Commercial transactions sometimes result in unpleasant endings which gives rise to some irreconcilable differences amongst the parties directly involved.
This often leads the disputing parties resulting to some form of measures to seek appropriate remedies. That the industrial and commercial society in which we live engenders business relationships is trite and need hardly be said.
One major type of disputes among people in modern society is disputes relating to financial transactions, accounts, trade and secured credit. The structure and snail pace of justice administration and delivery in Nigeria is one that challenges persons who have need of the law to shop for alternatives and quick fixes for these problems.
It is an open secret that when a financial dispute arises between parties, the creditors out of desperation quickly run to the authorities (Police and other law enforcement Agencies such as the EFCC) and lodge a criminal complaint in a clearly commercial transaction.
The primary function of the police under the Police Act is to prevent, detect and control criminal activities. Nowhere to the best of my information in the Police Act is debt recovery one of such functions. Although suffice it to say that Section 6 of the EFCC Act provides a wide scope of function for the commission to exercise certain functions with respect to financial crimes such as examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporations and group involved, determination of the extent of financial losses and such other losses by government, private individuals or organization.
Be that as it way, nowhere in Section 6 and 7 of the EFCC Act is debt recovery expressly mentioned. However the commission often times hides under the guise of some general function to assume investigative authority over such disputes.
Suffice it to say however that there are a good number of police officers who dismiss such complaints in limine on the ground, rightly, that the complaint only discloses a civil cause of action which is not within the purview of the police to apprehend or investigate. But some desperate complainants, after hearing such rulings, stay resolute and urge the police to do something to help them recover their debt.
Some of these courageous officers stay true to their calling and recuse themselves of such incompetent complaints. Some officers however from personal experience assume the position of mediator, advising the parties to be at peace with each other and endeavour to honour their respective agreements.
Experience has also shown that sometimes these operatives get the parties to sign certain undertakings and bonds with a promise to make the payment at certain dates or risk arrest and possible prosecution. The worst class of all, which with respect is a shame to our system is made up of those operatives who turn the police stations into debt recovery outfits.
These police officers gladly receive complaints bordering on debts, account receivables, loans and other cases of financial transactions that arise in the ordinary course of business. It is correct that most financial fraud cases which the authorities especially the EFCC are empowered to investigate begin with simple business transactions, but we are dealing here with a situation in which the police receive complaints that, in all probability, amount to an unpaid debt but go ahead to draw up charges of criminal breach of trust, obtaining by false pretenses, cheating, or outright stealing.
These charges are never diligently prosecuted in court but are merely drafted and filed to exert coercive pressure on the suspect to pay the debt. The series of activities amounting to coercive pressure include arrest, detention, unauthorized seizure of property (including property belonging to spouses and other third parties) and sometimes torture. Constitutional safeguards are either ignored altogether or observed in flagrant breach.
In Oceanic Securities International Ltd v Balogun (2012) the Court of Appeal admonished in strong terms the practice and held inter alia that the police have no business in enforcement of debt settlements or recovering of civil debts for banks or anybody.
Debt collection or settlement whether on behalf of a private individuals, organization, government department or agency is not the job of the police.
More so indebtedness is not one of the exceptional grounds recognized by Section 35 of the Constitution upon which a person may be deprived of personal liberty.
The police authorities cannot amend the constitution to suit their brief by private individuals or organizations that may be too impatient to go through the route and rigor of litigation either by undefended list procedure or summary judgment procedure for liquidated money demand claims.
The jurisdiction to hear and determine claims for accounts or accounts stated is vested in the courts, not the police. There is no need for an expedition to the Andes in search of the mystic chicken responsible for the queer square eggs we see in the police assuming debt recovery functions.
Regular citizens and organizations, including the banks and mortgage houses have orchestrated this anomaly. Plethora of decided cases on human rights enforcement cases abound in which persons have been unlawfully arrested and detained by the authorities on the instigation of creditor.
In Oceanic Securities International Ltd v Balogun the claimant a director in a company that was indebted to another company was arrested, detained and humiliated by the police on the information and orders of the creditor entity. The Claimant’s car was confiscated and neither he nor his car was released until he brought an action in court seeking injunctive and declarative reliefs. The court found in his favour, declaring his arrest and detention unlawful. The confiscation of his car was also declared unlawful.
The marriage of convenience between desperate and aggrieved creditors and the police has been rightly condemned by decision of our superior Courts. Unfortunately, despite all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved creditors with the police remains at the root of many fundamental rights breaches in our courts
Meanwhile, there is a strong argument being canvassed by these aggrieved creditors who are complainants and made respondents in the fundamental rights cases to the effect that they have no business and have done nothing illegal since it is a right of a party as a citizen to lay complaints to the police. Thereafter, it is a matter for the police to decide what action they should take on the report or complainant.
These arguments have found credence in ONAH v OKENWA (2010) per My Lord Justice NWODO JCA( of blessed memory) that
“ every person in Nigeria who feels an offence has been committed has a right to report to the Nigeria police force. Once that right of complaint to the police who are custodians of order in the society is exercised, the right shifts to the police to exercise their statutory powers under section 4 of the police Act. The police are enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the persons complained against”.
This is the rationale for shifting the onus of justification of arrest and detention to the police. This argument connotes that once an applicant aggrieved that his fundamental rights guaranteed under the Constitution have been infringed commences an action in court and establishes the claim on arrest and detention, the onus shifts to the police.
Therefore, whatever action the police takes, once a complaint has been made to them must be based on facts which are reasonable and justifiable. This calls for high level of professionalism and accountability on the part of the law enforcement operatives.
These are issues which live with us or to put it more aptly one could say we live with them. See the Case of VICTOR OVIA (promoter of Combase Energy Ltd) V UBA. Only recently in AIG-IMOUKHUEDE v UBA (2014), the Court of Appeal reiterated the position “that an accusation is not a charge”.
Therefore the question of whether a party instigated the authorities against the adversary has to be established by evidence. To claim instigation requires evidence as to facts to support the allegation that the complaint was not made in good faith or that it is a fabricated story concocted with the sole purpose of causing the police to arrest and detain the Complainant.
In as much as the writer is so inclined to agree with this strong contention, I beg to differ vide the Supreme court decision in Fajemirokun v Commercial Bank (Credit Lyonnais) (Nig.) Ltd which is to the effect that a complaint based on a civil or contractual debt is mala fide and any arrest or detention made on that basis is unlawful.
The person lodging such a mala fide complaint will face legal consequences. In other words when it is shown that in discharge of civil duty, a citizen exhibits bad faith in his complaint he will be held culpable for the infringement of the suspect’s rights.
Consequently, the clear roles of the police and the courts should be appreciated to enable them function accordingly, one should not be allowed to usurp another’s powers, duties and responsibilities.
Disturbing reports about unresolved murders of suspects by the Special Anti-Robbery Squad otherwise known as SARS have routinely surfaced even though some of those arrests arose from disputes of simple indebtedness made in an attempt to recover debt by any means necessary.