Police, EFCC, others not debt collection agencies – Court

A declaration that the transaction that exists between the applicant and the 1st  respondent is civil in nature giving no rise to any act of criminality to give rise to the arrest, attempt to arrest, intimidate, harass, threat to arrest and undue humiliation of the applicant.A declaration that the sealing of the only gate which, […]

A declaration that the transaction that exists between the applicant and the 1st  respondent is civil in nature giving no rise to any act of criminality to give rise to the arrest, attempt to arrest, intimidate, harass, threat to arrest and undue humiliation of the applicant.
A declaration that the sealing of the only gate which, serves as the applicant’s only entry and exit gate at No.1 Madubuoku Close, Jabi, Abuja by the 1st respondent thereby causing undue hardship on the applicant, the applicant’s family and his dependents without an – order of court is not justiciable under any law in Nigeria and consequently is a violation of Applicant’s right as guaranteed by Section 35 6f the Constitution of the Federal Republic of Nigeria 1999 as amended.
A Declaration that the arrest, restriction of movement on the 28th and 29th day of February, 2010 of the applicant, Applicant’s family and dependents by the 2nd and 3rd Respondents acting on the instructions of the 1stRespondent with its officers, servants,’ agents and privies at the instance of the 1st  respondent in pursuit of a monetary claim which is, purely a commercial transaction between the applicant and the 1st respondent and the applicant’s arrest and constant threat of arrest is unconstitutional, illegal, unlawful and a flagrant breach of the applicant’s fundamental right enshrined in sections 34, 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria and articles 4, 5 and 6 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990.
A declaration that the arrest, restriction of movement of the applicant on the 4th and 5th  September, 2012 by the 2nd respondent and further threat of arrest and detention by the 2nd  respondent and further threat of arrest and detention by the 2nd  respondent acting on the instructions of the 1st respondent with its officers, servants, agents and privies at the instance of the 1st  respondent in pursuit of a monetary claim which is purely a commercial transaction between the applicant and the 1st respondent and the applicant’s arrest and constant threat of arrest is unconstitutional, illegal, unlawful and a flagrant breach of the applicant’s fundamental right enshrined in sections 34, 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 4, 5 and 6 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990.

A declaration that the threat of further harassment and continued threat and restriction of movement of the applicant by the 2nd  respondent, its agents, officers at the instance of the 1st respondent in pursuit of a monetary claim in a purely commercial transaction is unconstitutional, illegal, unlawful and a flagrant breach of the applicant’s fundamental rights.
An injunction restraining the Respondents, whether by themselves, their agents, officers, servants, privies or otherwise however from arresting, harassing, threatening to arrest, detain or however arresting, or in any manner infringing on the fundamental rights of the applicant.
A declaration that the 2nd,  3rd, 4th and 5th respondents are not a debt collection agencies.
The sum of N5,000,000 (five million naira only) as a compensation and for exemplary and aggravated damages jointly and severally against the respondents for unlawful violation of the applicant’s fundamental rights.
Zeroing in on the facts of this case, there – is no question that the circumstances that gave rise to the instant applications were founded in the contract for loan which the applicant entered into with the 1st respondent. From the facts which can be deduced from the depositions in the various Affidavits before me and the annexures thereto, the applicant on or around the 10th day of November, 2008 applied for and was granted a loan facility of N30,000,000 (thirty million naira only) which was to be repaid through the sale of bus tickets directly by the 1st respondent. The applicant further took a loan facility of N3,200,000 (three million two hundred thousand naira only) from the 1st respondent on or around the 28th day of November, 2008; and thereafter took another loan of N10,000,000 (ten million naira only) from the 1st respondent to augment his company’s working capital.
A careful study of annexures MFB1, MFB2 and MFB3 attached to the 1st  respondent’s counter-affidavit revealed that the temporary overdraft of N20,000,000 was to last for 60 days, i.e., up to 06/01/2009. While the repayment source was proceeds from the daily sales of passenger’s tickets and other income of the company, while the security provided were two guarantors with undated cheques totaling N30,000,000, pledge of stock which included any property of the company, and a credit bond with Fortis Microfinance Bank as the first loss payee. Similarly, the second loan facility of N3,200,0000 (three million two hundred thousand naira only), which was a salary advance loan was to last for 14 days with 12/12/08 as the expiry date. Again, the security for the loan was guarantor’s cheque and repayment cheques. The last loan facility, which was a temporary overdraft, was to last for thirty days, with 16/01/2009 as the expiry date, while the Security for the loan were guarantor’s cheques, repayment cheques and a credit bond.
 No doubt, the expiry dates for the various loans fell due with the applicant still indebted to the 1st   Respondent. This can be seen from the contents of annexures MFB 4A, MFB 4B, and MFB4C. What is however contentious was whether the 1st  respondent did intimidate, harass, prevent the applicant and his family members from going out from his No.1 Madubuoku Close, Jabi, Abuja residence, damage the landscaping of the said residence and use the agents of the 2nd respondent to threaten him with prospect of arrest and detention. Already, the 2nd and 3rd respondents conceded that whereas they invited the applicant for interrogation the applicant never stayed beyond 10 hours as he was granted bail on self­ recognisance the day he came for the interrogation.
It is instructive to note that while the 2nd and 3rd respondents -justified their actions on the ground that they were merely performing their statutory functions by investigating allegation!) of issuance  of dud  cheques, the applicant in his Affidavit denied issuing cheques of any value to the 1st respondent or to anybody and went on to explain that he simply deposited blank signed cheque leaves with the respondent as a guaranty as specified in the various Letters of Offer. It is against this backdrop of facts that this court is being called upon by the applicant to grant the reliefs sought herein.

The courts have condemned times without number the use of the instruments of the state, especially law enforcement agents to recover debts for individuals, as if debt recovery forms part of the functions of the law enforcement agents. Section 4 of the Police Act provides, with respect to the functions of the police, that:
The Police shall be 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 shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act. “
On the other hand see sections 6 and 7 of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
Indeed, it is not for the court to impede by way of the exercise of judicial powers, the lawful functions of statutory bodies, particularly where the detection and prevention of crimes is concerned.
In fact, Section 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended which guarantees the fight to personal liberty also lays down the conditions under which this right could be abridged.

To be continued next week