Dear Mirror Lawyer, My aunt is a trader who fell on hard times during the COVID-19 pandemic and has not been able to recover financially since.
She approached one of my bosom friends to secure a loan. It was agreed that she had to pay the loan amount of GHS 10,000.00 within five months, in five equal instalments.
However, she defaulted on payment of this amount, and my friend has reported the matter to the police. One afternoon, the police stormed my aunt’s house, where I also live, and arrested her.
The Police also threatened to prosecute her unless she paid the outstanding loan amount. Is this not an infringement of her right?
Sandra Ansah, Ashaiman Jerusalem
Dear Sandra, liability arising out of a contractual agreement between individual citizens is civil, not criminal.
The effect, therefore, is that an aggrieved party to such an agreement ought to commence a civil action against the party in default of payment, as opposed to reporting the matter to the police for prosecution, unless the case fulfils all the elements for prosecution under defrauding by false pretence.
Admittedly, certain transactions between parties could qualify as both civil and criminal wrongs. A clear example is an agreement to buy land from a vendor.
If the vendor receives the money but fails to deliver the land, it could constitute a civil claim, allowing the purchaser to sue and recover their money for the total failure of consideration.
At the same time, it could also be prosecuted as a criminal wrong if the vendor knew he did not own the land or could not deliver it, but collected money from the purchaser.
The agreement must, therefore, be scrutinised carefully to distinguish it and place it where it belongs.
A similar matter was decided by the Supreme Court in the case of Hemans v Cofie [1997]
The plaintiff, a 68-year-old building contractor, purchased materials to execute a contract work but defaulted on payment. The sellers lodged a complaint with the police, who arrested and detained him until he could pay off the debt. The police refused to grant him bail to look for money to pay off the sellers.
After he had been kept by the police in the cells for eight weeks, he, in order to secure his release, succumbed to pressure exerted on him by the police and sold his house to the first defendant, who had been introduced to him by the police.
The police received the money, paid the sellers, and then gave the balance to the plaintiff.
On his release from the police cells, the plaintiff refused to sign a deed of conveyance in favour of the buyers and brought an action in the High Court against the defendants for an order to set aside the sale on the ground that it was null and void because it had been induced by duress.
The Supreme Court held that the police were empowered by law to protect the life and property of the citizenry, not to act as debt collectors.
The police had no lawful authority to arrest a wife when seeking her husband, or a son when seeking the father, or vice versa, as in the instant case.
Since such practice constituted a negation of the fundamental rights of the individuals involved under the law and the Constitution, it had to be roundly condemned.
In this scenario, the transaction is purely civil. Your friend is not permitted to use the police force as a “debt collection agency”. The arrest, therefore, is unlawful because there is no legal basis for effecting it.
Your aunt may institute legal actions under Article 14(2) & (5) and Article 15 of the 1992 Constitution, which protects a person’s right to personal liberty. Article 14(2) and (5) of the 1992 Constitution state as follows:
(2) A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.
(5) A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.
She may also institute legal action for false imprisonment, as she has been unjustly restricted in her movement. She may even institute a suit against your friend for compensation as provided for in Article 14(5) of the 1992 Constitution.
However, please ensure your aunt discharges her obligations under the agreement to repay the loan amount. She is in breach of the agreement by defaulting on the payment.
A civil suit may also be brought against her to recover the balance, interest, and damages for breach of contract.
Source:
www.graphic.com.gh