INTRODUCTION:
Going by the witty saying of the actors in legal industry “ Know Your Rights” the status of being a debtor does not subject human being to be treated like criminal or disintegrate your constitutional rights as guaranteed and provided under chapter 4 of Constitution of Federal Republic of Nigeria 1999 (as amended).
Debt is an inevitable phenomenon of human society, widely of transactions and its liquidation accrues through numerous ways, for instance, frustration, crises, death among the others. To create a convenience habitat and avoid a miserable society, debt ought to be treated as purely civil matter it is, in so far it is fraudulent or criminal ingredients free.
DEBT: A CONCEPTUAL UNDERSTANDING
Debt as a concept has been judicially defined in the case Akinnuli v. Ayo-Odugbesan (1992) as “what one owes to another, what one becomes liable to do or suffer, a state of obligation or indebtedness. The Court in furtherance defined debt as a sum of money due by certain and express agreement, a specified sum of money owing to one person from another including not only obligation of the debtor to pay but right of the creditor to receive and enforce payment. See Denton-West v. Muoma (2010) 2 NWLR (Pt. 1177) 20 Ojora v. Agip (Nig.) Plc (2014) 1 NWLR (Pt. 1387) 150.
It is imperative to state that debt can be a money, a service or an object that one person or entity owes or is required to pay to another.
Debt recovery means the process of regaining or collecting a delinquent loans or services that one person owes another mostly through an external body. In many cases, creditors resort to various means, including involving law enforcement authorities such as the police to recover their debts. However, this raise a critical question: Does the Police have the powers to intervene in debt recovery matters?. Thus, the primary duties of the police are contained in Section 4 of the Police Act 2020.
EXAMINATION OF THE CONSTITUTIONAL DUTY OF THE POLICE.
Nigerian Police Force is an agent of executive arm of government that is birthed via the enactment of the Police Act 2020 by the National Assembly through her power of enactment under Section 4 CFRN 1999.
The duties of the Police under the Police Act ranges from prevention to investigation of crime in the society and a careful examination of these provisions reveals that debt recovery does not fall within the scope of police duties the police is not saddled with the responsibility of recovering debt or arresting a debtor on the instruction of a creditor, when the debtor fails to settle his debt. See Section 4 Police Act.
The aforementioned has received judicial blessings in KURE v. C.O.P. (2020) 9 NWLR Pt.1729. Wherein my lords on the primary duty of the Police held thus: “The primary duty of the Police by section 4 of the Police Act, Is the prevention of crime, investigation and detection of crime and the prosecution of offenders” .See Ibiyeye v. Gold (2012) All FWLR (Pt. 659) 1074.
In reiteration, the Police is not a debt recovery agent and has no business to dabble into contractual disputes between parties arising from purely civil transactions. See McLaren v. Jennings FWLR (Pt. 154) 528; (2003)3 NWLR (Pt. 808) 470.
Hence, it is unconstitutional to tie up with the Police or any security agents such as Army, NSCDC, EFFC etc in a matter merely premised on a failure of debtor to liquidate his debt.
Moreover, debt recovery is a civil wrong, therefore the Police duties are strictly restraint including that of other security agencies and they are encouraged not to allow themselves to be used by public member in matter arises from civil wrong such as debt recovery. See. Section 32(2)Police Act, also in Skye Bank Plc v. Emerson Njoku & Ors. EFCC v. Diamond Bank Plc (2018) 8 NWLR (Pt. 1620) 61 “The Nigeria Police Force and other security agencies are not debt recovery agencies and should shun all entreaties in that regard”. (P. 80, para. E)”
CONSEQUENT OF THE PARTY INSTIGATING POLICE
Ubi jus ibi remedius, “ where there’s a wrong, there must be a remedy “. The justice that serves creditor to has his money recovered and with interest as the case may be, will take a pound of flesh back from the creditor, who instigated Police to the debtor.
Hence, the creditor who invoves a police or any law enforcement agency in debt recovery or other civil matter will also be held liable for any damage accrues by such officer once it’s proven that, the malicious and mana fide action was pressed by the creditor, Such conduct which portrays disregard of the law and is aimed at using the coercive powers to punish a contracting party will to be swindled in exemplary damages.
The court in Ogbonna vs Ogbonna (2014) LPELR-22308 CA 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…” See also the recent, case of Anogwie & Ors vs Odom & Ors (2016) LPELR-40214 (CA).
ACTION TO BE TAKEN BY THE ONE ARRESTED FOR DEBTS BY THE POLICE
The Constitution has endowed on every Nigerian fundamental rights which include Right to liberty and Right to freedom of movement under Sections 35 and 41.
Any arrest for debt by the Police is an abrogation of the above rights hence illegal and entitled the victim to a compensation in tort.
The victim should avoid being frightened and kindly requests for the service of a lawyer to file an application for the enforcement of his fundamental rights. See. Ozide & Ors v. Ewuzie & Ors (2015) LPELR 24482 (CA). “In a fundamental rights action, damages automatically accrue, once the Respondent has been adjudged to have violated the Applicants fundamental rights.”
STEPS THAT CAN BE TAKEN TO RECOVER DEBTS
In Agbabiaka v. F.B.N. Plc (2020) 6 NWLR (Pt. 1719) 77, the court highlighted that a debt is repayable in any of the following situations, that is either:
(i) on demand;
(ii) on notice given; or
(iii) upon any other condition agreed upon by the parties.”
However, when none of these processes brings back the debt, the creditor is at liberty to use the following;
1. Alternative Dispute Resolution mechanism (ADR): this is a fastest and easiest track to recollect a debts, the both debtor and creditor will be invited to draw out a feasible and plausible style for making the debts to be redeemed.
2. Court process: After the repeated demands, reasonable notice and Negotiation mechanism. The next is to ask a Legal practitioner to institute an action in a court against the debtor. It’s a contractual relationship and the court is always there to interfere when there’s a need. See Agbabiaka v. F.B.N. Plc (2020) 6 NWLR (Pt. 1719) 77
3. A waiver: hearteningly, an owner could decide to waive right to recover part of the debts from debtor. On the other hand, this where a creditor accepts to receive a sum of money lesser than what is due to him under a contract, However this must be clear, unequivocal and voluntary mostly required to be written See Anchorage Leisures Ltd. V. Ecobank(Nig.)Ltd (2023) 15 NWLR (Pt. 1907) 243.
CONCLUSION
To recapitulate, it is illegal and unconstitutional to involve the police or other security agencies in debt recovery. They are not a debt recovery agency and should not interfere in civil disputes between parties arising from private contractual matters. The manners and the ways to recover a delinquent debts have been judicially and judiciously settled. Therefore, debt is not a crime and should not be treated as one.
About the Author:
Salaudeen Ridwanullahi is an avid legal writer with passion for educating the public on trending legal issues. He can be reached at: [email protected] or 07038598949