Police, EFCC, others not debt collection agencies – Court (Con’t from last week)

More immediate and relevant to this case are Paragraph (a) of Subsection 1 which provides that the right could be curtailed in execution of the sentence or order of a Court in respect of a criminal offence of which the suspect has been found guilty, and Paragraph (c) provides that the right could be circumscribed […]

More immediate and relevant to this case are Paragraph (a) of Subsection 1 which provides that the right could be curtailed in execution of the sentence or order of a Court in respect of a criminal offence of which the suspect has been found guilty, and Paragraph (c) provides that the right could be circumscribed for the purposes of bringing such person before a Court in execution of the Order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
There is no question that the 2nd and the 3rd Respondents predicated their actions on these statutory and constitutional provisions. However, these provisions, just as other provisions and powers, are often subject of wanton abuse by statutory bodies vested with such powers. The Courts cannot, therefore be too careful in treating cases as this where the concerned Agency claims that it was impelled, to curtail the right of rights of the citizen as a result of the demands of its office. But, a careful study of the processes before this Court did not disclose that the 2nd and the 3rd Respondents took any positive step towards bringing the accused person to Court to answer charges relating to the offences he was said to have committed. For instance, there was no evidence of any Application to Prefer a Charge against the Applicant amongst the Exhibits attached to the Counter Affidavit of the 2nd and the 3rd Respondents. That, at least, could have sufficed to convince me that the detention of the Applicant at the Office of the 2nd Respondent was no malicious and whimsical.
We must not lose sight of the fact that the original facts that gave rise to this Application was the failure of the Applicant to meet up with his obligations to the 1st Respondent under the terms of the various loan agreements he entered into with the 1st Respondent. Though the Applicant had deposed to the facts that it was the failure of the 1st Respondent’s workers to meet up with the strict regimen of the transportation business of the Applicant that directly resulted in his default in meeting up with the repayment mode, and from where part of the repayment would have been met, it is not for the Court in this instant Application to inquire into the terms of the loan Contract. Whatever the default of the Applicant might have been in respect of the terms of the loan agreements, the 1st Respondent should not  have resorted to self-help to recover the loan and the 2nd and 3rd Respondents should not have lent itself to such unsavory task.
In several judicial decisions spanning the years, the Courts have condemned in no uncertain terms the use of the Police or other Law Enforcement Agents in recovery of debts.
It is for the above reasons that I consider as an afterthought the position of the 2nd and 3rd Respondents that the arrest and detention of the Applicant was done pursuant to the powers of the 2nd Respondent to carry out investigations and prevent the commission of financial crimes. The admission of the 2nd and 3rd Respondent that the Applicant was detained for only 10 hours and then released on bail on self-recognizance does not bear out with the proceedings of this Court in respect of this Application. It must be remembered that in February, 2013, this Court made an Order compelling the 2nd Respondent to release the Applicant from its detention facility. Similarly, the 1st Respondent has not convinced me that it did not storm the residence of the Applicant in the manner graphically stated by the Applicant in his Affidavit setting out the facts upon which the Application was based.
I take judicial notice of the fact that Microfinance Institutions, in the course of granting loans to their customers, usually demand for post-dated Cheques from the prospective debtors as security for such loans. The transaction between the Applicant and the 1st Respondent is not an exception. The contents of Annexures MFB 1, MFB2 and MFB3 which are the Loan Agreements are quite clear on the nature of security required for the loans granted the Applicant. The position of the law is trite that an Order of a competent Court is required before such security could be foreclosed.
It is quite disingenuous for the 1st Respondent to have turned around, after hastily foreclosing the security of the Applicant without an Order of a competent Court and proceeding to present the said Cheques without waiting for confirmation from the Applicant, to claim that the Applicant had issued dud Cheques toil. What is more, the Applicant had been making conscientious efforts towards repaying the said loan, it is a notorious fact that the global economic crises have resulted in a lot of Ioan defaults:
Nigeria is not immune to this economic malady. I see no ground for reasonable suspicion that the Applicant had committed an offence to warrant his arrest and subsequent detention by the 2nd and 3rd Respondents at the instance of the 1st Respondent.
The claim by the 2nd and the 3mRespondents that the Applicant was detained in the course of an investigation into alleged commission of financial crimes was nebulous and uncertain. There was no evidence of such investigation and there was no evidence of the pendency of any case against the Applicant. The Courts have been advised to consider all the processes filed in respect of any particular case before arriving at any decision.
There is, therefore, no doubt that the fundamental rights of the Applicant had indeed been violated.
It is for this reason that I find merit in the Application for the enforcement of the fundamental rights of the Applicant as contained in the Motion Papers’ of the Applicant. The Applicant therefore succeeds in all the prayers sought in this Application with the necessary modifications against the 1st, 2nd and 3rd Respondents.
Similarly, an Order for a declaration that the arrest, restriction of movement of the Applicant on the 4th and 17th September, 2012 by the 2nd Respondent and further threat of arrest and detention by the 3rd 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 1stRespondent 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 Section 34, 35 and 36. of the 1999 Constitution 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 is hereby granted.
Also granted is an Order for 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 Order of this Court 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 is hereby made.
The Court further makes an Order for a declaration that the 2nd, 3rd, 4th and 5th Respondents are not a debt Collection Agency.
Pursuant to the above Orders, this Court hereby awards the sum of N2,000,000.00 (Two Million Naira only) as damages Jointly and severally against the 1st, 2nd and 3rd Respondents for unlawful violation of the Applicant’s Fundamental Rights.
A token sum of N1100.000.00 is awarded against the 1st, 2nd and 3rd Respondents in favour of the Applicant as cost of litigation.
Though the 4th and the 5th Respondents did not file any Processes in reaction to the processes already filed in this Application by the Applicant, and they also failed to appear in this action, the Applicant has not made out any case against them. This, therefore, brings this action as it relates to them within the exception to the general rule applicable to unchallenged evidence.
The above is the Judgment of this Court in respect of this case and must be obeyed by all the Parties and Counsel and enforced by the appropriate Department and Personnel of this Court together with the Law Enforcement Officers. This is without prejudice to the right of Appeal against this Judgment by any of the aggrieved Parties within the Constitutional and Statutory period allowed for such an Appeal.