In August 2020 when PRESIDENT MUHAMMED BUHARI signed into law the Companies and Allied Matters bill, conferring regulatory roles on the Corporate Affairs Commission (CAC) to monitor activities of religious and charity organisations, it triggered a public debate as to the propriety or otherwise of the new legislation.
Specifically, the Christian Association of Nigeria (CAN) rejected the law, arguing that the regulatory roles the law gave the registrar of CAC and a supervising minister over churches were 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 judge, Inyang Ekwo, dismissed CAN’s suit on technical grounds.
In the judgement delivered in December 2021, Mr 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 Emmanuel Ekpenyong, an Abuja-based human rights and constitutional lawyer, he had urged the Federal High Court in Abuja to strike down some provisions of the CAMA law.
In the case filed on 31 August 2021, Mr Ekpenyong contended that eight sections of CAMA infringed on the fundamental rights of Nigerians as they were inconsistent with the Nigerian constitution.
The National Assembly, CAC and the Attorney-General of the Federation (AGF) were defendants in the suit.
The lawyer in his filings before the judge, James Omotosho, 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 Mr Ekpenyong raised before the court 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 the lawyer, 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 Corporate Affairs Commission (CAC).
The plaintiff prayed the court to compel the National Assembly to expunge the offending sections of the CAMA.
In swaying the court to strike down the infringing provisions of the law, Mr Ekpenyong argued that the CAMA 2020 violated his rights as a Nigerian citizen.
In his filings, Mr Ekpenyong 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 trample 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 parliament prayed the court to dismiss Mr Ekpenyong’s case for being unmeritorious.
In a preliminary objection to the suit, the National Assembly informed the court that Mr 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, Mr Ekpenyong said he needed not to give prior notice to the lawmakers before challenging an infringement of 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 infringes on his fundamental rights.”
Towing CAC’s line of argument, the Attorney General of the Federation, argued that Mr Ekpenyong had no right to institute the suit.
The AGF said the plaintiff failed to demonstrate any “special grievance or immediate danger or injury he has suffered or will suffer above the general public.”
As Nigeria’s chief law officer, the Attorney-General said the parliament has powers to “make, amend, alter and repeal Acts and laws” it had enacted.
In deciding the suit on 18 April, the judge, James Omotosho, said Mr Ekpenyong had the right to have filed the action.
The judge 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,” Mr Omotosho said.
The judge further noted that Mr Ekpenyong “is clothed with requisite locus standing 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.
Mr Omotosho 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 many powers over the affairs of 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 a “violation of the tenets of freedom of association and peaceful assembly.”
In addition, Mr 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, he 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, Mike Ozekhome, in a telephone interview with PREMIUM TIMES, said those provisions that were struck down are dead.
“Those provisions are now vacuous, hollow. They are inoperative,” Mr Ozekhome, a Senior Advocate of Nigeria and law professor said.
Mr Ozekhome pointed out that the CAC must know its limits, and must avoid dabbling into religious matters and incorporated bodies.
In a similar manner Liborous Oshioma, a Lagos-based lawyer, said though the sections struck down by the court still remain in the books, “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.”
Mr Oshioma, however, added that the struck-down sections of the law could only regain their validity if restored by courts of superior jurisdiction.
The spokesperson for the AGF, Umar Gwandu could not be reached for comments on the judgement as of press time.
But the CAC expressed dissatisfaction with the judgement.
Dominic Inyang, the Head Of the Public Affairs Unit at CAC told this newspaper on Tuesday, “The commission is not satisfied with the judgement, and has filed an appeal at the Court of Appeal.”