Damage to fame from a charge punishable by fine only
Where the law punishes an offence with imprisonment a moral stigma inevitably attaches to the convicted person. But an offence which is punishable by a fine only does not necessarily entail such damage as will support an action for malicious prosecution. In such a case, damage to fame will only be presumed if the offence charged is necessarily and naturally defamatory of the plaintiff.
In an action for malicious prosecution the plaintiff must show: (1) that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and probable cause; and (4) that it was malicious. See Yeboah v. Boateng VII [1963] 1 G.L.R. 182 at p. 183, S.C.
Liability of a complainant who gives false information to the police
But a defendant, though not technically a prosecutor within the meaning of the authorities discussed above, will nevertheless be liable for malicious prosecution where the complaint he makes to the police or the judicial officer is known by him to be false. Thus, in Tewari v. Singh (1908) 24 T.L.R. 884, Sir Andrew Scoble, in delivering the judgment of their lordships in the Judicial Committee of the Privy Council, said: “If, therefore, a complaint did not go beyond giving what he believed to be correct information to the police and the police, without further interference on his part (except giving such honest assistance as they might require), thought fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But, if the charge was false to the knowledge of the complainant, if he misled the police by bringing suborned witnesses to support it, if he influenced the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution had not technically been conducted by him.
A claim for malicious prosecution cannot be sustained without proof of damage under one of the three heads stated by Holt C.J. “It is not every criminal charge brought and dismissed that will form the basis of an action for malicious prosecution. A charge will only do so if it is of a scandalous nature, or if it is one which “necessarily and naturally” affects the “fair fame” of the person accused: see Wiffen v. Bailey and Romford Urban District Council [1915] 1 K.B. 600 per Buckley L.J. at p. 608, C.A.; and Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, C.A.
In my judgment, the plaintiffs, having failed to prove damage, were not entitled to succeed in an action for malicious prosecution, for as Buckley L.J. in Wiffen v. Bailey and Romford Urban District Council (supra) said at p. 607: “If there be no scandal, if there be no danger of loss of life, limb, or liberty, if there be no pecuniary damage, the action will not lie.”
In my view, a person is “actively instrumental” in setting the law in motion if he does more than merely give information to the police or a judicial officer, such as a magistrate: see Alhadi v. Allie (1951) 13 W.A.C.A. 323, Payin v. Aliuah (supra) and Leigh v. Webb (1800) 3 Esp. 165.
