Understanding Donald Duke, Gershom Bassey, SERMATECH And Lilleker BY OBONO OBLA

Gershom Bassey and Liyel Imoke

The former Governor of Cross River State, Mr. Donald Duke said something startling yesterday at the campaign reception for Mr. Goddy Jedy Agba in Calabar.

In an uncharacteristic bluntness, Donald Duke said there are only two monkeys in Cross River State. He revealed these two monkeys to be two companies. These two companies are namely SERMATECH and LILLEKER.

These two companies are the companies that the Government of the Cross River State has been awarding all important contracts to since Governor Liyel Imoke became Governor of the State since 2007.

SERMATECH is a company belonging to the Brother of Mrs. Obioma Imoke, the wife of Governor Liyel Imoke. Here is a case of likelihood of nepotism and conflict of interest.

On the other hand, LILLEKER belongs to Gershom Bassey. All the billion naira contracts of the Cross River State Water Board Limited are awarded to Lilliker. There is therefore likelihood of conflict of interest.

The Chairman of the Cross River State Water Board is Gershom Bassey. He was appointed Chairman of Cross River State Water Board Limited in 1999. He has remained Chairman of Cross River State Water Board for 15 years.This is despite the fact that the appointment of Gershom Bassey as Chairman of Cross River State Water Board is patently illegal.The Cross River State Water Board is a company incorporated under the Companies and Allied Matters Act, 1990. See Section 37 of the Companies and Allied Matters Act (supra).By virtue of its incorporation as a limited liability Company the Cross River State Water Board Limited possess a corporate personality which is distinct from its members and therefore can sue and be sued.It is trite that the fundamental attribute of a corporate personality is that the moment a company is incorporated it becomes a legal entity distinct from its members or any other entity. This has been well illustrated in the celebrated case of SOLOMON V. SOLOMON & CO. LTD (1897) AC 22 where Lord McNaghten stated inter alia:“A company is at law a different person altogether from its shareholders. Although it may be that after the incorporation the business is precisely the same as it was before and the same person are managers; and the same hands receive the profit, the company is not in law the agent of the subscribers or trustees for them……….”This position was also upheld in the Nigerian case of MARINA NOMINEES V. FBIR Ltd. (1986) 2 NWLR 48. This legal personality principle of a company has actually been codified in Nigeria.Section 37 Companies and Allied Matters Act (supra) provide thus: “As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the company in the event of its being wound up as is mentioned in this Act”.

The fact that the Cross River State Water Board Limited is supposedly a company belonging to Government of Cross River State does not mean it is a department or appendage of the Government of Cross River State.The Chairman of the Cross River State Water Board Limited by law is required to be appointed by the annual General Meeting of the Cross River State Water Board Limited but no such Annual General Meeting had held since 1999 to the best of my knowledge.

It is a notorious fact by the provisions of the Companies and Allied Matters Act (supra) the Chairman and other directors of the Cross River State Water Board Limited can only be appointed or re-appointed at the Annual General Meeting of the Company.It goes without saying that the purported appointment of the Chairman, Managing Director and Board of Directors of the Cross River State Water Board Limited as appointed by the Government of Cross River State is contrary to the provisions of the Companies and Allied Matters Act (supra) that regulates the affairs of the Company.It is well settled that by virtue of Section 248 (1) of Companies and Allied Matters Act (supra) the Chairman and indeed the Board of Directors of the Cross River State Water Board Limited can only be elected at the Annual General Meeting of the Company.

Section 248 (1) of Companies and Allied Matters Act (supra) provide thus: “The members at the annual general meeting shall have power to re-elect or reject directors and appoint new ones”.

It follows that Gershom Bassey has been illegally drawing salary, entitlements and benefits as Chairman of Cross River State Water Board since 1999.

I therefore urge Gershom Bassey to return to the coffers of the Cross River State Water Board Limited all the salary, entitlements and benefits he has collected from the Company since 1999 because he ought not to have been appointed Chairman of the Company.

Last week the Supreme Court of Nigeria in a land mark judgment nullified the membership of the Delta State House of Assembly representing Ugheli North Constituency II, Mr. Edoja Akpodiete and ordered him to within 90 days refund to the state coffers all the salaries and allowances he had collected since he had been occupying the seat since 2011.The Supreme Court, through Honorable Justice Walter Samuel Nkanbu Onnoghen, ordered, Edoja Rufus Akpodiete (2nd Respondent) thus: “The 1st respondent is hereby ordered to issue the said appellant with a certificate of return in respect of the said House of Assembly election held on April 26, 2011.“The 2nd respondent, Edoja Rufus Akpodiete, is hereby ordered to vacate the seat of Ugelli North Constituency II in the Delta State House of Assembly forthwith.

“It is further ordered that the said 2nd respondent, Edoja Rufus Akpodiete, refunds to the coffers of the Delta State House of Assembly all monies/sums of money he collected by way of salary, allowances whatsoever and however described since he took his seat in the said House of Assembly under the pretext of being the duly elected candidate of the 4th respondent representing Ugheli North Constituency II, within 90 days of this order.”It was the first time the Supreme Court would be ordering any person to refund the money earned from office that he or she illegally occupied. So based on this precedent set by the Supreme Court in Akpodiete’s case, Gershom Bassey should do the same otherwise some patriotic Cross Riverians will go to Court to compel him to return all the salary, entitlements and benefits he has collected from the Company since 1999.

Okoi Obono-Obla is a private legal practitioner and writes from Abuja.