Abanobi v The State and the Evil of Kidnapping

This article by learned Senior Advocate, Ebun-Olu Adegboruwa, discusses the case of Abanobi v The State, in which a 98 year old woman was kidnapped and kept in the boot of a vehicle by the Appellant and co-accused, examines the elements of the offence of kidnapping and its proof beyond reasonable doubt, while making suggestions to Government on what steps that must be taken to curb this evil, which has become a commercial venture in Nigeria

Introduction

According to the learned authors of Black’s Law Dictionary, kidnapping is “the crime of seizing and taking away a person by force or fraud, often with a demand for ransom (also manstealing)”. For Collins English Dictionary, to kidnap is “to carry off and hold (a person), usually for ransom”. This is corroborated by the learned authors of Jowitt’s Dictionary of English Law as, “the forcible abduction or stealing away of a person, whether a man, woman, or child. It is an offence punishable at common law by fine and imprisonment”. Morally speaking, it is wrong to steal anything, how much less a human being.

In the ordinary course of events, the law frowns on the intent to take away something, with the hope of depriving the owner thereof its permanent use. To kidnap a person therefore, connotes that the kidnapper intends to deprive the victim of the use of his or her life, which is why the law places the offence of kidnapping in the same status as murder, with some statutes prescribing the maximum penalty of death.

When a 98-year-old great-grandmother is kidnapped, then there should be no remedy for the felon, because such a gruesome act borders on irredeemable depravity. There can be no justification for this heinous display of wickedness by the Appellant and his gang, although I am well aware of the challenges faced by citizens in our present dispensation, especially the youth. No matter the difficulties that people face or contend with, it cannot ground the seizure or theft of an old woman, subjecting her to such a traumatic experience of keeping her in the trunk of a car, with all the inconveniences and dangers to her life and safety. But, for the Police and the act of divine intervention, the poor woman would most probably have died from exhaustion and suffocation, even before the criminals got to their evil destination. I join the call upon the Government to do more in job creation and youth empowerment, but the youth too must embrace contentment, diligence and believe in honest endeavours as the surest means of lasting prosperity and human survival, stop chasing miracle money and exploring shortcut options to attain sudden wealth.

Facts of the Case

The facts of this case are as reported in Abanobi v The State (2026) 5 NWLR (Pt.2037) 587. The Appellant, acting in concert with his co-accused on 26th October, 2014, kidnapped and took hostage one Madam Lydia Acho, a 98 year old woman. She was purportedly abducted from her residence, in Isuikwuato Local Government Area in Abia State. However, she was subsequently rescued on the same day within Ikuwano Local Government Area in Abia State, following a car chase by the Police. The Appellant and the 2nd accused person were later apprehended at the locus criminis with the Appellant, having sustained gunshot wounds.

PW2, during her testimony, left the witness box to identify the Appellant and the co-accused person in the dock. Under cross-examination, she stated that she was able to identify the Appellant and his co-accused by the illumination from a flashlight. The Police officer who led the patrol team that accosted the Appellant and his co-marauders and rescued the victim, testified as PW4. He gave evidence of how the Appellant and the co-marauders were accosted by the patrol team, while inside a Peugeot 406 wagon vehicle with which the victim was kidnapped. The driver of the vehicle lost control and rammed it into a tree, and the occupants including the Appellant, ran into the surrounding bushes. The Police shot at the occupants of the vehicle while they were trying to escape, and noticed blood at the scene. Upon approaching the vehicle, the Police rescued the victim from the boot of the vehicle, and took her to the hospital. With the help of the community vigilantes, the Appellant, with a bullet wound, and the 2nd accused person were arrested from the bush. The Appellant’s two phone handsets, were recovered from the vehicle.

Following his apprehension, the Appellant made a statement to the Police, exhibit “B”, and was the sole witness in his defence. His story was that he too was kidnapped by the two passengers he carried in the Peugeot wagon, on his way from his village in Anambra State to Aba. He admitted that he was in the vehicle with which the victim was kidnapped and taken away. He was there when the Police led by PW4 accosted them, the vehicle rammed into a tree, the Police shot at them, and he bolted and ran inside the bush and slept there till the following morning for his safety. He further testified that the following morning, he came out from his purported concealment within the bush with the aim of reporting the incident of kidnapping at the Police station. However, contrary to his alleged intention, he was instead apprehended by the Police and subsequently, charged with the very act of kidnapping he intended to report. He stated that he was released by the fleeing kidnappers amidst a barrage of gunfire, one of which hit him. However, in his extra-judicial statement, he claimed that he remained in the trunk of the car, while one of the two alleged hijackers stood guard over him.

Judgement

At the conclusion of trial, the trial court in its judgement convicted the Appellant and sentenced him to death, for the offence of kidnapping contrary to section 3(a) of the Prohibition of Terrorism, Kidnapping, Hostage-Taking, Use of Offensive Weapons or Explosives and Other Threatening Behaviour Law No. 10 of Abia State, 2009. Dissatisfied, the Appellant appealed to the Court of Appeal which affirmed the judgement of the trial court, and dismissed his appeal. Still dissatisfied, the Appellant appealed to the Supreme Court where he contended that the Respondent failed to prove the offence charged, as there was no evidence that he kidnapped the victim for the purpose of payment of ransom. In determining the appeal with final dismissal, the Supreme Court considered the provision of Section 3(a) of the Prohibition of Terrorism, Kidnapping, Hostage-Taking, Use of Offensive Weapons or Explosives and Other Threatening Behaviour Law, No. 10 of Abia State, 2009 which states as follows:

“3(a) Any person who, for the purpose of payment of ransom, kidnaps and takes another hostage is guilty of an offence.”

What Constitutes the Offence of Kidnapping

Section 3(a) of the Prohibition of Terrorism, Kidnapping, Hostage-Taking, Use of Offensive Weapons or Explosives and Other Threatening Behaviour Law No. 10 of Abia State, 2009 stipulates that any person who, for the purpose of payment of ransom, kidnaps and takes another person hostage is guilty of an offence. The section suggests an acknowledgment of the distinction between the offence of kidnapping as understood within broader legal jurisprudence, and the specific instance contemplated under that legislation where the element of “for purposes of payment of ransom” is expressly incorporated as a necessary and constituent element for establishing guilt. The distinction is pertinent, when considering the general principles governing the offence of kidnapping.

Section 3(a) of the Prohibition of Terrorism, Kidnapping, Hostage-Taking, Use of Offensive Weapons or Explosives and Other Threatening Behaviour Law No. 10 of Abia State, 2009 prescribes that the kidnapping and taking another hostage must have been actuated by the intention to ask for, or for the purposes of payment of ransom. It does not provide that for the offence of kidnapping to be complete, the ransom must have been paid. It only prescribes manifestation of an intention by the abductor, of demanding for or obtaining payment of ransom.

What this postulates is that, where the definition of kidnapping includes abduction for some specific purpose, the mens rea that the prosecution must prove in order to obtain a conviction must include the specific purpose. Therefore, it is not enough to prove that the Defendant intended to abduct the victim. In order to secure a conviction of the Defendant, the prosecution must prove that the Defendant abducted the victim with the specific intention of obtaining payment of ransom. There must be an indication on the part of the Defendant of trying to obtain an advantage, or holding the victim for ransom. The prosecution has to prove beyond reasonable doubt, that the accused intended to detain the alleged victim, in order to demand and obtain a sum of money for the alleged victim’s release. It does not matter whether the Defendant in fact demanded money, or whether the Defendant succeeded in obtaining any money. There must be some overt act, manifesting that intention.

In the instant case, it was clear that the intention of the Appellant and his co-accused, was to kidnap and take the victim for the purpose of payment of ransom. Contrary to the Appellant’s submission, both the trial court and the Court of Appeal did not speculate on whether the victim was kidnapped for the purpose of ransom. The intention of the Appellant and his co-accused person to demand ransom could be inferred from their conduct, given the overall circumstances of the case. The ingredients of the offence were established against the Appellant.

Probable Motivations for Kidnapping

The jurisprudence of the offence of kidnapping, extends beyond instances solely motivated by demand for payment of ransom. Criminals take hostages as a shield, to help them escape from the scene of a crime. In addition, kidnapping could also be motivated by personal grudges.

Ingredients of Offence of Kidnapping

The prosecution discharges its burden of proving the offence of kidnapping beyond reasonable doubt, when the evidence adduced demonstrates the unlawful taking of the victim against his/her wish. In order for the prosecution to succeed, it has to prove the following facts beyond reasonable doubt:

(a) that the victim was seized and taken away by the accused person; and

(b) that the victim was taken away against his consent or will; and

The offence of kidnapping is complete, when the victim is carried away against his wish. Therefore, the essential elements coalesce around the non-consensual deprivation of liberty through the physical removal of the person from his/her chosen location. The specific intention of the perpetrator, is not a necessary element for the completion of the actus reus of kidnapping in all its forms. In the instant case, the kidnappers were intercepted by law enforcement officers before reaching their intended destination to demand ransom. Therefore, the prosecution was not required to prove an actual ransom demand, in the light of the disruption of the crime by the Police. The essential elements of kidnapping, were sufficiently established beyond reasonable doubt.

The Standard of Proof of Crime and Meaning of Proof Beyond Reasonable Doubt

For the prosecution to establish the guilt of an accused person, evidence must be led to prove such guilt beyond reasonable doubt. Although proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt, it means the prosecution must establish the guilt of the accused person with convincing, compelling and conclusive evidence.

How to Prove Criminal Intention

A Defendant’s intention can be inferred from his conduct, surrounding circumstances and intervening events within which he acts. It is from the manifestation of his conduct, that his intention can be ascertained. The most direct and compelling avenue for establishing intention, lies in the individual’s own articulation. A voluntary confession, freely and unequivocally made, wherein the Defendant explicitly declares his purpose, offers the clearest insight into his state of mind at the material time. However, such explicit admissions are infrequent occurrences.

In the instant case, on a community consideration of the Appellant’s conduct, coupled with the entire circumstances of the case, as well as the events leading to the same, the making of the inference from his obvious conduct could not be speculative so as to cast any doubt on his intention. The Appellant’s intention was in tandem with the particular “for purposes of payment of ransom kidnaps and takes another person hostage”.

The Proper Forum for Attack on Credibility of Witness

The proper forum for an assault on the credibility of a witness is at the trial court, during the heat of the proceedings, and not in a written brief presented at an appellate court. In the instant case, despite the opportunity afforded, the Appellant failed to meaningfully challenge the testimony of PW2. Under cross-examination, she remained steadfast in her assertion that she identified the Appellant by the illumination provided by flashlights. The Appellant’s attempt to discredit her in his brief of argument, was a wrong tactic.

How to Establish Inconsistency in Evidence of Witness

Inconsistency in evidence can only be established, by comparing multiple pieces of evidence given by the same witness. In the instant case, the Appellant contended that PW2’s testimony, relied upon by the trial court, was inconsistent. However, PW2’s extra-judicial statement, which the Respondent sought to tender, was objected to by the Appellant and consequently, marked as rejected at the trial court. So, there was no second version of PW2’s statement on record, against which her testimony before the trial court could be evaluated for contradictions. Thus, the Appellant’s claim that PW2’s testimony was inconsistent, lacked foundation.

Effect of Document Marked Rejected

Once a document is marked as rejected, it remains inadmissible for all purposes within the same trial, and its defect cannot be cured in that proceeding.

The Primary Duty of Trial Court to Evaluate Evidence and Ascribe Probative Value Thereto

A trial court, which has the opportunity to observe the demeanour of witnesses, is best suited to evaluate their credibility and ascribe probative value to their testimony. In the instant case, the trial court rightly held that the prosecution proved its case beyond reasonable doubt on the strength of PW2’s eyewitness account, and the testimony of PW4, who rescued the victim from the trunk of the Peugeot 406 wagon.

Notable Pronouncement

On Serious Nature and Effect of Kidnapping the Old and Elderly, and Duty of the Court to Protect the Vulnerable, Uphold the Law and Preserve Values of Nigerian Society:

Per John Inyang Okoro, J.S.C. at page 610, paras. A-D:

“Kidnapping, in any form, is a heinous offence, but the targeting of a 98-year-old woman, frail and vulnerable, for the purposes of ransom, reveals a depth of depravity that is shocking to the conscience. It is particularly disturbing, that the perpetrators of this crime are young men who have shown a complete disregard for the sanctity of age and the respect owed to our elders, ignoring the hallowed years, the elders sacred right! Kidnapping instills fear, erodes trust, and undermines the sense of security that should prevail in our communities. When the elderly, who are often the most vulnerable, are targeted, it sends a chilling message that no one is safe. It disrupts the social order, and threatens to destroy the bonds of respect and care that hold us together. I hope that this conviction and the sentence imposed, will serve as a deterrent to others who may be tempted to engage in such reprehensible acts. Let it be known that this court will not tolerate such crimes, and will come down heavily on those who perpetrate them. It is our duty to protect the vulnerable, to uphold the law, and to preserve the values of our society”.

Conclusion and Suggestions

The state of crime in the country has become very alarming, especially when life itself has become a tool for commercial ventures. In most cases, kidnapping is seen as a means to enrich the perpetrators, at the expense of the lives of the victims. With the disturbing revelation that even the Government has been paying ransom to kidnappers, citizens have become seriously helpless.

Although many States have adjusted their criminal laws to make the offence of kidnapping punishable with death, this alone will not solve the monstrous problem. Deployment of technology, funding of the law enforcement agencies, inter-agency collaboration between the relevant agencies involved in the investigation and prosecution of crime, effective prosecution of suspected kidnappers, and active engagement of the youth in the formal and informal sectors, are viable solutions for consideration.

There is an urgent need for a holistic overhaul of the entire security architecture of the nation, to make it more effective and result oriented. This is important and critical for national peace and development, as a violence-free environment is a booster for rapid economic development. In addition, political office holders should stop arming youths for political engagements and contests. The danger in this is that such dastardly efforts always backfire, after the main mission has been accomplished. Political thugs become an unwarranted liability on the masses, including their families. The backing provided by political heavy weights, encourages the criminals to advance in their nefarious activities, knowing that even when they are caught, somebody somewhere will intervene to grant them soft landing. This has always been the bane of effective war on crimes and criminals. At the stage of arrest, extraneous interventions work out in their favour to either secure their release, or facilitate favourable prosecution through defective charges, poor investigation and lame prosecution, all meant to create loopholes for the accused person to lap upon to defeat the case against him. Added to this is the need for a central data regime, that will capture the relevant particulars of all citizens. Accurate data is an effective tool, in forensic investigation and analysis.

Curbing kidnapping in Nigeria requires a multifaceted approach, including strengthening intelligence-driven law enforcement, deploying technology like drone surveillance, and addressing economic desperation through job creation. Key strategies involve enforcing stricter NIN-SIM linkage, implementing cashless economy policy to track ransom payments, bolstering community policing, and strengthening judicial processes to ensure convictions. It will also involve technological and financial surveillance by utilising the BVN (Bank Verification Number) and NIN (National Identification Number), to monitor financial transactions and track ransom payments. There should also be improved telecom regulation by enforcing strict, proper registration of SIM cards, to stop criminals from using unregistered phones. Part of this is also to explore advanced surveillance through the deployment of drones for aerial surveillance, and intelligence gathering to monitor high-risk areas. Next is to focus on security and legal reforms by establishing specialised anti-kidnapping units, and enhancing intelligence sharing among security agencies. This will then activate judicial action to fast-track the prosecution and conviction of kidnappers.

In the same vein, there must be urgent measures taken to strengthen border security to prevent the proliferation of weapons. Above all, community and social interventions are very critical, by embracing community policing, empowering local, community-based security to act as intelligence sources, including State Police. Through job creation, the State is able to address the root cause of youth unemployment and poverty to reduce the incentive to commit crimes, while at the same time creating public awareness, by educating citizens on security measures, such as avoiding routine movements and limiting the sharing of personal information on social media. Certain operational tactics should be adopted, including increased patrols and enhancing mobile patrols and increasing security presence in high-risk zones.

In whatever way it can be achieved, the Government must end ransom payments through the implementation of policies that discourage or prohibit the payment of ransom, which fuels the industry. These measures must be supported by political will, and a commitment to combat corruption within the security agencies.

Ebun-Olu Adegboruwa, SAN