The Use of Police or Other Security Agencies for Debt Recovery and Its Repercussions

In our article on the Procedure Available to Creditors for Recovery of Debts in Nigeria, we pointed out some nonstandard and unlawful methods employed by some creditors for debt recovery. If you want to read the article, click here. We will only review the most common and sensitive one in this post. That is, the use of security agencies like the Police, the Economic and Financial Crime Commission (EFCC), etc.

These agencies are most of the time co-opted into debt recovery exercises not because obvious crime has been committed but for the fact that an average Nigerian is terrified of having any case with these agencies and even pray never to fall into the hands of their officers.

Needless to say, debt recovery is purely a civil action and these agencies are not legally empowered to recover debts. They can only be involved in cases where crime or specific financial fraud is involved and their involvement is principally for crime prevention, investigation, and possible prosecution. However, debt recovery makes inroads into these agencies by the initiation of a trumped-up criminal complaint which is followed by an arrest or invitation, and so on.

The above is not to conclude that a pure civil relationship cannot turn out to be a medium to perpetrate crime. Indeed, whenever a party to a business/contract discovers that the other person(s) he deals together with in a purported business/contract is playing a Smart Alec and being dishonest or perpetrating fraud, that first person is obliged at such point to lodge criminal complaints against the swindler with appropriate law enforcement agency. See the case of Egube vs. F.R.N (2020) 11 NWLR (Pt. 1734) 103.

Where, however, no prima facie criminal case can be made out of such so-called complaint, the involvement of law enforcers becomes unlawful and the initiator, as well as the Agency, may be made to face the repercussion of their unlawful acts and abuse of power. A debtor whose rights are being contravened by such untoward acts may recover damages against the agency involved, and even against the creditor who might have maliciously set the law in motion. In EFCC vs Diamond Bank Plc & Ors (2018) LPELR-44217 (SC), the Supreme Court, upholding the award of damages in fundamental right action, observed as follows:

What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focusing squarely on their statutory functions of investigation, preventing, and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them. The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the police, are not debt recovery agencies. The agencies themselves need to first come to this realization, shun all entreaties in this regard and they will see confidence gradually restored in them.

In the case of KURE vs C.O.P (2020) 9 NWLR (PT.1729) S.C 296, the appellant was convicted and sentenced by a Magistrate on alleged offences of cheating and criminal breach of trust arising from a failed contract, and which conviction and sentence were affirmed by the High Court and Court of Appeal. The Supreme Court set aside the judgment and accordingly discharged and acquitted the appellant. In that case, the Supreme Court (Per ABBA’AJI, J.S.C.) had this to say:

As I went through the facts of this case, I was wondering how a purely civil matter could easily metamorphose and transubstantiate into a purely criminal case. The end result now is that the appellant has suffered irreparable damage, disgrace, shame, odious and untold hardship in the hand of the Police that is constitutionally and legally saddled with prosecution of criminal offences.

The police have muzzled the rights and freedom of Nigerians even where cases are clearly outside their jurisdiction, power or corridor. If this is not curbed, everybody including the judicial officers will suffer always from floodgate of civil matters being hijacked by the police and transmuted into crimes. If this is not tacked, everybody would have suffered in the merciless hand of the police which has become a law unto itself in this country.

With particular attention to the implications of the instigating participation  of the creditors who laid such a trumped-up complaint, the Apex Court went further thus:

When a person reports a purely civil matter 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 mala fide 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 a disregard of the law and is aimed at using the coercive power of the State to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages.

Therefore, creditors must be circumspect, prudent, and carefully review the temptation of laying criminal complaints on civil transactions and other self-help options as it may afterward lead to actions at the suit of the Debtor for assault, battery, false imprisonment, and claims for damages for infraction of fundamental rights which are constitutionally guaranteed.

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