By Chidera Nwokeke
The primary responsibility of the government is to provide for security of lives and property as provided in section 14 (2) (b) of the 1999 constitution of Federal Republic of Nigeria. Consequently, the government spends a considerable amount of the nation’s fund on securing lives and property through different security agencies. Sadly, the achievement of this primary purpose of the government seems to be a mirage. The country is just on a reverse gear, because with the ascendency of banditry, kidnapping, insurgency, there is need for the security agencies to perform their duties effectively.
Kidnapping like any other crime is undesirable. For the victims and their families, it is traumatic. Third parties communicated are posed with the puzzle, “our money or their lives” or should we wait for government to secure the release of their citizen? It is quite unfortunate that up till this very day, the Nigerian government has not been able to address or find solutions to the causes of kidnapping in the country. There is a far-flung consensus as to the fact that individuals and families affected by the crime of kidnapping are traumatized by the experience. The kidnappers usually subject their victims and their families to a number of gross human rights violations, assaults or at the very least place them at grave risk of being subjected to these harms. It is against this background that this article examines the civil liabilities of kidnappers for their acts in Nigeria.
Kidnapping involves a person (the kidnapper) taking or carrying away another person (the victim) either by force or by fraud, where the victim does not consent to being taken and the kidnapper has no lawful excuse for taking them. The court in the case of Olaoluwa V. State held By virtue of the provisions of Section 3 (1) (B) of the Anti-kidnapping and Anti-Abduction Law of Ondo State 2010, “kidnap” means “the unlawful removal or exportation of a person from any place where he or she is to another place from the vicinity where he/she is found or the unlawful confinement of a person in any place without his/her consent.”
The court in the case of Odogwu v. State held:
The elements or ingredients of the offence of kidnapping, which ought to be proved beyond reasonable doubt by the prosecution, have been established by the Supreme Court. For example, in the case of Bello Okashetu v State (2016) 15 NWLR (Pt. 1534) 126 at 148 – 149, per Ogunbiyi, JSC, the Supreme Court explicitly stated as follows:- “In order for the prosecution to succeed under this count it has to prove the following facts beyond reasonable doubt. i. That the victim was seized, and taken away by the accused person. ii. That the person was taken away against his consent. iii. That the victim was taken away without lawful excuse. The offence of kidnapping is complete when the victim is carried away against his wish.
The intent of the kidnapper is a decisive element in the crime of kidnapping. The physical taking or removal of a person from his/her home by the use of force, fraud, or coercion amounts to kidnapping. Kidnapping generally includes the seizing, confining, or detention of another person against his/her will. The essence of confinement is not its location but whether the victim, by his or her confinement, is effectively isolated from the usual protections of society. The element of restraint is present, when there is substantial interference with the persons liberty.
It is pertinent to ascertain whether a person who had undergone or is undergoing a criminal trial for kidnapping another can be subjected to a civil claim in respect of the kidnapping? The simple answer to the poser, without any circumambulation, is a resounding ‘YES’. The law has long been settled that a criminal prosecution or even a discharge and acquittal of a wrong doer is not a bar to the institution of a civil action against him by the victim of the wrong committed.
The current position of the law is that the existence of a criminal action is not a bar to the subsequent institution of a civil suit against the same party nor is the appellant’s (accused) discharge and acquittal in the criminal trial a bar to a subsequent civil action against him on the same facts. The failure of the criminal action does not disentitle the victim of the wrong committed from pursing his claim or necessarily mean that the civil action will not succeed. It is possible for the criminal action to fail and the civil action to succeed.
Kidnapping is considered an unlawful deprivation of personal freedom, which is a violation of the fundamental rights. However, kidnapping in Nigeria is even more than that. First, it’s considered a crime by the criminal code, and when kidnapping is done for ransom it is a contravention of International Convention against the taking of hostages. The crime of kidnapping is an offence against the state and it is usually prosecuted by the state. Upon the completion of the criminal proceeding, the kidnapper may either be acquitted or convicted. In any of the decision of the court, justice is said to have been done. However, what is the direct impact or benefit of the judgement on the victim? Thus, there is a need to hold kidnappers liable for their actions in a civil suit and not just their prosecution which could fail or succeed. The following are the civil liabilities a kidnapper can incur in Nigeria upon his apprehension:
- Violation of fundamental rights
- Tort of Assault
- Tort of False Imprisonment
1. VIOLATION OF FUNDAMENTAL RIGHTS:
The court in the case of Osondu & Anor V AG Enugu State & Ors defined Fundamental Right to mean any of the rights provided for in Chapter IV of the 1999 Constitution of Nigeria (hereinafter referred to as 1999 CFRN) and includes any of the rights stipulated in the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
In many instances, the harm suffered by these victims in the hands of their abductors will include the violation of their rights to: life; liberty and the security of the person; freedom from torture or other forms of cruel, inhuman or degrading treatment; freedom of movement; freedom of thought/religion; freedom of association; privacy; work; rest and leisure; food, shelter and clothing; health care; education, etc. The right to dignity of human person under Section 34 of 1999 CFRN is not a nebulous one. The constitution is clear on what it entails. That section provides: 34. (1) Every individual is entitled to respect for the dignity of his person, and accordingly – (a) No person shall be subject to torture or to inhuman or degrading treatment.
Section 2 of the Anti-Torture Act, 2017 outlined torture to include: physical torture, which refers to such cruel, inhuman or degrading treatment which causes pain, exhaustion, disability or dysfunction of one or more parts of the body, such as- systematic beatings, punching, kicking, food deprivation, being tied or forced to assume fixed and stressful bodily positions etc. Torture could also be mental or psychological in nature which is understood as referring to such cruel, inhuman or degrading treatment calculated to affect or confuse the mind or undermine a persons dignity and morale, such as- blindfolding, threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts, denial of sleep or rest etc.
To boot, an action for the enforcement of fundamental right can be brought against a kidnapper(s) by the victim. This action is brought on the premise that during the course of his abduction, the period he stayed in their custody, his fundamental rights were violated by these persons. The court in this circumstance is to award damages against the kidnapper(s) notwithstanding the judgment that may be given or had been given in the criminal prosecution of the kidnapper. The need for the court to award damages against the kidnapper(s) is to preserve and uphold the fundamental right of the victim. The court in its wisdom in awarding damages should take into consideration the financial status of the kidnapper(s) for ease of judgment enforcement.
2. TORT OF ASSAULT:
This is another civil action a victim can bring against a kidnapper. The court in the case of Ndibe & Ors v Ndibe “held that Assault, which can be a tort or a criminal act, is “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. The purpose of the law is to make people free from threat of violence or immediate application of battery.
The elements a claimant (victim) needs to prove to succeed in a claim for assault are:
- That there was a threat to apply force
- That the act will put a reasonable person in fear of battery. In other words, that it was reasonable for the claimant to expect immediate battery.
- That there was a Threat to Apply Force: There can be assault without battery. In assault it is not necessary to prove that the claimant (victim) was actually put in fear or experienced fear by the act of the kidnappers. What needs to be proved is that it was reasonable for the claimant to expect immediate battery.
- That the Act will put a Reasonable Man in Fear of Battery: For the tort of assault to be committed, the act of the defendant complained about must be such that would put a reasonable man in fear that force is about to be applied to him. The act must put a reasonable man in fear of violence. This test is an objective test and it is not subjective to any particular claimant alone. Therefore, where the threat would not put a reasonable person in the shoes of the claimant in fear of violence, the tort of assault is not committed
3. FALSE IMPRISONMENT:
False imprisonment is an act of restraining or restricting or confining the movement of a person within an area without lawful or legal authority or justification. An offence of kidnapping will lead to false imprisonment, where the victim is confined or detained after being taken or moved by the kidnapper.
Elements of false imprisonment the claimant must prove
- A total restraint on his movement
- The restraint is without his consent or justification
- There was no way out of the restraint or restrained area
PRACTICABILITY OF MAINTAINING A CIVIL ACTION AGAINST A KIDNAPPER
In Nigeria, all that an average victim of a crime wants is for his assailant to wrath in jail. Traditionally in our legal system, victims of crimes are often neglected and left without any form of compensation even when the offender has been found guilty and sentenced. Usually at that point, the victim is left in the cold to make personal claims against the convict. It leaves to wonder what could be claimed from a man in jail. In making a paradigm shift from the old order, the ACJA has broadened the powers of the court to award costs, compensation and damages in deserving cases, especially to victims of crime. In doing this, the act adopted and improved on the provisions of the criminal procedure act and criminal procedure code. Going by the provisions of Section 319 of the ACJA, a court may within the proceedings or when passing judgment, order the convict to pay compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant, where substantial compensation is in the opinion of the court recoverable by civil suit.
Section 314 (1) provides that notwithstanding the limit of its civil or criminal jurisdiction, a court has power, in delivering its judgment, to award to a victim commensurate compensation by the defendant or any other person or the State. The Court in considering the award of compensation to the victim may call for additional evidence to enable it determines the quantum of compensation to award in subsection (1) of this section. At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into consideration any sum paid or recovered as compensation under this section. The pendency of criminal proceedings shall not be a bar to a civil action in respect of the same subject matter.
The ability of victims to seek redress for a violation of his legal rights is generally undermined by a series of structural or systemic factors relating to the primacy of the rule of law and the independence of the judiciary in Nigeria. It is pertinent to consider the practicability of maintaining a civil action against a kidnapper who is undergoing a criminal trial or who has been convicted and he is serving his jail terms in custody. Certain factors can make or mar the successful civil action against a kidnapper for his act in Nigeria.
It is the opinion of the writer that the reason why most litigants wait for the criminal proceeding to be determined is for them to have access to the court judgement as evidence for the civil suit. Notwithstanding the genuine intention of the litigants in waiting for the court to determine the criminal proceeding to have access to the judgement as evidence, it is apposite to state that some of the civil claims of the victim may be caught up by time limitation. It is a fundamental principle that fundamental right actions cannot be caught up by statute of limitation, thus the victim can maintain an action under the fundamental right enforcement procedure rules at any time for the act of the kidnapper.
Another danger of waiting for the criminal proceeding to be determined before the commencement of a civil action is that the hope of the victim of using the courts judgement as evidence may be dashed to the walls because, the possibility of the victim securing a conviction against the offender is dependent on how the prosecution handles the matter. It is the submission of the writer that where the victim intends to make a civil action against the kidnapper for his act for civil claims other than fundamental right claims, he should institute the action before the determination of the criminal proceeding in other not to be caught up by statute of limitation.
In Nigeria, access to courts and legal representation for victims of legal rights abuses ultimately depends on the ability of the victims in procuring the requisite financial resources to file court process as well as to afford legal services. Hence, access to courts and legal representation in Nigeria is at least partly driven by socio-economic factors. One of these socio-economic factors is poverty. Poverty has an adverse effect on access to courts and legal representation by negatively affecting the ability of victims to retain lawyers and use legal institutions, as well as offsetting the opportunity cost generated by being away from income-generating activities in the course of the litigation. As aptly observed by Michael Anderson, it is litigants and their lawyers who determine which disputes will reach the courts, when and how often courts will be petitioned, and how intensively conflicts will be pursued.
Justice Aguda T.A opined:
What fair hearing can a poor person hope to hear when he cannot even boast of a square mean a day? if he is cheated of his right; he would certainly prefer to leave the matter in the hands of God than risk death through starvation as a result of investing all that he and his family can boast of as total of their worldly possession in trying to asset an illusory right to fair hearing of his grievance by the courts
In the later part of the above presentation he mused:
To think that a very poor person can have a meaningful hearing in Court in the pursuit of his right real or imaginary is to live in fools paradise.
The pendency of a criminal action while a civil action is being instituted for the same act of the defendant can have adverse effect like in the cost of legal representation especially if the partys financial status is low. However, in the quest to ensure that there is access to justice, the law permits the victim/Claimant/defendant to represent themselves without the service of a lawyer in a civil suit. Furthermore, in criminal matters, the court can aid the defendant in securing a legal representation if his financial status is below the minimum wage as provided under the Legal Aid Act. However, considering the complexity involved in court proceedings, can a layman actually defend himself effectively?
Assuming the kidnapper/defendant is already serving his jail term in prison, does it have any direct impact on the civil proceeding? It is the submission of the writer that the detention of the defendant in the correctional centre may not have a direct impact on the proceeding. The rationale behind this view is that the Nigerian Correctional Service is one of the Institutional justice providers; thus they can ensure the attendance of the defendant by bringing him/her to the court every time.
Another factor that may affect the practicability of civil action against a kidnapper is the enforcement of judgment. The Victim/Claimant may secure a judgment that may require the defendant to pay money or require him to do or abstain from carrying out a particular act or acts. Thus, it behoves the winning party to take some preliminary steps to invoke the machinery of the court in various ways to enforce the court order to secure the benefit of his success in litigation. The basic function of enforcement is to provide the judgment creditor with the fruits of the judgment, to obtain for him or her due satisfaction, compensation, restitution, performance or compliance with what the court has granted by way of remedy.
What happens when the defendant is serving his jail term and his financial status or properties cannot discharge the judgment debt? What happens when the defendant is serving his jail term and refuses to pay the judgment debt, is it necessary for the court to issue a judgment summon on him? Where movable or immovable properties of the judgment debtor cannot be found or are insufficient to satisfy the judgment debt, the judgment debtor may commence an action against the judgment debtor under bankruptcy proceedings in the case of an individual.
Judgment Summons is a procedure that is available for enforcing money judgment against a judgment debtor who can pay the judgment debt but refuses to pay. The judgment debtor is brought to Court to be examined as to his means, if found to have means and refusing to pay the debt he shall be committed to prison or liable to any other order the Court might make until he pays the debt. It is the opinion of the writer that it will be unnecessary for the court to remand the judgment debtor in prison because he is already serving his jail term but rather the court can make other orders to ensure that the judgment creditor enjoys the fruit of his judgment. However, where the defendant was acquitted in the criminal proceedings but he refuses to pay the judgment debt, judgment summon can be issued on him and the court can make an order for him to be remanded in the prison till he pays the judgment debt.
Conclusively, ubi jus ibi remedium, i.e. where there is a wrong, there is a remedy. The act of kidnapping is a criminal offence against the state and against humanity and the act also violates other legal rights of the victim. So, inasmuch as the prosecution will prosecute the kidnappers, the law also permits the victim to maintain civil actions against the kidnapper. With the introduction of compensation to victims, the purpose of the ACJA is being achieved in that, the Act does not only seek to punish the offender but also to mitigate the hardship caused by the said crime committed, therefore serving justice in both ways. The knowledge that kidnappers can incur civil and criminal liability for their act will strengthen our justice system in that it will serve as a deterrent to the offence of kidnapping.
Chidera Nwokeke is a student of Nigerian Law School, Lagos campus. Nwokekechiderachidera@gmail.com, 08120945787
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