Mere suspicion is not a justification to commence a prosecution, Clerk and Lindsell on Torts at page 906 paragraph 1715 describes the position of the law as follows: -
"it is not justifiable to commence a prosecution on mere suspicion, Meering v. Graham White Aviation Company 1919 122 L.T. at 56.
For example, it is not a reasonable ground for a charge of forgery that the forged document resembles the handwriting of the party
accused, nor is possession of stolen goods a long time after their abstraction a reasonable ground for a charge of larceny. It has
been held that the evidence of he plaintiff's bad character has no bearing on the issue of reasonable and notable cause-Clerk and Lindsell on Torts, 12th Ed, p906.
The above position of the law on reasonable and probable cause can be summarized as follows: it is the duty of the plaintiff to prove
the absence of the reasonable and probable cause for the institution of the proceedings against him. Such absence may be established
in one of the two ways:
the plaintiff may show that the prosecutor had no honest belief in the probable guilt of the
he may show that despite the prosecutor's honest belief in the plaintiff's guilt, the facts
which the defendant honestly believed would not lead a man of ordinary prudence and caution to that conclusion
The proper description of malice is provided by Clerk and Lindsell on Torts 12th Ed. Paragraph 1725 page 911. It provides as follows:
"The term malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of
malus animus and as denoting that the party is actuated by improper and indirect motives; Mitchell vs Jenkins (1883) 5 B& Ad.588. The proper motive for prosecution is of course, a desire to secure the ends of justice. If a plaintiff satisfies
a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else
was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and proper
In the case of Stevens vs Midland Countries Rly (1854) 10 Ex 352 Alderson B at p356 indicated that where a prosecution for larceny had been instituted "in order to deter others
from committing similar depredations' this was declared to be 'not a motive of such a direct character as to afford a legitimate
foundation for a criminal prosecution.'
Malawian courts have endorsed the above principles of law and have also stated that to succeed on a claim for malicious prosecution,
the plaintiff must show that there was no reasonable prospect of success with the proposed prosecution, and the prosecution has been
instigated by the defendant who had acted with malice-Mwafulirwa v Southern Bottlers Limited (1991) 14 MLR 316; Mvula v Norse International Limited (1992) 15 MLR 332.
DAMAGES FOR MALICIOUS PROSECUTION
The leading case on the quantum of damages for malicious prosecution is Savill v Roberts (1698) 12 Mod 208. In the case, Holt C.J. in discussing the question of damages stated that:
"First, damages to his fame if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned.
Thirdly, to his property where he is put to charges and expenses."
The first head of damages is payable because the allegations might involve damage to the fair fame of the person accused which cannot
be afterwards repaired by the failure of the proceedings.
The second head of damages is recoverable for being put in danger of losing one's life, limb or liberty. If there has been an arrest
and imprisonment up to the hearing of the cause, damages in respect thereof should also be included and will be the same as would
be recoverable in action for false imprisonment. Mc Gregor on Damages 15 Ed. Paragraph 1629.
Regarding the last head of pecuniary loss, the plaintiff is entitled to recover all losses or charges incurred because of malicious
prosecution. In the cases of Savile vs Roberts as well as the case of Berry vs British Transport Commission 1962 1Q.B. 306 it was decided that all plaintiffs' expenses in defending himself against the prosecution are recoverable. Again,
in Child's vs Lewis 1924 40 T.L.R. 870 an action for false imprisonment, it was admitted that had the action been for malicious prosecution, the loss
of the plaintiff' directors fees by reason of his forced resignation would have been recoverable.
Where malicious prosecution did not lead to imprisonment, loss of liberty could clearly not be contemplated as a head of damages,
but damage to the plaintiff's reputation as well as the suffered indignity, humiliation and disgrace justified an award for damages.
The court's discretion should be employed. Loss of wages during false imprisonment are recoverable as general damages – Bulla vs Agricultural Development and Marketing Corporation (1993) 16 (1) MLR 32.
The guidelines of how damages are worked out in false imprisonment cases are few: generally
it is not a pecuniary loss but a loss of dignity and the like and is left much to the jury's or judge's discretion. The principal
heads of damage would appear to be the injury to liberty, that is the loss of time considered primarily from the non-pecuniary view
point and the injury to feelings, that is the dignity, mental suffering, disgrace and humiliation, with any attendant loss of social
status. This will be included in the general damages which are usually awarded in these cases; no breakdown appears in the cases
– MacGregory on Damages 14th Ed paragraph 1357.
Damages for false imprisonment are at large and a matter of impression not addition. Damages are not necessarily a pecuniary loss
but a loss of dignity and the like and a matter for the court. Previous awards are at the most of little assurance. Munthali v. Attorney General (1993) 16(2) MLR 646.
A DISCUSSION OF THE LAW AND THE FACTS
Whether or not the defendants herein were maliciously prosecuted
In order to determine the above issue, the four elements in respect of malicious prosecution shall be discussed vis-`a-vis the available facts as pleaded:-
Prosecution by the defendant
It is very clear that the criminal prosecution was set in motion by the State through the office of the Director of Public Prosecution.
Further it was the Director of Public Prosecution who was actively instrumental in putting the law in force. The said criminal proceedings
were conducted in the High Court of Malawi. In the premises, it is very conclusive that there was a prosecution and the same was
at the instance of the defendant herein.
Favourable termination of prosecution
There is no doubt that the criminal proceedings against the defendants were brought to a legal end in favour of the plaintiffs. This
is so because the Director of Public Prosecution withdrew the case under section 77 of the Criminal Procedure and Evidence Code.
Further, in report of discontinuance by the Director of Public Prosecution, he clearly stated that in his view the case was not credible
for prosecution and as such he would not continue with the case. This is a clear testimony that the whole case was in favour of the
Lack of reasonable and probable cause
From the facts of the case it is clear that no reasonable and prudent prosecutor could have preferred the charges that were preferred
by the Director of Public Prosecution. In all earnest, there was hardly any reasonable and probable cause for instituting the proceedings
which were instituted by the DPP.
Malice on the part of the prosecutor means no more than lack of proper motive for the instigation of the prosecution. The DPP in
the present case displayed clear malice by commencing proceedings against the plaintiffs when it was clear that the charges against
the plaintiffs were unfounded. Every reasonable and sober prosecutor should have made this deduction without much ado.
FALSE IMPRISONMENT AND DEFAMATION
False imprisonment is the infliction of bodily restraint, which is not expressly or impliedly authorised by law. It consists of the
complete deprivation of liberty for any time, however, short without lawful cause – W.A. Mzunga v. Blantyre Print and Publishing Company, civil cause no 577 of 1995 (unreported). This is the common law position. In Malawi, however, the Constitution has taken a step
further by making freedom of movement a constitutional right. Section 39(1) of the Constitution provides that every person has the
right of movement and residence within the borders of Malawi.
It is the plaintiffs' contention that their incarceration and arrest were all unlawful and wrongful, hence they were falsely imprisoned
by the defendants' agents.
The plaintiffs also contend that their prosecution on the baseless treason charges and subsequent incarceration disparaged their
names in the estimation of right thinking members of the society. It is the plaintiffs' submission that the acts of the defendant's
agents have resulted to their respective reputations. In fact on head of damaging for a successful claim in malicious prosecution
is damages in defamation.
On the evidence available, I find the defendant liable on all the claims made by
the plaintiffs and judgment is hereby entered against the defendant.
Having given the matter anxious thought and considering of giving the defendant
a second chance I would defer making any awards of damages. Instead I direct that the Registrar should appoint a dates for assessment
of damages including special damages for 1st plaintiff. The 2nd plaintiff is only entitled to general damages.
The defendant is condemned to pay costs of and incidental to these proceedings.
PRONOUNCED in open court at Blantyre this 26th day of August, 2004.