The Vindication of a Lawyer and Public Servant

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On February 26, 2013, This Day Lawyer ran a story, ‘My Ordeal with SEC’, detailing the ongoing saga between respected Lawyer and Diplomat, Christopher Okeke and the Securities Exchange Commission of Nigeria. Onikepo Braithwaite and Jude Igbanoi bring you a follow-up interview with Ambassador Christopher Nonyelum Okeke, founding Partner of Ajumogobia & Okeke, Honorary Legal Adviser to successive British High Commissioners since 1989, one of just two Lawyers in Nigeria’s history who have held that prestigious honorific title, having been selected to provide counsel to Her Majesty the Queen of England’s Government in Nigeria. This interview explores the importance of digital identity, and how a careless error by a public authority can have dire implications on the reputation and good standing of even those Nigerians, who by training and experience are familiar with the law, and who have the power and resources to challenge impunity and fight back against oppression

Background

In April 2008, the Administrative Proceedings Committee (APC) of the Securities and Exchange Commission of Nigeria, conducted an investigation into the malfeasance of certain Executives at Cadbury Nigeria Plc. The SEC issued a ruling containing an erroneous finding, that Christopher Okeke was an Executive Director on the Board of Cadbury. In fact, Christopher Okeke was a Non-Executive Director. The treatment of and sanctions imposed on Company directors for any established malfeasance in the Company were under extant regulations, determined by whether they were one or the other.

As a result of the SEC’s error, Christopher Okeke, whose very livelihood depends on his integrity and good standing in the community, was mistakenly treated by the SEC as an Executive Director and consequently, banned from serving on Boards of publicly traded companies. He was also barred from being employed in the financial services sector for five years, and was referred to the Economic and Financial Crimes Commission (EFCC) for further investigation and prosecution.

In 2009, immediately following this decision of the APC, Mr. Okeke launched a civil appeal against the SEC and others. The Appeal No. CA/L/13/2009 was successful in annulling SEC’s decision, and what follows is a discussion with Christopher Okeke in the wake of the earlier Court of Appeal decision and the most recent judgement of the High Court of Lagos, and what has been over a decade-long saga involving the SEC and Cadbury, and his unrelenting efforts to clear his name and set the record straight.

After a long and bitter contest with the SEC, Mr Okeke you won. Do you feel vindicated? What do you plan to do next?

I won a legal victory, which has failed to give me the justice I sought. Let me explain. As I’d indicated back in 2013 when I gave my first interview about this legal battle, the SEC’s error in finding that I was an Executive Director of Cadbury when in fact I was not, has been a source of great angst and emotional distress, not just for me, but also for my family, friends and associates. I built a successful legal and business career on my integrity and relationships.

With that one ruling, SEC threatened to destroy a lifetime of hard work. I am extremely grateful for the Court of Appeal decision, setting aside the decision of SEC. However, it could not reverse the enormous damage the SEC decision had inflicted. That would at the barest minimum, have required a retraction and an apology. I managed to stay positive and focused because in fact, I was (and I still am) angry over SEC’s refusal to issue a public retraction and apology. This refusal is notwithstanding my writing to them, and giving them ample opportunity to do so. That to my mind constitutes an abuse of power, and I believe that it’s both my right, as well as my responsibility to speak up about it. I think this is especially true in the digital age, when so much of our personal information is online. This erroneous SEC Ruling will follow me for the rest of my life, if I am unable to get them to correct their mis-statements that are now in the public domain. This shift of responsibility to the accused, is unfair and unjust. They, SEC, made the mistake. They should have the responsibility to correct it. That’s what I meant, when I said the legal victory has not given me justice!

During the interview in 2013, you talked about clearing your name. Even if you never felt completely vindicated as you said, wouldn’t you say that the decision of the Court of Appeal setting aside SECs decisions effectively cleared your name, notwithstanding SEC’s refusal to admit their error?

The essence of the Court of Appeal’s decision, was that the SEC had no authority to make the decision it made blacklisting me in the first place. So, it was really about SEC overstepping its bounds or jurisdiction. I therefore, always felt that the only way that my name would be cleared, would be through an admission of error by SEC itself or by a pronouncement by a court that I was not in fact culpable for the egregious breaches that took place in Cadbury Nigeria Plc between 2003 and 2006, when I served as one of its non-Executive Directors.

The nature of the fraudulent activities that took place and the degree of sophistication that required a deep dive forensic audit to uncover, made it unreasonable in my view, to hold a non-Executive Director like myself responsible. Referring to me as an Executive Director, and indicting me on that basis was a glaring error, for which SEC still ought to apologise. Before the erroneous SEC Ruling, I served on the Boards of a number of public and private companies. When you make your living from advising others on legal matters, as I did as a full time legal practitioner, a mistake like the one SEC made can have disastrous effects on your reputation and practice, and on the willingness of companies to trust your judgement, and to have you advise them or sit on their boards. I was blacklisted by SEC, and its decision was widely publicised. The fact that the Appeal Court held that SEC had no authority to make that decision, did not ameliorate the injury done to my reputation and law practice. Putting my life back together after that, has been a long and painful process. We live in a digital age. What’s reported about you online is seen all over the world, and remains on the internet indefinitely. So, “No”, I don’t feel that the court decision throwing out SEC’s appeal cleared my name, despite the appearance of vindication. SEC made a grievous mistake. Cadbury too was in error, in removing me as a Director without due process on account of SEC’s error. They should both have done the honourable thing by admitting their mistake, and issuing appropriate apologies. Only then,would l have felt that my name had been cleared.

Is that why you filed a lawsuit against Cadbury seeking to clear your name?

Yes. I resolved in consultation with my Lawyers to take all measures that are legally at my disposal, in order to protect my integrity and reputation; I, having built my practice and career on hard, honest professional work.

Furthermore, I believed that my case would have considerable implications for Nigerians who do not have the power and knowledge I have gleaned over decades of practicing law. If this could happen to an experienced professional like me, what hope does an ordinary person who is not a Lawyer have to stand up to such abuse of power? Yes, so I sued Cadbury. In the suit I sought a declaration that I had not in fact breached my duties as a Director of the Company during my tenure, and for damages with regard to the Company’s own role in the entire saga that caused me considerable distress. I’m delighted that only last week, the High Court of Lagos finally found in my favour and awarded damages against Cadbury. I now feel somewhat vindicated with respect to Cadbury, even though the quantum of the award did not come close to compensating me in real financial terms for even the loss of income that I suffered as a result.

Looking back at the whole saga, did you see the entire incident as malicious prosecution or persecution? Are there any reasons to believe that there could have been errors or inadvertence in the incident? Having been absolved of all culpability, what is the next step?

I think it is difficult to attempt to ascribe motivation without bias to a series of occurrences, especially after a painful and protracted experience such as the one I went through without bias, and so I will avoid comment. I do see the entire series of events the upended my life as a combination of malicious intent from Cadbury, and a legal system that still has extensive teething problems because jurisdiction has been inadequately worked out through litigation in the past. If I didn’t have the means to litigate this as comprehensively as I did, I would have been unable to get to the outcome I received. I will retain my own counsel on whether or not further legal recourse is to be sought, because I have yet to be made whole.

Back in 2013, you spoke about regulatory reforms and rescue strategies that would help bring the Commission to a place of better standing. Do you see that any such reforms have been made in the intervening years?

Unfortunately, I do not believe that regulatory reforms have gone far enough, and that the notion that all directors of companies are strictly liable for the fraud or misbehaviour of the executive directors regardless of the circumstances, must be addressed. I am gratified by the intervention of the Judiciary in curbing SEC’s impunity in this particular case, and for now, properly interpreting the legal standard regarding the liability of directors of Companies registered under CAMA. If it were not for the Court of Appeal Ruling, the SEC ruling would have remained the official and legal position, despite the fact that I brought to their notice the fact that they had made a mistake in describing me as an Executive Director. My hope remains that decisions like decision of the Court of Appeal, would put the SEC (and other regulatory bodies) on notice of the need to review and reform its processes. However, I think that this reform begins with raising the level of awareness amongst persons who serve on Boards, to better understand their rights and responsibilities as Board members and to challenge impunity and unfairness.

There is a big difference between the practical role of Executives and Non-Executives, though the law seems to make no distinction. Understanding this balance, is key to proper functioning of companies in our country. When Board members are educated about their fiduciary responsibilities and power that they delegate to Executives, then we can not only better hold those Executives accountable, but we can also hold our regulators accountable. I believe that, too often, ordinary citizens underestimate the power that they have to create meaningful change in our society.

Earlier, you mentioned the importance of digital identity and the abuse of power of public bodies. Do you believe that public bodies like the SEC should have a heightened responsibility to Nigerian citizens, in light of digitisation of our identities?

That is an interesting question. One that I believe requires a lot more time for discussion and debate. Globally, we’re beginning to understand how technology companies like Google and Facebook can change lives for the better or the worse. We’re seeing how social media can even impact the outcomes of elections. So, whilst we’re figuring out how we best regulate in this 4th Industrial Revolution, I think the very least we can do, is to ask of our public bodies to retract and correct the mistakes that they make which can have enormous implications for people’s lives.

The information contained on the Internet can live forever. The average person may not read an entire article explaining the outcomes; they may not read the Court of Appeal’s ruling annulling the SEC ruling. They do a search under my name, and they make snap decisions about my character based on a SEC Ruling which has been overturned.

So, yes in light of the fact that negative information can live for a long time in the digital media space, I think the very least public bodies can do, is to retract misinformation and correct their mistakes, especially that which is in the public domain. And I do think that they need to be held accountable to do this minimum, and suffer penalties for deliberately failing to perform theses minimum acts of fair reporting. Digital identities are becoming increasingly important, in terms of how we define ourselves or are perceived.

We know that there are laws requiring the fair reporting of a person’s credit for example. Should we extend this requirement of fair reporting to other public bodies? Do you have any advice for ordinary Nigerians who may find themselves in a similar situation, with a public body refusing to correct misinformation that it’s reporting about a person?

I think the point you’re raising, is an excellent one. We can start with the media. When they utter or print injurious falsehoods and the falsity comes to your attention, you’re under an ethical and legal obligation to print a retraction and to issue an apology. To fail to do so, could open the door to a defamation lawsuit. We also have laws that protect us from unfair credit reporting. Indeed, if you look at the rationale of the National Assembly in 2017 when they promulgated the Credit Reporting Act, it’s in large part a response to the need for access to accurate, fair and reliable credit information. The protections are for both consumers, as well as a credit providers. I also believe that the Freedom of Information Act of 2011 is another piece of important legislation, that implies a responsibility on the part of public bodies to accurately report information.

My advice for ordinary Nigerian citizens would be that, “knowledge is power”. You don’t have to be a Lawyer, to educate yourselves about your rights. But, I think it’s also important to remember that we don’t just have rights, we also have responsibilities. I believed that it was my responsibility to use the knowledge and the power at my disposal, to hold the SEC and others who infringe my rights accountable. I am encouraged by the outcome of this case, to advocate for the rights of any who have been victims of impunity and to speak my truth to power.

My hope is that others will follow. Together, we can change Nigeria for the better.

You just ended your ‘ambassadorial tour of duty’ as Nigeria’s envoy to Brazil. What lessons did you learn from that crucial international assignment? There are many complaints about our missions abroad. Can you give us an insight as to what may be responsible for some of the lapses? Looking at the Brazilian legal system, democracy, culture and economy, what were your takeaways? Can any parallels be drawn between Nigeria and Brazil?

This is a rich and interesting sequence of questions, which probably warrant a separate session. Briefly though, there is huge potential for our Missions to influence policy at home, and help negate the unfortunate stereotypes. Through for example, greater effectiveness and efficiency in our consular role towards our citizens including, Embassy staff welfare.

In the area of culture, there is a strong Nigerian influence on Brazilian cultural and social formations that can be further enhanced in our bilateral engagements. The famous Brazilian Quarters in central Lagos, is part of our historical ties and cultural affinities. Other areas of contemporary interest worth pursuing include Film, Art, Music and Food.

Much of what happens in our Missions abroad, is a reflection of lapses and inefficiencies at home that envoys are hard put to defend. Institutions at home – whether the Executive arm of Government, the Legislature or the Judiciary must build credibility. It is that credibility that we as envoys, build upon in projecting our Nation. Many of the challenges in our Missions are therefore, a reflection of our society at home. Government Institutions must learn to acknowledge lapses, and correct them. That, always enhances their credibility.

You have recommended the Brazilian agricultural model for Nigeria, given our similarities in climate, vegetation and population. Kindly, expatiate on that. What in the Brazilian agricultural model, would you say can work in and for Nigeria?

For clarity, I have recommended the adoption of tropical region agricultural technologies by Nigeria. As you noted, Brazil and Nigeria share fauna and flora, and the Brazilian approach to farm development and agricultural practice is more applicable to Nigeria, than the temperate or pseudo temperate region agricultural technologies that are typically professed here, a legacy of our colonial heritage.

Brazil was import dependent for food, as recently as the late 1960s. Today, it is the third largest producer of food in the world, and the second largest exporter of food in the world. Brazilians are able to feed 208 million citizens, and a further 1.2 billion people in the world. Brazil is a prime example of the adoption of the concept of combining land management and science to achieve agricultural objectives such as food surpluses, ensuring self sufficiency and retaining the ability to export. The most transferable part of what Brazilians have, is the determination to achieve self sufficiency and be in a position to export. I firmly believe that, Nigeria could be the fourth largest producer of food in the world. My beliefs in this regard hold firm notwithstanding the coronavirus pandemic which has seriously impacted all countries.

You are one of the big farmers in Nigeria, and today the Nigerian Government is calling on all of us to engage in food production. How do you intend to engage in this process, especially at this critical time when there is the huge challenge in the agricultural sector, with the marauding Herdsmen and alarming increase in insecurity, which has reduced agricultural output to almost zero?

I continue to invest in agriculture, especially at the primary production stage where I am developing farming operations. I am not sure that it is all Nigerians that should try to produce food, given the challenging nature and skillsets required, including infrastructure, financing, human capital needs, logistics, research and development and so many others. enterprise. At the same time our agricultural sector needs private investment and engagement, as it is currently under-capitalised due to our legacy focus on oil and imports. Better food access and more engagement in agriculture as opposed to farming, could address some of the social unrest in the country and mitigate the security issues we face. Food security is after all, Security. If food is not accessible or is uncertain, Insecurity is guaranteed.