YEBOAH AND OTHERS v. BOATENG VII

JUDGEMENT OF CRABBE J.S.C.

This is an appeal by the defendants-appellants from the judgment of Acolatse J. in an action for malicious prosecution in which he entered judgment for the plaintiff-respondent for damages amounting to 750 guineas, inclusive of costs.

The first duty of a plaintiff in an action for malicious prosecution is to prove that the defendant instituted criminal proceedings against him or was actively instrumental in putting the law in force against him in proceedings which terminated in his favour. But proof of this fact alone will not avail him unless he proves further that the defendant acted without reasonable and probable cause and was guilty of malice. Lastly, the plaintiff must prove that he suffered damage as a result of the prosecution.

Before dealing with the evidence I should first examine a few of the relevant authorities on the subject and then state the legal position as I understand it.

The prosecution in this case was commenced by way of preliminary investigation before a district magistrate, who committed the respondent to stand his trial at the Criminal Assizes. But before the trial actually took place the Attorney-General exercising his powers under section 58 of Criminal Procedure Code,1 entered a nolle prosequi and this resulted in the discharge of the respondent. Section 58 of Criminal Procedure Code, 1951, states as follows:

"In any criminal case, and at any stage thereof before verdict or judgment, and in the case of a preliminary enquiry, whether the accused has or has not been committed for trial, the Attorney-General may enter a nolle prosequi, either by stating in Court or by informing the Court in writing that the Crown intends that the proceedings should not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts”

But notwithstanding the words in this section that "such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts," 1 think that it is now fairly well settled that for the purposes of an action for malicious prosecution the entry by the Attorney-General of a nolle prosequi would be sufficient termination of