MY INTELLECTUAL BANQUET!

MY INTELLECTUAL BANQUET!: ADMINISTRATION OF ESTATE WHERE THERE IS ONLY A SUR...

2014-04-16T00:08:00.001-07:00

MY INTELLECTUAL BANQUET!: ADMINISTRATION OF ESTATE WHERE THERE IS ONLY A SUR...: THE ADMINISTRATION OF ESTATE OF A DECEASED WHERE THERE IS A SURVIVING ADMINISTRATOR – A LEGAL DISCOURSE ISSUE FOR DETERMINATION Wheth...

ADMINISTRATION OF ESTATE WHERE THERE IS ONLY A SURVIVING ADMINISTRATOR - A LEGAL DISCOURSE

2014-04-15T23:52:00.002-07:00

THE ADMINISTRATION OF ESTATE OF A DECEASED WHERE THERE IS A SURVIVING ADMINISTRATOR – A LEGAL DISCOURSE

ISSUE FOR DETERMINATION

Whether surviving Administrator(s) is entitled to continue with the Administration of Estate of deceased person upon the death of his/her partner.

DEFINITION OF TERMS

Will: A will is an instrument that expresses the intention of the deceased stating the manner his estate would be administered upon his death.

Beneficiaries: The persons named in the Will or Letter of Administration to benefit in the estate of the deceased

Testator: The person making the will.

Estate: The property that you own or have an interest in at the time of your death.

Executor: Person named in the will to be responsible for administering the estate of the deceased.

Reasons to Have a Will

There are several reasons why you should consider making a will. They are, for example:

1. To distribute your property as you wish.

Only by making a will can you select the individuals you wish to benefit and what each should get.

2. To allow you to choose your own executor.

When you make a will you may appoint the executor of your choice. If you die without a will, somebody must apply to the court to be appointed as an administrator. The administrator’s job is to divide your property and assets among those who are entitled to it. The person appointed administrator is usually a member of your family, or if you have none, a close friend or even a creditor. However, this may not be the person you would have chosen.

3. To give you flexibility in carrying out your wishes.
A will gives you flexibility. For example, you may use “trusts” to help manage the property that you leave your beneficiaries. Also, it lets you set out all the powers needed by the executor to carry out your wishes.

4. To provide guardianship for your children

When you make a will you may choose the guardian for your children. If you die without a will, the court will appoint a guardian for your children. The guardian will usually be a close relative but it may not be the person you would have selected.

5. To avoid delays and costsBy making a will and appointing your own executor, settling your estate should progress more quickly. Your family will not have to spend time applying to the court to appoint an administrator. This will save your estate money as well.

WHO CAN & WHEN TO MAKE A WILL

Under the Law, any adult above the age of 18 years old can make a Will. Also, persons of unsound mind cannot make a Will. It is advisable that a person should make a Will as soon as he becomes an adult and has a regular income. This need becomes more important when an adult gets married. This is because once a person gets married; the customary laws which ordinarily may not be your intention would then apply.

DISTINCTION BETWEEN EXECUTOR AND AN ADMINISTRATOR

An executor is the person appointed, ordinarily by the testator by his will or codicil, to administer the testator’s property and to carry into effect the provisions of the will.

An executor may be appointed either:

i. Expressly by the testator in the body of his will

ii. By the exercise of a power of nominating an executor conferred by the testator by his will

iii. by implication from the testator’s will when the executor is known as an executor according to the tenor. In other words where a testator fails to nominate a person in express terms to be his executor, but upon a reasonable construction of his will it appears that a particular person has been appointed to perform the essential duties of an executor such appointment is sufficient to constitute that person an executor.

DIFFERENT EXECUTORS FOR DIFFERENT PROPERTIES
A testator may appoint different executors for different parts of his estate; he may appoint certain persons executors of his property abroad or of his property in a particular country and others of his property in Nigeria. He may appoint different executors for real property while another for personal property.

CONDITIONAL AND SUBSTITUTED APPOINTMENTS

A testator may appoint his widow to be his executrix during her widowhood, or his son to be his executor upon attaining his majority. He may make the appointment conditional upon the happening of a certain event, he may provide for the determination of the appointment or the substitution of one executor for another upon the happening of a given event.

THE CHOICE OF EXECUTOR
No restriction whatsoever exists upon the choice of an executor. An alien may be appointed. A convicted criminal may be appointed but the fact that the executor is serving a prison sentence may make it impossible for him to administer the estate so that the court may grant administration to others under its discretionary powers.

ACCEPTANCE OF OFFICE
The most obvious method of accepting the office of executor is for the person appointed to obtain a grant of probate, although the executor may without applying for probate do such acts with reference to the testator’s estate as constitute an acceptance of the office.

EFFECT OF ACCEPTANCE
An executor cannot accept in part and refuse in part: he must accept or refuse the office as a whole or where the appointment is limited, to the full extent of the appointment. The acceptance of the executorship involves the acceptance of the trusts which the testator himself may have imposed upon his executors.

RENUNCIATION OF THE OFFICE OF EXECUTOR
A person appointed executor may decline by filing in court the application that he does not intend to act the executor of the testator although usually the testator consults the person before appointing him as executor

EXECUTOR’S ACTS BEFORE GRANT
The executor derives his title under the will and the testator’s property vests in him as from the date of death without any interval of time. The probate itself is a mere authentication of his title but if it affects the legal estate in land, it is also a document of title.

SOURCE OF ADMINISTRATOR’S TITLE:
The administrator derives his title entirely from the grant of letters of administration, and the deceased’s property does not vest in him until the grant, so he cannot make a lease or other disposition before the grant. An administrator is a person appointed by a court of competent jurisdiction to administer the property of a deceased person.

The office of the administrator is said to be dative because it derives from such a grant whereas the office of executor derives from the will of the deceased person.

THE DOCTRINE OF RELATION BACK
In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the doctrine that upon the grant being made the administrator’s title relates back to the time of death. It is applicable against a person dealing wrongfully with the deceased’s real estate.

THE CHAIN OF REPRESENTATION - DEVOLUTION ON DEATH

An executorship cannot be assigned at common law, because it is an office of personal trust. It can only devolve by operation of law. Upon the death of one of the executors/ administrators, the office with its incidents , duties and powers, and the estate and interest in all the property vested in the executors by virtue of their office, devolve upon the survivor(s).

Upon the death of a sole executor, or of the last survivor of several executors, the office devolves upon the executor of the sole or last surviving executor who has proved the will and so long as the chain of representation is unbroken, the last executor in the chain is the executor of every preceding testator.

The Supreme Court in Yusuf v. Dada (1990) 4 N.W.L.R. (Part 146) 657 at 682 stated per Agbaje, J.S.C. as follows:

‘Where more than one executor or administrator is appointed the joint office is treated as that of an individual person. Each executor represents the estate for all purposes subject only to the statutory exceptions. They have a joint and entire interest in the estate (real and personal) of the testator or intestate, which is incapable of being divided; and in case of death such interest vests in the survivor without any new grant by the court.

Consequently, if one of two executors or administrators purports to grant or release his interest in the testator’s or intestate’s estate to the other, nothing passes; because each was possessed of the whole before. Similarly, the act of one in possessing himself of the effects is the act of the others, so as entitle them to a joint interest in possession and a joint right of action if needed.’

The above position of the law is inapplicable where the deceased dies intestate under the native laws and customs

It is trite law that on the death intestate of a husband, whether his widow can inherit his property will depend on the customary law of her intestate husband’s locality. Thus, where a person dies intestate leaving many heirs behind, his property will devolve on the heirs and will become a communal or family property of all the members of the family.

The major means through which individuals are differentiated and placed into a system of inheritance is through the form of marriage that they choose to adopt, be it a civil marriage, or under a customary or sharia system. It is of brief note that the form of marriage should have such a major impact on both the rights of the couple and of their children, given that marriage may not be viewed as a contract between two individuals within Nigerian societies. As will be described below, marriage should not be understood as an absolute marker of rights entitlement, but a prima face signal to the courts of the intended system of inheritance.

Individuals must make the choice to contract either a statutory, monogamous civil marriage, or a marriage under a customary or sharia system which is permissive of polygamy.

Ordinarily, under Igbo customary marriage law a widow has no right to inherit her deceased husband’s estate but she can be granted the use of his land if she remains in the family after his death.

Thus, it was held in Madu v. Madu [2007] 14 N W L R (pt. 784) 335 S C that under a customary law marriage which is polygamous by nature and not monogamous, there cannot be an implied gift by the husband to the wife. Such grant is subject to her good behaviour, it cannot vest the estate in her.

In Nezianya & Azika v. Okagbue(1963) All N L R 352, it was held that a married woman had no right to succeed to the estate of her later husband under Onitsha customary law. It was immaterial that she had been in possession of the property without the prior consent of any member of her deceased husband’s family. The fact that she has been in possession for a long time without interference from the family members does not constitute a bar to the family’s right of ownership of the property.

In this latter situation, her long possession was not adverse to the family nor did it give her any right to alienate the property.

A widow has no right of ownership over any property of her deceased husband. It is immaterial whether she has surviving sons or not. The only property of her husband which she has right to keep after the husband’s death are outright gifts made by the husband in his lifetime.

In Eze v. Okwo the husband was survived by three customary law widows but no issue. Before his death the deceased instructed his senior wife to administer his property and use the income there from to maintain herself and the other wives, and to continue staying in his compound with the hope that they might have issues for him. The senior wife attempted to carry out the wishes of her husband but was challenged by his nephew, the plaintiff in this case. He claimed not only that he was the rightful administrator of his uncle’s estate but also that the defendant should be expelled from her late husband’s compound. It was held that a widow can neither inherit her husband’s compound nor administer it. A widow reserves some rights in her husband’s estates. She has the legal right to retain the use and possession of the matrimonial home subject to good behaviours. She is also entitled to farm in her deceased husband’s farmland even if she has no surviving children

Coincidentally, under Yoruba customary law, separate houses or rooms allotted to the wives by their polygamist husband do not vest in the wives; as such allotments are not outright gifts. This is very similar to Igbo customary law. Thus, upon the death of the intestate husband, such houses or rooms become part of the real property of the deceased which will devolve on his family.

Moreover, where a husband in his will purports to vest his share of un-partitioned family property in his wife, it is not capable of devolving upon the widow and such property consists of rights which are purely communal and inalienable. And where such property is being distributed by the family members, the widow cannot successfully claim that she is entitled to the share which would have been her husband’s had he been alive. This is because the devolution of family property under customary law “follows the blood".

The rationale behind this rule is that family land must be kept intact and also the fact that the deceased intestate’s customary law wife is not regarded as a member of the “family” for this purpose. This is evidenced in the statement by Coker48 that: “…among the Yorubas of Nigeria the wives of a man also constitute part of his…property”.

In Suberu v Sunmonu (1957) 12 FSC 33 the question was which of the two parties – the material or paternal relation – should inherit the real estate. The court held that as the deceased’s son died intestate without issue, his share of the family house devolved upon his uterine brothers children. The court also declared thus: “it is a well settled ruled of native law and custom of the Yoruba people that a wife could not inherit her husband’s property.”

In Oshilaja v. Oshilaja the court held that in accordance with the decision of the Supreme Court in the Suberu’s case, the widow in the instant case could not inherit her deceased husband’s estate. And as the deceased intestate died without a child, the court held that the sons of his uterine sister (there being no surviving full blood or uterine brother) were entitled to share in the estate to the exclusion of his widow. The disintegration of the family property could not therefore be avoided if some part of the family land were inheritable by a widow as she could not possibly leave the land in her deceased husband’s family in the event of her remarriage.

One common rule of customary law which is synonymous with all the traditional African societies is that in customary law if intestate succession, the widow has no place in the sense that she can never inherit from her husband on intestacy. It is remarkable to find such uniformity in the customary laws of so many people with different origin, histories and customs. This rule appears irrespective of the services the widow may have rendered to her deceased husband, or of her contributions, financially or otherwise to the accumulation of his property.

This inconsiderable attitude towards the right to inheritance by the widow extends to the administration of the intestate estate. In the Igbo case of Ejiamaike v. Ejiamaike Oputa J. held that

‘a widow of a deceased person had no right under Onitsha customary law to administer the estate of her late husband especially where there is an “okpala” (first male issue) of the deceased who was not a minor’. There is an application of the Igbo law in the decision in the Yoruba case of Aileru Kors v. Anibi where Jibowu J. held: “under native law and customs, widows cannot administer the estate of their husbands”.

It is interesting to note that in recent times, the courts have departed from the rule of customary law that a widow cannot inherit the estate of her deceased husband. Thus in Loye v Loye, the court drew attention to modern socio-economic changes in the relationship of husband and wife and held that:

…a widow has no right of inheritance to the estate of her deceased husband. However, this aspect of our customary law needs urgent reform because it is capable of working great hardship in modern times when wives make significant contributions to the wealth and properties of their husbands. Customary law bases the right of inheritance on “blood relationship”, for example, sons, daughters, brothers, sisters, or even parents of the deceased. But this principle of our customary law should be reformed so that “a widow” or “widower” on grounds of marriage or marital ties could claim a share in the estate of the deceased spouse.

Ifeanyi Ogu Esq.

MY INTELLECTUAL BANQUET!: THE CONCEPT OF SOCIAL RESPONSIBILITY - MATTERS ARI...

2014-04-01T05:30:00.001-07:00

MY INTELLECTUAL BANQUET!: THE CONCEPT OF SOCIAL RESPONSIBILITY - MATTERS ARI...: THE CONCEPT OF SOCIAL RESPONSIBILITY – OVERVIEW BACKGROUND: Perhaps the most important influence on the formulation of business polic...

THE CONCEPT OF SOCIAL RESPONSIBILITY - MATTERS ARISING

2014-04-01T03:50:00.000-07:00

THE CONCEPT OF SOCIAL RESPONSIBILITY – OVERVIEW

BACKGROUND:

Perhaps the most important influence on the formulation of business policy is the concept of social responsibility. The relationship between business and society: business and its environments and business and participants are very complex yet dynamic. The notion of social responsibility of business has emerged out of dynamism (frequent changes) of the relationship between those parties. Corporate enterprises have grown in size, the level of education has significantly increased and people now ask a lot of more questions about their rights, privileges and their responsibilities. Related to this is the fact that, the awareness of the social impact of business activities as a whole is enormous both overtly and covertly, directly and indirectly. The outer environment has remained relevant in most management writing, and one of the most publicized aspects of this is the issue of social responsibility. For as long as the business system remains a subsystem of the organised society, the modern business manager/executive is left with no choice other than to be concerned with societal expectations i.e. be socially responsible.

Every organization function as a part of an interactive system, which has several shareholders, prominent among those stakeholders, are: managers, owners, employees, consumers and society at large. The organization manager cannot afford to ignore or short-change any of these groups, if it does the success of the organization would be affected and it might die.

If owners are unhappy with the performance of the company, they may withdraw their fund and re-invest elsewhere. When workers are unhappy, and unable to meet their needs they may quit their job and seek alternative employment. When consumers’ needs, tastes, values and requirements are ignored they will stop buying the product or services and seek substitutes. Where the larger society is disregarded, the company may be isolated or unfavourable legislation clamoured for against the company.

It makes sense therefore for all business concern to respond to these groups and satisfy their needs by being socially responsible. However, this work is meant to examine and analyse the social responsibilities of business in Nigeria. The Nigerian National Petroleum Corporation has been chosen as a case study.

STATEMENT OF PROBLEM

Many firms are faced with the problem of how best to perform their social duties and yet remain afloat in a dynamic economy like ours. The system comprises three classes of firms with their respective peculiar perceptions as to what social responsibility entails and the society.

The first class comprise firms that perceive social responsibility as the mere act of producing safe and reliable products or services: when this is actualised, they see themselves as been socially responsible forgetting the fact that lots of harm has been done to the environment during the course of production and should be corrected.

The second class are those firms that view social responsibility as that, that pertain to the employed general welfare, such as adequate payment of salaries, good conditions of service and other employment benefits. They fail to recognize the fact that apart from what I would call ‘internal welfare security’ been offered to the employees that the external welfare security (which is the environment) ought not to be neglected because efficiency can only be maximized on an employee when the internal and external environment of work is relatively conducive.

The third class comprises firms though have perfect understanding of what social responsibility is all about, but could not perform due to persistent poor turnover and return. This they blame on government’s nonchalance towards the regulation of importation into the economy.

However, the society (i.e. the inhabitations of the environment) on the other hand has an interest to protect and that is, a better and conducive environment. They would go to any length to achieve this thus, restiveness and riots, not considering the immediate capacity and financial position of the companies in question.

These enumerate misconception has caused a lot of problem in the company – community relations and will continue to linger unless clarity is given to the term and that is what this work seek to resolve.

DEFINITIONS OF SOCIAL RESPONSIBILITY

One major problem facing businesses especially in this part of the world is defining precisely what social responsibility is. Does it mean manufacturing environmentally friendly products? Donating a portion of the profit to charitable homes? Creating jobs in the inner cities plagued by high unemployment? Or what?

The dictionary of management defined social responsibility as:

“The duty of a privately owned enterprise to ensure that , it does not adversely affect the life of the community in which it operates (French and Seward, 1975)

Lord Holmes and Richard Watt (1985) in their publication “Making Good Business Sense” defined corporate social responsibility as “the continuing commitment by business to behave ethically and contribute to economic development while improving the quality of life of the workforce and their families as well as of the local community and society at large”.

David and Blomstom (1075) defined social responsibility as:

“The obligation of decision makers in the corporation to take action which projects and improves the welfare of the society as a whole along their own interest”.

Professor Umo O. (1994) in his book Social Responsibility of a Firm defined Social responsibility from three points of view.

(a) As a concept

(b) As an impact on accounting profit

AS A CONCEPT: This refers to the business firms’ decisions and actions taken to reason partially beyond the firm’s economic or technical interest. Broadly speaking, it means to pursue policies, make decisions that follow those lines of actions, which are desirable in terms of objectives and values of the society.

AS ANIMPACT ON ACCOUNTING PROFIT: This may take the form of using part of the profit to sponsor scholarship of the children of the employed.

AS A SPECIFIC CORPORATE PROGRAMME: This involves the identification of specific corporate programmes, which ranges from economic, educational to medical and governmental programmes. They are distinguished from those programmes, which may be classified as internal and external to the business.

INTERNAL SOCIAL RESPONSIBILITY: This has to do with ensuring due process of justice, equity and morality in employees’ selection, training, promotion and even firing. It may also relate to such things as increasing employee’s productivity, improving workers physical environment and so on.

EXTERNAL SOCIAL RESPONSIBILITY: This refers to such actions as stimulating environmental development and entrepreneurship, improving the level of public enlightenment training and hiring the unemployed in the society.

In a general sense social responsibility of business involves those actions or behaviour that is expected from the organization by the society.

HISTORICAL EVOLUTION

The term ‘corporate social responsibility is basically of American origin. Between1929 and1933unemployment rose from 23% to 30% in the United States due to the ‘great depression’. Business was deteriorating, incomes were dropping and national moral was low. Increasingly, society’s value began to play down, individual is emerged, a new view of social responsibility, one in which business are seen as responsible for well-being of their employees, customers community and the society at large.

In Nigeria, the concept of social responsibility is not as systematic sophisticated as those of western industrialized nation and the US. The concept evolved basically after the civil war in 1970.

Limited records exist to show the social note of business in pre-independent era. This was because the bulk of companies operating in Nigeria than were owned and managed by foreign colonial exploiters that enjoyed government support. The primary concern of the then government, which was the only societal agent, is not to ensure social duty performance of businesses but how to make Nigeria a cheap and dependable raw material base for British companies abroad. Therefore no effort was geared towards this and government blocked every move made towards this end. For instance, trade union activities were illegal until 1939 and even at that, the 1942 General Defence Regulation outlaid strikes, which is about one of the major strategies of making companies socially responsible.

Despite these impediments, there were some certain bold moves to note. The earliest was the 1943successfulgeneraldstrikewhich resulted in workers getting cost of living allowances for inflation, which skyrocketed immediately after the Second World War. In 1987the employees of Public Works Department (PWD) went on a 3-day strike demanding amongst other things better conditions of service and increase in pay.

The post independent era saw the development of the concept of social responsibility in Nigeria. The law reform (Torts) Act of d1961, Part II, made business organization to be responsible for the provision of safety for persons entering in or upon its environment irrespective of whether the person has a contract with the organization or not.

The period 1970 – 1977 saw further development in corporate social responsibility. The Nigerian Standard Organization (now Standard Organization of Nigeria) decree was promulgated to develop and monitor quality standard of Nigeria made products. 1971 witnessed the emergence of the Industrial Training Fund Decree. This compels employers to contribute towards a fund for training in industrial manpower.

In 1973, Wages Board and Industrial council decree emerged to administer matters relating to wages. 1974 saw Labour Decree promulgated to govern general labour conditions in Nigeria.

Perhaps, the Zenith of the development of corporate social responsibility in Nigeria was in 1979 when the economic and social goals of the society were boldly enshrined in Nigerian Constitution.

Though the historical development of the concept of social responsibility of business is not as organized and systematic as that of Western nations, the concern or focus of the societies are logically the same; control of the economy in such a way and manner as to secure the maximum welfare, freedom and happiness of every citizen.

SOCIAL RESPONSIBILITY - PROBLEMS

PROBLEM OF DEFINITION

Dr. Iyanda (1980) postulated that what constitutes social responsibility today may become normal business expectation tomorrow. Worse still, it may become irrelevant. He claimed that not long ago, free medical services, year bonuses even payment of taxes were regarded as evidence of socially responsible businesses, but today, they are normal business practices for which no social credit can be claimed. Oshagbemi (1983) in his book ‘Small Business Management in Nigeria’ observed that business as an element of the society, has a responsibility to aid the society in realising her goals and objectives. Business organizations contributes to the societal problems and therefore are duty bound to help found solutions to these problems and consequently make the society a better place to live in.

According to Milton Friedman (an internationally known classical economist) “there is one and only one social responsibility of business; to use its resources and energy in activities designed to increase its profit, so long it stays within the rules of the game … engages in free competition without deception or fraud”.

These various ideas on social responsibility of business have been politicised between those who support and those who oppose it in such a way that the term corporate social responsibility has several meaning and emphasis today.

OTHER PROBLEMS:

Series of arguments have been advanced against the practice of corporate social responsibility. Among these arguments are those put forward by Davis Fredrick and Bhaustrow (1959). They are identified thus:

(a) Profit Maximization: The most prominent of the arguments against business assumption of social responsibility is that of the classical economies determine to this school of thought, business function is an economic one. The managers are the agent of the stockholders and his decisions are controlled by the desire to maximize profit for them.

According to Milton Friedman (Chief proponent of this school of thought), in a free enterprise or private property system, a corporate executive i.e. an employee of the owners of the business and as such is directly responsible to his employers. His duty is to conduct and run the business in accordance toothier desire, which generally is to make as much money as possible while conforming to the basic rules of the society. He also maintained that corporate social responsibility is fundamentally a subversive doctrine in a free enterprise system.

(b) Lack of Social Skills: Another point raised against social goals is that many businessmen may lack the understanding and skills for the performance of social duties. This could be traced to the fact that their views are primarily economic and their skills are the same. Businessmen are therefore philosophically unfit for social jobs.

(c) Dilution of Business Primary Purposes: Yet another argument raised is that social goals might dilute business emphasis on economic productivity, divide the attention of its leaders and weaken business in marketplace. This may result in poor accomplishment of both its economic and social roles.

(d) Business Has Enough Powers: According to this line of reasoning, business organization is one of the most powerful institutions in the society. Therefore, the process of combining social activities with the already established economic activities of the business would give it an excessive concentration of power.

However, the above series of arguments are been put forward against the assumption of social responsibilities by businesses and consequently, these forms the major problems been faced by firms in the discharge of social duties especially in the developing country like Nigeria.

SOCIAL RESPONSIBILITY - PROSPECTS

Despite the various arguments corporate social responsibility, there are at the other extreme; School of thought that support and advocates for the concept of social responsibility.

A member of this school is Richman (1932) who declare that unless a much more balance is soon achieved between the social and economic power exerted by the private corporate sector and the social responsibilities it assumes. Corporations stand an excellent chance of losing much of their existing pioneer and independence. Austin (1931) also stated that, the job of top management today must be broadened to include an awareness of societal changes it causes. Such awareness will place new responsibility on business management for intelligent, careful thoughtful decisions as to the basic responsibility for meeting such change.

Koontz and O. Donnel (1990) a strong joint advocate of this school of thought also declared “Business like any other type organization must interact with and live within an environment, so take into account our every action, these element of our surroundings which are important to us and others, we all do this when we drive on the right side of the road, wear clothes, pay tax work for a living, vote, etc” they concluded by saying that managers must respond to their environments by achieving congruence within it. They must endeavour to accomplish their mission best judgement in responding to political environment, respect all the rights of others and act as a constructive force in the society. This is their social responsibility.

Steiner (1983) viewed social responsibility as “an important philosophical drift from unbridled self-interest to an enlightened social interest”. In congruence with him, is the declaration that made management to involve itself in such social causes a said to education, urban renewal, opening up of better job opportunities to both men and women alike, training the disabled persons, environmental pollution control and much more. “Unemployment is an economic and social problem, misuse of resources is an economic and social problem and pollution of the environment also, covers both dimensions. A manager is not only an economic decision maker but asocial decision maker as well”.

Davis (1993), also in support stated “There is an iron law of responsibilities which state that in the long run, those who do not use power in a manner that the society considers responsible, will tend to lose it”.

Also in consonance with these authors is Eells (1996) who thinks that prudent regard for all the interest that merge in making the future is in fact the only way to protect and augment shareholders equity.

A fierce publicity is recommended on the part of the government to promote this cause. The government may achieve this by setting up a body that will see to the affairs of companies in this regard. This body shall put in place a performance standard for companies in this respect and should monitor their activities closely for departures. This body shall also see to the building up of the level of awareness of the general public as regards their rights and entitlements by organising seminars and conferences.

NNPC and its joint ventures should set up community relation Committee. This committed should be charged with the primary responsibility of ensuring that proper community welfare policies and plans are developed and implemented across the community.

Large firms in the industry should create a community relation department to be manned by a manager on fulltime basis. He (the manager) should educate the communities and negotiate their demands. Where this is done, it will save the firm the cost of moving from one conflict resolution room to another.

Other non-oil organization should be compelled by the government to form similar committees in their various sectors for even spread of welfare packages across the community.

Akumuo Afam. Thomas

REFERENCES

Aluko, Gbolahang, Olusegun and Odugbesan (1998), Business Policy and Strategy, Pumark Nigeria Limited, Lagos

Barrah, H. (1983) Social Responsibility of Businessman, Harper and Brothers Publishers, New York.

Edward, J. (1986) Business Success and Social Progress: The Inner Kingdom, Journal of General Management, Vol. II, No. 4, pp 10-110

Effiong, J. (1939) Foundation of Modern Business Administration: A Management Approach, Published by Department of management Studies, UNICAL, Nigeria.

Imosili, I. (1985) Corporate Social Responsibility, Concept and Scope, Nigeria Management Journal Penman Vol. 12, No. 1 pp 8-15.

Iyando, O (1980) The Social Responsibility of Advertising in Nigeria. A Journal of Professional managers, vol. 1, pp 8-12.

Monday, I. (April 1997) ‘Business and Society’ A paper delivered at a Seminar of Business Students Association, UNI-UYO, Akwa Ibom State.

Oshagbemi,T. (1983) Small Business Management in Nigeria Longman Group Ltd. Publishers Nigeria

Ramanathan, K.(1976) Towards a Theory of Corporate Social Accounting, the Accounting Review, Pp 1-4.

Banshen, M.(1980) Corporate Strategies for Social Performance, New York, Macmillan Publishing Co. Inc.a

Davies, K. (1992) “The case For/Against Business Assumption of Social Responsibilities “Academy of Management Journal, vol. 16, No. 2 pp 312 –321.

Davies, K. (1976) “Social Responsibility is inevitable” California Management Review Vol. 10 No.14, p 8.

Hay, Emma, Greg and Johnson Gates (1976), Business and Society Cases and Texts, Ohio South Western Publishing Co.

Nwokedi, A. (1987) Community Relations in Oil Producing Companies in Nigeria: Weakness and Solutions, A Paper Presented at Owerri Biannual International Seminar on Petroleum Industry and Nigerian Environment.

Oshegbemi, T.(1979) Corporate Strategy for Business Social Responsibility: A conceptual Framework: A Seminar Paper Presented at the Department of Business Administration, Ahmadu Bellow University (ABU) Zaria, May,1979.

2013-09-20T10:44:00.001-07:00

THE FUTURE OF THE NIGERIAN EDUCATION SECTOR ... A PERENNIAL QUESTION.

DEPARTURE:

It was Pastor Chris Okotie, who at the face of the massive neglect of the youths (and by extension the various sectors of the economy needed to empower the youths and thus lay solid foundation for the future of this nation) lamented thus “The youths are the future of any nation, they ossify the political protoplasm”. It is an over flogged aphorism that a nation without a virile and well trained youth is a nation destined to failure and doom. To achieve any meaningful, steady growth and development in any nation, the decision and policy formulating bodies must give a central attention to provision of quality and integral education to its youths.

WHAT IS EDUCATION?

Taken from the Latin root, educare which means to rear, nurture, to lead. The chambers Dictionary defines education as bringing up or training, instruction; strengthening of the powers of body or mind; culture. The Oxford Advanced Learner’s Dictionary defines it as the systematic training and instruction, knowledge and abilities, development of character and mental powers, resulting from such training. From these definitions we can see some central points; first, education is a process, it is systematic and steady, progressive. Second, it is aimed at refining the individual, unlocking the abilities and potentials hidden in the person. Lastly, it motivates and empowers the individual to be resourceful, enriched and well positioned to take up responsibilities that will have positive effects on the different aspects of the nation’s life.

TYPES OF EDUCATION?

We have two types of education; the formal education and informal education.

The Informal Education is that education we receive from the moment of birth through childhood, adolescence and even as adults. It is community centered and comes through parents, extended family, peers and age grades and through other medium of socialization. It is aimed at preparing and making the individual fit in properly and conforms in attitude to the accepted norms and values of the community. It is the first form of education one receives. It prepares the individual for community life. Teaches the individual the culture, customs, habits, accepted behavioural patterns, the norms, values and beliefs of the community. It very central in the life of an individual as it influences and affects his acceptance or rejection, appraisal and commendation in the community till the end of his life.

Formal education on the other hand is a later form of education that comes when the child has come of the required age. It is a specialized form of education that is geared towards refining and developing the mental and psychological abilities of the individual. It is systematic, methodical, and scientific. It is a progressive form of education that develops and impacts the individual in stages. Every stage is as vital as the other, thus it is time-centered.

QUALITIES OF A FUNCTIONAL AND GOOD EDUCATIONAL SYSTEM

A good educational system must have the basic infrastructure needed to house and accommodate the human elements to be educated. It must be environmental friendly and conducive enough for proper relaxation and learning.
A good educational must be well and properly provisioned for by proper funding by the government and the private sector. This involves provision of the required financial resources required by the management to run, improve, and manage the sector.
A good educational system must be dynamic and flexible. it be conscious of the global nature of the modern world and be ready to imbibe in its curriculum helpful and quality programs and packages from other jurisdictions and countries, that have been of benefit to those countries. This involves having a curriculum that will be compliant with the requirements of the contemporary society. It is geared towards serving its contemporary society and not just a running a stereotype sort of curriculum handed over from the colonial masters that is both dysfunctional and lacks connection with the contemporary society.
A good and functional educational must have quality and dedicated manpower in its employment. A latin maxim says ‘nemo dat quod non habet” (no one can give what he has not) a good tree can never bear bad fruit just like a mango tree can never be expected to yield guava fruits. The quality of education given to the individual is proportional or better still is dependent on the quality of teachers and lecturers that he is exposed to. For a functional and qualitative education needed to make positive impact on the nation, then, there must be quality man power.
Lastly, a good educational system must be individual centred. It must be practical oriented, demonstrative and involving more of the individual rather than mere theoretical. In that respect, provisions must be made for equipments, tools and machines for practical purposes.

THE MANY PROBLEMS OF THE NIGERIAN EDUCATIONAL SYSTEM:

LACK OF ANY LAID DOWN POLICY IN EDUCATION.

Continuity and determination they say is the key to compliance and success. In Nigeria, we are not good at planning. We don’t have a blue print programme on our education plan. Every government comes in with its own agenda cutting midstream the programme of its predecessor. Making changes that are hardly to be monitored and followed with any seriousness. Thereby leading to truncated and disjointed form of implementation of policies on education that leaves no one certain of what will happen next. The consequences of which are not too far fetched, endless breach of agreements between various governments with ASUU and other Labour Unions which most often than not ends in industrial action that leaves the students in coma of confusion and frustration.

LACK OF GOVERNMENT FULL COMMITTMENT IN THE SECTOR

In a related way is the perennial problem of poor funding and attention of the government on the education sector. Myriads of promises have been made by various governments on how it is going to revive the education sector. Some have even gone the extra mile by setting up committees to make suggestions on how to revive the education sectors. The question begging for answers is the outcome of such intellectual congress/ Nothing. Education is given the least attention in the budget even below the United Nation’s recommendation. What can one expect from such a system? Apples can never blossom and yield in the sahara desert. An enabling environment must be created by the government by taking seriously the issue of funding of the educational sector for any meaningful progress to be recorded in that vital sector that is central to the growth and future of the economy.

ABUNDANCE OF POOR AND DECAYED INFRASCTURES

More still is the vital issue of poor infrastructure. A bad system will always brood bad products. A country so richly blessed with almost all it takes to be a super nation. A nation where it leaders thrive and contest in who loots more than the other. A nation where everyone wants to be the leader but no one wants to account to the people of how their resources and allocations were managed over the years of their governance. What does one expect from such a corrupt system? Chaos and impunity and instability in all sectors. Take a visit to any school in the country and you will shed tears for the young generations. No conducive atmosphere for learning, no teaching aids, no proper seats, chairs or chalk boards, leaking roofs, no laboratories for science students yet they are expected to be world class medical doctors, engineers, pharmacists etc. No wonder the rampart and steady rise in the death toll in our various hospitals and clinics. The other time in Anambra State, the entire students of the state were kept away from school for one good academic year as a result of strike occasioned by the failure of the governor supposedly elected by the people to serve them refusal or is it failure to pay teachers their salaries. In a civilized nation, such a man would have been arrested and made to account for the allocation of the federal government for the payment of such salaries. But as expected in this nation, those at the helm of affairs pretended to be deaf to the nationwide outcry of the people. Poor education has diverse negative reverberating effects on almost all the sectors of our life as a people and nation.

POOR MAN POWER AND QUALITY STAFF

More still is the issue of poor man power. A child that is a product of such a chaotic and disjointed educational background cannot be expected to do better than what he was raised up with. Hence our schools and universities are filled up with elements that in civilized countries would have no business with the educational sector. A lot are just there because they cannot find another job. There are few professional teachers that have the interest of the students at heart in the schools. Many teach with anger and frustration, not caring to know if the recipients of their lectures are gaining anything. Hence the high rise in malpractices, forgery, sorting and bribing of lecturers for grades, etc. We have a nation churning out every year in thousands a mass of half baked graduates that hardly can defend their certificates or even communicate fluently in English language. What a shame on us as a nation. The list is endless.

THE WAY OUT

1. The government should not just be heard promising to turn things around in the sector, it should rather be seen taking aggressive and very radical steps in arresting the situation that has almost reached a disaster.

2. The government should make more provisions in form of funding in the sector. More funds should be diverted to the educational sector to take care of the rotten and decayed infrastructure under which our children are left to study in.

3. The government should also take quick steps in setting up world class laboratories and libraries and computers. This will go a long way in encouraging practical and research and thus keep the youths off violence and rascality. In addition it will be of great value in the effective teaching of science related disciplines. It will in the long run lead to the production of highly talented, skilled and efficient professionals that can compete effectively with their peers in any country of the globe.

4. The government should take urgent steps in overhauling of the man power and staff in the educational sector. Teachers should be sent on further studies to develop, improve and upgrade their abilities and knowledge with the current and contemporary issues and skills. There should also be recruitment of qualified and intelligent teachers nationwide to serve as a ginger in the sector. Good welfare package and raise in salary should be considered as a way of rewarding and making the teaching profession more attractive to the intelligent ones that prefer traveling to other shores to teach. This will also go along way in curbing the rising incidence of malpractices, corruption and other rots in the sector.

5. the curriculum should be revised and made more compliant to address the contemporary societal needs and challenges. The attitude of abandoning policies midstream by incoming governments should be given a critical look as it gravely hampers the growth and development of education in the country. They say a rolling stone gathers no moss, thus we should be able to develop a blue print programme on education that will be religiously followed by successive governments for the growth of this great nation.

CONCLUSION.

To achieve the above discussed points, all need to rededicate ourselves to the success of our education sector. No more lip service by the government and its functionaries. No more passivity by the private sector who pretend always as though they are never affected by the poor status of the educational sector. They should be seen making more financial and infrastructural commitment to the sector. The students and youths in general should rededicate themselves to learning, giving away the attitude of dependence and resort to malpractices and violence to get good grades. Self reliant and confidence should be imbibed by all as the only route to success. Parents should tutor, encourage and monitor their children at all times, imbibing in them the spirit of hard work and self reliance as against the rising practice of parents paying lecturers to award undeserving grades and positions to their wards, or even paying people to sit for exams for their wards, or even aiding their wards in the leaking of question papers and forgery of certificates. All these shameful and regrettable practices contribute in no small way in the destruction of the education sector. It is time to say no and turn a new leaf for a better and virile future of education in our nation.

MY INTELLECTUAL BANQUET!: DISMISSAL LAW - THE MEASURES TO BE TAKEN BY THE EM...

2013-08-07T10:36:00.001-07:00

MY INTELLECTUAL BANQUET!: DISMISSAL LAW - THE MEASURES TO BE TAKEN BY THE EM...: THE MEASURES AN EMPLOYER CAN EXERCISE IN RESPECT OF SUSPENSION OF AN EMPLOYEE: LONGE V. F.N.B (2010)6 NWLR (PT.1189) SC.1, UNIVERSITY O...

DISMISSAL LAW - THE MEASURES TO BE TAKEN BY THE EMPLOYER - LEGAL DISCOURSE

2013-08-07T10:34:00.002-07:00

THE MEASURES AN EMPLOYER CAN EXERCISE IN RESPECT OF SUSPENSION OF AN EMPLOYEE: LONGE V. F.N.B (2010)6 NWLR (PT.1189) SC.1, UNIVERSITY OF CALABAR V. ESIAGA (1999) 4 NWLR(PT.502)719

BACKGROUND:

Cases involving Employer/Employee relationship are usually not decided on the surface of it. Parties must resort to contract of employment as terms are supposed to guide the parties in determining the contract of employment except where no such contract exist or in a case of ordinary master/ Servant relationship. The essence of executing a writing contract of employment is to protect parties from untold hardship that may not have been envisaged by either of the parties to the contract. Surprisingly, Employees are always falling victim of unjustifiable termination of their employment. Sadly, we are well aware of the aged long principle that none of the willing parties should be foist on the unwilling party. In recent time, the Courts have shown that Employees are not meant to be treated as if there was no remedy in law, and that informed the attitude of the Court to setting out procedures for suspending an Employee. We shall use the case of Longe v. F.B.N[1] to illustrate the application of the rules.

LONGE V. F.B.N, AND THE PROCEEDURES FOR SUSPENDING AN EMPLOYEE:

The Appellant was appointed the Managing Director/Chief Executive Officer of the Respondent on 24/2/2000. Before that date, the Appellant had been the Respondent’s Executive Director. Following an improper loan he granted, the Appellant was on the 22/4/02 suspended by the Respondent’s Board of Directors, and on 13/6/02 his appointment was revoked. He challenged his suspension and termination of his appointment. The trial Court and Court of Appeal dismissed the Appellant suit, but the Supreme Court insisted that the procedure for suspending and terminating his appointment was not in accordance with the provisions of the Company and Allied Matters Act.

It is important to note that the Contract of employment and Employee Code of Conduct and Ethical Standard Guidelines should have been the only governing laws, but because the Appellant was a Director and the Managing Director of Respondent whose activities are mostly regulated in accordance with the provisions of CAMA. The Appellant employment was not with statutory flavour, but from the moment he was appointed a Director and subsequently, the Managing Director/Chief Executive of the Respondent. He can no longer be sacked without recourse to the provisions sections 262 and 266 CAMA.

Furthermore, the Court in Ujam v.I.M.T[2] there are three types of Employer/Employee relationship with different consequences, thus;

a) Under the Common law where, in the absence of a written contract, each party could abrogate the contract on a week’s or month’s notice or whatever the agreed period for payment of wages.

b) Where there is a written contract of employment between an Employer and Employee, in such a case the Court has a duty to determine the rights of the parties under the written contract.

c) (i) Public Servants – where their employment is provided for in a statute and/or conditions of service or arrangement.

(ii) Public Servants - as in the civil service

It is my humble view that the position of the Appellant as an Employee of the Respondent/Employer falls within the purview of paragraph C (i) above, and as such cannot be regulated or determined by the provisions of the articles of association and any other internal arrangement of the Respondent/Employer.

The Supreme Court in Longe’s case summarized and re-stated the procedure for suspension and removal of a Director of a Company as provided in sections 262 of CAMA. Thus, by virtue of section 262 of Company and Allied Matters Act, 2004

a) A Company may by ordinary resolution remove a Director before the expiration of his period of office notwithstanding anything in its articles or in any agreement between it and him.

b) A special notice shall be required of any resolution to remove a Director under the section or to appoint some other person instead of a director so removed at the meeting at which he is removed, and on receipt of the notice of an intended resolution to remove a Director under the section , the Company shall forthwith send a copy of it to the Director so concerned and the Director whether, or not he is a member of the Company, shall be entitled to be heard on the resolution at the meeting.(60-61) paragraphs H-C)

The Supreme Court per ADEKEYE, J.S.C. said at page 61, paragraph C-E;

“There is no power to remove a Director under CAMA which shall be taken as derogating from any power to remove a Director which may exist apart from this section. The power to remove a Director under the Articles of Association of the Respondent is subject to the provisions of CAMA. Obviously, the foregoing procedure from printed record was not complied with in revoking the employment of the appellant by the board of Directors of the Respondent. CAMA has removed the Appellant though a full time employee of the Respondent at the time of his dismissal from the sanction in the provision of the Employee Code of Conduct and Ethical Standard Guidelines, exhibit X under summary dismissal from the service of the bank for gross misconduct.”

Sadly, none of the defences listed under section 266 of Company and Allied Matters Act could save the Respondent as the section was not considered in removing the Appellant. The said section 266 provide thus;

a) That the Director removed was given notice of the meeting; or

b) That the person involved has ceased to be a director; or

c) That the person involved is disqualified under section 257 of Company and Allied Matters Act, 2004 from getting the notice.[3]

Interestingly, the Appellant was not given the notice of the meeting where he was purportedly suspended and subsequently removed as a director and Managing Director/Chief Executive of the Respondent by its Board of Directors. More so, paragraph C and D of section 266 CAMA do not apply to the Appellant.

Meanwhile, it was argued in favour of the Respondent that the Appellant was suspended as the Managing Director/Chief Executive of the Respondent, as such was not entitled to the notice of the meeting where he was removed as Director. It is evident that the above argument does not represent the position of the law. However, assuming but not conceding that the Appellant was rightly suspended as the Managing Director/Chief Executive of the Respondent, he was still entitled to the rights and privileges accorded to the Directors of the Respondent. The Appellant was holding dual position in the Respondent Company before he was sacked. He was a Director and at the same time, the Managing Director/Chief Executive of the Respondent. The view of the learned Justice of the Supreme Court will best illustrate the duality of the position of the Appellant in the Respondent Company, thus the Court said Per Oguntade J.S.C,

“To accept as the Court below did, that suspension of the Plaintiff would deny him the protection afforded him under section 266 is to confer the right on the defendant to vary the status of the Plaintiff without complying with the procedure laid down for doing so. The defendant cannot first suspend the Plaintiff without notice to him of the meeting at which the suspension was discussed and agreed and then turn round to say that the suspension had removed the necessity to give him the notice as mandatorily required under section 266(1) of CAMA. The Court cannot grant to a litigant the right to disobey the law under any artifice or guise. In any case, the letter of suspension to the Plaintiff did not say that he had ceased to be a Director. If it had said so, the Plaintiff would have founded his action on the letter. Rather, what the letter said was ‘During the suspension you are expected to concentrate on the recovery of the credit facility granted to the Investors Group Nig Limited. The board expects that you will do your utmost best to help in the collective efforts towards the recovery of the money.’ Its apparent that the defendant wanted the Plaintiff to use the period of his suspension primarily to pursue the recovery of the loan granted to Investors Group Nig Limited. That implies that he would do so only in his capacity as Managing Director/Chief Executive of the defendant, how could he go out to collect money for the defendant? It is my firm view that the Court below was wrong to have held that the suspension of the defendant on 22-04-02 robbed him of his status as a Director of the defendant.”

In University of Calabar v. Esiaga,[4] where incriminating materials, Vikings confraternity insignia, shot gun cartridge, and a history text book were found in the possession of the Appellant in the course of the search that led to the suspension of the Appellant. Though the Appellant shared the room with other students, but there was strong indication that those items belong to the respondent. The Appellant application for the enforcement of his fundamental human right was granted by the trial Court, but the Respondent appealed to Court of Appeal and the appeal was allowed. The Appellant then appealed to Supreme Court. The apex Court while refusing the appeal noted inter-alia;

When the University Vice Chancellor and those who administer the body with him clearly conceived or more appropriately discovered to their chagrin that a particular student or students by their mysterious activities in the campus and also being in possession of materials that did not advance the cause of academic knowledge but were more likely to cause mayhem and crisis or turbulence, should the University fold its hands and say laconically “I am tied to the decision of Garba v. University of Maiduguri”. Would the like Nero play the fiddle when the University would be engulfed in a miasma of boiling cauldron caused by people who thought and still think that a University is no longer a place for learning but a place to cause all sorts of disaffection? I think not. Would the University Authority act only when or after the institution was boiling? It is not a candle you can easily put off and easily too rekindle.

The Appellant in this case complained that he was not given fair-hearing before he was suspended citing Garba v.University of Maiduguri, but the Court distinguished between both cases and highlighted the issues the prompted the decision in Garba’s case, thus;

To what extent if any is Garba v. University of Maiduguri applicable to the present case? In Garba’s case some students were expelled by the University for riotous behaviour which involved allegation of arson, stealing and otherwise or other mayhem. An investigation body was set up by the authority under the Chairmanship of the Deputy Vice-Chancellor. The report stated that the students involved were connected to some criminal offences of arson, looting and assault. Those accused were not given opportunity of explaining their own side of the story. They were out rightly expelled. Of course, since allegations of criminal offence were made, the University based its disciplinary act of expulsion on the allegations which really meant dismissal. In Supreme Court, it was held that there was evidence of unfair hearing. In other words, the Appellants were not allowed to give their own side of the story. The supreme Court reprimanded the University for purporting to clothe itself or assume the jurisdiction of the Court to met out a punishment in a matter where committal or criminal offences was made.

More so, in Garba’s case, there was out right expulsion of the students before being heard. In the present case, an investigation body was to be set up to enable the appellant put his own side of the case. That case did not and cannot be construed that in all circumstances when the atmosphere in a University is threatened, and there is a reasonable possibility that if the rampaging act of a student or students is not nipped at the bud by the act of suspending the perpetrators of the seeming ignoble act, the University Authority should do nothing. That is not the interpretation of the decision. Furthermore, the essence of suspending the student is to abort any likelihood of the threatened disturbing atmosphere snow balling into an uncontrollable situation. The University envisaged that they would set up a body exercising administrative power where the Appellant would be given ample opportunity to clear himself by offering his own defence. He jumped the gun by going to the Court. I believe that he was trying to be clever by half. It is perhaps tempting for a student who is suspended or expelled by the a University to put himself in the garb or dress of the inimitable “Garba” in the Garba’s case, and cry blue murder for the suspension or outright expulsion.

CONCLUSION:

Fair hearing principle is a cardinal principle of law, and no Court will fold its hands and see the principle truncated on the altar of speed, or as the case may be, to achieve inordinate dreams. However, as we have seen and illustrated with various authorities, the Court will always do substantial justice to protect the interest of the concerned person. The Court will always insist that the procedures for terminating the appointment of an Employee are followed. Though each case will be treated in accordance with the nature of the Employee’s appointment.

[1] (2010)6NWLR(PT.1189) S.1

[2] (2007) 2 NWLR(PT.1019.470.CA

[3] Longe v. F.B.N, supra

[4] supra

MY INTELLECTUAL BANQUET!: SECURITY DOCUMENTATION AND PERFECTION OF LEGAL MOR...

2013-08-07T10:25:00.001-07:00

MY INTELLECTUAL BANQUET!: SECURITY DOCUMENTATION AND PERFECTION OF LEGAL MOR...: BANK FACILITY & SECURITY DOCUMENTATION – PERFECTION OF LEGAL MORTGAGE – CHALLENGES Commerce and investments are the key drive...

SECURITY DOCUMENTATION AND PERFECTION OF LEGAL MORTGAGE - CHALLENGES OF A LEGAL OFFICER

2013-08-07T10:20:00.000-07:00

BANK FACILITY & SECURITY DOCUMENTATION – PERFECTION OF LEGAL MORTGAGE – CHALLENGES

Commerce and investments are the key drivers of any economy. The place of finance cannot be over-emphasised here. Banks play key role in the provision of fiancé in form of credit facilities to individual investors, corporate entities, multinationals etc. Banks in the provision of these credit lines to entrprenuers are faced with risks of non- compliance of the creditors to the repayment plan and accepted lending terms.

In most occasions, credit facilities are not repaid leaving the bank at the long battle of litigation with the debtors. Even when judgment is awarded to them and goes ahead to levy execution, they may still not have any security interest in the property.

In the face of the uncertainties surrounding the repayment of the credit line given the creditors, the banks in many instances take proactive steps to secure their exposures. Some of the securities often taken by the banks include: Legal mortgage, Debenture, Lien and charge etc.

The Banks and Other Financial Institutions Decree No. 25., 1991 ;sections 20(1) (b) and section 20 (2) (a) and (b) provides credit limit beyond which banks cannot go without security. The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 1994, section 19 (1) (a) (as amended) makes it mandatory for banks and other financial institutions to obtain security when giving out credits. It provides: “ …any director, manager, officer or employee of a bank who knowingly, recklessly, negligently or willfully or otherwise grants, approves or otherwise connected with the grant or approval of any credit facility without adequate security or with no security as normally required, or with a defective security, or without perfecting a security is guilty of an offence punishable with 5 years imprisonment without an option of fine pursuant to section.20(1) (a) of the Law”.

This shows that it is imperative on Banks and indeed all the employees and Management to do all it takes to secure their credit exposures.

MORTGAGE:

Lord Lindley in the celebrated case of Santley v Wilde (1899) Ch.p.474 defines a mortgage as “a legal or equitable conveyance of title as a security for the payment of debt or the discharge of some obligations for which it is given, subject to a condition that the title shall be reconveyed if the mortgage debt is liquidated” the crux of mortgage as a security is a right of property vested in the creditor (mortgagee) to have rents and profits applied to satisfy the debts and upon default by the debtor (mortgagor) to liquidate the loan, to enforce the security by sale or foreclosure.

The borrower, debtor who conveys the property is called the Mortgagor, the lender who obtains interest in the property is called the Mortgagee and the debt, money for which the security is created is called the Mortgage debt.

TYPES OF MORTGAGE:

Mortgages can either be between two parties or three parties. It is two parties when the mortgagor is both owner of the property pledged and the borrower of the loan. The mortgage therefore is between the mortgagor and the mortgagee.

It is third party (tripartite) where the mortgagor is different from the owner of the property. The property is owned by a third party called surety mortgagor. The parties here are the mortgagor customer, the surety mortgagor and the mortgagee.

We have two types of mortgage; the equitable mortgage and the Legal mortgage.

EQUITABLE MORTGAGE:

It is created in three different ways:

a. where the interest of the mortgagor is itself equitable, therefore whatever mortgage he creates thereon to another party must be equitable – nemo dat quod non habet.

b. where the owner of the property had agreed to create a legal mortgage in favour of the creditor, issued drafts for the perfection and along the line something stops the perfection.

c. the actual deposit of title document with written evidence to show that the mortgagor intended to mortgage the property to the creditor. See African Continental Bank Ltd v. Yesufu (1977) NCLR p.212.

LEGAL MORTGAGE:

This takes effect when the legal charge has been placed on the mortgagor’s property after the mortgagor has submitted the original title documents to the mortgagee and executed all the forms and issued the required statutory drafts for the perfection.

DOCUMENTATION NEEDED FOR LEGAL MORTGAGE:

1. Title document: This must be the original not photocopy

2. The legal mortgage forms: This must be well executed by the mortgagor and surety mortgagor where applicable. If the mortgagor is a corporate body, then the mortgagor must be executed by the two directors of the company or the Director and the Company Secretary, and it must be under the company’s seal.

3. Land form 1c: This applies to lands in some towns in Lagos. The owner of the property must sign as the grantor while the lender executes as the grantee.

4. Tax clearance certificates: The current tax clearance certificate of the mortgagor is needed. where the property belongs to the company, the tax certificates of the company and two of its directors must be submitted. If it belongs to a third party, then the tax certificate of the third party and the company must be submitted.

5. Development Levy: The current receipt evidencing payment of the special development levy must be submitted.

6. Ground Rent Receipt: the current receipt evidencing payment of ground rent must be submitted.

DRAFTS & PAYMENTS:

The mortgagor is expected to make drafts available for the perfection exercise. The statutory fees

payable differ from state to state. In Lagos state for instance, the mortgagor is expected to issue the

following drafts: consent fee, Registration fee, Stamp duty fee, Charting, endorsement & form1c fee,

Administration fee, CTC of title document fee.

PERFECTION OF LEGAL MORTGAGE:

Perfection of a mortgage involves three key stages:

i. stamping

ii. Governor’s consent

iii. Registration.

STAMPING: A mortgage security must be stamped to be admissible as evidence of a loan agreement of asecurity transaction in a court of Law see Section 22 Stamp Duties Act. Cap 411 LFN 1990; Cap 411 LFN 1990. However, a penalty or fine is payable for late stamping section 80 CAP411 LFN 1990. Drafts for payment of stamp duties are made in favour of FGN, Federal Inland Revenue Services, Stamp Duties Account. This is paid at the Federal Inland Revenue Services (FIRS) Office. Stamp duties for Legal mortgage is calculated at N15,000.00 per million.

GOVERNOR’S CONSENT: Governor’s consent is one of the condition precedents of a valid mortgage

transaction. It is the next stage after the stamping of the mortgage. Perfection is not complete until the Governor’s consent is obtained see Awojugbagbe Light Industries Ltd V Chinukwe (1993) 1 NWLR (PT. 270) P.485. It is not automatic, it is granted after certain conditions are met which include, payment of ground rent, self-assessment tax, consent fee, which is one percent of consideration in Lagos State.

REGISTRATION: A mortgage agreement is a registerable instrument and must be registered, failure to do so makes it inadmissible in evidence to prove the existence of the security see section 2 Lands Registration Act 1924. A registered instrument has priority over other competing instrument and priority is ranked from the date of the registration itself.

CHALLENGES:

1. POOR DOCUMENTATIONS: Most often than not, the credit officers lack knowledge on the proper documents needed and also how the mortgage forms are to be filled and executed.

2. LACK OF CO-OPERATION: Most customers at the inputation of credit facilities take all steps to frustrate the perfection of the mortgage. They refuse to show co-operation with the Branch in provision of any documents outstanding and necessary for the perfection including issuance of their drafts or cheques.

3. COMPROMISE: many atimes credit officers and indeed Branch managers collude with the customers to stall the perfection of the mortgage. At times due to pressure to keep the customer and in some instances out of selfish purposes.

4. UNNECESSARY BUREAUCRACY: many atimes efforts at swift perfection of mortgages are stalled and frustrated at the different Government agencies involved in the assessment and perfection exercise, like the Lands Registry, Federal InLand Revenue Services (FIRS), Corporate Affairs Commission (CAC) etc.

RECOMMENDATIONS:

1. Legal officers should engage the credit officers in frequent education and trainings on the documentations required and how the documents are to executed to ensure smooth perfection exercise

2. Legal officers to inform the credit officers and customers early enough before the acceptance of the Offer letter the cost of the perfection to enable them take a decision.

3. Receipt of all documents required for a smooth perfection including all the drafts for statutory fees and professional fees before facility inputation.

4. More trainings, seminars and exposure for Legal officers on the secured credit.

5. Disciplinary actions to be put in place for Branches, Managers and indeed all officers found to be actively or passively frustrating the perfection exercise as this is sabotage.

MONEY LAUNDERING ACT 2011 AS AMENDED – A LEGAL REVIEW

2011-10-05T08:12:00.000-07:00

INTRODUCTION:

The money Laundering Act is a statute enacted to check the rising incidence of crimes relating to laundering of money via banks and other financial institutions by individuals and Body corporate. Most often than not, the money so laundered are looted from the coffers of government, or from the sale of hard and dangerous drugs, weapons and in other instances defrauded from unsuspecting members of the public.

The effects of such financial crimes in the country cannot be over-emphasized as it destabilizes the economy, leaves the masses impoverished and in most cases, the illicit monies are used in the sponsorship of terrorist and other agents of political instability. The Act was first passed in 2004 as The Money Laundering (Prohibition) Act, 2004

The National Assembly under its statutory powers repealed the Money Laundering (Prohibition) Act, 2004 and replaced it with the Money Laundering (Prohibition) Act, 2011, hence the need for this review.

REVIEW OF THE RELEVANT SECTIONS TO THE BANK

Part 1. PROHIBITION OF MONEY LAUNDERING

Section 1 (a) and (b) of this Act limit the amount of money to be paid or accepted as cash payment. For an individual it is now N5 million while a body Corporate it is N10 million. Anything in the excess of that must be made through a Financial Institution.

REPORTS ON INTERNATIONAL TRANSFER EXCEEDING USD 10,000 (Section 2)

Section 2 (1) (2) (3) made it mandatory for Banks and other Money Services Business to the CBN, SEC and the EFCC to make a report of any international transfer of funds, securities by a person, body corporate, where such transfer is in excess of USD 1000 within 7 days of such transfer.

Such reports shall indicate the nature of the transfer, the amount, names and addresses of the sender and receiver of the funds or securities.

IDENTIFICATION OF CUSTOMERS & ACCOUNT OPENING REQUIREMENTS

(section 3)

This section deals with the requirements for account opening and identification of customers before opening accounts, issuing passbook or even establishing any other business relationship with the customer.

REQUIREMENTS FOR INDIVIDUAL CUSTOMERS: (section 3(1) and (2) )

1. Proof of identity:

Customer to provide a valid, original copy of an official document bearing the names and photograph of the customer or any other identification documents the relevant Regulators may approve from time to time.

2. Proof of address:

Customer to present originals of receipts issued within the previous 3 months by Public Utilities or any other document as the Regulators may approve from time to time.

REQUIREMENTS FOR BODY CORPORATE: section 3 (3) and (4)

Proof of identity:

The Company to present its certificate of Incorporation and other valid official documents attesting to the existence of the body

The Manager, employee or assignee delegated by such body corporate to open the account shall be required to produce not only the documents as in 1 above, but must also present proof of the Power of Attorney granted him/her in the behalf.

REQUIREMENTS FOR CASUAL CUSTOMERS: section 3 (5)

A casual customer shall comply with the under listed regardless of the number of transactions including wire transfer involving a sum exceeding USD1000:

1. Proof of identity:

Customer to provide a valid, original copy of an official document bearing the names and photographs or any other identification documents the relevant Regulators may approve from time to time.

2. Proof of address:

The customer presents originals of receipts issued within the previous 3 months by Public Utilities or any other document as the Regulators may approve from time to time.

REQUIREMENTS FOR PUBLIC OFFICER: section 3 (8)

Section 25 defines Public Officers as individuals who are or have been entrusted with prominent public function, both within and outside Nigeria and those associated with them.

1. Proof of identity:

The Officer provides a valid, original copy of an official document bearing the names and photograph or any other identification documents the relevant Regulators may approve from time to time.

2. Proof of address:

The Customer presents originals of receipts issued within the previous 3 months by Public Utilities or any other document as the Regulators may approve from time to time.

Apart from the above, the bank in the establishment of any business relationship with Public Officer must put in place appropriate risk Management systems; obtain senior management approval before establishing and during any business relationship with any public officer.

REPORT ON SUSPICIOUS TRANSACTIONS S. 3 (6) & (7):

Where there is a reasonable room to suspect that the amount involved in a transaction is a proceeds of a crime or illegal act, then the Bank shall require identification of customer regardless that the amount in the transaction is less than USD1000 or equivalent.

Where it appears that the customer may not be acting on his own account, the bank shall seek from the customer, by all reasonable means as to the true identity of the principal. Where the customer is a body corporate, the bank shall take reasonable means to understand the ownership, control structure, the natural persons who truly own and control the customer.

SPECIAL SURVELLANCE ON CERTAIN ACCOUNTS: Section 6 (1) & (2)

Where there is a special suspicion on any account because of the frequency which is unjustifiable, unreasonable or unusual the bank shall within 7 days after the transaction:

1. draw up a written report containing all relevant information, with the identity of the principal and the beneficiaries where applicable

2. take appropriate steps to prevent the laundering of proceeds of a crime or an illegal act

3. send a copy of the report to the Commission whether the transaction was completed or not

SPECIAL POWERS OF THE COMMISSION & CBN:

Section 6(5) (b) confers powers on the EFCC and CBN or their authorized representatives to place a stop order on any account or transaction for a time not exceeding 72 hours if it is discovered in the course of their duties that such accounts are involved in any crime.

Note that where it is not possible for the EFCC or the CBN to conclude their investigation within 72 hours, they must obtain an Order from the Federal High Court directing the Bank to block the funds, accounts or securities.

It is an offence for the Bank to fail to report to the Commission any reasonable suspicion within 7 days as stated in section 6 (1) and (2) and is liable upon conviction to a fine of N1million for each day during which the offence continues.

Note that where funds are blocked under an Order gotten from the Federal High Court by the EFCC or other relevant Agency under section 6(7) and there is evidence of conspiracy between the Bank and the owners of the funds, the bank involved shall not be relieved of liability under this Act and criminal proceedings for all offences arising therefrom may be brought against the directors and employees involved in the conspiracy. (Section 12)

PRESERVATION OF RECORDS: Section 7.

The bank under this section is required to keep records of customers for a length of 5years as detailed hereunder:

Records of customers’ identification must be preserved for at least 5 years after the closure of the account or severance of relations with the customer.
Records and other related information of a transaction carried out by a customer including reports made to the commission on any unusual or suspicious transactions on the account as in section6 shall be preserved for at least 5 years after the transaction or making of the report as the case may be.

COMMUNICATION OF INFORMATION: Section 8.

It is expected that records of customers as required in section 7 shall be communicated on demand to the CBN, NDLEA, and EFCC etc. as the case may be.

MANDATORY PRECAUTIONARY MEASURES TO BE PUT IN PLACE: Section 9.

It is mandatory for all banks to develop programmes towards combating the laundering of proceeds of a crime and other illegal act by:

Designation of Compliance officer at Management level at its Head office and every branch
Regular training programmes for staff
Centralization of information collected
Establishment of internal audit to ensure compliance.

It is important to note here that the CBN by this ACT is empowered to impose a penalty of not less than N1million or the suspension of any license issued the bank for failure to comply with the provisions of arousing adequate awareness among the staff.

MANDATORY DISCLOSURES: Section 10.

The bank is under an obligation to report within 7days to the commission of any single transaction, lodgement or transfer of funds in excess of:

N5million or its equivalent for individual
N10million or its equivalent for body corporate

A contravention of this disclosure is an offence and upon conviction attracts a fine of not less than N250,000.00 and not more than N1million for each day the contravention continues.

PROHIBITION OF NUMBERED OR ANNONYMOUS ACCOUNTS: Section 11.

The Act makes it an offence to create numbered or anonymous accounts.

An individual who contravenes this section is liable upon conviction to a term of not less than 2 years but not exceeding 5 years.

A bank or body corporate that contravenes this section shall be liable to a fine of not less than N10million but not exceeding N50million.

SURVEILLANCE OF BANK ACCOUNTS: Section 13.

In order to identify and locate proceeds, properties, objects or other things related to the commission of an offence under this Act the EFCC, CBN or other regulatory agencies may by the Order of the Federal High Court :

Place any bank account or any other account comparable to a bank account under surveillance
Obtain access to any suspected computer system
Obtain communication of any authentic instrument or private contract, together with all bank, financial and commercial records when the account, telephone line or computer system is used by any person suspected of taking part in a transaction involving the proceeds, of a financial or other crime.

It is worthy to note here that banking secrecy or preservation of customer confidentiality shall not be invoked as a ground for objecting to serving as a witness to facts likely to constitute an offence under this Act or obliging the Agencies with access to relevant information needed under this section.

It therefore becomes an offence under this Act to obstruct the Commission or authorized officers in the performance of their duty.

For an individual who constitutes such obstruction is liable upon conviction for a term not less than 2 years and not exceeding 3 years.

For a bank or body corporate it shall be a fine of N1million (section 22)

EXCLUSIVE JURISDICTION: Section 20.

The Federal High court is bestowed exclusive jurisdiction for the trial of offences under this Act.

WONDER BANKS IN NIGERIA – A LEGAL CRITIQUE

2011-09-12T08:19:00.000-07:00

IS FORMATION OF COMPANY MANDATORY BEFORE CARRYING ON ANY BUSINESS IN NIGERIA?

Sections 18 and 19 of the Company & Allied Matters Act, (CAMA) CAP C20 LFN 2004 made it mandatory for the incorporation of companies, associations or partnership for the purpose of carrying on business for profit or gain.

The Statute also made it mandatory as part of the requirements that Companies etc at incorporation must have a Memorandum of Association and Articles of Association which act as the constitution regulating both the internal and external activities of the company etc. section 39 of CAMA provided that businesses not listed in the object clause of the MEMAT would be declared ultra vires.

The foregoing shows that any two or more persons as the case may be can come together to form a company after satisfying the conditions precedent as laid down by CAMA.

WHO CAN ENTER INTO DEPOSIT & LENDING OF MONEY BUSINESS IN NIGERIA?

The Banking business in Nigeria is regulated by the Banks & Other Financial Institutions Act CAP B.3 LFN 2004 (BOFIA). Section 66 BOFIA (Interpretations section) defines Bank as a Bank licensed under this Act and Banking business as the business of receiving deposits on current account, savings account or other similar accounts, paying or collecting cheques, drawn by or paid in by customers, provision of finance or such other business as the governor may by Order published in the Federal Gazette, designate as banking business.

It defines Financial Institutions as any individual, body, association or group of persons, whether Corporate or Unincorporated, other than the banks licensed under this Act which carries on the business of a discount house, finance company and money brokerage and whose principal objects include factoring, project financing, equipment leasing, debt administration, fund management, private ledger services, investment management, local purchases, order financing, export finance, project consultancy, financial consultancy, pension fund management and such other business as the bank may, from time to time designate.

Section 2 (1) and (2) of BOFIA provides that no person shall carry on any banking business in Nigeria except if the company is duly incorporated in Nigeria and holds a valid banking licence issued under this Act. A contravention of this provision is an offence punishable upon conviction for a term of imprisonment not exceeding 10 years or to a fine of N2,000,000.00 or both.

Section 3 BOFIA provides for the requirements and steps for the granting of licence and the CBN is conferred with the powers to implement this Act subject to the overall supervision of the Minister.

This shows that the business of banking is not an exclusive preserve of any particular person or persons but its opened to persons who meet the requirements as stipulated under CAMA and BOFIA.

CAN AN INDIVIDUAL OR PERSONS ENGAGE IN THE BUSINESS OF MONEY LENDING?

An individual, company or partners can engage legally in the business of money lending. This is regulated by the Money Lenders Laws of the various States as the business of money lending is not covered under the 1^st schedule (exclusive legislative list) and the 2^nd schedule (concurrent legislative list) of the 1999 constitution of the Federal Republic of Nigeria. It therefore falls into the Residual list, making it right for the various states to legislate on the business of money lending in accordance with the requirements and peculiarities of their socio-economic environment.

The money lending business in Lagos State is regulated by the Money Lender’s Law of Lagos State CAP. M7. Section 2 of the Law (Interpretation section) defines a money lender as everybody whose business is that of money lending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business, whether or not he also possesses or owns property or money derived from sources other than the lending of money and whether or not he carries on the business as a principal or as an agent; but shall not include:

· Any co-operative society

· Anybody corporate incorporated or empowered by special enactment to lend money in accordance with such enactments.

· Any person bona fide carrying on the business of banking or insurance or bona fide carrying on any business, not having for its primary object the lending of money, in the course of which and for the purposes whereof he lends money.

· Any pawn broker licensed under the pawn brokers Law where the loan is made in accordance with the provisions of the pawn brokers Law and does not exceed the sum of N40.00

Section 4 of the Money Lenders Law of Lagos State further enlarged the scope of persons presumed to be money lenders to include any person who lends money at interest or who lends a sum of money in consideration of a larger sum being repaid shall be presumed a money lender until the contrary is proved.

REQUIREMENTS/PROCEDURES FOR ENLISTMENT AS A MONEYLENDER OPERATOR IN LAGOS STATE

Section 5 of the Law provides that no one can operate as a money lender under the Law without the moneylender’s licence. The Licence is given after the intending money lender has fulfilled some requirements.

The person shall first apply to the Magistrate of the district in which the money lenders business is to be carried on for Certificate. At the issuance of the certificate, he shall present it to the State Commissioner who upon satisfaction shall issue the applicant the Licence to carry on business of Money lending. The Certificate and Licence have a year life span and shall expire on the 31^st of December next following respectively. This however is renewable.

The certificate as issued shall not authorize the money lenders carry on the business of money lending except:

· He does so in his true names

· The name of a firm in which he is a partner, not being a firm required by CAMA part B, business name to be registered.

· Or business name whether of an individual or firm in which he is a partner under which he or the firm has at the commencement of this Law, been registered for not less than 3 years both as a money lender under the money lenders law and under CAMA part B, Business names.

· It shall not include the word ‘BANK’ or otherwise implies that he carries on banking business.

It is worthy to note here too that every money lender shall have a current account with a licenced Bank. The money lenders are by section 15 of the Law restricted from charging arbitrary interests on monies lent. The issuance of Licence for money lending business is overseen by the State Commissioner and the State Commissioner equally has the prerogative to exempt any person from some or even all of the requirements (Section 3 CAP M7)

ARE WONDER BANKS OPERATING LEGALLY UNDER THE EXISTING STATUTES?

From the studies so far made, it is clear that the wonder banks as we know them today by their modus operandi cannot either be classified under Banks as provided and regulated by BOFIA or Money Lenders as provided under the Money Lenders Law of Lagos State, CAP M7.

The Wonder Bank to say the least is an aberration to the economy. They not only do not act in line with existing statutes regulating all forms of banking and money businesses including Money Lending Business, they have also led to the failure of many businesses and monumental fraud on unsuspecting citizens.

It makes a mockery of common sense to allow such an engine of fraud to keep on operating in our environment.The moment to act is now!

MY INTELLECTUAL BANQUET!: EXECUTION OF A WILL IN NIGERIA

2011-08-01T07:19:00.000-07:00

MY INTELLECTUAL BANQUET!: EXECUTION OF A WILL IN NIGERIA: "WILLS – THE POWERS OF EXECUTORS UNDER THE WILLS ACT – A LEGAL CRITIQUE MEANING: The Black's Law Dictionary defines Will as 'An instrument by..."

EXECUTION OF A WILL IN NIGERIA

2011-08-01T07:18:00.000-07:00

WILLS – THE POWERS OF EXECUTORS UNDER THE WILLS ACT – A LEGAL CRITIQUE

MEANING:

The Black's Law Dictionary defines Will as "An instrument by which a person makes a disposition of his real and personal property; to take effect after his death, and which by its own nature and revocable during his lifetime .... "

It is also "The legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed or take effect after his death. A revocable instrument by which a person makes disposition of his property to take effect after his death. A written instrument executed with the formalities required by statutes, whereby a person makes a disposition of his property (real and personal) to take effect after his death".

On the other hand, "Codicil" is defined by the same Dictionary as: A supplement or an addition to a will, it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in existing will

A will summarily then is a document made by a person called the testator wherein he confers benefits on another person called the beneficiary. A will is a document by which a person transfers benefits or assets to another person. A will is an instrument that provides security or welfare for the family of the maker. A will is the sum total of what a person wishes to happen to those he lives behind on his death.

One striking thing to note about the Will is that until the maker dies, he reserves the right to alter or revoke it. That is why it is called ambulatory. Importantly too, the will takes effect only upon the death of the maker.

TYPES OF WILLS

It might be of interest for us know that there various types of will. The following are some of those varieties, namely:

1. Holographic Will. One that is entirely written; dated and signed by the hand of the testator himself"

2. Joint Will. One executed jointly by two persons with reciprocal provisions which show on its face that the devices are made one in consideration of the other. Joint will is one in which the same instruments is executed by two persons as their respective will. It is a testamentary instrument executed by two or more persons in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons."

3. Mutual (or reciprocal) Will. One in which two or more persons make mutual or reciprocal provisions in favour of each other. Mutual Wills" are the separate wills of two persons which are reciprocal which are reciprocal in their provisions, and such a will may be both joint and mutual. Sometimes, it is called a "reciprocal", "double", or "counter" will."

4. Nuncupative Will. An oral will declared or dictated by the testator in his last moment before a sufficient number of witnesses; and after words reduced to writing. A will made by the verbal declaration of the testator, and usually dependent merely on oral testimony for proof. Such wills are invalid in certain states, and in others are valid only under certain circumstances."

It is important to mention that a will unless it is made in contemplation of a particular marriage is revoked by the marriage or remarriage of the testator or

LEGAL TERMS USED IN WILLS:

· Testator: This usually applies to a man who makes or has made a testament or will, or one who dies leaving a will.

· Testatrix: A woman who makes a will; a woman who died leaving a will; a female testator in short.

· Executor: A man appointed by the testator to carry out the directions and requests in his will, and to dispose of the property according to his testament provisions after his death.

· Executrix: A woman appointed by the testator to administer his Estate upon his death. A female Executor.

· Beneficiary: One who derives benefits under a will. In him resides the equitable interests in devised property. He can also be called the Legatee.

· Trustee: One in whom an estate, interest, or power is vested under an express or implied agreement to administer or exercise it for the benefits or to the use of another. One who holds the legal title to property "in trust" for the benefit of another person called the beneficiary and who must carry out specific duties with regard to the property.

· Estate: The total of assets and liabilities of the testator including all manners of property, real and personal, choate or inchoate, corporeal or incorporeal.

· Legacy: Is a gift by will of personal property.

· Legal representative: A person who overseas the legal affairs of another. It is always held to be synonymous with "personal representative". It includes the executor or administrator of an estate and a court appointed guardian of a minor or an incompetent person.

· Administrator (trix): A person appointed by the court to administer/manage or take charge of the assets and liabilities of a deceased person. Such a person may be a male (in which case he is called administrator) or a female (administratix)'".

ADMINISTRATION OF WILLS

The Administration of a Will is the oversight role played by the Executor or Trustee of a Will. It deals with the management and superintendent function of the Executor regarding a Will. It is all about taking the necessary practical steps in not only proving a Will but ensuring that the Executor carries out the wishes and directions of the testator in the Will. It deals with the management of the estate of a deceased person in accordance with the written directions in a Will,and in compliance with available legislation. Plainly, Administration of a Will is all about the determined counsel of the Executor to safeguard and realize the intentions of the testator having regard to who gets what from the estate and rendering appropriate account. Without administration, a Will remains impotent and incapable of being translated into reality. It remains a dead testament. Thus, administration is the necessary push required to give the fullest effect to a will and thereby put smiles on favoured faces. On the faces of surviving beneficiaries thereunder. Now, let us examine the modus operandi of Administration of a will.

APPLICATION FOR GRANT OF PROBATE

As indicated herein before, the various High Court Rules makes adequate and similar provisions governing probate and Administration. We will take the liberty to use the Kaduna State High Court (Civil Procedure) Rules, 1987 as a model in discussing this subject. Order 187 49, Rule 1 of the said Rules requires of any person in possession of any paper or writing of any deceased person purporting to be testamentary to within fourteen (14) days of having knowledge of the death of that person deliver original of same to the Probable Registrar of the Court. Failure to comply attracts a penalty of W100 fine. Under Rule 2 of the said order, the Court is vested with the power to order any person to produce before it any testamentary document whether or not a suit is pending on the probate or Administration. Likewise, the Court can examine any person in custody of such document" and/or call on the Executor on its own to come and prove a will."

The application for grant of probate upon the death of the testator is expected to be made by petition to the probate Registrar of the High Court. Usually, the Chief Registrar who doubles as the probate Registrar with office at each state capital where the Headquarters of the Court is located. If such application is made through a legal practitioner, the office address of the lawyer within its jurisdiction shall be supplied." A personal applicant shall produce a certificate of death of the deceased or such other evidence of death required of him by the probate Registrar. In addition, the personal applicant shall supply all necessary information required of him so as to facilitate the grant. Every application for grant of probate shall be supported by an Affidavit duly sworn to by the Applicant and supported by necessary Exhibits as the probate Registrar may require, specifically, such Affidavit shall state where the deceased died domiciled. Upon the receipt of the application, the probate Registrar may require any other useful information and commence the processing of the application by inspecting the will and verifying its due execution. No grant of probate or of administration with the Will shall issue within seven days of the death of the deceased testator": Improper execution affects grants of probate as the court reserves the right to decline.

THE POWERS OF EXECUTORS OF A WILL:

An "executor" is a personal representative who is responsible for distributing the estate (property, assets, and possessions) of an individual according to the wishes outlined in their Will. The executor has specific powers designated by law and given exclusively to the executor in the Last Will and Testament through which they received that office. The executor being in a fiduciary relationship owes certain duties and responsibilities to the creator (testator/ settlor) of the will or trust. While acting as executor, personal representative or trustee these administrators are subject to various laws, regulations, standards and guidelines including (but not limited to):

They include among others:

· The first obligation of the executor is to locate and read the original of the most recent Will of the deceased. Hopefully, the "testator" (the individual who wrote the Will) has previously informed the executor or their family where their Will and other important papers are kept. If not, then the executor must search all likely places for a valid Will. If the Will is kept in a safety deposit box, then the executor will have to take a key, the Death Certificate and personal identification in order to access the box. The box can be forced open if they do not have a key. The bank will then draw up an inventory of the contents, and the Will will be released if the executor can demonstrate that they are indeed the person with executor responsibilities for the Will.

· The executor should apply for the Death Certificate of the testator, which can usually be obtained from the hospital. This usually takes one to two weeks to receive.

· The executor has the right to determine how to dispose of the deceased's body. Any funeral wishes expressed by the deceased are not legally binding, although in practical terms personal wishes are usually respected. If the deceased has taken time to express their personal wishes through a funeral home service, it will save the family and the executor a great deal of anxiety and grief.

· The executor must notify everybody who has an interest in the estate and what, if any, is their entitlement described in the Will. If the Will or the authority of the executor is challenged, then the executor may have to provide documentary evidence that they have complied with any legal requirements.

· A list of assets and liabilities must be drawn up, including their value at the date of death.

· The executor must secure all assets, either by taking them into his or her possession, or by taking out a full insurance policy.

· All prospective creditors must be given an opportunity to stake a claim on the estate. The executor must advertise for anybody who may have a claim against the estate. Creditors with a valid claim can recover their debt at any time, even after the estate has been distributed to the beneficiaries.

· The next step is to apply to probate the Will, so that the assets can be dealt with legally. This may require legal assistance.

· The executor is responsible for filing taxes on behalf of the deceased, including income taxes and death taxes.

· Once the executor has obtained legal authority to distribute the estate, they must pay all outstanding debts and expenses, including funeral expenses and all taxes.

· Once all debts have been paid, the estate can be distributed to the beneficiaries starting with specific bequests to individuals. If the Will provides for the setting up of Trusts, then the executor is responsible for making these arrangements. Once all specific bequests have been distributed, the residue is distributed.

· The executor is accountable to the beneficiaries for the assets of the deceased. It is therefore vital that accurate records are maintained when dealing with all debts, expenses, taxes and the distribution of the estate.

REFERENCES:

1. Proudhon, P.J. Commentary; 1989 in Ch. 2

2. Black’s Law Dictionary, 5^th Ed. 1979

3. Barron’s Law Dictionary, 2^nd Ed. 1984

4. Osborne’s Concise Law Dictionary, 7^th Ed. By Roger Bird, Sweet & Maxwell

5. Joseph . S. An Introduction to Islamic LAW, Oxford Univ. Press, 1964

6. Itse Sagay; Nigerian Law of Succession; Malthouse Press Ltd, Lagos; 2006

7. Olayide, A. Cases and Texts on Equity, Trusts & Administration of Estates; Mabrochi International Company Limited; Lagos, 2003

8. Animashaun T.O.G and Ojeneyin A.B- Law of Succession Wills and Probabte in Nigeria – MIJ Professionals Publishers Limited; Lagos; 2002

9. Alexander Pope: Essays on Criticisms; 9^th Ed. 1937

10. Williams on Wills; VAL Law of Wills; 5^th Ed. 1980

11. A.A. Utuama; Nigerian Law of Real Property (1990) Shaneson Concise Univ. Series,

THE MARAUDERS AND THE REST OF US

2011-06-15T01:03:00.000-07:00

WEEP NOT ANYMORE, MY MOTHER AFRICA!!!

A contemporary philosopher, Karl Jasper says of Africa

‘….just being brought into the mainstream of history; thanks to European colonialism! All signs of higher culture are lacking and Africa is inhabited by primitive peoples who may choose between extinction or what…probably to become instrument of exploitation and source of raw materials’

In a related underrated estimation and stereotyped impression, Frederick Hegel says of Africa as a ‘land untouched by civilisation but merely receiving the echoes of the march of world history’’. One in the face of this stereotype or better still prejudiced western impression of Africa questions the veracity and the raison d’etre for such sarcastic and highly defamatory statements that have robbed Africa and indeed Africans of their many rightful places in the International plane. Regrettable enough it is such derogatory statements that have robbed Africans of foreign investors in a world that has not only been digitalized but indeed globalised, thus the continuous languishment of her children in grinding poverty or what Economist rather would call poverty cycle.

The question, which more or else has remained a perennial question, is the fundamental problem of Africa and the way out. Prof Chinua Achebe in response to this question attributed it to bad leadership, some others placed it on the prevailing harsh economic climate occasioned by insensitive leadership and policies that have no human face, for some others, it is a passing phase, a problem associated with developing countries which with time will be outgrown. Some others have a religious if not philosophical answer which bothers on the assertion that Africa is cursed because of the ancestral abominations and bloodshed committed in the ancient past, which include slavery and slave trade, killing of twins and ostracizing of persons with terminal illnesses which consummates in their abandonment in the evil forests, labeling and consequent treatment of their members as outcasts, Osu, human rituals and sacrifices at the death of their monarchs etc. It is the belief of persons in this school of thought that only divine intervention can set Africa loose of this curse.

A critical look at the situation on ground will convince one that the greatest problem of the African continent bothers more on paucity if not scarcity of sensitive and indeed conscionable leaders. The other day, a governor to bury his mother spent almost a quarter of a state’s budget for the carnival. Ministers and even one time-first lady of a state spent close to that figure to celebrate their birthday, a former top government official convicted of gross abuse of abuse was given a state reception at the completion of his term in jail, an ex-governor secretly married an under-aged girl (13years) in Abuja with great and celebrated dignitaries in attendance and when the civil societies made attempts to condemn the act, it was swiftly swept under the carpet that even the great Prophet Mohammed did the same, EFCC goes all out to curb corruption by arresting and prosecuting top politicians and ministers, what do we see? A mass protest and paid editorials in all the papers against the EFCC that their course is either politically motivated or selective, but those ones don’t remember those when a poor, unemployed youth is arrested and prosecuted by the same authorities for any crime. A former governor and his wife and accomplices were once captured in London for Money laundering and it took the assistance of a court in United Kingdoms to find him and his accomplices guilty when our own courts had acquitted him of all the charges leveled against them.

Many others even in the face of embarrassing poverty, starvation and unemployment in their country still embezzle, loot and starch millions of dollars in Europe and The United States of America with the aid of their western cohorts. The cases of Gbagbo, Mubarak, Ghadaffi, Mugabe, Bin Ali etc are still fresh in our mind. Was it not the same old and unconscionable politicians that organized the 2 million-man march at Abuja and other cities pressing the then military leader, Sani Abacha not to step down but to become the life president, that are still at the helm of affairs of every democratic regime? Was it not until the death of General Sani Abacha that Nigerians came to know of the horrendous and bizarre looting that men at the top engaged in? Only God knows the total figure stolen not just by Abacha, his aides and officials but also the past Military Warlords that have misruled this pitiful country of contradictions. Perhaps We have to await their death to hear the full gist of their lootings. No wonder it is said that the heart of man is desperately wicked. Why should a man who has less than 100years life span loot so much even when his people and neighbour are dying in squalor and penury!

One begins to ask why this massive looting of the nation’s and indeed continent’s scarce resources when millions of youths live unemployed and millions of families go to bed each day with no hope of neither their breakfast nor lunch the next day.

Africa is faced with payment of debts owed the same banks that safe keep billions of dollars looted by her leaders. As a result of this, the banks are calling shots on policies of the continent and other development projects not caring how they affect the poor masses that unfortunately form the majority. Workers cannot enjoy their full salary as and at when due, children can no longer enjoy basic education because their parents cannot afford the financial requirements, universities have been turned into glorified biological garden where rodents and insects struggle for dominance, basic health care is now a luxury at the enjoyment of the average families as the mortality rate of both pregnant women and children grow in gigantic strides. People die of illnesses as minor as malaria because of self-medication, which people have resorted to in a bid to survive. Many others, who cannot find job, have taken to violent crimes, vandalisation of petroleum pipelines, kidnapping, ritual killing, mass production and sale of adulterated and substandard products and drugs. These are bought, consumed by the poor majority who also bore the brunt of their traumatic after-effects. No sensitive leader in the face of these anomalies can sleep peacefully much less think of extravagant and flamboyant lifestyle. This is not only obtainable in Africa, but commonplace too.

A lot of ink has flowed trying to assess the level of poverty and corruption in this continent; it is time now for action, this is the time to act. The people must rise to consciousness and take their destiny in their hands. The judiciary, police force and indeed the EFCC and ICPC should be re-inforced, re-engineered and re-directed towards fighting and eradication of crimes and corruption at all levels as they hold the very soul of the country and indeed the continent. The media and press should be more active, watchful and uncompromising in their great job as they put everyone on the alert.

The battle is now or never. No more life of insincerity and double standard knowing too well that the end results are borne by the poor masses. Efforts should be engineered towards self-reliance and indeed agriculture should be revitalized. No man should submit himself as a political thug again and worse still accepting of bribes during elections should be discarded as those that gain victory by corruption tends to rule by corruption and neglect. We must note that there is no easy way to success, we must pay the price and the time to do that is now. Africa is one of the most beautiful continents in this world with over 100 mineral resources awaiting full exploitation buried deep inside her womb. The journey definitely will be painful but the end result will bear fruits that are not only positive but beneficial.

Let us join hands to help ourselves or else we will be swallowed up in this economic conflagration and imbecility occasioned by the greedy elements in our midst. No more excuses, no more ethnic cum religious tensions, no more complaints and definitely no more procrastination. We were once the citadel of civilization; we can still be that If only we can all join hands together like one united family and fight the one common enemy – complacency and imbecility in the face of destructive governance.

THE LEGAL BURDEN OF A SURETY OR GUARANTOR

2011-06-14T02:00:00.000-07:00

SURETYSHIP OR GUARANTEE – A LEGAL DISCOURSE

In recent times, the issue of guarantee or surety has become a household word. We as corporate people most often receive requests from friends and relations and others requesting us to serve as their guarantors or sureties. Who is a guarantor/surety? And what are the legal status or implications of standing as one’s guarantor or surety? This is the objective of this legal discourse.

WHAT IS A GUARANTEE OR SURETY

In the case of Smith V wood (1929) 1 Ch. At p.14 the Court defines a contract of guarantee or suretyship as one by "which one person called the guarantor or surety agrees to be answerable for the liability of the debtor either personally, or by way of a charge on the guarantor’s property or both”. In a related case of R.E.A Vs Aswani Textile Limited (1992; 3 NWLR,pt.227, P.1 at P.13, para ‘G’) the Supreme court defines a guarantee as “a written undertaking made by one person to a second person to be responsible if a third party fails to perform a certain duty, for example pay a debt”

From the above definitions, it is evident that a contract of guarantee presupposes the existence of another prior contract e.g contract of loan, bank facility, employment etc under which the principal debtor is primarily liable. Its important to point out that the liability of a guarantor or surety under a contract of guarantee is secondary. His liability crystallizes at the failure or inability of the principal debtor (the person guaranteed) to discharge the obligation in the contract.

Many a times, we seem to mistake an indemnity to be the same as guarantee and suretyship. An indemnity is quite different as it is more restrictive. The court in the case of Bentworth Finance (Nig) Ltd Vs Ibrahim (1969; NCLR; P.272 at p.277) made it clear that in a contract of Indemnity, “the indemnitor (person indemnifying the principal debtor) agrees with the creditor to make good all or an agreed measure of any loss the creditor may suffer consequent upon the debtor’s default in meeting his financial obligations to the creditor”. This shows that unlike in the contract of guarantee where the guarantor assumes a secondary position to the liability of the principal, the indemnitor assumes a primary liability, either alone or jointly with the principal debtor (Apugo & Sons Co. Ltd Vs African Continental Bank Ltd (1989; 1CLRQ, p.87)

Secondly, the liability of the guarantor under a contract of guarantee becomes void where it is established that the main contract is void example for lack of capacity of the debtor or other invalidating causes, the same is not the case for an indemnitor, as he remains liable even when the main contract is void. (Wanthier Vs Wilson; 1912, 28 TLR, p.239; Yeoman Credit Ltd Vs Latter; 1961, 1 WLR, p.828)

Thirdly, the liability of the guarantor/surety is normally co-extensive with that of the principal debtor. This means that once the debtor is discharged, the surety/guarantor also becomes discharged. This is not the case in indemnity, as the indemnitor remains liable under the contract notwithstanding that the debtor is discharged under the main contract. (Goulston, Discount Co. Ltd Vs Clark; 1964, 2QB, P.493)

LEGAL IMPLICATIONS OF A GUARANTEE OR SURETYSHIP

From the positions of the courts in the above cited cases, it is clear that so much is expected of one who wants to guarantee or surety another. The guarantor assumes a secondary position as already discussed above. This shows that at the failure of the principal to satisfy the obligations under the contract, the guarantor or surety steps into the principal shoes and becomes liable to the extent of the principal’s liability. This is really a big challenge, hence the need to be sober and careful when undertaking to serve as one.

DISCHARGE OF SURETY OR GUARANTEE

The liability of a guarantor or surety under the Law becomes extinguished under the following circumstances:

· Payment of the total sum guaranteed by the principal debtor

· Where the principal debtor is discharged whether on point of law, agreement with the creditor or performance

· Where there is a variation of contract between the debtor and the creditor e.g raises the limit of the guaranteed overdraft without the consent of the guarantor, where the debtor is allowed to open a second account without the knowledge of the guarantor, where the principal gives an additional security after the contract of suretyship has been made in which the creditor agrees to waive his rights and give time.

CONCLUSION:

Many a times when people appeal to us to be their referee, surety or guarantor, we just accept without taking time to know the implications of our acceptance. In as much as it is not good to turn our back at requests from relations and friends, we should also be double sure of the kind of persons we guarantee and the type of contract they have entered into that we are serving as their guarantor. Let us not be in a hurry to oblige them without doing a proper assessment of what we are undertaking. Its better late than the late.

NEGLIGENCE - LOSS OF MONEY LOST IN THE BANK PREMISES BY CUSTOMER - LIABILITY?

2011-06-13T01:02:00.000-07:00

LOSS OF MONEY/PROPERTY BY CUSTOMER WITHIN THE BANK PREMISES – A LEGAL DISCOURSE

INTRODUCTION:

This matter bothers on Negligence in banking business. Negligence according to Black’s Law Dictionary, 6^th edition defines Negligence as “the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do …. Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances”. U.S v. Ohio Barge Lines; Donoghue v. Stevenson(1932) AC 562 at 581.

Banking business has been defined in section 61 of Banks and other Financial Institutions Decree No. 25 of 1991 as “ … the business of receiving deposits on current account, savings account or other similar account, paying or collecting cheques, drawn by or paid in by customers; provision of finance or such other business as the Governor may, by order published in the Gazette, designate as banking business” if an action is brought against the bank on negligence, that presupposes that the action is brought on the ground that the bank has breached a duty of care it owes to the customer/plaintiff.

INGREDIENTS OF NEGLIGENCE:

Before liability to pay damages for the tort of negligence can be established, three things have to be proved by the plaintiff:

That the defendant owes the plaintiff a duty of care
That the defendant had breached the duty of care owed the plaintiff
That the defendant’s breach of the duty of care was the cause of the injury in the proper sense of that term.

FACTS OF THE MATTER:

For a good appreciation of this topic, I would want to use an incident that took place in one of our branches as a case study. From the investigations conducted by the Inspectorate Department and the report from our Legal Officer in that Region, we gathered as follows:

Mr. Chicken has been a customer of the branch of our bank since July 2001 and maintains among others a current account.
Mr. Chicken was at the branch on the 22^nd of February, 2010 to make a deposit of N1,000,000.00 .
In the process of filling his teller, he handed the cash to a man he assumed to be a staff at the place where he was filling the teller form who eventually escaped with his money.

DUTY OF CARE:

In the tort of negligence, a duty of care has its origin in the concept of foreseeability. Whenever a person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. This shows that the bank as an artificial person, owes a duty of care to person (s) who come into contact with it for banking business. This duty of care involves provision of logistics and proper security to avoid putting person(s) who come into the bank in the way of harm.

BREACH OF DUTY OF CARE AND CONSEQUENT INJURY THEREUPON:

The question in this matter is whether there has been a breach of the duty of care owed the customer in this instance. The answer is No. The facts as gathered from the investigations of the Inspectorate and the admissions of the customer to our Port Harcourt Regional Legal officer the bank show that the customer gave the said sum to a person who had given him a deposit teller, whom he mistakenly assumed to be a staff. He admitted that the man in question was not in the cubicle where the cashiers/tellers stay, morestill that the man was not formally dressed and neither was he wearing any of our identity card or lapel. Furthermore, the customer has been a customer of the bank since 2001 and definitely knows the procedure for making deposits. These are some of the security devices put in place by the bank to provide the duty of care for people coming into contact with the bank. The mere fact that the thief gave him the deposit teller and also made away with the money while still in the bank premises is not conclusive of a breach of the duty of care. In the case of Balmoral Supermarket Ltd v. Bank of New Zealand (1974) 2 LLOYDS REP 164, where armed robbers swooped on the cash of the plaintiff while it was at the counter about to be handed over to the cashier for counting. The court held that since title in the case had not passed to the bank, the bank was not liable.

In a more indigenous case of Salawu v. Union Bank of Nigeria Ltd (1986) 4 NWLR (part 38) 701, where the plaintiff went to his bank to pay N7,000.00, a senior official of the bank offered to help him make the payment as the queue was long. The plaintiff handed the money to him and went home. The money was never credited to the plaintiff’s account. In an action to recover the money, the court held that since the official was not a cashier or manager of the bank that the bank was not liable for his act which was outside his authority. The Bank’s staff was held by the court in this instance to be the plaintiff’s agent and not that of the bank.

The customer’s injury in this matter cannot either remotely or proximately be linked to the bank. He is an old customer of the bank and knows the procedure and where to lodge money for payment into his account. The customer earlier had admitted to the police and to our legal officer that he acted on a mistaken assumption that the person that gave him the deposit teller whom he gave his money was a staff. Assuming but not conceding that assumption, he was also negligent in making sure that his teller was controlled by the cashier (accepted and stamped by the cashier) as evidence of the consummation of the transaction. On the strength of the case of Salawu v. Union Bank of Nigeria Ltd, it is evident that the man Mr. Chicken gave his money was merely his agent and not that of the bank and as such the bank cannot be said to be liable for any breach whatsoever.

CONCLUSION:

From the legal principles and precedents as shown in this opinion, it is clearly evident that the customer is only looking for an escape route and wants to place it on the bank. The facts have shown that the issue of strict liability nor negligence cannot stand in this matter. The bank is fully not liable to the customer in fact and in law.

This should be an eye-opener to those of us who are most often than not guided under the mistaken belief that once one is in the Bank premises, that the bank shall assume an omnibus liability of all losses suffered while in the premises of the bank. The Law and indeed the Court in the interpretation of the Law have narrowed the definition of the liabilities of the bank in most of these situations. The individual must exercise caution and care while in the premises of the bank.

DANCING TO THE DEVIL'S BRASS-BAND

2011-06-13T00:42:00.000-07:00

DANCING TO THE DEVIL’S BRASS BAND

That fateful morning, I struggled out from my bed because of the extensive weeping into the early hours of the morning. All my joints were aching and worse still my head was pounding as though I were at the middle of the battleground. I was determined to attend to my already scheduled visit to Vera who had lured me into believing that love bears and understands all.

My present problem all started the last time I visited her. Vera was down in spirits. Her roommate Isabella like a CIA agent had signaled me that she has been like this for two days. “No wonder the terrible stench that oozed out of her mouth when she reluctantly muttered what I presumed to be ‘hi’ to me”, She was totally different both in looks and attitudes from the Vera whose presence melted even the most solid of hearts.

Her popularity in the campus started when she worn the prestigious Miss Campus beauty pageant which was keenly contested not only because of the prize money but also the attendant influence and popularity that follows the winner. It took me a whole session to woo and win her love. I wondered what has overtaken Vera that she could not even take her bath at such an hour of the day. My mind raced up and down trying to find possible answers but to no avail. As I was still trying to figure out what next to do, she broke into an uncontrollable crying, her eyes were red and her nose was running. I thanked my God that Isabella was still in the room when her neighbors ran into the room to find out what was happening. I managed to calm her down assuring her of my willingness to render my life if it need be to help her out of whatever it was that was eating her up. I fought hard to accommodate the foul odour that kept on oozing out from her mouth each moment she made effort to talk. Finally the bomb exploded, lo, it was her academic woes and the public disgrace this will cause her and worse still the possible extra years that is staring at her face.

DANCING TO THE DEVIL’S BRASSD BAND

As she poured out her soul to me, I was consumed with grief for her academic misfortunes .The fifth result of our first semester course had just come out and she has again successfully registered another failure which conventionally among the students is regarded as the police number thereby bringing it to a total of eight courses already lined up for her for resit. As I comforted her on my chest, I was lost in contemplation what she actually would request of me to do knowing too well that impersonation is not only a criminal offence but also punishable with expulsion in the University. I was in a fix as I prayed hard that she requests nothing in that regard. I remembered the words of my roommate Jerry to me about Vera, during her reign as the Campus Queen that she has lost focus and devotes more time than required on irrelevancies and public functions that makes her keep her academics at bay, I frowned and quarreled with Jerry attributing his remarks about my Vera as driven by jealousy and bad-feelings. I even told Vera about it.

Regrets and confusion overtook me. “A man that gathers the maggot infested firewood should not complain at the festival of the lizards at his compound”, I managed to mutter to myself. After some few moments of deafening silence, Vera flared up as though stunned to life by a gadfly.” Why do you hate me so much? What is that I have done to you that make you keep me at arms length? This is not you my Charles, what has happened to that fire, those burning flames we shared? How can you call me your babe and you cannot be there for me when I need you most…” “Please stop Vera”, I quickly interrupted. “You make me feel like a Judas! You know I would do anything for you. Please baby, don’t say anymore, what is it that you want me to do now?” With eyes as bright as a thousand stars she gazed into my eyeballs for some seconds then resting her head on my shoulder she whispered “sweetie, I want you to write the forthcoming carry over courses for me, you know this is the easiest way to pull out of this mess and moreover

DANCING TO THE DEVIL’S BRASS BAND

they will be easier for you to write than me taking another leap into the abyss of luck”. I swallowed very hard as I struggled to face the reality staring me at the face. I do not know how to say YES to such a request. I was like the almighty Samson before Delilah or even the great King Herod before the innocent Salome at her request of John the Baptist’s head. He who eats the sacrifices of the gods owes the gods I could hear my father warning me. Before I could open my mouth to say a word, she had ‘violently’ taken hold of my lips, applying what she rather calls formula 180, using all her feminine powers I was totally subdued just like the great Caesar and Mac Anthony were in the battle bed with the Egyptian Princess Cleopatra, with little hesitation, I slipped into a blissful coma.

It was her first paper, everything went fine, and she was all about me the whole night full of life and joy. I was happy too not only for the sexual marathon we engaged in but also for bringing her back to life. She kept on praising me for being the man of her dreams and promised to keep by me as long as she had breath in her. That night, she gave it to me like never before, perhaps as a tonic for the remaining courses. My head grew fat with air of pride and achievement. The last straw that broke the Carmel’s back occurred the day I wrote the final course. I was about submitting my script when Prof Martins, my academic adviser walked into the hall. “Young man, what do you think you are doing here?” he thundered, as I stood frozen to my feet. I could hear Jerry telling me “did we not warn you lover boy”. “Gentleman, what’s your business inside this exam hall? Are you deaf now or is the question too difficult for you to grasp? Do you …’ ‘Sir Ehm, I am... No…it is... Sorry, we were...’ I struggled to explain. ‘Wait a minute, are you not Charles, course prefect two years ago…ehm… Yes! You made the best result in my course in your class…” ‘Please sir, I am very sorry’, I interrupted.’ I...I will ex.. - plan...explain eve… every thi...’“Shut up! that ringworm infested gutter you call your mouth, you wretched ego-

DANCING TO THE DEVIL’S BRASSD BAND

inflated rogue. You are a bloody fool, an ignoramus, a vampire, a nincompoop, and an irresponsible brat” Prof Martins raged at me as he seized the opportunity to display his rich harvest and command of abusive vocabularies. The students cheered him to a crescendo as he dished them out in his peculiar dramatic manner. Before I knew it, the security men trouped in with a panel van, like a criminal I was roughly loaded into the belly of the security van (after signing their examination malpractice form) as the students jeered and booed me to ridicule.

Following the university’s new policy on exam malpractice, I was summarily expelled after facing the panel set up to hear my defense. Before I got back to my room, the news like the proverbial harmattan fire had spread to all the nooks and crannies of the university. I covered my face in shame as I narrated my story to all who had gathered for my final burial knowing too well that many have come to confirm either their doubts or their suspicions and to lay to rest what was left of my battered and leprous image. Some of my sympathizers consoled me urging me to learn from my mistakes and to cast the past behind me and think as every adversity has an equivalent seed of benefit. Some others who pretended not having anything to say exchanged non-verbally among themselves remarks of ridicule, which I pretended not to take notice of. Like the biblical Job, I cursed the day I met Vera.

It has been four days now and Vera has neither called nor visited. I decided to fight the devil in her own backyard. It was too late, as she has gone home for her traditional marriage to one Dr. Davis who lives in the United Kingdom and may likely not come back again. I gathered from a reliable source that she has collected her transcript and will be continuing her studies in the United Kingdom. This news renewed all my pains and losses knowing lately and most painfully too that I have been goofing, playing the fool. Vera never whispered such a thing to my ears and

DANCING TO THE DEVIL’S BRASSD BAND

worse still a girl for whom I was torn and cast away from my bright future walking out of my life just like that without any words of comfort or sympathy. It now dawned on me but lately though, that the child that refuses to wear the garment of honour must not be allowed to refuse to wear the cloak of disgrace as my name was used indiscriminately as a synonym for foolishness. I even overheard people calling me bagger which is a slang used to depict a worthless and shameless fellow in the campus.

Having lost Vera, my future, my prestige, my friends and indeed everything, I had to join the fugitives of the merry-go-round who with much enthusiasm welcomed me into their league. The league I better would call the rejected of the earth, waiting for the time to take our revenge. I blamed myself for dancing to the devil’s brass band.