The elements of malicious prosecution involve intentionally and maliciously instituting or pursuing or causing to be instituted or pursued, a legal action, whether civil or criminal that is brought without probable cause and which was dismissed in favor of the victim of the malicious prosecution.
A plaintiff in an action for malicious prosecution must plead and prove all the ingredients or elements which the law requires in an action for malicious prosecution which are that the plaintiff was prosecuted by the defendant, or set in motion, the law leading to the criminal charge made against him, that the prosecution was completely without reasonable and probable cause, that the prosecution was as a result of malice by the defendant against the plaintiff and that the plaintiff was discharged and acquitted of the criminal prosecution. Mbakaan v. Mtav & Ors. (2004) All FWLR (Pt. 233) 1704.
Report made to the police is not sufficient to create liability for malicious prosecution. It must be proved that apart from merely reporting to the police and leaving the police to their discretion, the defendant actively instigated the prosecution of the plaintiff. Ojo v. Lasisi & Anor (2003) FWLR (pt. 156) 886.
The burden of proof in a case for malicious prosecution is on the plaintiff. The plaintiff needs to prove that the defendant set the law in motion against him, that the prosecution was determined in his favor; that the prosecution was without reasonable and probable cause, a false report; and that the prosecution was actuated by malice, that is, the absence of honest belief in the charge preferred against the plaintiff. It is only after the burden of proof of the foregoing have been discharged that it becomes necessary for the defendant’s evidence to require consideration. Chiabee Bayol v. Iorkighir Ahemba (1999) 7 SC.
Where an employee is arrested and charged to court by the police on a report of fraud, his employer who reported cannot be held for malicious prosecution and false imprisonment after he is discharged and acquitted of the charge against him in the Magistrate court, unless there is evidence that the employer instigated the police to fabricate a charge which had been proved to be a fabrication at the instance of the employer. UAC Nig. Plc. v. Prince Sobodu (2006) All FWLR (Pt. 329) 877.