Mr Muyunda, a city prosecutor, runs for mayor and loses the election. He believes that a local businessman named Marvellous, who is active in politics played a large role in sabotaging his campaign. Mr Muyunda became obsessed with the idea that Marvellous caused him to lose the election. When some questions came up about Marvellous mixing of business and politics. Mr Muyunda takes the lead role in the prosecution of Marvellous for attempting to bribe public officials in the advancement of his business. Eventually, the lawyers for Marvellous were able to expose the fact that the case was nothing but a hate crusade. The charges were dismissed but only after several months of investigation and numerous hearings before the criminal court judge. Marvellous paid thousands of dollars to his lawyers and his business hit rock bottom.
Advise Marvellous on the
legal issue that arises from his situation with the support of case law.
The clear emergent facts
of this case suggested it is solely centred on malicious prosecution. Malicious
prosecution arises when one party institutes criminal proceedings in a court of
law against another party on malice, and without reasonable ground or probable cause
or show that the other party has a case to answer. For a successful claim to
arise, the claimant, throughout the proceeding should not be found guilty or the
proceedings should be terminated in a claimant’s favour as well as demonstrate that
they suffered damage as a result of the proceedings. This piece of writing is
primarily centred on advising Marvellous on the tortious issue of malicious prosecution
that arises from his situation with the support of case law. It will start by
establishing all the elements necessary for liability to arise in the tort of
malicious prosecution with the present facts, and then a conclusion will
follow.
Mr Muyunda caused the prosecution
against Marvellous and throughout the criminal proceedings, Marvellous was
found not guilty of attempting to bribe public officials as demonstrated in Reynold
v Kennedy[1]
where it was held that the proceedings, terminated in favour of the claimant,
is necessary for the claim for malicious prosecution. Mr Muyunda in causing the
proceedings abused his public authority. The prosecution was without reasonable
or probable cause and this constituted the third element of malicious prosecution
elaborated in Anti-Corruption Commission v Sambondu[2]
where the defendant was accused of abusing the authority of his office but
was acquitted as he had no case to answer because there was no reasonable
ground or probable cause for the action against him. The Prosecutor wilfully,
and without a just cause began the proceedings after genuinely losing an
election and believing that Marvellous sabotaged his campaign because he is
active in politics. This reasoning by Mr Muyunda is based on ill will (malice)
which constitutes the fourth element of malicious prosecution as demonstrated
in Brown v Hawkes[3]
where it was held a prosecution based on malice renders a malicious
prosecution.
Marvellous suffered a loss
in paying thousands of Kwachas to his lawyers, and his business lost money. After
a successful claim for malicious prosecution, he will likely be entitled to
receive damages as illustrated in Hamalala and Hachulu v Attorney General[4]
where the claimant proved their case of malicious prosecution after proceedings
against them for cultivating cannabis failed because there was no evidence and
thus, they had no case to answer and they were entitled to receive damages. Similarly,
in Zambia Telecommunications Limited v Mwale,[5] the claimant proved their
case of malicious prosecution after it was found that the prosecution was of
malice and there was no reasonable ground to believe they were stealing Zamtel
cables when they were cultivating their fields the court award them damages for
malicious prosecution.
In conclusion, Marvellous
is likely to succeed in the claim for malicious prosecution and receive damages
for the losses that he has suffered as a result of Mr Muyunda's actions against him.
Reference
Case law
Anti-Corruption
Commission v Sambondu (Appeal 54 of 2013) [2017]
Brown v Hawkes [1891] 2
QB 718.
Hamalala and Hachulu v
Attorney General (HP 344 of 2007) [2012]
Reynold v Kennedy 95 E.R.
591
Zambia Telecommunications
Limited v Mwale (129 of 2018) [2019]