By Douglas Ogbankwa, Esq.
It is common for people to Stand as Guarantors for Loans and also for Employees in a Company. It is also rife to see that there are cases where those loans are unpaid and the Employees engage in Stealing and the Guarantors are arrested albeit illegally.
This Treatise Examines the Legality or otherwise of Guarantors being arrested and the nature of a Guaratorship.
*The Duhaime’s Law Dictionary* defines a Guarantor as:
“A person who pledges payment or performance of a contract of another, but separately, as part of an independent contract with the obligee of the original contract.”
In other words a Guarantor is a person who guarantees the good behaviour of person in a contract of employment or the repayment of a loan and who pledges to be held liable for any theft or connected infractions or the repayment of the loan respectively.
A Guarantor’s Agreement is an independent Contract between the Employer and the Guarantor and the Lender and the Debtor as the case may be. As it is in any thing that is a contractual,if there was a breach of any kind the only remedy available to the other party is to go a Civil Court of Competent Jurisdiction to enforce same.
The Police, the EFCC and other Prosecutorial Authorities lack the requisite Powers to arrest a person over a breach in a Guarantor ‘s Agreement.
*Section 4 of the Police Act empowers the Police to detect, prevent the commission of any and investigate a crime, apprehend any suspected offender, preserve the Law, protect lives and properties, etc.*
The EFCC and other Prosecutorial Agencies also have similar Provisions in their enabling Laws.
The question to ask is “what crime has a person committed by signing a Guarantor’s Agreement?” – a Civil Contract that can only be enforced vide the filing of a Civil Claim.
The Court of Appeal ,Owerri Divison Per Ita George -Mbaba (JCA) in the case of Anogwie v. Odom (2016) LEPLR -40214 frowned at the intrusion of the Police in Civil and Contractual Matters when it stated thus:
“To make matters rather worse, the invitation of the police to intervene in a matter that is purely civil in nature cannot be justified under any circumstances. The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties. See the case of MCLARENCE vs. JENNINGS (2003) 3 NWLR (PT.808) 470. See also the case of AFRIBANK NIG. PLC vs. ONYIMA (2004) 2 NWLR (Pt.858) 654.The mere fact that the police are usually invited into just about every matter under the sun is no justification to get the police involved in the resolution of civil disputes. The police has recently held itself out as a responsible law enforcement organization should be seen to live up to its billings in quickly to turning down matters not statutorily assigned to it so as to avoid embarrassments of matters of this nature. There are usually dire consequences at every turn of event, in the event of things of this nature happening. 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 the case of NKPA vs. NKUME (2001) 6 NWLR (Pt.710) 543 and a host of other decided cases on the subject.”
It is my humble submission and rightly so, that the Police can not enforce a Gurantor’s Agreement which is a contract between parties.
This Position is reinforced by Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended )* which guarantees the right to personal liberty, prohibits arbitrary arrests, and stipulates conditions under which restriction on personal liberty may be justifiable, that section provides thus:
“(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;(b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;(c) for the purpose of bringing him 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;(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.”
It is therefore the Law that save for the conditions stipulated above, the police has no right arresting a person who has not committed any crime, hence the frequent involvement of police in matters considered purely Civil ,including the execution of a Guarantor ‘s Agreement is illegal and unconstitutional.
It is thus the position of the Law that a Guarantor is at best a debtor whose only obligation to the Creditor is to pay the debt incurred in any where and has not committed any crime that the Police can be invited into.
In the case of Ogbonna Vs Ogbonna (2014) LPELR – 22308 CA; (2014) 23 WRN 48, the Court of Appeal held thus: the police have no business helping parties to settle or recover debts. We also deprecated the resort by aggrieved creditors, to the Police to arrest their debtors using one guise of criminal wrong doing or another. See Ibiyeye vs Gold (2013) ALL FWLR (Pt.659)1074; OSIL Ltd vs. Balogun (2012) 7 WRN 143 at 173 – 174. Of course, a man who procures the Police to do some illicit duties for him should be ready to face the legal consequences of that illegality, and the law is well settled on this
If for any reason you are arrested by the Police and other Prosecutorial Agencies for being a Guarantor you can sue for the enforcement of your Fundamental Human Rights and you will be entitled to damages and apologies under *Section 35 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
We call on the Police and other Prosecutorial Agencies to stop the impunity of dabbling into arresting Guarantors, who just signed a Guarantor’s Agreement which is not a criminal offence.
We also call on Citizens to pursue their Rights when ever that happens.
The way to fight impunity is to challenge same. Impunity thrives only when it goes unchallenged.
PS. This Article is for Public Enlightenment purpose only.
About the Author.
Douglas Ogbankwa Esq., is the immediate past Publicity Secretary of the Nigerian Bar Association Benin Branch -the Lion Bar and he is the Co-ordinator of African Bar Association, AfBA Law Students’ Internship Programme.