In Nigeria, it has become common occurrence for people to engage the services of law enforcement agencies to recover debts. It is even more worrisome that this practice is also found among lawyers. Situations where clients approach lawyers to recover debts for them and they add as part of their strategy, option of using the instrumentality of the Nigerian Police, (the Police); The Economic and Financial Crimes Commission (EFCC); The Nigerian Army (the Army) and the likes to threaten and harass the debtor into paying the alleged debt. The routine is often for the debtor to be locked up for a couple of days and thereafter made to undertake to pay the owed sum within a short time. In some cases, they are made to sign post-dated cheques in the sum being owed. These methods are not only illegal, they are unconstitutional and must be checked.
Nigeria, just like other civilized countries have security agencies established by laws with provisions regarding the scope of their functions. The law establishing the Police is both the constitution (see section 214 ) and the Police Act. The EFCC is established pursuant to the provisions of the EFCC Act. The scope of the powers and functions of these law enforcement agencies are also provided under their enabling laws. Sections 6,7, and 46 of the EFCC Act provides for the functions of EFCC whereas the functions of the Nigerian Police are spelt out in section 4 of the police Act. By settled principle of law, the agencies cannot act outside their enabling laws.
Clearly, owing debt is not a crime and cannot by any stretch of imagination be referred to as a crime. It is legitimate for any person to borrow. It is normally a legally binding agreement between the parties involved (technically known as creditor and debtor). Suffice to state also that refusal to pay back a loan/debt is not a crime recognized either the criminal code or the Penal code and so does not fall within the categories of functions to be carried out by any of the security agencies. Refusal or failure to pay a debt is purely a civil matter.
Further, section 35 of the constitution which provides for the circumstances in which a person can be arrested and/or be detained does not recognize civil wrong as a ground for arrest and detention except on the order of Court.
Ironically, these security agencies know the illegality and unconstitutionality of their acts but in order to use the law as an “ass”, they frame frivolous criminal charges to cover up their deliberate acts. It is however gratifying that Courts when approached do not hesitate to declare these actions illegal and unconstitutional. There are long lines of settled authorities and statutory provisions in this regard.
By Section 8(2) of the Administration of Criminal Justice, Act (the Act), 2015, the law provides that: “A suspect shall not be arrested merely on a civil wrong or breach of contract.”
Giving the above statutory provision force of law is the Court of Appeal decision in the case of ANOGWIE VS ODOM (2016) LPELR-40214 (CA). The case involves a recovery of the sum of 2.3 million Naira debt. Having reported the case to the Police by the creditors, the debtors was threatened with a charge of conspiracy; fraud and stealing if the debt owed was not paid within one week. Upon default, the debtors were arrested and detained by the police for three weeks and thereafter made to write undertaking to pay the money within a stipulated time before they were released on bail. Feeling aggrieved by the above actions of the Police, the debtors filed action in court. The court did not find it difficult to hold that the arrest and detention of the debtors were unconstitutional. The Court of Appeal held:
“…the invitation of the police to intervene in a matter that is purely civil in nature cannot be justified under any circumstances. The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties.”
Similarly, in SKYLE BANK PLC VS EMERSON NJOKU & ORS (2016) LPELR-40447(CA), Skye bank reported Njoku to the police and the EFCC alleging fraud. Njoku was thereupon arrested and detained for days over outstanding loan/debt he owed the bank. Njoku then sued for fundamental right enforcement. The trial court held:
“By the term of the agreement between the Bank and Nkpola Investment Co. Ltd, what happened was a civil legal relationship of lender and borrower. There was indeed been (sic) a breach by Applicant in failure to fully liquidate said debt. What the Bank, 1st Respondent, ought to do is to sue the Applicant for the remainder amount yet unpaid. That (sic) what civilized people do. Resorting to the Police, where a matter has no taint of criminality, is a brutish behaviour, unworthy of a Bank and its staff. Applicant has fully discharged the burden of proof on him.”
On appeal the court affirmed the judgment of the Abia state High Court and held thus:
“…party that employs the police or ANY LAW ENFORCEMENT AGENCY, to violate the fundamental rights of a citizen should be ready to face the consequences, either alone or with the misguided Agency… The police have no business helping parties to settle or recover debts. We have also deprecated the resort by aggrieved creditors to the police to arrest their debtors, using one guise of criminal wrong doing or another.” (emphasis mine)
It added thus:
“… THE PUBLIC OFFICER OR LAW ENFORCEMENT AGENCY that allows himself to be used by any member of the public, to commit illegality that results in damages and liability to the agency or government should be made to pay such cost or damages, personally, either in part or in whole, if this can serve to warn such officer to act within the rules and scope of his office…” (emphasis mine).See also the cases of Gusau vs Umezuwike (2012) All FWLR (pt. 655) 291: (2012) LPECR 8000 CA; OSIL ltd vs Bologun & Ors (2013) All FWLR (pt. 677) 653; Ogbonna vs Ogbonna (2014) LPELR-22308 CA; (2014) 23 WRN 48 etc.
From the cases cited above, the law is also that such complaint to the police on a civil or contractual debt is mala fide or made in bad faith and any arrest or detention made on that basis is unlawful. Th complainant in this regard who makes the report should be ready to face the consequences along with the police.
Having established that it is not within the jurisdictional function of law enforcement agencies to recover debt, who then is legally saddled with the responsibility of recovering debt?
By section 6(6)(b) and 272 of the constitution, the various hierarchy of Courts in Nigeria are saddled with the responsibility of ensuring that debt owed are recovered. This responsibility cannot by any stretch of imagination transfer to the law enforcement agents. Also, the constitution guarantees the right of every Nigerian to seek redress in court including recovery of debt.
O. G. Chukkol is a student of law, ABU, Zaria. firstname.lastname@example.org.