The Freedom that comes with being able to leave a particular area when you want to is incomparable to anything. Being able to decide where you want to be at a given time is one of your fundamental rights as a human being. Growing up, I remember watching videos and seeing pictures of people held hostage against their wills. I saw the regular switch between desperation, anxiety and hope in their eyes. That is not a good place to be.
When a person is restrained without this consent, he is said to be falsely imprisoned. Under more grave circumstances, he is said to have been kidnapped. Both instances are offences punishable under the Nigerian Law. With the more recent increase in unlawful detention and kidnaps, it is important to understand what our law says about such occurrences.
Kidnapping in Nigeria attracts imprisonment for ten years. This is based on the provision of the Criminal Code in Nigeria. However, certain states in Nigeria like Edo, Delta and Lagos have passed Anti-Kidnapping laws which impose the death penalty on convicted offenders. Kidnapping in Nigeria includes: a person being unlawfully imprisoned by another person such that the former is taken out of Nigeria without his consent; or is even kept within Nigeria but is prevented from applying to court for his release or unable to contact anybody as regards where he is and nobody else is able to gain access to him.
There are certain instances where a person may not be outrightly kidnapped but is being held without/against his consent. In such instances, he is unable to move freely or do what he will normally do. Any person who confines another in this manner is liable to imprisonment for two years.
Kidnapping is an offence while false imprisonment doubles as both an offence and a tort. A tort is not prosecuted by the State like an offence/crime is. Rather, it involves private individuals; where one of the individuals seeks damages or compensation from another for a wrong done to him. It does not involve any form of imprisonment. So basically, where false imprisonment is addressed as a tort, only damages/compensation will be paid to the victim. However, where it is addressed as an offence/crime then a person found guilty of this is liable to imprisonment for two years.
The following are important notes about false imprisonment:
- Total restraint is not necessary before a person can be said to have falsely imprisoned another. So, the fact that there is an alternate exit through which a person could have escaped is no defence to holding a person hostage.
- There need not be physical force or touch for false imprisonment to take place. It could be done by a person exercising his authority over another person. An example is where a person is threatened by another to stay in a particular place to avoid grave consequences. The person so threatened may have to stay because of some form of authority being wielded by his imprisoner.
In as much as false imprisonment is an offence and a wrong, there are certain circumstances where restraint is permitted by the law:
- Parental or other authority: where a parent or guardian lawfully confines a child, he will not be said to have falsely imprisoned the child. However, the confinement must be reasonable based on the circumstances of the case. So, it is not reasonable confinement where a sixteen year old is confined to a room for two days to correct him or her. School teachers have also been seen to exercise authority to chastise children. This must also be reasonable based on the circumstances of each case.
- Consent: where a certain activity is to be carried out on or with a person and this involves restraint of movement during the period of the activity, that person is not falsely imprisoned if he consented to the activity in the first place. However, as it usually is with most general rules, there is an exception. A person’s consent must not be obtained by fraud. Deceit or duress.
- Lawful Arrest: where a person is confined in the process of a lawful arrest, he will not be said to be falsely imprisoned. The person that arrested him must however prove that the arrest was in accordance with law.
In Nigeria, mere words do not constitute an arrest. This means that there has to be actual touch or confinement of a person of a person to be arrested unless there is a submission to custody by word or conduct. Furthermore, a person arrested shall generally not be handcuffed, bound or be subjected to unnecessary restraint, except in the following instances:
- Where there is an order of a Judge, Magistrate or Justice of the Peace to so bind.
- Where there is a reasonable apprehension of violence
- Where there is an attempt to escape
- Where the restraint is necessary for safety of his person. For example, where he seeks to hurt himself in order to escape arrest.