My take on the substantive issues facing the NAA

[Kaycee]

Fellow Nigerians:

First, it is New Year’s day and I wanted to wish all of you a happy
and prosperous New Year.

Second, in view of the current and ongoing debate on the state of the
Nigeria Association of Alberta (NAA), the myriads of emails on a wide
range of issues, Dr. Obiefuna’s take on the problem, in his well-
written article titled “the hegemony of just cause” (which can be
found at http://www.obiefuna.com/2010/12/hegemony-of-just-cause.html),
and contributions so far made on a Google group titled “NAA Speaks
Out”( although, this group has been in existence for some time now, I
only came to know about it today), I feel that it has become
absolutely important to restate as clear as I can, as we set forth
into a brand new 2011, for the benefit of our country men and women,
our children, my children and for history, my position on the current
issues and difficulties facing the NAA.

My intent is to proffer real, workable and pragmatic solutions to the
problems and hope that all sides of the debate will take some quite
time and truly reflect upon them, rather than jump at them in the heat
of passion.
I need not go into any background or historical information on the
origins of these problems and why we are where we are today. I believe
Dr. Obiefuna has done justice to that issue in his piece. Therefore, I
would go straight to the issues.

At the heart of the problem are these four important issues:

1. Whether or not the requisition of a general meeting dated November
14, 2010 by some members of the NAA within a 14 day period commencing
from the receipt of the requisition notice was valid?

2. Whether or not the special resolution called for in the
requisition notice, to the effect that “That the Board of the NAA
having consistently failed to maintain its full membership strength
since 2008 be dissolved forthwith” valid?

3. If valid, whether or not the NAA constitution requires that
members in good financial standing are the only ones who ought to vote
for that resolution?

4. Must the Board of the NAA be heard on the allegations of improper
handling of the affairs of the association?

At this juncture, it is important for me to state clearly that at no
period of time have I been a member of the Board of the NAA, nor been
its legal advisor. What is true is that my opinion has been sought at
some point by all sides to this matter and they can confirm this.
Again so that you may appreciate the rationale and legal philosophy
behind the analysis I am about to undertake on these very important
issues in the hope that we can reform our community for the better,
heal and move forward as one people united on common purpose.

But before I begin, I wanted you to know that at all times and from
the beginning I had made it clear to all sides, including the sponsors
(the majority of who I can call my friends) of the requisition and
special resolution and the Board of NAA that I am completely in
support of the substance of the requisition, in that the requisition
seeks the proper accounting of the activities and finances of the NAA
from the inception of the current Board. Nobody who meant well for our
community would oppose the idea of holding their leaders and those who
serve them accountable for its actions. However, I also told the
actors on both sides that I would want to see that the proper
procedure is followed in dealing with these matters. In a moment, I
shall return to explain why I think that the need to follow proper
procedure is fundamentally crucial.

I also made clear that I am supportive of the special resolution which
called for the dissolution of the Board, again provided that the
proper procedure is followed. So, please contrary to all you might
have heard or the insinuations notwithstanding, these are the
preliminary reasons for my measured support.
For your information, I am relying on the 1985 constitution of the NAA
filed with Alberta Registries on August 16, 1985.Therefore, the
analysis here is subject to the provisions of any current constitution
or as amended, where such is proven to be in existence.

Issue #1:

Whether or not the requisition of a general meeting dated November 14,
2010 by some members of the NAA within a 14 day period commencing from
the receipt of the requisition notice valid?

Key relevant provisions:

Section 3.2.1 of the NAA constitution (the constitution) states:

Special Meetings of the Association shall be called at the
direction of the President or upon the request in writing of
twenty per cent (20%) of Members in good standing, stating
the object of the Special Meeting.

Article VIII of the constitution provides:

The books and records of the Association may be inspected by
any
Member in good standing on 2 days’ notice at the residence
of
the Secretary or Treasurer or at a mutually agreed venue in
the presence of another Officer of the Association.

Section 2. 1.1: Eligibility for Full Membership states:

Any person being of Nigerian origin, ancestry or citizenship
or being
the spouse of any such person residing in the Province of
Alberta and
whose application is approved by the Board, shall be eligible
to become
a full Member of the Association on payment of the prescribed
fee.

Section 2.3.3 states:

A Member shall be deemed to be in good standing when
not 'in arrears of the payment of any fees or other sums
due from time to time to the Association.


Section 3.1.4 states:

Where thirty three percent (33% of Members in good
standing is present in person or by proxy, quorum
shalt be deemed formed for a Meeting of the Association

Section 4.3 provides generally for the duties of the Board.
Specifically section 4.3.9 states:

The Board to maintain and report all accounting and financial
records of the Association.

Analysis:

At the December 19, 2010 emergency general meeting at which time this
matter came up for discussion, the argument was made as to whether the
requisition was properly constituted. Some were of the view that
because some of those who signed the requisition were non-members and
therefore could not have been valid. Others argued that in as much as
it can be verified that some who signed the requisition were up to 20%
of the members in good standing, notwithstanding the few that were not
members, the requisition was properly constituted. To be clear, I
belonged to this group. In any case, I do not think that matters of
form should prevent a substantive issue from being presented to the
general assembly for deliberation.

Given the foregoing provisions, it is clear that the meeting
requisition of November 14, 2010 for the purpose of getting the Board
of the NAA to account for its activities, including its finances and
the viewing of the accounts books of the association was properly
constituted and accordingly ought to have been acted upon by the
Board.

The failure of the Board to have acted upon the requisition in that
aspect was ill-conceived and poor judgment on its part. Unfortunately,
given the high tension, rancour and lack of decorum, folks could not
clearly communicate their positions to the appreciation of the
audience.

Issue #2

Whether or not the special resolution called for in the requisition
notice, to the effect that “That the Board of the NAA having
consistently failed to maintain its full membership strength since
2008 be dissolved forthwith” valid?
Key Relevant Provisions:
Section 1.1.3 states:

"Special Resolution" shall mean –

(i) a resolution
(a) passed at a General or Special meeting of which
not less than 21 days’ notice specifying the
text of the resolution has been duly given and,

(b) passed by the vote of not less than 75% of the
Members present in person or by proxy.

(ii) a resolution proposed and passed as a Special
Resolution at a General or Special Meeting of
which not less than 21 days’ notice has been given,
if all the Members entitled to attend and vote at the
General or
Special Meeting so agree, or

(iii) a resolution consented to in writing by all the
Members entitled to vote on the resolution.

Section 1. 1.4 states:

"Member" shall mean a full member or associate member
of the Association unless the context requires otherwise.
Section 2.1.1 provides for the requirement for full member as follows:
Any person being of Nigerian origin, ancestry or citizenship
or being
the spouse of any such person residing in the Province of
Alberta and
whose application is approved by the Board, shall be eligible
to become
a full Member of the Association on payment of the prescribed
fee.

Section 2.3.3 states:

A Member shall be deemed to be in good standing when
not 'in arrears of the payment of any fees or other sums
due from time to time to the Association.

Section 4.1.7 states:
The Board shall comprise at least eight (8) members.
Analysis:

For this purpose, special resolution shall mean a resolution passed at
a General or Special meeting of which not less than 21 days’ notice
specifying the text of the resolution has been duly given and,
passed by the vote of not less than 75% of the Members present in
person or by proxy.

For factual clarity, notice that there is no specific provision in
the constitution that provides for the dissolution of the Board. Does
it mean that the general assembly cannot dissolve the Board? Of course
it can dissolve the Board. Notice also that the constitution does not
provide for the object (s) for which special resolution may be
deployed. In my view, it is enough that the constitution provides for
the use of special resolutions for whatever reasons deem fit by the
sponsor or sponsors of the resolution.

Does it mean that the fact some of those who signed the special
resolution are alleged to be non-members makes it invalid? Of course
not. To the extent that the resolution was sponsored by some members
in good standing, even though co-signed by some who are alleged not to
be members, was properly moved and we ought to have been allowed to
move to the next stage. This is also consistent with my own legal
philosophy, which is in certain procedural matters, form should not
defeat a substantive issue that is before the proper body.

Issue #3:

If the resolution is valid, whether or not the NAA constitution
requires that members in good financial standing are the only ones who
ought to vote for that resolution?

Analysis:

You will note that I have said that the resolution in itself complies
with the constitution and thus valid. If you were at the meeting of
December 19th, and carefully followed the proceedings, my objection
did not concern the validity of the resolution per se, but whether we
ought to verify members in good financial standing for voting
purposes. My argument was yes.

What cannot be ignored is that all the provisions on this issue
require only members in good financial standing to vote on a such a
resolution. There is a reason for this. Our association is registered
under the Societies Act of Alberta and is therefore a regulated
entity. It has the powers to sue and be sued, its actions can be
challenged in court and specifically the constitution requires
recourse to arbitration under Alberta law.

But for me, more importantly, where you have members on the opposite
side of the aisle on the same issue, in order to have a solution that
would be seen as legitimate and thus binding, the constitution (where
there is one, and fortunately we have one, no matter how imperfect)
should be deployed. I suspect that more than 90% of those present at
the meeting of December 19th were financial members of the
association.

There was a valid argument by some members around how we ascertain
members in good financial standing. This is specially the case given
the fact that the Board on that day could not assure that there is a
valid book of registered members. That did not help the debate. The
keeping of a book of registered members is one of the elementary yet
fundamental duties of an association and this duty is surely at the
footsteps of the Board. What I would have liked to see was a motion to
the effect that since the Board could not produce a book of registered
members that the requirement that only members in good financial
standing may vote be waived so as to allow all those present to vote.
Or to schedule another meeting for the only purpose of voting on the
resolution at which time the Board must produce a book of registered
members. I am comfortable with either of these motions that carried
the day. Again, due to the fact that we are too educated and have deep
mistrust amongst us, sanity and decorum could not prevail.


Issue #4

Must the Board be heard on the allegations of improper handling of the
affairs of the association?

It is a simple principle of administrative law and criminal law of
Canada (this is actually the branch of law that governs the issues
which forms the subject matter of the debate) that he who allege must
prove, and requires that those whose personal interest are to be
affected by adverse findings must be given reasonable opportunity to
fully defend themselves and answer to the allegations.

I believe this was one of purposes of the meeting requisition of
November 14 2010. As I have said elsewhere, the Board has its own
blame. Also some of our members who wanted their own agenda addressed
at all cost irrespective of whether the proper procedure was followed
also contributed.

The point that I am making is that the Board of the NAA must be given
the benefit of the doubt and allowed to defend their records by
presenting oral and documentary evidence, including witnesses in
support of their actions. These have to happen before voting on the
special resolution. The Board must recognize that this is a voluntary
service, but does serve at the instance of the general assembly to
whom they must show leadership and be accountable to.



Conclusion:

As a practical approach towards solving these problems, in addition to
issues I canvassed herein, I propose the following:

1. That the Board convene a special general meeting as agreed upon at
the December 19th general meeting without delay

2. That the Board present at this meeting a duly compiled book of
registered members in good financial standing


3. That the Board present financial records of what it inherited when
it was sworn into office in 2008, including, all assets, cash on hand
and debts from its predecessor

4. That the Board account for its budgets, incomes, expenditures and
debts for the fiscal year 2008, 2009 and 2010.

Finally, the Board must know that if after debating the issues and the
general assembly is still not satisfied, a likely vote on the
resolution cannot be avoided. The earlier it takes steps to provide a
safe and healthy environment for this exercise, the better for us
all.

On the other hand, all those who are passionate about this matter must
show restraint, allow for civil and peaceful debate. It is not a “do
or die affair” that one’s own particular view point must carry the
day. The beauty of Canada as many commentators have said is that it is
a country under the rule of law – a true north strong and free. Those
who argue that we ought to ignore constitutional procedures in
pursuant of a constitutional matter are mistaken and would not help
solve these problems in the long run. In all of the associations that
I have membership, before they deliberate on any important issues,
their by-laws, constitution or policies are referenced to ensure they
are acting legally and further to avoid any legal difficulties. This
is one of the things we must take to heart as members and stakeholders
of this great country.

I am grateful for the time you have taken to read through this.

Signed:



Kelechi Madu
January 1, 2011.

[Idowu Ohioze]

Happy new year to all:

Many thanks to Dr. Obiefuna for establishing this forum for dialogue on the issues facing the NAA. His professorial piece on the origin, causes and approaches to resolving these issues

speaks to the crux of the matter.

I am compelled, out of the need to restate facts and correct misdirection in Kelechi's piece, to write this rejoinder to kelechi Madu's treatise.

Without doubt, I am a key player in bringing the special resolution before the NAA and thus conversant with the facts. 

I shall adopt the issues as raised by him:

Issue #1: The validity of the Requisition for General Meeting

I am at loss as to why Kelechi cited section 3.2.1 in his analysis of this issue. This section clearly specifies the qualification for a "special meeting" and not a "general meeting". What we requested

in our November 14 letter is a general meeting. The relevant section is section 3.1.1 to 3.1.9. In it, there is no reference to the mode of requesting a general meeting by a member in good standing. 

In the absence of this, recourse shall be had to the individual right of a member in good standing to singly request records, sponsor special resolutions and inspect books of the NAA. 

Please note that the rights of members to request anything from the NAA is individual and not collective, subject only to section 3.2.1 (calling of a special meeting).

Therefore, a member in good standing can singly request a general meeting. Though, I see it as an anomaly, it remains the proper approach until the constitution is amended to reflect collective right 

(that being a percentage of members in good standing) to requisition a general meeting.

The requisition is simply valid and ought to be respected by the board. Please, note that Kelechi erroneously, I suppose, referred to December 19, 2010 meeting as an 'emergency general meeting'. 

That, if not made in error, is far from the truth. That meeting was a properly called general meeting at which the minutes of the last general (not emergency) meeting were read and adopted.

Issue #2: Validity of the Special Resolution: 

The relevant section for determining the validity of a special resolution is section 1.1.3:

Special Resolution" shall mean –

      (i) a resolution
            (a) passed at a General or Special meeting of which
                 not less than 21 days’ notice specifying the
                 text of the resolution has been duly given and,

            (b) passed by the vote of not less than 75% of the
                 Members present in person or by proxy.

       (ii) a resolution proposed and passed as a Special
            Resolution at a General or Special Meeting of
            which not less than 21 days’ notice has been given,
            if all the Members entitled to attend and vote at the
General or
           Special Meeting so agree, or

     (iii)  a resolution consented to in writing by all the
           Members entitled to vote on the resolution.

From the foregoing, a special resolution is valid if:

1. at least 21 days notice is given

2. the text of the resolution is stated

3. it is passed at either a general or special meeting by 75% of the members present in person or by proxy, or

4. consented to in writing by members entitled to vote on the resolution.

Once the first two criteria are met, a special resolution is properly before a general assembly. Please note that there is no mention of the percentage of 

members in good standing who have to sponsor a special resolution. In the absence of specification as to number of members, one member in good standing is sufficient to sponsor a special resolution.

That more than one member co-signed the special resolution is mere supplusage which does not invalidate the resolution.

To this end, the special resolution is properly before the house. 

Whereas Kelechi posits correctly that the constitution did not provide for the dissolution of the board,  section 4.6, however, states clearly that a special resolution can be sponsored to removed a director or officer of the board.

By necessary implication, the board can be dissolved by a special resolution since its members can be removed by a special resolution.

Issue #3: Eligibility to vote on Special Resolution

Section 2.3.4 provides for the right of a member in good standing to vote at meetings of the NAA. That means only members in good standing can vote on the special resolution.

However, in a situation where the present board does not maintain a register of members, it is impracticable to determine who members in good standing are. In view of this, justice demands that

the board, having failed to comply with section 36 of the Societies Act (under which the NAA is registered) as to the keeping of a register of members, can not be allowed to reap from its failure/incompetence.

Everyone in attendance at a meeting and who asserts to have paid must be allowed to vote, subject to the board proving the contrary.

Issue #4: Right of the Board to be heard 

While I do not oppose the board's right to be heard, I am against allowing the board speak on allegations out of turn. Since the board didn't consider it important or serious enough to place the letter on the agenda,

it can not now claim to have a defence to the claims of incompetence. 

Point of correction, though, the board was not accused of financial irregularities in the letter. What was sought are financial statements of the NAA. The board having not presented a single financial report since inception

can not expect the general house to scrutinize almost 4 years' worth of financial statements in a 2 hour meeting.

The way forward is to set up an audit committee to which the board will submit its report for scrutiny. 

Kelechi's Suggestions:

Kelechi's first suggestion to hold a special general meeting is curious since it was never agreed at the last meeting that a special meeting be held. A general meeting was abandoned;

it should be continued at the next meeting.

The first item on the agenda of the next meeting must be the special resolution. It is the way forward for resolving the issues at hand.

I hope this has thrown more light on the matter at hand.

Thank you,

Idowu.

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