Suddenly, Doyin Okupe, President Goodluck Jonathan’s Senior Special Assistant on Public Affairs, has become an issue. Not because his name is Doyin, but because he is Goodjoe’s SSAPA. I was wondering what the fuss about him was until I read some articles describing him as an attack dog. Somehow, I tend to ask if anyone would tag him an attack dog had he remained in his cocoon and declined to offer his services to his country. Like everybody else, Okupe is free to trade his service. But as I asked questions about the barrage of anti-Okupe reports in the media, I came to the realisation that Nigeria is marching progressively towards reality.
One of the essential demands of this progressive march is freedom. I am glad too that Nigerians have taken due advantage of this necessarily feature of democracy to express themselves even to the point of disagreeing with the President on appointments of his aides. His aides. Not your aides. Not my aides. What more could we ask of democracy. Democratic freedom has encouraged Nigerians to demand openness in governance. It has also made Nigeria a more expressive and tolerant society. So, it is now easier to pour invectives on our leaders and not be harassed or molested. We are all basking in this freedom.
So, each time I read a news article about Okupe and the call on Goodjoe to fire him on the ground that a company associated with him in the past had a botched contractual obligation with the Benue State Government, I shudder in disbelief. Reason: I often find myself wondering why some Nigerians would want due process to be ensured when it is convenient and of personal advantage to them but abused when it is not.
Lest I derail. Okupe was associated with Value Trust Limited, a limited liability company. The company had a contractual business dealing with the Benue State Government over which there are claims of a breach. If there is any legal action which is necessary to address this alleged breach, such action should be initiated by the Benue state government against Value Trust Limited. To suggest, and argue, that Okupe should be fired, and prosecuted, on account of the alleged breach, will, in my opinion, be an issue arising out of bad fate.
There are a plethora of authorities which, based on Companies and Allied Matter Act, to lead an argument in this direction. A limited liability company is a juristic body. It can sue and can also be sued. What has been established here, even from statements from Senator George Akume, erstwhile governor of Benue state under whose authority, as governor, the contractual obligation was entered into, is that a dispute now exists between Value Trust Limited and Benue state government. This dispute has no intent of criminality. Therefore, there is no expectation that the matter against Value Trust Limited should also be a matter against a Doyin Okupe. These are two different entities. The simplest of logic here suffices that Benue State Government did not at any time, or place, award any contract to Doyin Okupe. The contractual obligation was between Value Trust Limited and the state.
Beside, the insinuation of criminal conduct, in the breach of a normal contractual obligation, would be wrong unless it is proved that Okupe, as an individual, used Value Trust Limited as a front to defraud Benue State. In that case, there must evidence to show that Value Trust Limited is incompetent to execute, or satisfy, the contract which it applied for and secured.
Section 66 (1) of CAMA ousts personal liability in corporate decisions. For instance, Sub section 1 of section 66 states that “except as provided in section 65 of this decree, the acts of any officer or agent of a company shall not be deemed to be acts of the company, unless (a) the company, acting through its members, board of directors, or managing director, shall have expressly or implied, authorised such officer or agent to act in the matter; or (b) the company, acting as mentioned in paragraph (a) of this subsection, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be liable to any person who has entered into the transaction …”
Before this, Section 65, as referred states, that “any act of the member in general meeting, the board of directors or of a managing director while carrying on in the usual way the business of the company, shall be treated as the act of the company itself and the company shall be criminally and civilly liable thereof to the same extent as if it were a natural person. Further to this section is the provision at subsection (b) to the effect that “if in fact a business is being carried on by the company, the company shall not escape liability for acts undertaken in connection with that business merely because the business in question was not among the business authorised by the company’s memorandum.”
Taken together, these sections of CAMA, ought to guide anti-Okupe voices. CAMA is part of Nigeria’s laws and referred to as Chapter 56 of the laws of the federation. In my opinion therefore, if we actually want a society built and sustained on the principles of the rule of law, there must be strict adherence to the law. This view finds support and expression in the case between Bernard Longe and first Bank of Nigeria Plc.
A short retort. Longe was Managing Director of First Bank Plc when International Investors London Limited (IILL) sought a $111.7m loan to buy majority stake in NITEL. A consortium of financiers showed interest in raising the loan with First Bank as anchor. However, other members of the finance consortium withdrew from the deal leaving First Bank alone. The bank later lost the 10 percent non-refundable deposit to government as the deal failed to sail through. Enraged, First Bank dismissed Longe from its service. In court, Longe argued that as Managing Director of the bank, he could not be held personally liable for the losses suffered by the bank in a business transaction which the board of the bank approved and authorised. This matter was finally settled by the Supreme Court which also upheld the argument that Longe could not be punished (dismissed) by his employers on account of a decision which was taken by the board of the bank. The court upheld argument that Longe, even as Managing director was only executing a decision taken, approved and authorised by the board of the bank. In this case, liability for the loss lay on the bank and not Longe. So, if this precedence had been set, would it make sense to now argue that the law be discarded and the issue of an alleged contractual obligation of Value Trust Limited be taken out on Okupe? Again, this is bad fate.
The classical expression of the mind of CAMA on this issue is in the relationship between an individual and a company. Even when a company owned by Chief XYZ owes an individual, it is not argued that Chief XYZ owes the individual. This, I think, is reason there is difficulty in establishing individual criminal liability, and punish same, in cases where business entities fail, like in banks. We have seen banks and financial institutions fail with the attendant loss of earnings by shareholders. But, it is not often that we see managing directors of such banks prosecuted and punished for the collapse of those banks. It is simple. You cannot hang precarious corporate liability on an individual if indeed you want to respect the rule of law.
Your best bet in such matters, would be to ask for a review of CAMA such that laws that could place corporate criminal or civil liability on individuals occupying certain positions at the time of the contraction of a contract, would be enacted. But ask, wouldn’t that be draconian?
Achilleus-Chud Uchegbu is the Head, Communication, Nigeria Economic Summit Group.