Without any doubt, Chief Mike Ozekhome (SAN) has been an iconic and legendary figure in the battle to enthrone constitutional liberties in Nigeria, since the days of the military Jaunta. He cried his voice hoarse for the freedom of the oppressed, repressed and voiceless members of the society. The last time we were together in Ibadan was on the 5th of April 2013. During a conversation, he comically alluded that when he emerged from his mother’s womb, he struck out a fist, crying freedom! Freedom!! He maintained that freedom was the birthright of every human being. I agree with him.

It was therefore most ironic that he was deprived of his personal liberty for twenty days by kidnapers who abducted him along Benin/Auchi Road, Edo State on the 23rd of August 2013. According to him, he was blind folded and driven through a very rough road for four hours and subsequently confined in a mosquito infested hide out, where he was held incommunicado far from civilization.

Indeed, this calls to mind the recurrent abuse of personal liberty. In the times past, the main culprits were agencies and agents of Government such as members of the police and armed forces. Today, private individuals and gangsters now constitute a major threat to the liberty of fellow citizens. This has sparked off major debates on adequate punishment for offenders. The question as to whether the gravity of punishment invariably translates to deterrence, is a matter for another tritise.

FALSE IMPRISONMENT AS A CRIMINAL OFFENCE
Under the Nigerian Criminal Code, any person who unlawfully confines or detains another in a place against his will or otherwise unlawfully deprives another of his personal liberty is guilty of a misdemeanor and is liable to imprisonment for two years. See section 265 of the criminal code. For the offence to be proved, it must be shown that the confinement of the victim is total. So, to lock the door to a room where a person is sleeping, so that he cannot exit the room at will, amounts to the crime of false imprisonment.

The offence of kidnapping is essentially made up of the same ingredients as false imprisonment. The additional elements contemplated by the criminal code under section 364 are as follows:
(a) Unlawful imprisonment or total restraint and removal of a person from Nigeria.

(b) Unlawful detention of a person in a place within Nigeria against his will, in such as manner that the victim is unable to disclose his location to any person whom he desires.

(c) Unlawfully confinement of a person in a manner that prevents other persons who are so entitled, from discovering his location or having access to him.

(d) Total restraint or confinement of a person in a manner which prevents him from applying to a court of law for his release.

When the elements outlined in paragraphs (a) – (d) above are present, it complicates the offence of false imprisonment under 365 of the criminal code. The effect is that the offence is elevated to the status of kidnapping, not merely false imprisonment. So we can say on a lighter note that kidnapping is the senior brother of false imprisonment because of the aggravating elements. It is no surprise that section 264 imposes a term of imprisonment for ten years for the offence of kidnapping as against imprisonment two years for false imprisonment. Under section 265 of the criminal code

With the apparent lethargy by most State Chief Executives to impose the death sentence for kidnappers, it appears that the abductors of Mike Ozehhome if apprehended will get off with a term of ten years imprisonment or less. The dynamics of the offence has however been complicated by the murder of four policemen in the process of the offence. Therefore we may still be looking at the death penalty.

FALSE IMPRISONMENT AS A CIVIL WRONG.
Where a person is charged with the offence of false imprisonment or kidnapping, the State is the complainant, while the victim testifies on behalf of the State. The aim is to punish the offender for the crime which is deemed to be one against the society.

 This does not preclude the victim from taking out a civil action against his aggressor, whether such an aggressor is a private citizen or an agent or agency of Government. Where the victim takes out a civil action to redress the infringement of his right to personal liberty through false imprisonment, he is entitled to compensation as well as public apology. This is expressly provided in section 35(6) of the Constitution of the Federal Republic of Nigeria 1999.

This is because a citizen is entitled to the right to personal liberty as provided by section 35(1) of the same constitution

 In Civil Law jurisprudence, false imprisonment is defined as every restraint of the liberty of a freeman (a citizen). Such restrain need not be in the usual prison operated by the State. For the liability of the aggressor to be made out, it must be shown that the victim’s freedom of movement in every direction must have been restricted.

 Therefore, where an escape avenue, however inconvenient is available, the aggressor is not liable for false imprisonment, except where such means of escape is dangerous or unreasonable.

 It is interesting to note that you may be liable for false imprisonment even though you did not use physical force to restrain the victim. Hence if you are a police man or traffic officer, you may be liable for false imprisonment if you unlawfully compel a motorist or commuter to accompany you to the station or confine him to his vehicle without any lawful excuse and without permitting him to come at his own time or to leave when he desires.

You can therefore be said to have enforced the restraint with wrongful exercise of authority even without the use of physical force.

 Also as a creditor, if you invite your debtor with the help of a police man from a motor park or an air port while he is ready to travel, out of fear that the debtor may escape or abscond, you may be liable for false imprisonment because the debtor was totally restrained by the mandatory invitation. This is similar to the case of Aigboro V Anebunwa (1966) NNLR Pg 87.

 Also in the case of Union Bank Ltd V Ajaku, (1990) 1 NWLR part 126 Pg 328, the court held that Union Bank was liable for the false imprisonment of a customer who was prevented from leaving the bank by a gate man.

DEFENCES TO A SUIT FOR FALSE IMPRISONMENT
Over time, certain circumstances have been found to operate as excuse for confinement of a citizen. Examples of such defences are as follows:
 A parent or guardian may confine a child without liability for false imprisonment, provided the degree of force used for such confinement is reasonable in circumstance. Under section 295(1) of the criminal code, confinement for the purpose of correction is limited to children under the age of 16. Hence it would be an offence for instance, to confine a female who is above 18 years old, for the purpose of preventing her from associating with a boy friend, not approved by her father. Under the law of torts however, such limitation does not exist.

 Also, a school teacher has an independent right to confine a pupil for the purpose of discipline. This right is not based on any right delegated by the parents or guardian. Such confinement must be moderate and tailored for conditioning the child to a disciplined behavior within the school as a institution, and it must be moderate and reasonable

 Similarly, a captain of a ship or the pilot of an air craft may confine a person aboard the ship or aircraft for the safety of the vessel or its occupant.

 A person is not liable for false imprisonment if the alleged victim consented to such confinement. Hence a patient who submits to surgery cannot claim against a doctor who confines such patient under anesthesia for the purpose of treatment. However, the consent of the victim must not be obtained by fraud. This is the doctrine of volenti non fit injuria. (to a willing person, it is no wrong).

LAWFUL ARREST AS A DEFENCE FOR A CLAIM OF FALSE IMPRISONMENT:
The main point in considering whether arrest is lawfully or not, is whether an arrest was conducted upon reasonable suspicion of the citizen having committed a criminal offence or whether such arrest or detention conforms with procedure prescribed by law.
 Reasonable suspicion is defined in the case of Oteri V Okorodudu (1970) 1 ALL NWLR PG 195. In that case, Justice Lewis of the Supreme Court (as he then was) opined that the belief that a crime was committed must be reasonably based on facts which are available before the arrest and not afterwards. The belief that a person has committed an offence must be objective enough to convince every reasonable man who is privileged to have such information leading to the arrest.

 A police officer may be liable for false imprisonment if he fails to comply with the procedure laid down by law. The procedure include the requirement that a person shall not be handcuffed unless there is reasonable apprehension of violence or escape. A person must also not be confined with a handcuff unless there is possibility that his safety or that of others may be prejudiced. Finally where a person is arrested, he must be informed of the reason for his arrest.

CONCLUSION:
Vigilance is the eternal price that we must pay for our liberty. Citizens must be watchful, sensitive and proactive in resisting any infringement of their liberty either by the agencies of the State or by fellow ubi jus ibi remedium citizens. The principle in law is “where there is a right, there is a remedy” my experience as a practicing lawyer is that there is reprehensible apathy on the part of the Nigerian citizen to seek redress where his right to personal liberty is threatened except in extreme cases. My advise is that where you find that your personal liberty has been, is being or likely to be infringed, always as a lawyer.

By Ewere Odiase Esq. ACIArb.
www.odiase-lawyers.com
08038784639
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