The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of civil disputes.
Also, don’t forget, it is not a crime to be in debt in Nigeria. There is no law that makes the owing of loans or debts a criminal offence. At best, owing a loan and not paying it back would constitute a civil dispute. And remember, the Police have no business in settling civil disputes. That business is for the Courts. Just to be clear, civil disputes also include – family crisis, land ownership tussles etc.
Should you use the Police to haunt your debtors under the guise that they have defrauded you, you could be courting trouble for yourself. What we fully mean is that you could and would be liable for any fundamental rights infringement the Police carry out on your debtor due to your petition to them (the Police). In the words of the Court of Appeal; “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 more HERE
Also, the police themselves have a duty to sift through petitions presented to them to tell indeed if a truly criminal element exists that is worthy of the exercise of their powers.
Our Authorities are –
Section 4 of the Police Act 2020
NWADIUGWU v. IGP & ORS(2015) LPELR-26027(CA)
CP.,ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA)
EZEIGBO v. IKECHUKWU & ORS (2019) LPELR-48445(CA)
Nkpa v Nkume (2001) 6 NWLR Pt. 710 at Pg. 543
The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of
This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end of this piece.
The narration below is to act as a mere guide to Counsel and might need some adjustment to suit the peculiar situation of the specific appeal concerned.
Making Oral Submissions on the Day of Hearing of the Appeal
When representing the Appellant (Appellant’s Oral adoption of brief of argument)
My Lords, this is an appeal against the judgment of Okeke J. delivered on the 5th of July 2022. The judgment can be found at page 364 of the record of appeal. The Appellant’s notice of appeal was filed on the 8th of July 2022 and can be found at pages 366 to 367 of the record of appeal.
By leave of Court granted on the 5th of January 2023, the Appellant filed an amended notice of appeal. The amended notice of appeal was filed on the 12th of January 2023. The Appellant’s brief was filed on the 15th of January 2023 but deemed properly filed on the 17 of February 2023. We respectfully adopt same (Adumbrate if permitted by the Justices of the Court or if necessary, at all).
The Appellant also filed an appellant’s reply brief and it was deemed properly filed today. We also adopt same. In reliance on both briefs, we urge this Court to allow the appeal.
Respondent’s Oral Adoption of Brief of Argument
My Lords, we have a notice of preliminary objection filed on the 18th of February 2023. We argued the preliminary objection at pages 2 to 8 of the Respondent’s brief of argument.
Consequent upon our arguments in the preliminary objection, we urge this Court to dismiss the Appellant’s appeal in its entirety.
In response to the Appellant’s substantive appeal and issues, we canvassed arguments at pages 9 to 14 of our Respondent’s brief. We adopt our arguments contained in the said brief filed on the ___________. We urge this Court to dismiss the appeal of the Appellant and uphold the judgment of the lower Court.
Introduction This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end
Falling from a mountain is way faster and easier than climbing one. I mean just leave the ropes (or whatever support it is you’re using), lean your back against the empty air and start falling while shouting on your journey down. Three short but sure steps. And Bam, you’ll be with your ancestors.
For the most part, the same thing applies to businesses.
In effect, building a business is pretty demanding but ruining one can take as short a period as 14 days. Yes, you read that right – 14 days and I swear, I’m not pulling your legs. Yes, you can check them (your legs), I am not pulling them.
On a sincere note, a multimillion-dollar company can become non-existent in just 14 days.
Take the story of one of the fastest growing cryptocurrency exchanges – FTX for example. Last year (2022), the company shut down its operations after having persistent trouble for 14 days.
Shocking one, no cap. But such sporadic collapse of successful companies is not peculiar to the cryptocurrency industry.
In 2008, Lehman Brothers – an investment bank that had been in operation for over 150 years, came to a grinding halt as well.
Same thing with Encron, Myspace and Anderson just to mention a few. These were very successful companies and today? They are no more. You can visit Failory’s Graveyard to see some start-ups/companies that failed and why.
According to Investopedia as of 2021, 20% of startups failed in the first year, 50% within five years and 65% within 10 years of beginning their operations. That’s a pretty gloomy outlook if you ask me. But history repeatedly confirms that even the big companies are not immune from failure as well.
Our point is; destroying a business is in fact easier than building one. Way easier.
And it really doesn’t matter the size of the company. A big company can fold up as quickly as a small company could.
Destruction is cheap but…
But it can be avoided. It doesn’t have to happen to easily.
We also must say that while the eventual failure of a company might unfold in a very short period of time, the tale-tell signs often show themselves much earlier. If these signs are clearly kept from the Company’s books other cues usually exist; maybe the company’s unsustainable debt profile, its failing investments, its unsustainable business model, its failure to comply with Government regulations or even its failure to innovate its business.
Hey, we need to hold ourselves in all ready, this series is on destruction and not the other way round.
So yes, our point is, destruction is cheap. It can be avoided and we will show just how you’ve been courting destruction for your business. If you are not already, we’d show you how to jump with your business into bed with destruction.
For now, remember destruction is cheap.
Falling from a mountain is way faster and easier than climbing one. I mean just leave the ropes (or whatever support it is you’re using), lean your back against the empty air and start falling while shouting on your journey down. Three short but sure steps. And Bam, you’ll be with your ancestors. For the most part, the same thing
The Supreme Court in the case of Odey v. Alaga (2021) 13 NWLR (Part 1792) 1 delivered on 25th of February, 2021 in a split decision of 4-3 decided that a Notice of Appeal must be served on the respondent personally and that service of a Notice of Appeal on the Respondent’s counsel instead of the Respondent personally, renders the appeal incompetent.
However in the recent decision of Amaechi v. Gov. Of Rivers State (2022) 17 NWLR (Part 1858) 1 delivered on 27th May, 2022, the court stated that a Notice of Appeal filed and served on the Respondent’s counsel is proper service as far as the court is satisfied that the Notice of Appeal has been communicated to the Respondent.
Why Odey v. Alaga wasn’t good precedence The Respondent who filed the objection had already filed its Respondent’s brief to the Appellant’s brief and there was also a reply brief by the Appellant.
It was also on record that there was an application by the Appellant to regularise the defect. Hence the principle in priority of motions as laid in NALSA & TEAMS ASSOCIATE v. NNPC (1991) (PT 212) and AG FED v. AIC Ltd (1995) (PT 378) ought to have been followed.
Odey v. Alaga (2021) Part 1792 as well as JEGEDE v. INEC (2021) (PART 1797) – (Had the Majority in Jegede’s case considered the provisions of S. 318 perhaps the decision who have been different), are the specific instances where I with due respect agree with the reasoning of the Minority decision over the Majority.
Written by Carrington Omokaro, Esq The Supreme Court in the case of Odey v. Alaga (2021) 13 NWLR (Part 1792) 1 delivered on 25th of February, 2021 in a split decision of 4-3 decided that a Notice of Appeal must be served on the respondent personally and that service of a Notice of Appeal on the Respondent’s counsel instead of
On the 25th of February 2022, President Muhammadu Buhari signed the Electoral Amendment Bill into Law.
Now popularly known as the Electoral Act 2022, a copy of the legislation as put together by Policy and Legal Advocacy Center, Abuja can be downloaded HERE.
On the 25th of February 2022, President Muhammadu Buhari signed the Electoral Amendment Bill into Law. Now popularly known as the Electoral Act 2022, a copy of the legislation as put together by Policy and Legal Advocacy Center, Abuja can be downloaded HERE.
The Business Facilitation (Miscellaneous Provisions) Act (the “Act”) became law when, on 14 February 2023, the President of the Federal Republic of Nigeria, Muhammadu Buhari, signed the bill passed by the Senate in December 2022. The Act is a legislative brainchild of the Presidential Enabling Business Environment Council aimed principally at removing bureaucratic bottlenecks and administrative impediments to doing business in Nigeria.
The Business Facilitation (Miscellaneous Provisions) Act (the “Act”) became law when, on 14 February 2023, the President of the Federal Republic of Nigeria, Muhammadu Buhari, signed the bill passed by the Senate in December 2022. The Act is a legislative brainchild of the Presidential Enabling Business Environment Council aimed principally at removing bureaucratic bottlenecks and administrative impediments to doing business
I believe God to be all wise. No wonder She necessarily forbids somethings. One abomination in particular stands out for the lawyer – he shouldn’t know all the law. Like I said, God forbids it. Yes, she does. How do I know? Lord Denning the veritable high priest of law said it, who am I to disbelieve him?
But isn’t it almost blasphemous to say that a lawyer shouldn’t know all the law? Think it through; it arguably does sound blasphemous. However, I have only emphasized a part of Lord Denning’s statement. The remainder is – he should know where to find it.
Put both together and the entire statement reads – God forbid that a Lawyer knows all the law, but he should know where to find it.
God’s forbidding as communicated to us by Lord Denning is rather instructive. This writer has found it relevant in many aspects of litigation practice and legal practice in general. Hence this piece.
While prosecuting or defending an action in court, I have oft found out that before concluding on the hopelessness of an intended course of action or argument in any case or even the likelihood of success in a case, it is wise to keep in tune with the face of the law on the subject matter. To put that differently, a periodic review of the facts of a case in the light of the changing face of the law, could make the day of judgment rather euphoric. So, while looking at the case as it progresses to the final address stage, it would be important to keep asking; are judicial outcomes (case law) on similar set of facts changing?
Let me say all you have just read more elaborately;
A recent Court of Appeal or better still a Supreme Court authority that departs from the previous stream of judicial decisions could be a formidable addition to any Lawyer’s available arsenal for a client’s case. And this piece of weaponry could come in the nick of time.
Let me give an example. A while ago, we knew the judgment Debtor to be a meddlesome interloper. The Courts confirmed this. He could only stare during garnishee proceedings. Even if he sneezed, that sound would be inaudible to the Court. Thus, where he filed a motion which the Court called it absurd; U.B.A Plc v Ekanem (2010)
But the Courts have now removed the invisibility cloak from the Judgment Debtor. Now, he can be seen, heard and even do what was previously considered absurd at the Court registry – he can file processes. The law has now chosen to hear his sneezes and agitations during the course of the garnishee proceedings.
We can find yet another example in garnishee proceedings still. Let’s raise the bone of contention as an issue. The issue is – can garnishee proceedings continue even with a pending motion for stay of execution in respect of the same judgment sought to be enforced by the garnishee proceedings? Put differently, should garnishee proceedings continue when a motion for stay of execution is pending? Doesn’t the court lose all vires 0r jurisdiction to continue hearing garnishee proceedings when a motion for stay of execution predates the initiation of the garnishee proceedings?
A stream of judicial authorities maintain that the pendency of a motion for stay of execution automatically delves a suffocating blow to the possibility of garnishee proceedings continuing before the Court. Put differently, a party cannot execute a judgment by way of garnishee proceedings where there is a pending application for stay of execution. The cases of F.I.B Plc v Effiong (2010) 16 NWLR Pt 1218 P 199, Nigerian Breweries Ltd v Dumuje (2016) 8 NWLR (Pt 1515) Pt 1515 P 536 support this position.
There are authorities to the contrary of this position as well. The contrary authorities are; KEDO Plc v Sintilawa (2021) LPELR-56707(CA), I.B.W.A. Ltd v Pavex Int Co Ltd (2000) 7 NWLR (Pt 663) P 105, Purification Tech. (Nig) Ltd v A.G. Lagos State (2004) 9 NWLR (Pt 879) 665.
Moving away from garnishee proceedings, another example comes to mind as well. It is in relation to witness depositions on oath as they are called and widely used in High Courts across the Country. There is the often-innocuous question asked under cross examination in respect of these depositions. Some Judges are known to disallow this particular question for the reason that it does not touch on the live issues before the Court. This is arguably true – though there is a counter argument that bears much weight as well. The question is this – “You signed your witness deposition in your Lawyer’s office?”. The truthful witness may say a damaging “yes” in response.
Simple question. A very simple one in-fact. One might even ask – why bother ask it at all? Buhari v INEC (2008) holds the answer. Relying on Buhari’s case (Supra), the Court of Appeal has held in Aliyu v Bukali (2019) LPELR 46513 CA that such witness depositions that are signed in a Lawyer’s office are incompetent, inadmissible and liable to be expunged by the Court. See also; BUBA & ANOR v. MAHMUD & ANOR (2020) LPELR-51404(CA) and Erokwu & Anor Vs Erokwu (2016) LPELR – 41515 CA on this issue.
May our examples not take us off the point being driven at which is – A recent Court of Appeal or better still a Supreme Court authority that departs from the previous stream of judicial decisions could be a formidable addition to any Lawyer’s available arsenal for a client’s case.
Most times, it is not the bench turning the stream of judicial reasoning and case law in a different direction. It could in fact be a repeal of one law and enactment of another. Or even still, deliberate legislative action that is targeted at tacitly overruling applicable Case Law.
In fact, the gist of most of what I have said is; what you suspect the law to be might in fact not be the position of the law anymore. And if this change in the direction of the law comes from an appellate Court, happy are ye. I am currently unaware of any principle of law to the effect that recently decided cases at higher courts do not apply to ongoing cases at lower Courts where the proceedings in the later where ongoing before the higher court’s decision. So, stare decisis can actually favorably work in the most unlikely of situations and thus, change the litigation strategy or metrics of a case.
In the end, Litigation Lawyers (and indeed all Lawyers) are in a read-and-keep-reading-or-sink-situation.
I end with the words of the Learned Jurist; Niki Tobi JSC in Abubakar v Yar’Adua (2008) 19 NWLR Pt 1120 at Pg 141 “…I must confess that none of the cases cited by learned Senior Advocate in the briefs was known by me when I decided Inakoju. I do not know all the law…it is possible that I am wrong.”
If Niki-Tobi didn’t did it, I didn’t did it.
Nkobowo Frederick LLB
I believe God to be all wise. No wonder She necessarily forbids somethings. One abomination in particular stands out for the lawyer – he shouldn’t know all the law. Like I said, God forbids it. Yes, she does. How do I know? Lord Denning the veritable high priest of law said it, who am I to disbelieve him? But isn’t
In this piece, we will deal with some points of law you should not forget when you are dealing with the Nigerian Police. Our discussions cover the EFCC as well as other security agencies in Nigeria. So, our repeated use of ‘Police Officer’ does not exclude other security agencies.
Also, in between our discussion, we will make reference to what the Courts have said while calling the Police to order and enforcing the rights of citizens.
No, it is not. The torture of persons by the Police is illegal in Nigeria. Torture by the Police amounts to an abuse of the fundamental rights of suspects who are under investigation for committing crime(s). The Police have no right to torture a suspect – whether as part of means to obtain a confession or as part of routine investigations. To make matters clearer, the Anti-Torture Act of 2017 makes the torture of suspects in Nigeria a crime. This applies to the Police, the EFCC, and other security agencies.
For emphasis, Section 9(1) of the Anti-Torture Act is to the effect that anyone who tortures a suspect can be prosecuted, convicted, and sentenced to imprisonment for as much as 25 years.
You can read – Sections 2, 3, 9 of the Anti-Torture Act 2017
In addition to the provisions of the Anti-Torture Act, a police officer involved in the torture or dehumanizing treatment of a Citizen could be dismissed from the Police Force after proper administrative/disciplinary action. On the 9th of August 2022, a Police Officer who was caught in a viral video beating a man with machete was dismissed from the Police Force. You could argue that if the video not gone viral, nothing would have happened and the officer would have continued on his merry way. Our Nigerian minds might want to agree with you in part. But, if such a case was tried in Court, chances are the Police officer and the Police Force would bear serious consequences as well.
Where a person is tortured to death, the Police officer (or other security official) responsible for such can be tried for murder and if found guilty, he or she can be punished accordingly – Section 9(2) of the Anti-Torture Act. In other words, a Police officer who indiscriminately[1] kills a fellow citizen has committed murder.
With all we’ve said you might still be tempted to ask – do Police officers ever get punished for indiscriminately killing innocent citizens? Yes, they do. The instances of these punishments may not be frequent enough to bring sanity to the system but the law still takes its course in many cases.
Here are some links to some news reports of Police officers punished for their wrong conduct;
We have mentioned that the torture of persons (suspects) by the Police amounts to an abuse of the fundamental human rights. By Section 36(5) of the 1999 Constitution, every suspect even when eventually charged to Court is presumed innocent. Also, by Section 34 of the Constitution every individual (including a suspect) has the right to be treated with dignity. In effect, a suspect that has been tortured can sue the Nigerian Police Force for their infringement of his fundamental rights and claim monetary compensation.
We will give you an example of a case in this regard.
This example is a real-life story and it happened in Yola, Adamawa State. The story is as simple as it is common[1]. On the 16th of May 2016, Police officers wearing mufti raided Zaranda Street in Yola. Mr Kabiru Ahmadu who was present during the raid asked the Police officers to identify themselves. This annoyed the Police Inspector who was part of the operation. And Mr Ahmadu was arrested simply because he had the ‘guts’ to ask the Police officers dressed in mufti for some identification. In Mr Ahmadu’s words to the Court, the Inspector said in hausa “ba kasan yan chin ka ba, sai naji maka da dare” meaning “You claimed to know your right I will deal with you tonight”.
Mr Ahmadu was taken to the Police station and locked up. Throughout the night he was beaten until he went into a coma. When the Police officers saw the state in which he was, they attempted to take Mr Ahmadu home to his family. Mr Ahmadu’s father refused to accept his son in such terrible condition insisting that when the Police arrested his son, he was healthy. The Police officers then took Mr Ahmadu to the Hospital where he remained unconscious for 30 days.
Mr Ahmadu sued the Police and the Inspector. The Court gave judgment in his favor and awarded damages (monetary compensation) against the Police.
Don’t forget:
“The mere allegation of crime or wrongdoing against a suspect irrespective of its seriousness cannot operate to curtail the fundamental rights of the suspect nor can it operate to justify the incarceration and torture of the suspect.”
Statement of the Court of Appeal in the case of Duruaku v. Nwoke
Can the Police Detain Anyone for More than 24 to 48 Hours?
Generally speaking, the Police lack constitutional powers to detain anyone for more than a maximum of 48 hours without a court order. But in limited cases, they can detain suspects for more than 48 hours. Section 35 of the 1999 Constitution of the Federal Republic of Nigeria is clear on this point.
Let’s make it a bit clearer – By Section 35 of the 1999 Constitution, a Police officer can detain you for a maximum of 24 HOURS. After that, they must charge you to court. But if it is not possible to bring you to court within 24 HOURS because no court is close by or the following day is a weekend, they must bring you to court within a maximum of 48 HOURS. After this 24 or 48-hour limit, only a court can order that you be detained further. The Police cannot detain you further on their own.
Now if the Police cannot bring you to court within the 24 or 48-hour limit, you must be released on bail except for those cases where you are suspected of having committed an offence punishable with death (i.e. capital offences). The Police have no power to release you in capital offense cases so they must charge you within the 24 or 48-hour time frame or bring you before a court to obtain an order for further detention[2].
Glory Okolie’s Case
You might have read of the case of Glory Okolie; the suspected IPOB spy detained for months by the Police. Some news reports have her name as Gloria Okolie. After her release, she sued the Police and the Court gave judgment in her favour.
What to Note While in Detention
Understand that at the point of arrest, the law presumes you innocent of committing any crime until the contrary is proven in a court of law.
Ask to contact your family, friends or a lawyer. You have that right.
Do not confront Police officers violently or engage them in a heated argument.
If you have not been told, ask them why you are being arrested and detained.
Try to memorize the officer’s name. If they are in mufti, ask the arresting persons to identify themselves.
If you are assaulted, tortured and wounded by the security agent, ensure to take photographs of the wounds and request a first aid.
Say nothing, if you are scared or in doubt and speak with your lawyer first. In other words, you have a right to keep shut until you have spoken with a lawyer or other person of your choosing – Section 35(2) of the Police Act and Section 36(2) of the CFRN. In case you are to be arrested, the Police are to inform you of this right – section 35(2) of the Police Act
You must not make a statement at the Police Station, but it is advisable to do so.
Sign the statement when you are satisfied that it is accurate and reflects the facts fully.
If the Police obtain your statement by force, threat, promises or favours, that statement cannot be used against you in court.
Can the Police Declare Someone a Criminal?
No, the police have no power to declare anyone a criminal. Such power lies with the Court. The police only have power to investigate a crime that they have reason to suspect has happened or is about to happen. They also have powers to arrest people suspected to have taken part in committing a crime. Once these suspects are arrested, they are to be taken to Court where they will be put on trial for the alleged offences. After the trial and if the Court finds them guilty – they will then be convicted and the appropriate sentence will be meted out on them. It is at this point of conviction that a person is really ‘declared a criminal’ and it is only the Court that has the powers to make such a declaration (or in other words convict anyone of crime i.e. declare someone a criminal).
To add to the point being made here, don’t forget that the Constitution presumes everyone innocent until their guilt is proved in Court and accepted by the Court. Because of this presumption of innocence, the police cannot legally declare anyone a criminal before such a person has had his day in Court. See Section 36 (5) of the Constitution for the presumption of innocence provision.
If I am a Suspect, Can the Police Arrest My Relative when They Don’t Find me?
A situation where the Police arrest someone in place of another is called ‘arrest in lieu’. And this practice is illegal. We should sound like a broken record on this point by now. You can read our previous article on this issue here.
Summarily, it is illegal for the Police to arrest you for an offence you did not commit and in place of another person (the real suspect). Criminal liability is not sexually transmitted neither is it transferable by blood ties.
Various provisions of the law support what we have said above, they include; Section 7 of the Administration of Criminal Justice Act 2015 and Section 36 of the Police Act 2020.
Can the Police Just Pick You up and Throw you into a Cell without Any Lawful Instrument?
The Police can arrest you. In some cases, the Police do not need a warrant of arrest (i.e. a lawful instrument) to arrest you. The Law allows the Police to arrest but the Law puts some checks in place to prevent them from abusing this power of arrest. One check is that, the police cannot (or should not) detain you for more than 48 hours without a Court order, just as we have already mentioned.
More precisely, the Police can you arrest without warrant (i.e. a lawful instrument) in some instances provided for under the Law. Section 38 of the Police Act lists some of these instances –
1. Where the offence is committed in the presence of the Police officer
2. When a person escapes from lawful custody
3. When someone obstructs the officer in the performance of his duty
4. When someone is found in possession of an item reasonably suspected to be stolen
The long and short of what we have said is that even where the Police arrest you without a lawful instrument (i.e. a warrant of arrest) they cannot detain you beyond the constitutionally allowed time limits. If they do so, you have the right to sue for the enforcement of your rights.
Can the Police Arrest you because of a Debt, Land or Family Issue?
Let’s make it very clear: The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of civil disputes.
Also, don’t forget, it is not a crime to be in debt in Nigeria. There is no law that makes owing of loans or debts a criminal offence. At best, owing a loan and not paying it back would constitute a civil dispute. And remember, the Police have no business in settling civil disputes. That business is for the Courts. Just to be clear, civil disputes also include – family crisis, land ownership tussles etc.
Should you use the Police to haunt your debtors under the guise that they have defrauded you, you could be courting trouble for yourself. What we fully mean is that you could and would be liable for any fundamental rights infringement the Police carry out on your debtor due to your petition to them (the Police). In the words of the Court of Appeal; “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.”[4]
Also, the police themselves have a duty to sift through petitions presented to them to tell if a truly criminal element exists that is worthy of the exercise of their powers.
Let’s not forget, you are not to be arrested merely because of a civil wrong – Section 32 (2) of the Police Act.
The law is settled that in exercising their powers under the law, the arresting authority must act strictly within the confines of the law. Implicit in the powers of the police or any law enforcement agent to arrest or apprehend a person upon a suspicion of having committed a crime is the duty and responsibility to scrutinize any complaint laid before them and to be reasonably satisfied that there is a ground to proceed on an investigation of a complaint.
– Statement of the Court of Appeal in the case of Obinegbo & Ors v. I.G.P & Ors
SOURCE: ChannelsTv
Key Take Aways:
Point 1: Police Men are not above the Law
A key point you should take from this piece is this – Police officers are to carry out their duties within the limits of the law. Therefore, there are things they are not legally allowed or permitted to do.
So, when Police Officers cross the line (or break the law) in the course of carrying out their duties, they can be sufficiently punished.
As we have mentioned already, a Police officer could be convicted of the murder of a citizen. You can sue a Police officer who violates your fundamental human rights and be compensated in damages. In addition, a Police officer could be dismissed from the Police force for his professional misconduct.
Point 2: Police Officers are to protect the Rights of Citizens, not abuse them
By Section 4 of the Police Act, the Police are to protect lives and property and by Section 5, they are to promote and protect the fundamental human rights of citizens in their custody and all other citizens. The Fundamental rights in question extend to fundamental rights guaranteed under the African Charter on Human and People’s Rights (Ratification and Enforcement Act).
You are not to be arrested merely for a civil wrong – Section 32 (2) of the Police Act.
The Police are not debt collectors, and are not to settle family disputes and business contracts.
By Section 35(1) and (7) of the CFRN the arrest and detention of a person/citizen is to be on the reasonable suspicion that a CRIME has been committed. Usually, the instigation of the Police to recover debts (or to get involved in civil disputes) is carried out by fellow citizens but the Courts are now willing to and often award/grant damages against persons that wrongfully instigate the police in such matters.
Also, the police themselves have a duty to sift through the petition presented to tell indeed if a truly criminal element exists that is worthy of the exercise of their powers.
Written by Nkobowo Frederick LLB
Nkobowo Frederick Nkobowo is an astute lawyer and alumnus of the University of Uyo. He is currently a Senior associate in Compos Mentis Legal Practitioners; one of Nigeria’s foremost indigenous law firms. As part of the Dispute Resolution Practice group of the firm, he currently specializes in Banking law, employment law as well as oil and gas litigation. He is also an Associate of the Chartered Institute of Arbitrators, Nigerian Chapter.
In the Course of his practice, he has successfully represented corporate organizations and individual clients in handling various high net worth claims in various Courts across the nation. With a penchant for detail, he is known to sift through the mesh of facts and law to achieve justice for clients within the bounds of the law. This has led to the win of many multi-Million naira claims filed against his Clients.
When he is not solving knotty legal problems, he could be cooking another hopefully intriguing meal, savoring art or reading. In 2021, he published his first literary work named “Brambles and Roses”.
Case references:
Akila v Director SSS (2014) 2 NWLR (Pt 1392) 443
Obinegbo & Ors v. I.G.P & Ors (2020) LPELR-50980(CA)
Duruaku v. Nwoke (2016) All FWLR (Pt. 815) 351 at 395, Paras. E- F
NPF & Ors V. Omotosho & Ors (2018) LPELR-45778(CA)
Nkpa V Nkume (2001) 6 NWLR, PT 710, 543
Ogbonna V Ogbonna (2014) LPELR-22308 (CA)
Salami V Olaoye (2018) LPERLR-47256 (CA)
Gusau V Umezurike (2012) AFWLR, PT 655, 291
Osil Ltd V Balogun (2012) 7 WRN, 143
Ibiyeye V Gold (2013) AFWLR, PT 659, 1074
CP. Ondo State & Ors V. Kiladejo (2020) LPELR-52286(CA)
[1] Case citation is Nigeria Police Force & 2 Ors v Kabiru Ahmadu (2020) LEPLR 50317 (CA)
[4] Case references – NKPA V NKUME (2001) 6 NWLR, PT 710, 543; OGBONNA V OGBONNA (2014) LPELR-22308 (CA); SALAMI V OLAOYE (2018) LPERLR-47256 (CA); GUSAU V UMEZURIKE (2012) AFWLR, PT 655, 291; OSIL LTD V BALOGUN (2012) 7 WRN, 143; IBIYEYE V GOLD (2013) AFWLR, PT 659, 1074.
In CP. ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA) the Court said – The powers vested in the 1st and 2nd Appellants (the Police) under the Act does not include the use of the criminal process to resolve or influence the resolution of any civil dispute under the guise of investigating criminal features in such disputes.
[1] Indiscriminately is used here to mean kill without legal justification/a trial
In this piece, we will deal with some points of law you should not forget when you are dealing with the Nigerian Police. Our discussions cover the EFCC as well as other security agencies in Nigeria. So, our repeated use of ‘Police Officer’ does not exclude other security agencies. Also, in between our discussion, we will make reference to what
The common factor amongst all startups is the need to grow a valued and sustainable long term business. In so doing, many startups focus on seeking the right investors to raise capital for the business and seek to hire a good management which is usually a Chief Executive Officer (CEO), who is experienced in the objectives of the business. While this is significant, a good business that will stand the test of time must give great consideration to the guiding principles of corporate governance from the formative stages of the Company. Corporate Governance is a major promoter of business prosperity and corporate accountability in any jurisdiction of the world, irrespective of the type of company or the industry within which the company operates.
It is also important to know that there is no singular approach to imbibing corporate governance into the operations of a company but there are guiding principles that have been set up by the Nigerian Code of Corporate Governance 2018 (NCCG) that companies are encouraged to closely consider in setting up processes and structures that best suit the objectives of the company. Now although corporate governance is not necessarily mandatory for companies, it is important to note that all public companies, private companies that are holding companies of public companies and all regulated private companies that file returns to any regulatory authority other than the Federal Inland Revenue Service (FIRS) and the Corporate Affairs Commission (CAC), are required to report on the application of the NCCG in their annual report.[1]
The Companies and Allied Matters Act (CAMA 2020) has enabled the existence of novel forms of corporate organizations such that unlike its predecessor, there can be a company with a single membership[2] or single directorship[3]. The CAMA 2020 has also given a lot of concessions to small companies[4]. As such, it is legal for a startup company to have a single member or a single director. However, the question that follows would be whether it is advisable for a startup to stop at the minimum threshold permitted by the CAMA 2020? The Nigerian Code of Corporate Governance 2018 recognizes that there are various companies of varying sizes and complexities and encourages companies to explain and apply the Code to the peculiarities of their own situation.
Many startups as part of their long term plans, hope to attract foreign investors. Situations in the future may arise that might lead to a corporate restructuring for a start-up company. In a Merger transaction for example, it is of utmost importance for merging companies to conduct due diligence and in so doing, the merging companies are on the lookout for:
The due incorporation of companies
Memorandum and Articles of Association of Companies
Authorised Share Capital and Share Classification and Distribution of Shares among the shareholders
Resolution and Minutes of Meetings
Keeping statutory books and filing statutory returns
Details of Corporate bodies in which the companies own shares
Shareholders Agreement and other similar agreements
Directors of the company and any service contract
Copies of license to do business
Any change in the status of the company
Annual returns and in case of financial institutions, the Statement of Affairs in addition
Corporate properties of the companies, their titles and encumbrances
Disputes, pending litigations involving the companies
Labour issues, collective agreement with labour/employees
Intellectual property and technology ownership and licensing issues
Tax Obligations
From the foregoing, it is obvious that it would be difficult for merging companies to scale through the hurdle of due diligence without the mechanism of Corporate Governance firmly in place.
What then should startups really take into cognizance at the early stages of the company?
Board of Directors: More often than not, most people just enter the name of family and friends into the section that requests for the information of the first directors at the incorporation of the company. While this is common practice, it is important to know that this is a wrong approach because the Board is very central to corporate governance as it is the highest governing group in a company[5] and therefore requires people that are qualified, willing, available and experienced in the objectives to which the company was incorporated, to form part of the board of directors.
It is also important that after these directors are appointed and registered at the Corporate Affairs Commission, they undergo an onboarding process[6] to ease them into their duties as directors of a company. This is to ensure that they have an understanding of their role and responsibilities in the company and avail them with all resources required to make them most effective in their duties to the company.
The Companies and Allied Matters Act[7] has stipulated that ‘a director shall always act in a what he believes to be in the best interest of the company as a whole, so as to preserve its assets, further its business, and promote the purposes of how it was formed, and in such manner as a faithful, diligent, careful and ordinary skillful director would act in the circumstances’.
In choosing members of the board, it is also important to stress the need for diversity and an adequate number of persons on the board[8]. Diversity is important because it is important for a company to show that they exhibit equal opportunity which could range from gender, race, religion and even age group. Further, the Code[9] recommends that a company should have a written, clearly defined procedure to guide the selection of persons as Director of a company.
A typical board usually comprises of executive directors who are employees of the company and take part in the day to day operations of the company, non-executive directors who are not involved in the day to day operation of the company, and independent non-executive directors who are not representatives of any of the company’s shareholders and has the ability to exercise expertise and independent judgment in the best interest of the company.
Management: These comprises of the Chief Executive Officer/Managing Director, Chairman of the Board of Directors, The Company Secretary, The Executive Director, The Non-Executive Directors and The Independent Non-Executive Directors.
The Code of Corporate Governance urges startup companies to go beyond the legally permissible single directorship to ensuring that there are sufficient Directors to effectively undertake and fulfill the business of the company[10]. The Code further recommends that the Chairman is distinct from the MD/CEO[11]. The Code advises that in a model Board, the Non-Executive Directors should be more than the Executive Directors[12].
The Code further stipulates that while the MD/CEO should be an Executive Director, the Chairman of the Board should be a Non-Executive Director (NED).
Amongst the Non-Executive Directors (NED), the Code recommends that the Independent Non-Executive Directors (INED) should be the majority of the Non-Executive Directors(NED) should be Independent Non-Executive Directors(INED).
For the purposes of clarity, an Independent Non-Executive Director (INED) is a Non-Executive Director (NED) who:
does not possess a shareholding in the Company the value of which is material to the holder such as will impair his independence or in excess of 0.01% of the paid up capital of the Company;
is not a representative of a shareholder that has the ability to control or significantly influence Management;
is not, or has not been an employee of the Company or group within the last five years;
is not a close family member of any of the Company’s advisers, Directors, senior employees, consultants, auditors, creditors, suppliers, customers or substantial shareholders;
does not have, and has not had within the last five years, a material business relationship with the Company either directly, or as a partner, shareholder, Director or senior employee of a body that has, or has had, such a relationship with the Company;
has not served at directorate level or above at the Company’s regulator within the last three years;
does not render any professional, consultancy or other advisory services to the Company or the group, other than in the capacity of a Director;
does not receive, and has not received additional remuneration from the Company apart from a Director’s fee and allowances; does not participate in the Company’s share option or a performance-related pay scheme, and is not a member of the Company’s pension scheme; and
has not served on the Board for more than nine years from the date of his first election.
Company Secretary: The Company Secretary is vital[13] to the efficient and effective operation of the company as he/she works closely with the Board and Senior Management in developing good corporate governance practices within the Company. The Company Secretary is also considered the custodian of all company records, ranging from incorporation documents to post incorporation documents of the company.
By virtue of Section 330 of the CAMA 2020, it is not required for a small company to have a Company Secretary. However, it is desirable and commercially expedient for startup companies to have a qualified Company Secretary.
It is important to note that the Companies and Allied Matters Act 2020 outlines the qualification to act as a company secretary to include; a legal practitioner, a member of the Institute of Chartered Secretaries and Administrators, a member of the professional body of accountants, a person who has held the position of secretary in a public company for at least three years, and a corporate body that consist of members who are qualified legal practitioners and accountants[14].
External Auditors: Whilst a company may have an internal auditor[15], the Code of Corporate Governance requires that a company engages the services of an external auditor review and share an unbiased opinion on the financial performance of the company to all stakeholders involved in the business of the company. The external auditors are usually appointed by the board of directors on the recommendation of the board audit committee. It is important for the external auditor appointed to have a good understanding of the business of the company, adopt international best audit practices, show professionalism and independence in their operations.
By the provisions of the CAMA 2020[16], the external auditor of a company must not be:
an officer or a servant of the company
a person who is a partner of or in the employment of an officer or a servant of the company
a corporate body
a person disqualified for appointment as auditor of any subsidiary, holding company or subsidiary of a holding company of a body
a debtor to the company or to a company that is deemed to be related to the company by virtue of interest in shares, in an amount exceeding N500,000;
a shareholder or spouse of a shareholder of a company whose employee is an officer of the company;
a person who is or whose partner, employee or employer is responsible for the keeping of the register of holders of debentures of the company;
an employee of or consultant to the company who has been engaged for more than one year in the maintenance of any of the company’s financial records or preparation of any of its financial statements
The Code of Corporate Governance further recommends that an external auditing firm should have tenure of ten (10) years and should not be re-appointed after seven (7) years of the disengagement[17].
Company Policies: The establishment of policies and monitoring mechanisms ensures the promotion of good conduct and increases investor confidence[18]. Policies that address whistleblowing, risk management, code of business and ethics, conflict of interest, health and safety, amongst others is highly recommended.
Risk Management Framework: This framework identifies, assesses, and manages major risks associated with the objectives of the company. It ensures that there is a functioning internal control system whose ultimate goal is to ensure that the business for which the company was established is achieved. This framework typically states the risk policy, risk appetite and risk limit of the Company. Please note that the board of directors have the responsibility of approving the Risk Management Framework, as well as ensuring that senior management incorporates the same into the day-to-day operations of the company.
Whistleblowing Policy: This policy sets the standard for disclosing unethical and illegal conducts within the company to ensure that remedial actions are taken, reoccurrence is at minimal and that the company is better protected. Please note that a standard whistleblowing policy must be reliable, accessible, confidential and guarantees the anonymity of the whistleblower.
Code of Business and Ethics Policy: This policy highlights the commitment of the company to uphold the highest standard of professional and ethical behavior as well as sustainable business practices. This policy commits the company, its board and senior management, employees, contractors and other company owned entities.
Conflict of Interest Policy: This is a major policy that gives definition to various activities within the company that can be summed up to mean a conflict of interest and would usually include insider trading and related third party transactions. The policy also provides the procedure for disclosing any real or potential conflict of interest to the company which is usually done through the company secretary.
Health and Safety Policy: This policy highlights the procedures and strategies for the management of safety issues such as workplace fatalities, accidents and occupational incidents. It also addresses the management of severe diseases on employees and their dependents.
Meetings of the Company: Although the CAMA 2020[19] has stated that a small company or a company that has a single shareholder does not need to hold Annual General Meeting, it is desirable[20] and commercially expedient for a startup company to hold AGMs. This is because the AGMs provides an enabling environment for the members and the Management of the Company to interface. Records such as the minutes of the meeting would constitute as reliable evidence of such meetings being held, members in attendance and matters deliberated and decisions reached at such meetings. Additionally, the Board of Directors are encouraged to meet at least once every quarter of the year to carry on the business of the board. Minutes are also prepared to highlight decisions reached at the meeting and serve as evidentiary documents for the company.
Registering a company and having the necessary manpower is not enough when it comes to growing a successful company. Any company that would stand the test of time and limit its exposure to criminal and civil liability must incorporate good governance into its operations and this can be well done from the inception of the company.
Written By Inemesit Udongwo ESQand Memabasi Udowoima ESQ
[1] Section 73 of the Financial Reporting Council of Nigeria Act 2011
[2] Section 18(2); 105(3) of the Companies and Allied Matters Act 2020
[3] Section 271 of the Companies and Allied Matters Act 2020
[4] A small company, by section 394 of the Companies and Allied Matters Act is:
(a) a private company;
(b) its turnover is not more than N120 million or such amount as may be fixed by the Commission from time to time;
(c) its net assets value is not more than N60 million or such amount as may be fixed by the Commission from time to time;
(d) none of its members is an alien;
(e) none of its members is a government, government corporation or agency or its nominee; and
(f) in the case of a company having share capital, the directors between themselves hold at least 51% of its equity share capital.
[5] Section 269 of the Companies and Allied Matters Act 2020; Principle 1, Code of Corporate Governance
[6] Principle 13, Code of Corporate Governance 2018
[7] Section 305(3) of the Companies and Allied Matters Act, 2020
[8] Principle 2, Code of Corporate Governance 2018
[9] Principle 12, Code of Corporate Governance 2018
[10] Principle 2.1 of the Nigerian Code of Corporate Governance 2018
[11] Principle 2.7, Nigerian Code of Corporate Governance 2018
[12] Principle 2.3, Nigerian Code of Corporate Governance 2018
[13] Okeowo v. Miligore (1979) 11 SC 138 SC; Wimpey (Nig) Ltd v. Balogun (1986) 3 NWLR (pt.28) 324
[14] Section 332 of Companies and Allied Matters Act, 2020
[15] The Head of the Internal Audit Unit of a company should be a member of the Senior Management with the requisite qualifications, objectivity, competence, experience who is also a member of a professional body. Principle 18.3 of the Nigerian Code of Corporate Governance 2018
[16] Section 403 of the Companies and Allied Matters Act
[17] Principle 20.2 of the Nigerian Code of Corporate Governance 2018
[18] Principles 24, 25, 26 of the Nigerian Code of Corporate Governance 2018
[19] Section 237 of the Companies and Allied Matters Act
[20] Principles 21, 22 and 23 of the Nigerian Code of Corporate Governance 2018
The common factor amongst all startups is the need to grow a valued and sustainable long term business. In so doing, many startups focus on seeking the right investors to raise capital for the business and seek to hire a good management which is usually a Chief Executive Officer (CEO), who is experienced in the objectives of the business. While
Tip No 1 Substitutional arrest is illegal. A friend or relative of a suspect is not to be arrested in place of the suspect. Let’s give an example; if the Police have reason to believe that Lakunle committed an offense and arrive his compound to arrest him but to their surprise, he is nowhere to be found. The law does not permit the Police to arrest a sister, brother, or other relatives of the suspect to ensure he surfaces from his hiding or escape.
Tip No 2 A Suspect arrested by the Police has the constitutional right to remain silent and avoid answering any questions until he or she has consulted a lawyer or any other person of his choice. Section 35(2) of the 1999 Constitution provides for this.
Tip No 3 It is illegal for the Police to arrest a suspect merely because he or she is owing a debt that has arisen from a contract and has not been able to repay the debt. Owing debt is not a crime and Police officers are not debt recovery agents. Never forget that; any arrest and detention merely to recover debts by the Police is unlawful, wrongful, illegal, and an infringement of the right to personal liberty of the supposed debtors.
Tip No 4
It is not the duty of the Police to settle civil disputes or enforce civil agreements. In a long line of cases Nigerian Courts have consistently held that it is unlawful for the Police to be involved in any way, in the interpretation or enforcement of contracts; and of any other civil dispute. An example is the case of McLaren v. Jennings, where the Court of Appeal held in 2003 that it was unlawful for the Police to arrest and detain the Appellant with regard to the collection of a debt; this is as, under the Law, the Police is not a debt collection agency.
Tip No 5 Where a suspect is arrested, he or she has a constitutional right to be informed of the facts and grounds for his arrest within 24 hours – Section 35 of the 1999 Consitution. This information is to be given to the suspect in a language he understands.
Nkobowo Frederick Nkobowo B.L
The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail viacontact@ls-ng.com
Tip No 1Substitutional arrest is illegal. A friend or relative of a suspect is not to be arrested in place of the suspect. Let’s give an example; if the Police have reason to believe that Lakunle committed an offense and arrive his compound to arrest him but to their surprise, he is nowhere to be found. The law does not