The rising menace of individuals using the Police as a means of recovering debts owed to them has become sickening and a subject of great concern in the country as this has resulted in blatant disobedience to the the laws of the country and gross violations of the rights of the debtors.
The practice which has gradually become a tradition is not new as it is evident within our localities each passing day where a creditor who has run out of options on how to recover his money, lodges a complaint at the police station and then the police go about making arrests and remanding in prison custody, debtors due to the overzealousness of these creditors who most times, happen to be influential members of the society
In 2019, reports on PREMIUM TIMES stated that a man by name, Francis Ajinzo, who owns and runs a fish nursery at Ibeju Lekki, Lagos, was arrested, mishandled and detained for several days because he was unable to make a refund of money or a replacement of fish to a woman who had purchased his fingerlings but had lost them all to death due to mismanagement. Mr Ajinzo said he was subsequently forced to produce new juvenile fish for the customer by the officers who kept him in custody over such a civil matter.
Similarly, at the Criminal Investigation Department (CID) of the police in Panti, Lagos State, a woman while speaking to PREMIUM TIMES on condition of anonymity due to fear of reprisal, recalled her experience with the police which were used by a microfinance bank to hound her over a debt.
According to her, she had taken a loan from the bank in 2018 for her business and was to pay back in monthly instalments over six months but as a result of business difficulties she faced, she defaulted in the fifth month. Thus, she was arrested and taken to Panti and according to her, “The officers drew up a schedule of when I should refund the remaining debt and forced me to sign post-dated cheques.”
The aforementioned instances of Mr. Ajinzo and the anonymous woman are only but a few of the innumerable le displays of debt recovery practices by the law enforcement agencies as a number of people go through these violations daily. This is evident among our neighbours, friends, relatives and even family members who go through one case of arrest or the other by the police in order to recover debts they owe. This has led to a total disobedience to laws by these security operatives and a gross violation of the fundamental rights of citizens.
What is debt recovery?
A ‘debt’ refers to a sum of money arising upon a contract, which could be express or implied. In its more general sense, it is defined to be that which is due from one person to another, whether money, goods, or services; that which one person is bound to pay or perform to another.
Debt recovery therefore refers to the process of making people or companies pay the money they owe to other people or companies when they have not paid back the debt at the time that was agreed upon.
It is an acceptable practice in our societies that in an agreement between a lender of money and the person who receives the money, the receiver must return same at the time and specifications agreed upon by both parties. However, there are circumstances where these debtors fail to keep to the agreements thus, resulting in actions for the recovery of monies lent by the creditors. The person who is to have the money (the creditor) can therefore take measures against the person who is to pay (the debtor) to recover the money. The creditor can recover the money personally and where this becomes impossible (and in order to avoid self help which the law totally condemns) or institute an action in the court through a legal practitioner for the recovery of his debts.
Is indebtedness a crime under Nigerian law?
Owing a debt and even the refusal, failure or inability of a debtor to liquidate his debts is not a criminal offence punishable under any law in Nigeria. See the decision of Supreme Court in the case of Economic and Financial Crime Commission (EFCC) v. Diamond Bank PLC., Petro-continental (Nigeria) Limited and H.R.H. Eze (Dr.) Peter Opara (2018) LPELR-44217 (SC). This means that no matter how sinful, uncivilized, disrespectful, annoying or immoral it may seem for one to refuse to pay his debts, it is still not regarded as a crime under any law in Nigeria.
The Nigeria Police Force (Establishment) Act, 2020 (Police Act 2020) governs the entire scope of operations of the police in Nigeria.
Section 4 of the Act covers the extensive duties and functions of the Police Force, notably, imposing an obligation on the police to maintain peace and security and to protect the rights and freedom of every Nigerian in accordance with the Constitution of the Federal Republic of Nigeria 1999 (as amended), the African Charter on Human and Peoples Rights, and other applicable laws.
Section 32(2) of the Police Act 2020 addresses the constant practice of the involvement of the police by individuals in simple civil disputes and for debt recovery, and thus prohibits the police from arresting anyone based on a civil wrong or breach of contract. Examples of civil cases here include; disputes between landlords and tenants, property disputes, disputes over sale of land, disagreement over matrimonial issues and debt or loan recovery.
On the prohibition of arrest in civil cases also, Section 8(2) of the Administration of Criminal Justice Act (ACJA) 2015 provides that a suspect shall not be arrested merely on a civil wrong or breach of contract.
Indebtedness occurs where one person known as the debtor, who borrows money from another known as the creditor (who may either be a private individual, a financial agency or an organization) is in breach of the agreement to repay same upon a slated date thus, such transactions are purely civil in nature which gives no grounds for criminality leading to arrests, threats of arrest, torture or intimidation hence, the police and other law enforcement agencies such as the Independent Corrupt Practices Commission (ICPC), the Economic and Financial Crime Commission (EFCC) and the Department of State Services (DSS) are powerless in this regard and ought not to be used as instruments for debt recovery by creditors in Nigeria.
The courts have In a number of cases condemned this practice. The Court of Appeal in the case of Skye Bank Plc v. Emerson Njoku & Ors. (2016) LPELR 40447 (CA) the court held thus;
“We have deprecated, several times, the tendency of a creditor resulting to the police to force his debtor to settle simple debts or bank loans, and the willingness of the police to accept to do so, using their corecive power wrongly, to violate the fundamental right of the debtor.”
In the case of A.C (O.A.O) NIGERIA LIMITED V. UMANAH (2013) 4 NWLR (PT. 1344) PAGE 323, the court also held that;
“The statutory duties of the Police under the Police Act are 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.”
However, the police and other security operatives such as the ICPC, EFCC and DSS will only have jurisdiction where the circumstances of the case is characterized by clear proof of fraudulent ingredients such as; criminal intent to cheat, criminal breach of trust or conversion, otherwise they will be seen to be acting ultra vires their Powers.
It is pertinent to state also that by the provisions of section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), indebtedness is not included as one of the exceptional grounds upon which a person may be deprived of his right to personal liberty. This reiterates the point that indebtedness is not a criminal offence and as such the police or other law enforcement agencies have no business in arresting, harassing, torturing, detaining or forcefully demanding that a debtor pays up the money he owes as this falls outside the purview of their duties as provided for under section 4 of the Police Act 2020 which gives no room for debt recovery.
How then can creditors recover debts owed to them from their debtors?
From the foregoing, it is apparent that the jurisdiction of law enforcement agencies especially the police remains the maintenance of peace, security, law, order and protection of the fundamental rights of Nigerians in the country and does not in any way cut across debt recovery, hence, some of the lawful methods of recovering debts in Nigeria include the following:
- A Clause in the Agreement by the Parties:
It is normally and most emphatically advised that whenever any form of contract is entered into by two or more persons, they must ensure that a written agreement is drafted in that regard especially when it involves payment from one of the parties to the other. In drafting such agreements, the parties are at liberty to include various means of resolving any form of dispute which may arise in the course of the contract upon breach by either party, thus, such clause(s) would provide for acceptable methods through which any form of obligation or in this case, resulting debt owed to the other party can be enforced.
Therefore in the case of a breach by either parties, they may resort to the use of one or all of the procedures subscribed to by the parties in the agreement. These procedures more often than not usually cuts across the various alternative disputes resolution methods which include; Arbitration, mediation, conciliation or negotiation. Thus, the parties may either resolve to settle their differences on their own through negotiation or resolve to bring in a neutral third party to act as a mediator in order to help resolve the issues as long as it was stated in their contract agreement.
- Instituting a court action (Litigation):
The court is the proper place with proper jurisdiction to hear, determine and enforce payment on a debtor in cases involving debt recovery in Nigeria especially where the debt owed arises from a service contract or loan agreement.
Where a party is in breach of a loan agreement, a lawyer acting on behalf of the creditor will commence a debt recovery action and for damages for breach of contract. The lawyer may also bring an application for the preservation of the moveable and immoveable property of the debtor pending the final determination of the court proceedings. Where the debtor is a company, a winding-up proceeding may be commenced along with the action for Summary Judgment against the debtor. The law is trite that in an action for the recovery of debt, the cause of action accrues upon demand for the payment of the debt therefore, where no demand is made, a cause of action does not arise and no action can be commenced in court. So until such a letter of demand is issued, no right of action would arise and accrue to enable commencement of legal action in a Court of law for the recovery of the debt in question. In the case of Hung v. E.C. Investment Company. Nigeria Limited (2016) LPELR-42125 (CA) (it was held that; “In a claim for recovery of a debt, the cause of action accrues when a demand is made and the debtor refuses to pay.”
Thus, upon consultation by the creditor with the Lawyer, the Lawyer is expected to write a letter of demand to the debtor demanding the funds owed, warning about dire consequences if payment is not received on or before a stipulated date. A letter of demand serves as a pre-action notice for a debt recovery proceeding. The debtor may pay up or negotiate an instalment payment once he or she has received a demand notice.Where the debtor neither pays up the debt nor negotiates an instalmental payment, the lawyer with the permission of the creditor goes ahead to institute an action in court for debt recovery.
In conclusion, it is however of utmost importance to state that to every cause of action, there is a statute of limitation. This means that no action can be commenced in court where it is already statute barred or when the time limit for the commencement of such action has elapsed.
The Limitation of Actions Act 2004 (as amended) and the relevant States Limitation Laws prescribe the specific periods within which legal actions are to be commenced or instituted from when the injury or omission, causing the damage or loss, arose or occurred. For example, the prescribed period for contracts under Sections 8(1)(a) and 12(1)(a) of the Limitation Law of Lagos State 2015 is six (6) years for simple contracts and contracts under seal (made by way of Deed). Thus, by these provisions It is stated clearly that the right of action shall cease to exist and therefore not be exercisable after the expiration of the 6 or 12 years respectively. See the case of Okonta & Anor v. Egbuna (2013) LPELR-21253 (CA).
It is therefore important that an action for debt recovery is timeosly instituted before it becomes statute barred resulting in complete loss of debt owed.
About the Author
Rachel Udoinyang is a legal researcher and a poetry, fiction and motivational writer. Her areas of interest are Property law, Banking law and Alternative Dispute Resolution.
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Constitution of the Federal Republic of Nigeria 1999(as amended)
Police Force (Establishment) Act (Police Act) 2020
Administration of Criminal Justice Act (ACJA) 2015
Limitation Law of Lagos State 2015, CAP L84 Laws of Lagos State