The Court of Appeal in Abuja has affirmed a judgment of the Federal High Court, Abuja Division nullifying some sections of the Companies and Allied Matters Act (CAMA), 2020, which were considered to infringe on the fundamental human rights of Nigerian citizens and provisions of the Constitution.
A three-member panel of justices, in a unanimous judgment delivered by Justice Donatus Okorowo, dismissed the appeal on the grounds that the sections are inconsistent with the Constitution.
The panel also affirmed that a constitutional lawyer, Emmanuel Ekpenyong Esq. of the law firm of Fred-Young & Evans LP, had the legal right to have instituted the suit at the lower court, the sections, having breached his fundamental rights.
Although the appellate court delivered the judgment on Sept. 17, its certified true copy was sight on Friday in Abuja.
The appeal was filed by the Corporate Affairs Commission (CAC), through its lawyer, Jibrin Okutepa, SAN, to challenge the judgment delivered by Justice James Omotosho on April 18, 2023 which nullified some sections of the Act.
Ekpenyong, in the suit marked FHC/ABJ/CS/1076/2020, had sued the National Assembly, CAC and the Attorney-General of the Federation (AGF) as 1st to 3rd defendants, respectively.
In the originating summons dated and filed on Aug. 31, 2020, the lawyer prayed the court to determine whether the provisions of Sections 839, 842, 843, 844, 845, 846, 847, 848 and 851 of CAMA infringed on his freedom of thoughts, conscience and religion, freedom of association and peaceful assembly and right to access to the court.
Ekpenyong asked the court to determine whether these rights had been infringed on as guaranteed under Sections 38, 40 as well as 4 (8), 6 (6) (b), 36 (1) and Section 251 (1) (e) of the Constitution.
Delivering the judgment, Justice Omotosho agreed with Ekpenyong that the powers granted to CAC to regulate and administer incorporated trustees in Nigeria under Sections 839, 842, 843, 844, 845, 846, 847 and 848 of CAMA 2020 was excessive.
He held that the sections infringed on the lawyer’s right to freedom of thoughts, conscience and religion and freedom of association and peaceful assembly.
The judge, who held that the lawyer had locus standi to institute the suit, struck down Sections 839, 842, 843, 844, 845, 846, 847, 848 and Section 851 of CAMA 2020.
He declared them null and void, having been inconsistent with the provisions of the constitution.
The judge found that Section 851 which empowered the Administrative Proceedings Commitee to hear matters relating to CAMA, 2020 was inconsistent with the provisions of Section 251 (1) (e) of the constitution which confers such jurisdiction on the Federal High Court.
The judge, however, struck out the name of National Assembly because pre-action notice was not served on it.
Dissatisfied with the judgment, the CAC, in its notice of appeal dated May 25, 2023, and filed June 9, 2023, by Okutepa, SAN, sued Ekpenyong and AGF as 1st and 2nd respondents.
One of the commission’s grounds was that the judge erred in law when he entertained Ekpenyong’s claim under the fundamental rights action, even though it was apparent from the claim filed that he lacked the locus standi to institute the action.
Responding, Ekpenyong, in his argument, submitted that freedom of thought, conscience and religion and freedom of association and peaceful assembly constitute one of the pillars of a democratic society.
He contended that Sections 38 and 40 of the constitution provided freedom for him to exercise his thoughts, conscience, and religion either alone or in association with those who share his faith and beliefs.
He said he is a member of the Catholic faith and exercises his constitutional right to associate and practise his religion and faith by participating in the traditions, practices, doctrines and teachings under the Catholic Archdiocese of Abuja.
He said the church is registered with the appellant (CAC) as an association with Reg. Number 6797 since May 26, 1992.
He submitted that his religious association is led by distinguished Catholics who are also the trustees of the association.
The lawyer, therefore, said that the excessive powers granted to CAC, an agency of executive arm of government, by the offending provisions of CAMA, 2020 to suspend trustees of his religious association and other incorporated trustees in Nigeria and appoint interim managers of its own choice who may not profess the same beliefs with him or belong to his association and powers granted to CAC to manage the accounts of the association and even dissolve it, is provocative, draconian and barbaric.
According to him, it is also an affront to Nigeria’s constitution, which grants the freedoms to him and other persons in Nigeria in the first place.
Delivering the judgment, Justice Okorowo said that a voluntary association is supreme over its own internal affairs and the court would not intervene save where the association acts in breach of its own constitution.
He held that the trial court was right to have struck down the impugned sections of the CAMA 2020 which intrude upon the protected freedoms under Sections 38 and and 40 of the Constitution and are not saved by Section 45(1) of the Constitution.
He further held that this is so because there is nothing to show that the offending provisions of CAMA, 2020 falls under the exceptions which the freedoms will be derogated under Section 45 (1) of the constitution.
The judge held that Section 851 is only void to the extent that the Administrative Proceedings Commitee attempts to usurp the jurisdiction of the Federal High Court under Section 251 (1) (e) of the constitution.
According to him, the fourth issue is resolved in favour of the 1st respondent (Ekpenyong).
“In the result, the appeal fails.
“The 1st respondent possessed the locus standi to bring the action – the finding on locus standi is affirmed on the narrow basis stated.
“The impugned provisions, properly construed as a matter of statutory interpretation, do infringe the rights guaranteed by Sections 38 and 40 of the Constitution.
“Those provisions are not reasonably justifiable within the meaning of Section 45(1) given the sanctity of the rights they intrude upon and the peculiar conditions of the Nigerian state.
“The findings of the trial court that Sections 839, 842, 843, 844, 845, 846, 847 and 848 of the Companies and Allied Matters Act, 2020 infringe the 1st respondent’s fundamental rights under Sections 38 and 40 are affirmed.
“The finding that Section 851 is unconstitutional is affirmed only to the limited extent that the section purports to vest in the Administrative Proceedings Committee the adjudication of justiciable disputes at first instance and the imposition of penalties to the exclusion of the Federal High Court, and the wholesale nullification of the entire section is set aside as over-broad.
“On the whole, it is hereby ordered as follows:
“The appeal is dismissed in substantial part.
“The judgment of the Federal High Court striking down Sections 839, 842, 843, 844, 845, 846, 847 and 848 of the Companies and Allied Matters Act 2020 as inconsistent with Sections 38 and 40 of the Constitution of the Federal Republic of Nigeria (as amended) is affirmed.
“The order of the Federal High Court declaring the whole of Section 851 of the Companies and Allied Matters Act, 2020 null and void is set aside.
“And in its place, it is declared that Section 851 is void only to the extent that it purports to confer on the Administrative Proceedings Committee jurisdiction to determine, at first instance and to the exclusion of the Federal High Court, justiciable disputes arising under the Companies and Allied Matters Act and to impose penalties in the manner of a court, contrary to Sections 4(8) and 251(1)(e) of the 1999 Constitution.
“The remaining administrative and regulatory functions of the committee subsist, subject to the supervisory jurisdiction of the Federal High Court.
“The finding that the 1st respondent possessed locus standi to institute the action is affirmed, on the narrow basis of his personal interest and membership of a registered religious association.
“Each party shall bear its own costs of this appeal,” the judge ruled.
Justice Abba Mohammed and Justice Eberechi Nyesom-Wike also aligned with the the judgment.
