Most of us are familiar with situations where a creditor engages the services of police or army to recover debts from debtors through means of arrest, torture or intimidation. This arrangement is reached between the police and the creditor and a percentage that will be payed to the police is agreed upon.
This practice is illegal and against the law because the Police Act or any other law does not empower the police to recover debts. The proper way to recover debts would be to bring up an action in a court of competent jurisdiction.
Section 4 Police Act – General duties of the police includes:
a. Prevention and detection of crime
b. The apprehension of offenders
c. The preservation of law and order etc.
Police duties does not extend to enforcement of contracts and collection of debts: Ogbonna vs Ogbonna (2014) LPELR-22308 CA; (2014) 23 WRN 48
Owing a debt is not a crime recognised by any law in Nigeria, whether in the criminal code or the Penal code which operates in the Northern part of Nigeria and so does not fall under the preview of the police to handle. The police is fully aware about the position of the law on this particular matter and so will never allow these charges to be pressed in court. The police sometimes manipulate these debtors and accuse them of fraud so as to exercise the power of arrest. This does not fall under the category of fraud and the populace should know their rights on this issue. When police arrests you at the behest of a creditor under debt recovery. Tell the police you know your right and will bring an action against them on fundamental human right. There are plethora of cases where the courts have condemned the police for delving into issue of debt recovery and has reiterated the illegality of such action.
The court of Appeal stated in SKYLE BANK PLC V. EMERSON NJOKU & ORS (2016) LPELR-40447(CA)
“We have deprecated, several times, the tendency of a creditor, resorting to the Police to force his debtor to settle simple debts or bank loan, and the willingness of the Police to accept to do so, using their coercive powers, wrongly, to violate the fundamental rights of the debtor. See the case Gusau vs Umezuwike (2012) All FWLR (pt. 655) 291: (2012) LPECR 8000 CA; OSIL ltd vs Bologun & Ors (2013) All FWLR (pt. 677) 653.In Ogbonna vs Ogbonna (2014) LPELR-22308 CA; (2014) 23 WRN 48, it was held that:”… 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.”See also the recent, case of Anogwie & Ors vs Odom & Ors (2016) LPELR-40214 (CA), where we restated the above legal position and added that:”Maybe… 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…”Per MBABA, J.C.A. (Pp. 29-31, Paras. F-A) –
Furthermore in the case of (O.A.O) Nig Ltd V. Umanah (2013) 4 NWLR (Pt 1344) Page 32 the Court of Appeal held that:
“The statutory duties of the police under the Police Act is to maintain peace, law and order in the society. Debt collection or loan recovery is not within the purview of the statutory duties and powers of the police”.
WHAT TO DO WHEN ARRESTED BY THE POLICE
Simply inform the police of your right and contact a Lawyer. Where the police continues to detain or torture you, an action for enforcement of fundamental human right will lie against the police. The court with jurisdiction to entertain fundamental right matters includes the state high court and the federal high court. Citizens must stand up for their rights and resist the growing trend using police or army to recover debts in Nigeria because it is illegal and not recognised by law.
Written by Mpi Elton Chizindu Esq.