The recent judgment of the Federal High Court striking out eight sections in the Companies and Allied Matters Act 2020 has whittled down the powers of the Corporate Affairs Commission over charity and religious organisations, writes Wale Igbintade
When President Muhammadu Buhari in August 2020 signed the Companies and Allied Matters Act 2020 into effect, it triggered not only resistance, but a public debate as to the propriety or otherwise of the new legislation.
The law conferred regulatory roles on the Corporate Affairs Commission (CAC) to monitor activities of religious and charity organisations.
All over the country, there was a cacophony of voices from non-governmental organisations, churches and their Bishops, General Overseers and pastors who vehemently rejected the Act, describing it as satanic. They even felt that the Act was amended to target them.
Specifically, the Christian Association of Nigeria (CAN) rejected the law, insisting that the regulatory roles the law gave the Registrar of CAC and the supervising minister over churches was unconstitutional.
Subsequently, the Christian body launched a legal action at the Federal High Court in Abuja, seeking to set aside the new legislation. However, the trial judge, Justice Inyang Ekwo, dismissed CAN’s suit on technical grounds.
In the judgment delivered in December 2021, Justice Ekwo held that CAN’s certificate of incorporation bears “Registered Trustees of the Christian Association of Nigeria” and not “Incorporated Trustees of Christian Association of Nigeria,” a name which the suit was filed with.
But in another suit filed by an Abuja-based human rights and constitutional lawyer, Emmanuel Ekpenyong, he had urged the Federal High Court in Abuja to strike down some provisions of the CAMA law.
In the case filed on August 31 2021, Ekpenyong contended that eight sections of CAMA infringed on the fundamental rights of Nigerians as they were inconsistent with the Nigerian Constitution.
In the suit filed before Justice James Omotosho, which had the National Assembly, CAC and the Attorney-General of the Federation (AGF) as defendants, the lawyer prayed the court to nullify CAMA’s sections 839, 842, 843, 844, 845, 846, 847, and 848, due to what he described as their violation of Nigerians’ fundamental rights to freedom of thoughts, conscience and religion as enshrined in Section 38 of the constitution.
He further contended that the sections trampled on his right “to freedom of peaceful assembly and association as enshrined in Section 40 of the constitution.”
Another issue Ekpenyong raised, according to Premium Times, was whether the provisions of the ‘Administrative Proceedings Committee’ in section 851 of CAMA is not in conflict with Section 6 (6) (b) and Section 36 (1) and 251(1) (e) of the Constitution.
According to him, the Administrative Proceedings Committee as stipulated in CAMA, usurped the powers of the court to adjudicate on disputes that might arise from organisations under the supervisory roles of the CAC. The plaintiff asked the court to compel the National Assembly to expunge the offending sections of the CAMA.
In order to convince the court to strike down the infringing provisions of the law, Ekpenyong argued that the CAMA 2020 violated his rights as a Nigerian citizen. He contended that Section 839 of the new CAMA confers “unilateral powers” on the CAC to “suspend the trustees of an association and appoint an interim manager” to manage the affairs of an association where the CAC “believes there is any misconduct or mismanagement in the administration of the association without a court order”.
He further itemised sections 842, 843, 844, 845, 846, 847 and 848 of the law, which he argued gave the CAC “too much control over registered associations,” thereby infringing on his rights to “freedom of thoughts, conscience and religion,” as enshrined in the Nigerian Constitution.
The provisions of the contentious law, the lawyer argued, trampled on his “right to freedom of peaceful assembly and association” as guaranteed in section 40 of the constitution.
In urging the court to strike down the provisions of the law, the plaintiff said the aforementioned sections would affect his livelihood and survival.”
In their separate responses to the suit, the National Assembly prayed the court to dismiss Ekpenyong’s case for being unmeritorious. In a preliminary objection to the suit, the parliament informed the court that Ekpenyong’s failure to serve the parliament with a pre-action notice concerning his grouse with some sections of the CAMA, rendered the entire case worthless.
But responding to the objection, Ekpenyong said he needed not to give prior notice to the lawmakers before challenging an infringement to his fundamental rights.
On its part, the CAC contended that the plaintiff’s case was frivolous as “there is nothing in the Companies and Allied Matters Act that affects his livelihood or infringe on his fundamental rights.”
In aligning with CAC’s line of argument, the AGF argued that Ekpenyong had no right to institute the suit. He said the plaintiff failed to demonstrate any “special grievance or immediate danger or injury he has suffered or will suffer above the general public.”
The AGF said the parliament has powers to “make, amend, alter and repeal Acts and laws” it had enacted.
In deciding the suit, Justice Omotosho said Ekpenyong had the right to have filed the action. He explained that in interrogating the issue of a plaintiff’s capacity to institute a suit, they must show how their rights were infringed upon by the defendant.
“The clear implication of the above is that provided the suit is predicated on enforcement of fundamental rights, lack of locus standi will not impede its progress,” Omotosho said.
The judge further noted that Ekpenyong “is clothed with requisite locus standi to institute and maintain this action.”
While the judge overruled the AGF’s preliminary objection, he upheld the National Assembly’s argument over the plaintiff’s failure to serve it a pre-action notice. He said statutory bodies “must be served with a notice of intention to sue them.”
Deciding the crux of the suit, the judge held that the provisions of Sections 839 to 848 “give too much power over the affairs of an incorporated trustees.”
Citing the CAMA section, which empowered the commission to appoint interim managers over the affairs of an association where there is an issue of mismanagement, the court found the provisions as “violation of the tenets of freedom of association and peaceful assembly.”
In addition, Omotosho noted that the phrase, “‘in the opinion of the commission’ is too vague,” saying, “the enjoyment of the right to freedom of association will invariably be subject to the whims of the commission.”
Resolving the issue of usurpation of the court’s adjudicatory powers, the judge held, “This court will not allow the provision of any other statute to oust its jurisdiction conferred on it by the constitution.”
Speaking further on the “ouster” of the court’s powers, Justice Omotosho said “Section 851 of the Companies and Allied Matters Act 2020 is hereby declared null and void for ousting the jurisdiction of this court.”
In striking down the provisions, the judge said, “every citizen of Nigeria is guaranteed the right to freedom of thought, conscience and religion, and any law which threatens these rights will be struck down.
“Consequently, the said sections are hereby struck down for being inconsistent with the constitution of the Federal Republic of Nigeria.”
Lawyers weighing on the court’s decision, said the struck down sections of the CAMA “are dead.”
A constitutional lawyer and human rights activist, Chief Mike Ozekhome (SAN), speaking with Premium Times, said those provisions that were struck down are dead. He pointed out that the CAC must know its limits, and must avoid dabbling into religious matters and incorporated bodies.
“Those provisions are now vacuous, hollow. They are inoperative,” he said.
In a similar manner, a Lagos-based lawyer, Liborous Oshioma, said though the sections struck down by the court still remain in the books, “but they have been invalidated.” He explained if the commission decides to enforce those sections, the citizens could “resist them.”
“In the eyes of the law, the sections struck down by the court are dead.”
Oshioma, however, added that the struck down sections of the law could only regain their validity if restored by courts of superior jurisdiction.
Another lawyer, Henry Eboise, held the National Assembly for the striking of the eight sections in the Act. He said if members of the parliament had done due diligence, they would not have been embarrassed. He prayed that the Court of Appeal and Supreme Court would uphold the verdict of the lower court.
“This is what happens when the National Assembly enacts laws without proper consultation and public hearing. Look at the embarrassment they are facing today. I pray that the Court of Appeal and Supreme Court will uphold the verdict. It is a lesson that they should always consult widely before passing any law,” Eboise admonished.
While the office of the AGF has not been able to comment on the judgment since it was delivered, the CAC expressed dissatisfaction with the judgment.
The Head of Public Affairs Unit at CAC, Dominic Inyang, said: “The commission is not satisfied with the judgment, and has filed an appeal at the Court of Appeal.”
For now, the said sections remain struck down until the Court of Appeal decides otherwise.
