By Nenjom Asuk

The use of informal contracts in Nigeria is not uncommon. Most agreements are simply sustained by a gentleman’s agreement or filial bonds, including delicate affairs involving money. Even in instances where formal contracts exist between the parties, their terms are seldom honoured. The result is evasive debtors and frustrated creditors who more often than not resort to self-help or law enforcement agencies like the Police Force. In their opinion, this is a legal approach to resolving the conflict.

This practice has however proven to be grossly ineffective in the vast majority of instances. Notwithstanding the inefficacy, the practice has grown in popularity and has become the norm, even though the Act which establishes the Nigeria Police Force makes no reference to debt recovery. This article seeks to inquire into the legality or otherwise of using the Nigeria Police Force as agents of debt recovery.

The Nigeria Police Force was established by the Police Act 1943 and its powers are prescribed therein. Section 4 of the said Act empowers the Police to prevent and detect crime; apprehend offenders, preserve law and order; protect life and property; and duly enforce all laws and regulations with which they are directly charged. This broad definition of the powers of the police has been stretched to accommodate and give effect to a multitude of police actions however, the extent of this power is strictly within a criminal context. It does not in any way contemplate civil matters. The trend which has seen individuals prey on the general public’s fear of law enforcement agencies as a means of enforcing payment of debts has no basis in law. This practice has been condemned by the courts in several cases, chief of which is the celebrated case of McLaren V. Jennings (2003) 3 NWLR PT. 808 PG. 470 where the Court of Appeal declared the use of the Police Force as debt collection agents, illegal.

The confusion often stems from the lay perception of fraud and the inability to distinguish between a simple debt and fraud. While a Simple debt is defined by Black’s Law Dictionary as “a sum of money due by certain and express agreement”, fraud on the other hand was defined in Otukpo v. John & Anor, (2012) LPELR-20619(SC) as “an intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.” While a debt arises out of a default in a contractual obligation to pay a creditor (whether formal or informal) and is a civil action, fraud on the other hand is a criminal matter which arises out of an overt mala fide intention by one party to deprive the other party of their property. The Police is empowered under section 4 of its Act, and the Nigerian Financial Unit Intelligence Act, amongst others to investigate and prosecute the crime of fraud. Even in that regard, the powers of the police are not extended to recovery of the sum, which is at the heart of the dispute, but is limited to prosecution.

The problem with resorting to the police in debt recovery instead of utilising the proper channels is that it leads to a slippery slope which unwittingly alters the substance of the claim, thereby causing the party with a legitimate cause of action to become the one whom judgment is sought against. This played out in Theophilus Kure V. Commissioner of Police (2020) LPLER – 49378 (SC) where the learned Justices of the Supreme Court strongly condemned the practice of using the Police as debt recovery agents while highlighting the effect on the fundamental substance of the cause of action.

Beyond this, the practice by the Police and ill-advised creditors, more often than not, leaves the creditors unsatisfied and the debtors at large. The usual practice sees the creditors frustrated, and grossly exploited by the Police while spending more money on recovering a debt which will most likely remain unpaid.

WHAT THEN IS THE PROPER COURSE OF ACTION?

In these sorts of situation, the proper course of action would be to resort to Alternative Dispute Resolution first. This could be in the form of negotiation, mediation, conciliation or arbitration. In formal/written contracts, reference should first be made to the dispute resolution clause of the contract. Alternative dispute resolution is crucial because it is a legal pre-requisite to commencement of a civil action (See Order 2 Rule 1(c)(v) of the High Court Civil Procedure Rules of Lagos State 2019).

Other options include:

a. Small Claims Court: This Court was established for the expeditious disposal of small debts. Its monetary jurisdiction is capped at N5,000,000.00 (Five Million Naira Only) and the entire process of litigation in this Court takes 60 (sixty) days from institution of the action to delivery of judgment.

b. Summary Judgment Procedure: This is an expedited process for a liquidated money demand. A liquidated money demand refers to a sum that is ascertained or ascertainable through mathematical calculations.
c. An Action for Breach of Contract: Where the debt is contentious, the process should be commenced by a writ of summons in the general cause list.

CONCLUSION

The practice of using the Police Force as debt recovery agents has no legal basis and has been frowned upon by the Courts. It is in Creditors’ best interest to explore options for debt recovery within the boundaries of the law, as opposed to resorting to self-help which will leave them worse off than when they started.

Written by Nenjom Asuk. Associate, at B.F.A. and Co. Legal,