AUBIN v. EHUNAKU
1960
COURT OF APPEAL
CORAM
- KORSAH C.J.
- VAN LARE J.A.
- GRANVILLE SHARP J.A
Areas of Law
- Tort Law
- Criminal Law and Procedure
1960
COURT OF APPEAL
CORAM
AI Generated Summary
The plaintiff alleged malicious prosecution against the defendant, who had made a statement in an affidavit, leading to the plaintiff's prosecution for forgery. The court found that the prosecution was initiated by the police and not the defendant, thereby absolving the defendant of liability for malicious prosecution. The appeal was allowed, reinforcing that mere provision of information does not make one liable for the subsequent prosecution initiated by others.
JUDGMENT OF KORSAH C.J.
Korsah, C.J. delivered the judgment of the court. (His lordship stated the facts and continued).
The statements given by Essel and Daboah to the police during their investigation have not been produced in this case, but it seems obvious that (since the allegation of forgery was in respect of finger-prints) the police would not have instituted the prosecution against the plaintiff if Essel and Daboah had said that they had put their thumb-prints on the affidavit in question. The police, however, discontinued the criminal case, and the plaintiff was discharged.
Counsel for plaintiff, upon these facts, contended that the law was set in motion against the plaintiff on a criminal charge by the defendant, "and submitted that it suffices that the prosecution ended in the plaintiff’s [p.168] favour," citing Batanhene and Another v. Krampah and Another (1 W.A.L. R. 188.) in support of his contention. This, however, is an erroneous view of the law relating to malicious prosecution, and but for the fact that the Commissioner of Assize who tried the case was obviously misled thereby we would not deem it necessary to set out the principles upon which liability for malicious prosecution arises.
In order that an action may lie for malicious prosecution the following conditions must be fulfilled:
(1) the prosecution must have been instituted by the defendant;
in the proceedings are due. Instigating a prosecution must be distinguished, however, from the act of merely giving information on the strength of which a prosecution is commenced by someone else in the exercise of his discretion. In Fitzjohn v. Mackinder (8 C.B. (N.S.) 78):
“M. sued F. in the county-court for a debt. F. claimed a set-off, in answer to which M. produced his book containing an acknowledgement signed, as he swore, by F. F. denied the signature, which he averred to be a forgery; but the judge, induced by partly the statement of M., and partly by the conduct of F. on previous occasions before him, disbelieving F's denial, committed him under the 14 & 15 Vict c. 100, s. 19, and bound M. over to prosecute. F. was accordingly tried for perjury, and acquitted. — F. then brought an action against M. for maliciously and without probable cause causing him to be prosecuted on an unfounded charge: —Held, by Erle, C.J., and Williams, J., — Willes, J. dissentiente, — that the committal of F. and the binding over of M. to prosecute being the act of the judge, the action was not maint