Oct 10, 2017

Can the police be used as debt recovery agents in contractual matters between parties?


Recently I was involved in a criminal matter between two parties in Court. I appeared for the Defendant and my brief was predicated on a contract that had gone sour and the Complainant getting the Defendant arrested for “defrauding” him as he had elegantly put his case. It is important to note that parties had entered into a contract, evidenced by a contractual document that was tendered in court, and the IPO (Investigating Police Officer) stated in open court during cross examination, that he inspected the contractual document and unilaterally decided that the Defendant had run afoul of the contractual terms.


The attitude of the Court in situations like this is quite clear as espoused by Per Mbaba JCA in OCEANIC SECURITIES INT. LTD VS. BALOGUN & ORS (2012) LPELR-9218(CA)

“It has been stated many times that the police has no business in enforcement of debt settlements or recovering of civil debts for banks or anybody. Only recently, in the unreported decision of this Court in the case of IBIYEYE & ANOR VS GOLD & ORS, APPEAL NO_ CA/IL/M.95/2010, delivered on 7/12/2011, I had cause to scream thus, in my contributory judgment. “I have to add that the resort to the police by parties for recovery of debts outstanding under contractual relationship, has been repeatedly deprecated by the Court. The police have also been condemned and rebuked, several parties, and for using its coercive powers to breach citizens right and or/promote illegalities and oppression. Unfortunately, dispute, all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with the police remains at the root of many fundamental right breaches in our Courts

The police have no business using their coercive powers to deal in matters of contractual nature between parties. In fact, it was held in another matter before the Court of AppealANOGWIE & ORS VS. ODOM & ORS (20160 LPELR-40214 (CA), where My Lords were more forceful with their judgment that
       “…the invitation of the police to intervene in a matter that is purely civil in nature CANNOT BE JUSTIFIED UNDER ANY CIRCUMSTANCES. The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or the ENFORCEMENT OF CIVIL AGREEMENTS BETWEEN PARTIES . See the case of MCLARENCE VS. JENNINGS (2003) 3 NWLR (Pt. 808) 470. The mere fact that the police are invited into just about every matter under the sun is no justification to get the police involved in the resolution of civil disputes. The police has recently held itself out as a responsible law enforcement organization and should be seen to live up to its billings in quickly turning down matters not statutorily assigned to it so as to avoid embarrassments of matters of this nature happening. There are usually dire consequences at every turn of event in the event of things of this nature happening. The position is and has always been that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police. See the case of NKPA VS. NKUME (2001) 6 NWLR (pt. 710) 543 and a host of other decided cases on the subject”

The Police derive their powers from section 4 of the Police Act, Cap 359 LFN 1990. This section states the Jurisdiction of the police and being used as debt recovery agents, being involved in purely civil matters or being used to resolve civil disputes has no basis in law as by so doing, the police would have acted ultra vires. It is disheartening to note many people; even Lawyers still use the police to hound people for purely civil transactions that might have gone sour. As stated by My Lords in OCEANIC SECURITIES INT. LTD VS. BALOGUN & ORS (Supra), this act leads to many fundamental human rights breaches against individuals. Many times, the police, using their coercive and physical presence force victims into making undertakings promising to pay the debt at an agreed date. They threaten with imprisonment and they harass the victims into agreeing to these undertakings which have no basis in law.

The Courts have taken a very radical approach to this problem as they have stated in numerous cases that the victims can institute an action against the errant officer and the private individual who used the police to settle a private score as he too would be liable for the wrongful act of the police.
So in answer to the topic question, the police cannot and should not be used as debt recovery agents nor should they be used in purely civil matters as the act is ultra vires.


F.B.A Nabena & Co

Source: Linkedin 
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2 comments:

  1. in a case where the contractual agreement was breach I.e when the borrower fails to pay the debt at an agreed date, what role can a police officer play?

    ReplyDelete
    Replies
    1. Police officers are not recovery agents and are not equipped to read into contractual documents to determine the defaulting party. In a case of contractual breach, aggrieved party should follow the agreed remedy stated in the contract, be it Arbitration or a Court action. The Police have no business in contractual disputes or as recovery agents.

      Abiola Lawal Esq.

      Delete

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