In ALABURA v.

MAINA & ORS (2015) LPELR-41653(CA), the court held as follows:

“Having held that the 4th Respondent had made out both the first and second elements of his
having been charged to Court on the complaint of the Appellant and his having been
discharged and acquitted, that is the prosecution ended in his favour, does it necessarily or
automatically follow that in law once, or the mere fact that a Plaintiff has proved that, the
prosecution ended in his favour he must perforce succeed without anything more? I think not!
The question of presence of malice and lack of reasonable and probable cause is perhaps
the most important elements in the tort of malicious prosecution. This is so because in law,
liability for malicious prosecution does not lie merely by reason of the acquittal of the
Plaintiff but on whether the prosecution from which he was discharged was initiated or set in
motion by the Defendant without probable and reasonable cause and actuated by malice…
The word 'Malice' is generally an emotive term, but in relation to the tort of malicious
prosecution, it means that the criminal prosecution of the Plaintiff was instituted primarily
by the Defendant because of a purpose other than that of bringing an offender to the
justice he justly deserves. It is thus the intentional doing of a wrongful act without legal
justification and may in most cases be inferred from the absence of probable and
reasonable cause… Consequently, without the presence of malice and the absence of
probable and reasonable cause, an acquittal alone does not amount to the tort of malicious
prosecution once the prosecution is shown to have been done on the existence of probable
and reasonable cause and without malice. If the law were otherwise, in my view, then every
unsuccessful criminal prosecution would end up with liability for damages for malicious
prosecution, but that certainly cannot be so!”