Lodging complaint of all kinds before police with utmost view to arresting the person against whom the complaint was lodged has become a ubiquitous (common) practice among Nigerians- Literates and illiterates.
One continues to wonder if Police are established for all complaints including civil wrong and effecting arrest on any person against whom complaint is lodged as if all complaints are criminal offences in our dear country, Nigeria.

It is this common practice that forms the springboard upon which this piece is written with a view to dislodging the cankerworm in many Nigerians’ minds that not all complaints fall within jurisdiction of the Police and enlightening the public that the practice of lodging all complaints particularly civil wrongs before Police upon which arrest is being effected under disguise of investigation is a bad practice.

Much as ignorance has no space in the legal parlance, yet many Nigerians still find it difficult to draw distinction between complaints which constitute an offence for which police are established to handle from a complaint which is a civil wrong.

Police being creation of Constitution of the Federal Republic of Nigeria under section 214 are one of the agents established to enforce law of the land particularly Criminal Code Act and law of each State with utmost view to maintaining peace and orderliness in our society.

Police as law enforcement agent have their powers clearly spelt out in section 24 of the Police Act, Laws of Federal Republic of Nigeria 2004 and the provision goes thus:

24 (1)

‘In addition to the powers of arrest without warrant conferred upon a police officer by section 10 of the Criminal Procedure Act, it shall be lawful for any police and any person whom he may call to his assistance, to arrest without warrant in the following      cases-

  • any person whom he finds committing any felony, misdemeanour or simple offence, or whom he reasonably suspects of having committed or of being about to commit any felony, misdemeanour or breach of the peace;
  • any person whom any other person charges with having     committed a felony or misdemeanour;
  • any person whom any other person-
  • suspects of having committed a felony or misdemeanour, or
  • charges with having committed a simple offence, if such other person is willing to accompany the police officer to the police station and to enter into recognizance to prosecute such charge

  2)   The provisions of this section shall not apply to any offence with respect to which it is provided that any offender may not be arrested without warrant

 3) For the purpose of this section the expressions felony, misdemeanour and simple offence shall have the same meanings as they have in the Criminal Code.   

It is crystal that going by the combined effect of the succinct provisions of Section 214 of the Constitution of Nigeria 1999 as amended and Section 4 of the Police Act 2004 and all other laws, the powers of the Police enabling the Police to act, are indeed very enormous but yet not left at large and in my view do not cover intermeddling or interfering with the judicial powers of a Court of law.

It is not in doubt that the duty of the police has shown in Section 4 of the Police Act which states the functions of the police which is to maintain law and order in the society. Thus, the Police have power to investigate and prosecute offenders for crime committed.

Flowing from the provisions of Section 214 of the Constitution of Nigeria 1999 as amended and Section 4 of the Police Act 2004 is the deductible fact that the Police are employed for the prevention and detection of crime, the apprehension of offenders, the 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, and they are employed to perform such military duties within or outside Nigeria as may be required of them by, or under the authority of the Police Act or any other Act.

It is worth saying here that the Nigeria Police Force is not created to be used to settle scores or to be used by the mighty to oppress the small. It is not an agent of vendetta.

Flowing further from the provisions of section 24 of the Police Act is the repetition of the words ‘felony’ and ‘misdemeanour’ five (5) consecutive times in section 24 of the Police Act and thereby evinced that the Police are saddled with responsibility of arresting either with or without warrant any person whom the Police find committing felony, misdemeanour or simple offence or whom the police reasonably suspect of having committed or of being about to commit any felony, misdemeanour or breach of the peace. What then are the acts which constitute offences christened ‘Felony’ and ‘Misdemeanour’?

The word ‘Felony’ is defined as a serious crime and includes but not limited to the following:

  • Murder
  • Assault (act of inflicting physical harm or unwanted physical contact upon a person or a threat or attempt to commit such an action. Note: it is both a crime and a tort. The definition is the same in criminal and tort law) or
  • Battery (actual bodily contact or unlawful physical acting upon a threat)
  • Manslaughter (Unintentional killing of another)
  • Animal cruelty/abuse
  • Vehicular homicide (crime that involves the death of a person other than the driver as a result of either criminally negligent or murderous operation of a motor vehicle)
  • Larceny/stealing (unlawful taking of the personal property of another person or business)
  • Arson (crime of willfully and malicious setting fire to or charring property)
  • Burglary
  • Various forms of fraud
  • Computer Crime Fraud and abuse (computer hacking)
  • The manufacture, sale, distribution, or possession with intent to distribute of certain types or quantities of illegal drugs
  • Vandalism on Federal property
  • Treason
  • Rape/sexual assault
  • Kidnapping
  • Obstruction of justice
  • Perjury (the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding).
  • Copyright infringement (use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work or to make derivative works)
  • Child pornography/child sexual abuse(sexual stimulation, sex assault
  • Mail and wire fraud (any fraudulent scheme to intentionally deprive another of property or honest services via mail or wire communication)
  • Forgery
  • Threatening an official (police officer, judge)
  • Extortion
  • blackmail

Misdemeanour on the other hand is the act that is less serious or a minor crime punishable by a fine or short jail term. This includes but not limited to:

  • Criminal trespass
  • Resisting arrest
  • Possession of a controlled substance
  • Unlawful possession of a weapon
  • Violation of a restraining order
  • Disorderly conduct
  • Reckless damage or destruction
  • Issuing a bad cheque
  • Driving under the influence of drugs or alcohol
  • Driving without a valid driver’s licence
  • Driving without insurance and vehicle particulars or expired particulars
  • Reckless driving the potentially endangers others

In view of the forgoing, it is convenient to conclude that Police are to arrest any person found committing offence. What then is an offence in the legal parlance?

In Attorney –General V. Awoyele (1952) 19 NLR 52 and A.G Karibi-Whyte Groundwork of Nigerian Criminal Law (Nigerian Law Publications Ltd, Lagos, 1986) at pages 76-77, the word ‘Offence’ is said to be synonymous with the word crime and both words are interchangeable.

Under section 2 of Criminal Code Law Cap 38, Laws of Oyo State 2000, an offence is defined as an act or omission which renders the person doing the act or making the omission liable to punishment under any written Law or Statute. The hallmark of an offence or crime, therefore, is the singular criterion of the act or omission complained of or alleged, being designated a crime in a Statute be it an Act of the Federation or a written law of a State.

It is however important to let all know that criminal offences are of two kinds and these are: Compoundable and non-compoundable offences.

  • Compoundable offences are those offences where, the complainant enters into a compromise, agrees to have the charges dropped against the accused and once an offence has been compounded, it shall have the same effect, as if, the accused has been acquitted of the charges. It is to be noted that application for compounding the offence shall be made before the same court which the trial is proceedings. Some examples of Compoundable offences are:
  • Uttering words etc, with deliberate intent to wound the religious feelings of any person causing
  • Criminal or house trespass
  • Criminal breach of contract of service
  • Printing or engraving matters, knowing it to be defamatory, etc.
  • Non-compoundable offences are offences which by nature are so grave and the defendant cannot be allowed to go scot-free. They can only be quashed. Some examples are:
  • Voluntary causing hurt by dangerous weapons or means
  • Causing grievous hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others
  • Wrongfully confining a person for three days or more
  • Assault or criminal force to woman with intent to outrage her modesty
  • Dishonest misappropriation of property
  • Criminal breach of trust; Cheating and Stealing etc.

Flowing from the forgoing, are all the complaints offences or crimes for police to be resorted to as appropriate arbiter? The answer is negative because the police station is not a place for arbitration or a place for adjudicating civil matters.

It is to be noted that reporting contractual disputes between parties arising from civil transactions to the police is clearly not the duty of the police provided under Section 4 of the Police Act wherein functions of the police are provided which include maintaining law and order in the society.

Research has shown that in Nigeria, Police are now used as agents of recovery of debt for many Microfinance Institutions or individuals. The germane question to ask here is that ‘of all the acts defined as offences under the Criminal Code Act, is the act of owing money by a person an offence? Emphatically, it is not an offence. Why then resorting to police for recovery of money or land or premises?

Even if a citizen decides out of ignorance or wickedness to take a civil matter to the police, the police have the duty to direct the person to the appropriate place being a Court with civil jurisdiction and not for the police to make criminal case out for complainant from contractual disputes between parties arising from civil transactions with a view to charging the person against whom complaint is lodged.

Most often, our Police do arraign debtors for offences of false pretence under section 418 and fraud under section 423 of Criminal Code law, cap 38, Laws of Oyo State 2000 when the debtors failed to pay same as directed by police via undertaking made by the debtors before them. How applicable are the provisions of sections 418 and 419 to the complaint of owing money?

Reading through five hundred and twenty-one (521) sections in both  the Criminal Code Act, Laws of Federation of Nigeria 2004 as well as Criminal Code law, cap 38, laws of Oyo State 2000 evinced unequivocally acts which are offences and penalty prescribed thereof.

Of all the acts defined under the Criminal Code Act as well as Criminal Code Law of Oyo State as offences punishable with imprisonment or fine or both, the complaints resulting from all forms of contract including contract of sale of land as well as tenancy dispute just to mention but a few are not offences or crime which either of the Criminal Code Act, Laws of Federation of Nigeria 2004 or Criminal Code Law, cap 38, laws of Oyo State 2000 defined as offences or crime. Why is it a common practice among many Nigerians that once there is any misunderstanding or dispute between a vendor and a purchaser over a piece of land or dispute over recovery of money or tenancy issue between two persons, the next thing is to rush to the police as last resort?

It must be noted that the provision of section 36 (12) of Constitution of the Federal Republic of Nigeria 1999 as amended guides against prosecuting a citizen for offences not known to law. It thus provides that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law. This becomes a settled principle of law in the case of Aoko V. Fagbemi& Anor (1961) All NLR 400.

From the forgoing, how can a complaint of debt or a complaint resulting from breach of contract be termed as an offence which many Nigerians do report to police?

It is worth saying that the Police are not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from civil transactions. This is the holding of court in MCLAREN vs. JENNINGS (2003) FWLR (PT 154) 528 and many other cases.

It is also noteworthy that the holding of court in the case of Oceanic Securities International Ltd vs. Balogun & Ors (2013) ALL FWLR (pt. 677) 653; (2012) LPELR 9218 CA is to the effect that police or any Law Enforcement Agency, for that matter, including the Economic and Financial Crimes Commissions (EFCC) is not allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pretext of doing lawful duties.

Funnily enough is the complaint emanating from issue of sale of land and tenancy which many Nigerians have strong belief that it is through Police that they can get redress or to say that once there is an issue on tenancy of a tenant particularly for recovery of premises, police are the next agent to use. No wonder, cases for enforcement of fundamental human rights are tremendously increasing on daily basis with complaint of having applicants’ rights being infringed or trampled upon with the involvement of police.

It is necessary to apprise all that it is the provision of section 8(2) of Administration of Criminal Justice Act, 2015 domesticated in Oyo State as Administration of Criminal Justice Law 2016 under section 10(2) that a person shall not be arrested merely on a civil wrong or breach of contract.

It is hereby advised that a person who has complaint about breach of contract or any civil wrong against another person with a clear evidence or claim of indebtedness should endeavour to consult his/her lawyer for him or her to take appropriate steps for redress for the aggrieved person instead of reporting all complaints on civil wrong to police.

It is hereby recommended that a professional police force is created to guard jealously its function in the society and should never allow anyone to debase or erode its Constitutional function.

It is pertinently important to re-echo that a police officer who decides to engage in debt recovery or deal with civil matters reported to it is acting completely outside its jurisdiction and exposing himself to unpleasant comments and litigation.

Going outside the duty of the police will amount to arrogating itself power that it does not have. It is a direct confrontation with the judicial power donated to the Court by the Constitution for the police to handle civil matters. No organ of government or agency of government is allowed to usurp the powers donated to another. There must be mutual respect for each organ or agency of government.

It is however further advised that when a citizen reports a matter which the police know or ought to know that the police have no power to handle being a civil matter, the police should direct the complainant to the appropriate place being a Court with civil jurisdiction.

It is the writer’s stand that cases of abuse or breach of fundamental right would be greatly reduced if the police act professionally within the ambit of law of the land which establishes the Nigeria Police Force spelling out its powers and functions.

S. O. Giwa (a.k.a Pentalk),Ibadan based Legal Practitioner, [email protected] , 08035224192