Abuse of process versus malicious prosecution


Access to the courts is guaranteed to assert a legal right. Nonetheless, claimants often exploit this right by filing cases that outrightly abuse access to the courts, sometimes without any reasonable ground to succeed.

The tort of abuse of process seeks to strike a balance between access to the court and public policy to safeguard defendants from harassment, humiliation and damages.

This article examines the origin of this tort and the essential conditions to prove it. The article further compares the tort of abuse of civil process with the related tort of malicious prosecution. It also comments on the limited application of this tort in Nigeria and its usefulness in reducing the burden on judges.


The tort of abuse of process is a common law principle dating from approximately 1839. Separate from procedural abuse of court processes, it arises when a person deliberately misuses a court claim to achieve an ulterior motive for which such process was not created. Just like the procedural abuse of court processes, in Clerk & Lindsell, the tort was described as "vexatious use of process".(1)

In Heywood v Collinge,(2) the defendant caused the claimant to be arrested in an action commenced at the Exchequer. He later chose not to go ahead with that action and the claimant was discharged. The claimant then commenced fresh proceedings at the Queen's Bench on the same cause of action, and again, arrested the claimant. Queen's Bench held that an action might lie against the claimant regarding the second arrest without considering the legality of the proceedings. Similarly, in Waterer v Freeman,(3) an action was held to lie against a judgment creditor who, pending an execution, unnecessarily and maliciously seized his debtor's goods under a second writ. The court held the creditor's action as a tortious abuse – that is, a vexatious use of court process.(4)


Street on Torts defines "abuse of civil process" as the use of a legal process in its proper form to accomplish a purpose other than that for which it was designed causing damage to a defendant.(5) It is a tort that involves the misuse of the public right of access to the courts. A classic example is where a claimant institutes an action to coerce a defendant to do something they ordinarily cannot be compelled to do – for example, to pressure them into an unjustified settlement. In such instance, the claimant would be held to have improperly used the existence of a suit to achieve a goal for which it was not created.

Typically, an abuse of civil process is stoked up by an ulterior motive or collateral advantage. Hence, if either is established, it is immaterial that the proceedings were lawfully commenced.(6)

In Goldsmith v Sperrings Ltd,(7) Bridge LJ established an objective test on what may amount to abuse. The court held that a suit will not constitute abuse if the intended relief is reasonably related to other forms of remedies the litigant can legally obtain for that wrong.

Relatedly, Etherton LJ, in Land Securities Plc v Fladgate Fielder,(8) held:

the tort is not committed by a person who institutes proceedings with a genuine interest in, and an intention to secure their successful outcome, even if the claimant's motives are mixed and they hope that they may also achieve an objective not itself within the scope of the proceedings.

Therefore, if a claimant's intended outcome is inextricably bound to the regular outcome of a successful litigation of that nature, it cannot be regarded as extraneous. For example, if A buys a property to drill for oil next to B's house, and B sues A to restrict A from disturbing their use of their house, it will not be an abuse of process if B's intention for the suit is for A to buy B's house or relocate B to another location so A can continue to drill. A claim for abuse of process will, however, succeed if the predominant purpose of the suit is collateral and extraneous even if the defendant can point to a slight legitimate purpose.

Abuse of process versus malicious prosecution

The tort of malicious prosecution is committed where the defendant maliciously and without probable cause, initiates against a claimant, court proceedings that terminate in the claimant's favour and which result in damage to the claimant.(9)

Abuse of process is similar to the tortious action of malicious prosecution in the sense that both causes of action involve the improper use of the right to the courts. However, both causes of action are different, as they require a varying level of factual proof and elements.

To succeed in an action for abuse of process, a claimant must show:

  • the existence of an ulterior purpose or motive underlying the use of the process;
  • some act in the use of the legal process not proper in the regular prosecution of the proceedings; and
  • that the claimant has suffered damages.(10)

But, to succeed in an action for malicious prosecution, the claimant must prove that:

  • the defendant instituted a prosecution against the claimant;
  • the prosecution ended in the claimant's favour;
  • the defendant has no reasonable and probable cause for prosecution;
  • the defendant acted with malice; and
  • the claimant suffered damages to their person, property, and reputation.(11)

As shown above, a perfectly founded proper suit can still amount to an abuse of process. This is a major distinguishing factor between the tort of abuse of process and malicious prosecution.

Additionally, in establishing the tort of abuse of civil process, the claimant is not required to prove malice, want of reasonable and probable cause or that the suit terminated in their favour. The claimant must only prove the defendant intentionally used the process for an improper purpose.(12)


The tort of abuse of civil process is part of the received English law in Nigeria. So, the common law tortious principles as of 1900 are still applicable in Nigeria. Yet, the tort is not commonly used in Nigeria unlike the related tort of malicious prosecution. The reason for this is unclear. However, it is not because there are no facts to ground such a relief.

Indeed, experience has shown that this tort is on the rise in Nigeria. Cases are filed daily without any merit but to pressurise defendants, especially multinationals, to negotiate settlement out of court. Court orders are also obtained predominantly in bad faith to stifle defendants. For example, a case was filed recently by a claimant whose name had been struck off the company register with the intention to get a Mareva injunction so that the defendant might negotiate an out-of-court settlement.

Lack of awareness of this principle, which is obscured compared to malicious prosecution, could be why there are very few cases on it. This should apparently be a veritable tool, which we recommend for defendants who have long suffered at the hands of claimant-speculators. Not only will this serve the interest of justice, but it will also deter potential claimants from instituting actions with ulterior motives. This will also free up the court's dockets for genuine claims.

For further information on this topic please contact Muyiwa Ogungbenro, Similoluwa Adeyemi or Esther Okoro at Olajide Oyewole LLP (a member of DLA Piper Africa) by telephone (+234 1 279 3670) or email ([email protected], [email protected] or [email protected]). The Olajide Oyewole LLP website can be accessed at


(1) Clerk & Lindsell (17th edition) Common Law Library No. 3.

(2) [1839] Ad & E 634.

(3) (1669) 74 ER 994 (B).

(4) Josiah Otameh v Adekunle Adesanya & Co (2016) LPELR-41135(CA).

(5) Street On Torts (sixth edition).

(6) Grainger v Hill (1838) 4 Bing NC 212.

(7) [1977] 1WLR 478.

(8) [2010] 2 WLR 1265.

(9) Alhaji Hassan Alabura v Alhaji Saleh Danladi Maina & Ors (2015) LPELR-41653(CA).

(10) Cartwright v Wexler, Wexler & Heller, Ltd, 369 NE2d 185, 187 (Ill App Ct 1977).

(11) Mr Adejola Adepoju Adebowale v Mr Durojaiye Segun Robinson (2018) LPELR-44424(CA).

(12) Josiah Otameh v Adekunle Adesanya & Co (supra).