skip to Main Content
The Illegality Of Using Law Enforcement Agents To Recover Debts In Nigeria By Lukwagh Simon Mgbanyi Esq.

INTRODUCTION

The practice of using law enforcement agents to recover debts has gained acceptance among many Nigerians. Instead of approaching the courts to recover debts owed them, most creditors prefer to use law enforcement agents especially the Police and the EFCC to arrest, detain, harass, humiliate, unlawfully seize the property of debtors and coerce them to pay up, while receiving fees or certain commissions from such creditors for their ‘valiant’ efforts. This procedure of debt recovery though clearly illegal, thrives because people are generally scared of being arrested and detained, and would do anything not to lose their personal liberty. While many creditors argue that the procedure saves time and is largely effective, their arguments do not detract from the fact that the procedure is not only illegal but unconstitutional as well, and does not form part of the many functions of law enforcement agents recognised under our laws. The thrust of this piece is to establish amongst other things that it is not a crime for a person to be indebted to another and the proper procedure recognised by law for the recovery of debts in Nigeria.

WHAT THE LAW SAYS

Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria provides that the judicial powers vested in accordance with the section shall extend to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

Section 35 of the Constitution further provides that every person is entitled to his personal liberty and that no person shall be deprived of such liberty except in accordance with a procedure or instances permitted by law.

The Constitution which is the supreme law of the land has established courts  which citizens ought to approach in order to resolve disputes, and made sacrosanct the right to personal liberty which every citizen enjoys and can only lose under certain circumstances which do not include being indebted to another person in a purely civil or commercial transaction.

Debt recovery is not recognised as a function of law enforcement agencies by the laws pursuant to which they are established and regulated. The Police Act[1] for instance recognises the general duties of the Police to be prevention and detection of crime, apprehension of offenders, 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 amongst other things, while the EFCC Act[2] provides for a long list of the Commission’s functions which are largely hinged on the investigation and eradication of financial crimes.

Furthermore, section 8(2) of the Administration of Criminal Justice Act provides that a suspect shall not be arrested merely on a civil wrong or breach of contract.

The courts have in a good number of cases frowned at the use of Law enforcement agents to recover debts, and reiterated that the practice is illegal. In Skye Bank Plc v. Emerson Njoku & Ors, [3] the Court of Appeal pronounced on the duty of the police not to allow themselves to be used as debt recovery agents or to settle private scores as follows:

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…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. Maybe… the public officer or law enforcement agent 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. [4]

In Economic and Financial Crimes Commission v. Diamond Bank Plc & 2 Ors,[5] the Supreme Court of Nigeria held that the anti-corruption agency’s power does not extend to category of facts that are clearly civil breaches or wrongs by stating thus:

It is important for me to pause and say here that the powers conferred on the appellant, i.e. the EFCC to receive complaints and prevent and/or fight the commission (sic) of financial crimes in Nigeria pursuant to section 6(b) of the EFCC Act does not extend to the investigation and/or resolution of disputes arising or resulting from simple contract or civil transactions as in this case.[6]

It is worthy of note that commercial or civil transactions may contain elements of crime, thus falling within the ‘middle ground’ classification which is open to investigation by law enforcement agents. In such instances, their interference is justified but only after the facts have been carefully sieved, and it is certain that such transactions are tainted by criminality. Even then, they are required to carry out their duties in accordance with laid down laws, without violating citizens’ rights.

THE PROPER PROCEDURE TO ADOPT

The proper procedure for a creditor to adopt in order to recover a debt is to follow the steps laid out in an agreement, if any exists, or hire a lawyer to write a demand letter to the debtor. Where the debtor fails to pay the debt within the stipulated time, the lawyer can then approach a court of competent jurisdiction for redress by filing a suit under the Undefended List or Summary Judgment Procedure for liquidated money demand.

This procedure is not only lawful but also saves the creditor from the dangers of being asked to pay damages which may even be higher than the actual debt, in the event that he or she is sued for a breach of fundamental rights which becomes common when law enforcement agents are involved in purely civil or commercial transactions.

CONCLUSION

The quick-result method of engaging law enforcement agents to help creditors recover debts may appear attractive for many reasons, but it remains an aberration of our laws which should neither be engaged in nor encouraged. While it may be true that the proper procedure for debt recovery is fraught with many challenges, it does not detract from the fact that going about it the wrong way is not the ultimate solution and actually leads to more problems. There is no defence for engaging law enforcement agents to abuse the rights of any debtor in order to recover a debt owed. The law has put in place the proper procedure for debt recovery and any procedure other that, is an illegality.

Lukwagh Simon Mgbanyi is an Ibadan based Legal Practitioner and Volunteer Writer for Lex Community NG.


[1] .Section 4

[2] .Sections 6 and 7

[3]  (2016) LPELR – 40447 (CA)

[4] . Pages 29 – 31, Para

[5] . (2018) 8 NWLR (Pt.1620) 61

[6] . Page 79, Paras E-F

Lex Community
This Post Has 2 Comments

Leave a Reply

Your email address will not be published. Required fields are marked *

Back To Top
error: Content is protected !!