Civil Liabilities of Kidnappers in Nigeria
The primary responsibility of the government is to provide for the security of lives and property as provided in section 14 (2) (b) of the 1999 constitution of Federal Republic of Nigeria.
Sadly, the achievement of this primary purpose of the government seems to be a mirage. The country is just on reverse gear because with the ascendency of banditry, kidnapping, insurgency, there is a 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 the 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, etc. 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 be 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 established the elements or ingredients of the offence of kidnapping which the prosecution must prove beyond a reasonable doubt to include:
- That the victim was seized, and taken away by the accused person.
- That the person was taken away against his consent.
- 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. The element of restraint is present when there is substantial interference with the person’s 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 with respect to 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 discharge and acquittal of a wrongdoer 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. 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 fundamental rights. Kidnapping in Nigeria is even more than that as it is considered a crime by the criminal code. The crime of kidnapping is an offence against the state and it is usually prosecuted by the state. 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
- The tort of False Imprisonment
- Violation of Fundamental Rights:
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, etc.
The right to dignity of the human person under Section 34 of 1999 CFRN is not a nebulous one. The constitution is clear on what it entails. That section provides for the rights of every individual to the dignity of his person and protection from torture or inhuman 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, 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 person’s dignity and morale.
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 of 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. This 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.
- 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 the threat of violence or immediate application of the 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: 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 person in fear of battery. In other words, that it was reasonable for the claimant to expect immediate battery. 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
- 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 suffer 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. 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.
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.
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.
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 a total of their worldly possession in trying to asset an illusory right to a fair hearing of his grievance by the courts”
The pendency of a criminal action, while a civil action is being instituted for the same act of the defendant, can have an adverse effect like in the cost of legal representation especially if the party’s 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?
Another factor that may affect the practicability of civil action against a kidnapper is the enforcement of the 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? Is it necessary for the court to issue a judgment summons 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.
Where the defendant was acquitted in the criminal proceedings but he refuses to pay the judgment debt, judgment summons 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. So, in as much 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 actions will strengthen our justice system in that it will serve as a deterrent to the offence of kidnapping.
