co.London (1968)
  3. Clark and Lindsay: Clark and Lindsay on Torts: Sweet & Maxwell; Seventeenth Ed,London: 1995
  4. Ese Malami, “Law of Tort” Princeton Publishing Co. Lagos, 2013.
  5. Winfield and Jolowicz : Winfield and Jolowicz on Tort: Sweet & Maxwell, 1998London


This article is for information purposes, it may not reflect the current state of the law therefore it is not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.