THE MARAUDERS AND THE REST OF US

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

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?

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

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.