Can the police Lawfully Recover My Debt?
The Constitution of the Federal Republic of Nigeria (CFRN) 1999 and The Police Act 2018 defines the powers and functions of Nigerian Police Force Officials. Hence, since the functions and powers of Nigeria Police are written, it is easy to detect when police officers act outside their statutory powers. The CFRN 1999 and the Criminal Code/penal code also defines what constitute a criminal offence in Nigeria. Often times, we have seen instances where a creditor desperately needs to recover his money back from a debtor, and the frustration leads him to call on the police to assist him recover the debt. The process of this money recovery, is often followed by arrests, intimidation and breach of fundamental rights.
A cursory and in-depth study of the criminal and penal code reveals that owing a debt is not a criminal offence in Nigeria, and does not fall under the duties and scope of the police to handle. Owing of debts and its recovery are purely civil matters. The Police are quite aware of this position but the Judas among the twelve would still want to take advantage of desperate creditors seeking to recover their money. The police would clearly not charge the "debt recovery" matter to court but would merely waste the precious time of both the aggrieved creditor and the poor debtor, and in the end request them both to pay sums in the name of paying for "bail" (another illegal act).
The Police Force is not a debt recovery agent.
Most times, the police carry out this illegal act under the accusation of "Fraud". There is a clear difference, in definition, scope and elements between a Fraud and owing a debt and every citizen must know this. Simply put, a fraud must be Fraudulent, criminal intent to defraud. In DR. EDWIN UDEMEGBUNAM ONWUDIWE V FEDERAL REPUBLIC OF NIGERIA SUIT NO: SC.41/2003The Supreme court of Nigeria stated while giving its judgement that: "In fraud, there must be a deceit or an intention to deceive, flowing from the fraudulent action or conduct to the victim of that action or conduct. An offence is said to be committed fraudulently, in the context of the instant case, if the action or conduct is a deceit to make, obtain or procure money illegally. By the fraudulent action or conduct, the accused deceived his victim by pretending to have abilities or skills that he does not really have. In one word, he is an impostor"
While It is quite true that there are circumstances where surrounding elements may contain both Civil and criminal features. Even here, police officers must concern themselves only with the criminal features and direct parties to seek proper legal steps over the civil features. This applies to police force and any other law enforcement agency in Nigeria. There are number of cases where the courts have criticized the Nigeria Police Force officers for its involvement in the civil issues of debt recovery and has reiterated the illegality of such involvement.
In the case of Anogwie & Ors vs Odom & Ors (2016) LPELR-40214 (CA) Per MBABA, J.C.A. (Pp. 29-31, Paras. F-A) the appeal court stated 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…”
Also, in the Case of in the case of NWADIUGWU v. IGP & ORS (2015) LPELR-26027(CA) the appellate court stressed that: “(Police Officers) are neither debt collectors nor Arbitrators and Section 24 of the Police Act 2004 does not list settlement of disputes or collection of debts among the duties of the Police”.
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.
In IBIYEYE V. GOLD (2012) ALL FWLR (PT 659) 1074. it was reiterated that "The Police is not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions".
In addition to the agency, the Nigeria Courts have also frowned at aggrieved creditors who have resorted to the Nigeria Police officers for settlement of civil issues, rather than taking the proper legal steps of debt recovery.
In Ogbonna vs Ogbonna (2014) LPELR-22308 CA; (2014) 23 WRN 48, it was held that: ”… party that employ 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.”
Also in OKAFOR & ANOR V. AIG POLICE ZONE II ONIKAN & ORS (2019) LPELR- 46505.” Per, UWANI MUSA ABBA AJI ,J.S.C ( Pp. 32-33, paras. A-E ). Quoted from the judgment in the case of KURE v. COP (2020) LPELR-49378(SC) it was reiterated that "When, as in the circumstances of this action, a purely civil matter is reported to the Police, such a person cannot go scot-free as the report ought not to have been made at all since it is not within the purview of Police duties. It is a report made malafide and he will be equally liable for the action taken by the Police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place. Such conduct which portrays disregard of the law and is aimed at using the coercive powers of the State to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages".
WHAT IS THE PROPER LEGAL STEPS FOR SETTLEMENT OF CIVIL MATTERS?
For the determination and settlement of civil matters, kindly approach a lawyer for the appropriate legal steps to debt recovery.
WHAT TO DO IF ARRESTED BY THE POLICE IN A MATTER OF DEBT RECOVERY?
Politely inform the Police officer of your right as regard the issue, make it clear the situation is not fraudulent nor criminal and contact a Lawyer. In a situation where the police tortures you or infringes on your fundamental right, kindly contact your lawyer and enforce a fundamental right action against the Police.