Chief Ehiman Payin & Anor V. Adiaba Aliuah & Anor (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—Malicious prosecution—Instigating a prosecution—Malice: meaning of.

Facts

The action under appeal arose out of a prosecution for stealing coconuts from a plantation, of which the respondents were acquitted; they then sued the appellant for malicious prosecution.

Their predecessor in title had sued the appellant for trespass to the plantation and obtained judgment. In view of that the Judge who tried the claim for malicious prosecution was of opinion that the appellant-defendant could not honestly have believed in the respondents’ guilt and acted maliciously in causing them to be prosecuted; and the Judge gave the respondents-plaintiffs damages.

The defendant appealed arguing that it was not he but the police who had preferred the charge of theft—he had merely given information—and that it had not been proved that he was actuated by improper and indirect motives.

Held

(1) Although it was true that an officer of police actually preferred the charge of theft against the respondents, the evidence showed that it was the appellant who had been responsible for putting the law in motion against them and had instigated the prosecution.

(2) The Judge was right in holding that the fact that the appellant had no honest belief in the guilt of the respondents constituted malice in fact: for it is honest belief which is the substantial thing that has always to be decided.

Appeal dismissed.