There is an entrenched culture of debt recovery practices in Nigeria whereby the creditors, including banks, enlist the help of the police or the even the military to recover debts extra-judicially from the debtors. KAYODE KETEFE, the Assistant Head, Judiciary Desk, examines the legality of this practice against numerous judicial pronouncements and lawyers' reactions.
Debt recovery is a normal part of commercial transactions. It is settled that since modern business cannot thrive without borrowing and lending, the legal system of any nation should make adequate provisions to regulate this aspect of commerce. The phenomenon is regulated in Nigeria, like in other places with common law system, by the law of contract, banking law, and negotiable instruments, credit sale law and so on. . This implies that recourse must be made to the court of law by invoking the civil jurisdiction of the court if the parties cannot resolve their differences amicably.
However, a culture of debt recovery that is rampant in Nigeria is the employment of the coercive powers of the forces like the police or even the Nigerian Army for the purpose of debt recovery.
A female banker who preferred anonymity told the National Mirror that involving the police in debt recovery '' is an efficient method".
"We all know the problem of undue delay one invariably encounters in court; at times it may take years if care is not taken as a result of incessant adjournments.
'But with the police, the case is different as many people are afraid of being arrested or detained; many recalcitrant debtors would therefore pay up. "the banker concluded.
In spite of this, it would appear that the practice is not supported by the Nigerian law. For instance, section 214 of the 1999 Constitution, which created the Nigerian Police states inter-alia ' there shall be a police force for Nigeria, which shall be known as Nigeria Police Force, and subject to the provisions of this section, no other police force shall be established for the federation or any part thereof"
In specific terms, Section 4 of the Police Act, which stipulates the functions of the police provides thus: "The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act"
It is therefore clear that from both the Police Act and the 1999 Constitution that nothing empowers the Nigerian police to help individual or institution to collect debt despite the rampancy of the practice.
A number of judicial pronouncements over the years have also underscored the fact that the police have no business in debt collection if the transaction does not involve fraud.
As recently as May, 2013, a Federal High Court Judge, Justice Okon Abang, roundly condemned the Nigerian police for helping a bank (name withheld) to collect debt from a customer (I. Chukwuemeka) extra-judicially.
In the case, the plaintiff, who had taken a N900, 000 loan from the bank defaulted after making some payments. The bank enlisted the help of the police to recover the debt and later arrested and detained him.
The police further collected a cheque of N100, 000 from him under duress and kept harassing him to pay the rest. Chukwuemeka then filed an action in court alleging that his right had been violated and prayed the court for an order of injunction restraining the police from further arresting and detaining him.
In his judgement, Justice Abang berated the police, stressing they had no right to convert themselves into debt collection agency. The judge added that the police had misused the coercive powers of the state and awarded the damages of N500, 0000 in addition to a N50, 000 costs.
In a similar decision, a Lagos High Court judge, Justice Ebenezer Adebajo, while delivering judgement in a fundamental human rights enforcement suit last year, instituted by a trader, Mr. Isiaka Mohammed, held that the Nigerian Police had no business in debt recovery.
Justice Adebajo said, "It is not the duty of the police to arrest or detain persons in such civil transactions. The arrest and detention of the applicant without trial is not justifiable in law, especially when the police do not have the powers to arrest and detain for the purpose of debt recovery,"
In another case last year, Justice Mudashiru Oniyangi of a High Court of the Federal Capital Territory in Abuja ordered the Inspector-General of Police, Hafiz Ringim, to pay Pastor Emeka Ebuta the sum of N2.5million as damages for his unlawful arrest and detention by officers of the Nigeria Police.
Oniyangi, in his judgement, held that "the applicant has sufficiently established the fact that his right of freedom of movement was curtailed, infringed upon and violated by men of the Nigeria Police.
The judge further held that "in the circumstances of this application, the transaction leading to the arrest and detention of the applicant is a contractual obligation and civil in nature. It is a case of indebtedness, consequent on a contractual relationship. In my view, there is nothing criminal that would warrant the arrest and detention of the applicant.
"It is my view that the police is saddled with enough responsibility than to be using their constitutional power of arrest to recover debts. They are not debt collectors and should never be involved in such service."
Interestingly, in the famous case of McLaren v. Jennings, the court also said that there was no provision in the Police Act empowering the police to enforce contract or collect common debts. It was further held that the Nigerian jurisprudence is replete with practice and procedure for enforcing contract or recovery of debt and where no felony is alleged, stressing that these situations would only amount to civil cases and not criminal cases.
National Mirror spoke with some notable Senior Advocates of Nigeria, SANs on this issue. In his view, Prof.Itse Sagay, SAN, said: "The police cannot act as debt recovery agency. The only way to recover debt is by going to the court of law. It is illegal for any police officer to do so .Any policeman who does that is putting his job on the line.
Another SAN, Chief Felix Fagbohungbe, said, "The Nigeria police's duties are clearly defined and they are to maintain law and order. The police duties do not involve debt recovery or negotiation of debts. It is an abuse of power for the Police to meddle in debt issues."
Mr. Kemi Pinheiro, SAN, also said "It is not part of the police's functions to administer debt recovery. It is completely non-existent in the Police Act .The only way they can be involved is when there is crime. The Court of Appeal had made solid pronouncement on it that the police does not have the right to administer debt recovery."
In the same vein, Mr. Rotimi Jacobs, SAN, said "Police is not a debt recovery agency. Nigerians are the ones employing the services of police to recover debt. It is very unconstitutional and illegitimate. It is part of corruption in the system.
"Some Lawyers are, unfortunately, also using such medium. My position is that it is totally wrong and unconstitutional.".
National Mirror
Debt recovery is handled by policemen especially in a country like Nigeria. We just can't do anything without involving the police.