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This work was preoccupied with the examination of malicious prosecution under the Nigerian law. It pointed out that malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. It is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. 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. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. It is an effort to disturb the proper functioning of the judicial machinery




Generally speaking the motive with which an act is done does not generally render the act unlawful and a tort. But there is an exception to the general principle created by the tort of malicious prosecution which goes to establish the liability of the defendant for misusing the right of institution of the criminal proceedings against criminals for public good. The abuse of this right for private or any other benefit or improper motive gives rise to liability in tort.[1]

       Thus, the tort of malicious prosecution protects the interest of an individual from unjustifiable litigation and prosecution. Malicious prosecution occurs where the defendant malicious and without reasonable and probable cause initiates criminal proceedings against the plaintiff, which terminates in favour of the plaintiff and which result in the damage of his reputation, person or property.[2]

       Put in another way, malicious prosecution is intentionally setting the criminal law in motion against a person without just cause. It is intentionally causing criminal proceedings to be brought against another person without legal justification. If it is later discovered that A caused B to be prosecuted by law enforcement agents without legal excuse, out of malice, then B after his acquittal may sue A for the tort of malicious prosecution. In a claim for the tort of malicious prosecution, the fact that the prosecution was brought with a bad motive, malicious or intentionally to harm or without legal excuse, is an essential ingredient which a plaintiff needs to establish for a successful claim for compensation.[3]

       This tort however has it historical evolution from the English legal regime.


The legal tradition then under English common law was majorly writ based. Among the formal writs for the torts of different kinds which were recognised at the beginning of the English legal history was one called  the Writ of Conspiracy, which might be issued against two or  more persons who had conspired together to prosecute a man  criminally without lawful cause. The form of this writ was given in Fitzherbert and put in use where what the prosecution complained of was malicious and had been by way of indictment.[4]

         There was also another form for use where an appeal of felony had been brought against the plaintiff by the defendants, as a result of a nonsuit. This was the statute of Edward III, called " De Corspiratoribus," which begins with the following definition:

"Conspirators be they that do confer or bind themselves by oath, covenant or other alliance that every of them shall aid and bear the other falsely and maliciously to indict or cause to indict, or falsely move or maintain pleas," and goes on to deal with the kindred wrong of maintenance. [5]

Since one person one cannot be guilty of conspiracy, this form of action lay only when more persons than one were concerned in the false indictment; and when the wrong was committed by only one person there was an action on the case "in the nature of an action of conspiracy" against him.[6]

         The distinction between the two kinds of action was exhaustively treated in the judgment of Lord Chief Justice Holt in the case of Savill v. Roberts,[7] which may be considered the foundation of the modern action for malicious prosecution. In that case it was held that,

"Where two cause a man to be indicted, if it be false and malicious, he shall have conspiracy; where one he shall have case." [8] He observed that, in strictness, conspiracy lay only for falsely indicting of treason or felony where life was in danger, and he pointed out that in conspiracy the jury could not convict less than two defendants; whereas in case, if there were more defendants than one, a verdict could be given against one only.

         Holt declared the conspiracy itself to be the " ground " of the action of conspiracy, while the ground of the action in case was damages, which might be damage to fame, as where the accusation was scandalous; damage to the person, "such as imprisonamentum et arrestatio corporis;" or damage to property, such as the necessary expenses incurred by the wrongfully prosecuted man in his defence.

         Holt also gives the following account of how maliciously indicting came to be actionable at all. In his account, the common law, in order to hinder frivolous and vexatious suits, made every plaintiff find pledges, who was amerced if he failed to make out his claim. When this method became obsolete, successful defendants were enabled by statute to recover the costs to which they had been pat; but for groundless criminal charges there had never been any remedy except by action.

       Besides the essential differences between the two actions, others arose in consequence of the form of the writ. For example, in conspiracy, the writ said that the plaintiff had been acquitted, and therefore the action of conspiracy did not lie if the grand jury had ignored the bill.[9] The action of conspiracy, therefore, fell into disuse, being superseded by the action on the case for malicious indictment or malicious prosecution, as the case might be, which was in use as long as formal actions lasted and is now represented by the fact that malicious prosecution is a tort for which an action lies in the High Court.


The law of tort is a part of the common law of England which is itself, a part of the English law. The law of tort came into Nigeria when English law was received into Nigeria by virtue of local statutes that permitted the application of English law in Nigeria. The English law which was introduced into Nigeria is made up of three aspects. These are:

1. The common law of England

2. Equity; and

3. The statutes of general application in force in England on January 1, 1900.[10]

Among the local statutes that received the laws of England for application in Nigeria were the Supreme Court Act 1914, the Interpretation Act and the High Court laws of the Regions. These Nigerian statutes received the English common law, equity and statutes of general application, which were in force in England on January 1, 1900 and made them applicable in Nigeria. Later on, in the Western Region of Nigeria, the regional parliament enacted the Law of England (Applicable) Law and limited itself to receiving only English common law and equity. See section 3, Laws of Western Region of Nigeria, 1959.[11]

This law made statutes of general application in respect of subject matters that were within the legislative competence of the Western Region parliament inapplicable to the Region. The Western Region parliament then re-enacted such English statutes of general application that were relevant for the region mutatis mutandis and made them part of its law to fill the gaps that would have been created.[12]

It is generally agreed that the cut off January 1, 1900 date is applicable only to English statutes of general application and therefore bars English statutes made after that date onwards to this day, from application in Nigeria. Thus, the principles of English common law and equity which are current in England should apply in Nigeria as they are not affected by the January 1, 1900 cut off date.[13] Provided that:

1. Such principle of common law is not in conflict with any Nigerian statute or case law on the subject matter; and

2. The jurisdiction of the relevant court permits it to apply English law, subject of course to the overriding power of the court in question to ascertain the current state of the law in England.[14]

In the light of the fact that statutes made in England after January 1, 1900 are not applicable in Nigeria, the legislature at the Federal, State and local councils levels now have the full responsibility of enacting legislations to meet the needs of Nigeria and maintain parity with legal developments in other countries, especially common law countries, such as England and the rest of the Commonwealth of Nations.

In this wise, many statutes have been enacted by the legislatures in Nigeria. Some of these statutes are reproductions mutatis mutandis of the relevant English legislations after which they are modelled.[15] This was how malicious prosecution became part of the Nigerian law.

[1] Winfield & Jolowicz on Tort, 15th edn, , London: Sweet & Maxwell, 1998: p.4

[2] E. Joe, Lecture Note on the Law of Torts, Faculty of Law, University of Calabar (unpublished)

[3] T.A. Omotayo, Law of Tort I, National Open University (2008); p54 www.nou.edu.ng retrieved 24/04/2014 at 5:43 am

[4] H. Steven,  The law relating to actions for malicious prosecution;" www,achive.org/stream/lawrelatingtoact retrieved 23/04/2014 at 03:14 pm

[5] Ibid

[6] Ibid

[7] 1 Ld. Kaym. 374 (1678)

[8] Supra

[9] Per Sir W. Jones,Smith v. Cranshaw, (1625); p93

[10] G. Kodilinye & O. Aluko, Nigerian Law of Torts, Ibadan, Spectrum Books Limited (1999);pp10-11


[12] Ibid

[13] A.O. Obilade, Nigerian Legal System, London: Sweet and Maxwell, (1979); p.23

[14] E. Malemi, Nigerian Legal System, Benin: Grace Publishers, (1999); p.18

[15] W. Shittu, “Nigeria: Malicious Prosecution”, Published on AllAfrica website www.allafrica.com retrieved 22/04/2014 at 11:36 am

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