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

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

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...

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

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

(c)               As a specific societal programme

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.



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...

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



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.

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

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

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

[4] supra