By Mweemba Chuulu
October 22, 2025
Facts
The case revolved
around a claim of malicious
prosecution brought by the
plaintiffs following their acquittal on criminal charges. The
plaintiffs had been accused of cultivating psychotropic substances, namely
cannabis, contrary to section 9 of the Narcotic Drugs and Psychotropic Substances Act. Acting on this information from
informers, officers of the Drug
Enforcement Commission (DEC) conducted a search in Mazabuka and
discovered cannabis plants in a field believed to be associated with the
plaintiffs. Relying on this evidence, the plaintiffs were arrested, charged,
and prosecuted before the Subordinate Court.
After trial, the
Subordinate Court found that no
evidence linked the plaintiffs to the cultivation, noting that they were not present
when the cannabis was uprooted and that no witness identified them as the
cultivators. The court therefore acquitted them for lack of a case to answer.
Following their
acquittal, the plaintiffs commenced civil proceedings in the High Court,
alleging that the criminal prosecution had been maliciously instituted and without reasonable or probable
cause, causing them humiliation, anxiety, and expense. They
sought damages, interest, and costs.
Issue
Whether the prosecution
of the plaintiffs was instituted without
reasonable and probable cause and actuated
by malice, thereby constituting the tort of malicious
prosecution?
Held
The High Court dismissed the claim for malicious
prosecution. Dr Justice Matibini SC held that the tort of malicious prosecution
is grounded in the abuse of judicial process through the wrongful setting of
the law in motion, and is not favoured by the courts because it runs counter to
the public interest in the prosecution of suspected offenders. While the
plaintiffs proved the first elements of the tort: prosecution and the termination
of the prosecution in their favour, they failed to prove the essential elements
of absence of reasonable and probable cause and malice. The court held that the DEC officers had reasonable grounds to suspect the
plaintiffs, considering that the cannabis was discovered in a field connected to
them. The court, further stated that an
acquittal does not automatically imply a lack of reasonable cause, the
plaintiff musts demonstrate that the prosecution was initiated without a
reasonable cause. Furthermore, there was no evidence of improper motive or
personal animus on the part of the officers, who acted in the honest discharge
of their duties.
Case Analysis
1. The Nature of the Tort
Justice Matibini
reaffirmed that the tort of malicious prosecution lies in abuse of the judicial process, not
in mere failure of prosecution. Citing Mohammed Amin v Jogendra Kumar Bannerjee,[1] he
underscored that the law seeks to prevent the perversion of justice for improper motives. The
tort thus operates as a safeguard
against the misuse of prosecutorial power, balancing the
citizen’s right to liberty against the State’s duty to prosecute suspected
offences. This balance reflects a central tension in this tort: protecting
individuals from arbitrary prosecution without deterring legitimate criminal
proceedings.
2. Reasonable and Probable Cause
The judgment draws
heavily on classical authorities such as Hicks v Faulkner[2]
and Glinski v McIver,[3]
defining reasonable and probable cause as an “honest belief in the guilt of the
accused, founded upon reasonable grounds.” In Hamalala, the DEC officers’ belief was deemed reasonable because the
cannabis was found in a field connected to the plaintiffs. The Court accepted
that an honest and
reasonable suspicion justified the prosecution, even though it
ultimately failed. This reasoning reinforces the objective-subjective test:
while prosecutors must genuinely believe in the accused’s guilt, that belief
must also be objectively reasonable. The Court’s refusal to equate acquittal
with lack of reasonable cause preserves the autonomy of the prosecutorial function,
ensuring that fear of civil liability does not chill legitimate law
enforcement.
3. Proof of Malice
The Court reiterated
that malice
in law denotes an improper
purpose, not necessarily personal spite. Drawing on the reasoning
in Mbanga
v Attorney General,[4]
Justice Matibini held that malice exists only where the prosecution is driven
by motives other than the pursuit of justice. No such motive was established in
this case as the officers had acted in the bona fide discharge of their duties.
Importantly, the Court noted that malice
and absence of reasonable cause must be proved separately.
While absence of reasonable cause may suggest malice, it does not automatically
establish it.
4. The Case’s Broader Significance
The Hamalala decision illustrates the restrained operation
of the tort of malicious prosecution in Zambian jurisprudence. It positions the
tort as a protective
but limited remedy, safeguarding individuals from deliberate
abuse while affirming the right of the State to prosecute on reasonable
grounds. By distinguishing between wrongful prosecution and honest mistake, the
Court preserved the delicate balance between individual liberty and public order. In
doing so, Justice Matibini echoed the policy considerations articulated in
English and Commonwealth jurisprudence: that while the law must protect the
innocent from malicious proceedings, it must not undermine the legitimate
enforcement of the law.
Conclusion
This case serves
as a leading Zambian authority regarding malicious prosecution. It clarifies
that the tort functions primarily as a shield
against misuse of prosecution, not as a weapon against bona
fide prosecution.
About the author:
Mweemba Chuulu is a second year law student at The University of Zambia and
Author at Amulufeblog.com. he writes this article in his personal capacity.
