Malicious Prosecution in Nigerian Law: When False Accusations Become a Tort

Every law student who has studied procedure knows that the law is not merely a sword the plaintiff wields against the defendant. It is also a shield. But what happens when someone picks up that shield and uses it as a weapon? When the criminal justice process, built to protect society from wrongdoers, is deployed not in the service of justice but in the service of revenge, envy, or commercial rivalry?

Nigeria has a problem that practitioners know intimately but that textbooks rarely confront with sufficient directness. The police system is routinely weaponised. A debtor reports his creditor to the police for “fraud.” A landlord who cannot complete eviction proceedings reports his tenant for “criminal trespass.” A jilted business partner reports his former associate for “stealing” goods that were legitimately in dispute. The person accused is arrested, humiliated, detained, and dragged before a magistrate, only for the charges to quietly disappear once the accuser has achieved his collateral objective of disruption, coercion, or revenge.

The tort of malicious prosecution exists specifically for the person who walks out of that magistrate’s court, acquitted, and asks: does the law have nothing to say about what was done to me?

What the Tort Is

Malicious prosecution is the tort of initiating criminal proceedings against a person with malice and without reasonable or probable cause, which proceedings terminate in the defendant’s favour and cause damage to his reputation, person, or property. The language of the definition matters. It is not enough to have made a false complaint. The complaint must have been made from an improper motive, without any honest basis for believing the person guilty, and must have resulted in actual proceedings that caused identifiable harm.

The tort sits at the intersection of several related doctrines. It is closely related to abuse of process, which is the broader equitable and common law concept that courts will not permit their processes to be used for collateral, improper purposes. Malicious prosecution is, in a sense, the tortious manifestation of that principle: where the abuse of process causes damage to an identifiable individual, that individual has a cause of action for compensation. Courts in Nigeria have also recognised that where the abuse does not reach the level required for malicious prosecution but nonetheless constitutes an oppressive or vexatious use of litigation, the court has inherent jurisdiction to strike out proceedings or to make adverse costs orders. Malicious prosecution is the sharpest remedy, but it is not the only one.

It is equally important to distinguish malicious prosecution from false imprisonment. The relationship between the two was stated clearly by Obaseki JSC in Balogun v Amubikanhu: “If a charge is made to a police constable and he thereupon makes an arrest, the party making the charge, if liable at all, will be liable for false imprisonment. But if he goes before a magistrate who thereupon issues a warrant of arrest, then his liability, if any, is for malicious prosecution.” Put simply: where a private person sets a ministerial officer (a police constable) in motion, the resulting unlawful detention sounds in false imprisonment. Where a private person sets a judicial officer (a magistrate issuing a warrant) in motion, the resulting prosecution sounds in malicious prosecution. The distinction is not merely technical. It reflects a deeper principle: that courts guard the integrity of the judicial process with particular vigilance, and that abuse of that process carries its own distinct category of tortious liability.

The Five Elements

To succeed, the plaintiff must prove all five elements. A failure on any single one is fatal to the claim.

The first is that the defendant initiated the prosecution. Being “actively instrumental” in setting the law in motion is the test. Merely giving information to the police, after which the police proceed on their own initiative, is generally not enough. In Adebowale v Robinson (2018) LPELR-44424(CA), the Court of Appeal held that an action for malicious prosecution will not lie against a person who merely gave information to the police if the police thereafter proceeded independently. The question in every case is whether the defendant drove the process: did he insist on prosecution? Did he influence the decision to charge? Did he fabricate or suborn evidence? The more the defendant controlled the machinery of prosecution, the more likely the court is to find that he initiated it.

The Supreme Court’s analysis in Balogun v Amubikanhu illustrates this with unusual vividness. A lawyer in Ibadan, embroiled in a land dispute with the respondent, went to the police and fabricated a witchcraft-and-theft story against the respondent, paid a woman N300 to corroborate the story, gave the police a personal lift to arrest the respondent at night, and then stood at the police station scaring away anyone who came to post bail, telling them the respondent was a murderer. The woman later confessed everything in court. The Supreme Court held without hesitation that the lawyer had not merely made a complaint. He had orchestrated every detail of the prosecution and was its true author.

The second element is termination in the plaintiff’s favour. An acquittal, a discharge, a nolle prosequi by the Attorney General, or withdrawal of charges all satisfy this. The plaintiff need not prove his innocence in any positive sense. What matters is that he was not convicted. A plaintiff who was convicted but later exonerated on appeal has more complex questions to navigate, depending on the nature of the appeal, but the essential point is that no conviction should stand against him at the time he brings the civil claim.

The third element is absence of reasonable and probable cause. The test from Hawkins J in Hicks v Faulkner requires both an objective inquiry (would a reasonable man with the defendant’s knowledge have believed the plaintiff was probably guilty?) and a subjective one (did the defendant himself honestly hold that belief?). Where the defendant had reasonable cause, the claim fails even if malice is proved. This was the outcome in Bayol v Ahemba, where the defendant had personally observed the acts he reported to the police. And in Usifo v Uke, the Supreme Court held that even where the defendants were clearly motivated by a desire to prevent the plaintiff from being installed as Ovie, the existence of reasonable grounds for believing the plaintiff had breached the peace was sufficient to defeat the claim.

The fourth element is malice. “Malice” in this context, as Bowen LJ stated in Abrath v North Eastern Ry Co, means proceedings initiated “from indirect and improper motives and not in furtherance of justice.” It does not require personal hatred, though it includes it. Any motive other than the sincere desire to bring a guilty person to justice constitutes malice in the relevant sense. In Turner v Ambler, a landlord who brought criminal charges against his tenant solely to facilitate eviction was held to have acted maliciously. In Inneh v Aruegbon, the defendant’s real purpose was to get the plaintiff to Benin so he could serve a civil summons on her. The criminal complaint was purely instrumental.

The fifth element is actual damage. This may be damage to the plaintiff’s fame (where the charge was naturally defamatory), to his person (where he was imprisoned or faced that risk), or to his property (where he incurred costs in defending himself). In Rayson v South London Tramways Co, a wrongful accusation of travelling without paying a fare was held sufficient damage to fame. The cost of legal defence is generally the most easily established head of damage, and in most claims it alone will satisfy this element.

In Ayiga v Nigerian Copyright Commission, a movie producer filed a malicious prosecution claim against the NCC in 2011, having been discharged and acquitted on charges of obstructing an NCC officer. The case wound through five different judges over thirteen years, two of whom died before judgment was delivered. The FCT High Court ultimately dismissed the claim in 2024, holding that although the plaintiff was acquitted, he had failed to prove either absence of reasonable cause or malice on the NCC’s part. That case is a sobering reminder of two realities: the tort is genuinely hard to prove, and Nigerian litigation at its slowest can extend longer than the events it is meant to address.

Defences

An honest belief in the plaintiff’s guilt is a complete defence, even where that belief turns out to have been wrong. Reasonable and probable cause, if established, defeats the claim regardless of malice. Where the prosecution was initiated entirely at the discretion of the police or prosecuting authorities, without any instigation by the defendant, the defendant is insulated. Contributory conduct by the plaintiff, such as where the plaintiff’s own misleading behaviour created the impression that formed the basis of the complaint, may also reduce or defeat liability.

Frequently Asked Questions

Can I sue a business rival who falsely reported me to the police in Nigeria? Yes, if you can prove all five elements. The hardest are typically absence of reasonable cause and malice. The fact that you were acquitted proves only one of the five.

Is it enough that I was acquitted to sue for malicious prosecution? No, as the Ayiga v NCC case demonstrates. Acquittal satisfies the termination element only. The other four remain to be proved independently.

Can I sue both for malicious prosecution and false imprisonment from the same incident? Yes. Where you were both wrongfully detained and subsequently maliciously prosecuted, both torts may arise on the same facts and be claimed in a single action.

Conclusion

Malicious prosecution is the law’s answer to the abuse of the criminal justice process for private purposes. It requires the plaintiff to prove a great deal, and that requirement is deliberate. Nigerian courts recognise that making it too easy to sue for malicious prosecution would deter genuine complainants from reporting crimes. But where all five elements are proved, the law does not merely provide compensation. It makes a statement: that the judicial process is not a weapon, and that those who treat it as one will bear the consequences.

For related reading, see our articles on Defamation in Nigerian Law, which shares the element of reputational damage, and The Tort of Conspiracy in Nigerian Law, which shares the element of improper purpose.

References Kodilinye and Aluko, The Nigerian Law of Torts (Spectrum Books, Lagos, 1995) Ese Malemi, Law of Tort (Princeton Publishing Company, 2013) Balogun v Amubikanhu (Supreme Court of Nigeria) Ejikeme v Nwosu (2002) 3 NWLR (Pt. 754) 356 Ayiga v Nigerian Copyright Commission, FCT High Court (2024)