The Court of Appeal in Abuja, on 17 September, upheld a Federal High Court judgement nullifying a number of provisions of the Companies and Allied Matters Act (CAMA), 2020, Nigeria’s principal company regulatory legislation.
The judgement struck down a string of CAMA provisions which conferred some powers on the Corporate Affairs Commission (CAC), to manage and intervene within the operating of included trustees, together with spiritual our bodies and different associations, in sure conditions.
Both the Federal High Court and the Court of Appeal dominated concurrently that the provisions infringed upon constitutionally protected rights to freedom of thought, conscience, faith, affiliation, and peaceable meeting.
But the Court of Appeal differed with the decrease Federal High Court’s choice hanging out the National Assembly’s identify as a defendant within the swimsuit filed as a elementary human rights enforcement motion.
In a landmark pronouncement within the judgement, the Court of Appeal held that the decrease court’s choice hanging out the National Assembly’s identify from the swimsuit on the grounds that it was not served with a pre-action discover earlier than the swimsuit was filed “cannot stand.”
The pronouncement on the judgement brings renewed consideration to the particular standing of elementary human rights suits and the bounds of pre-action discover statutorily mandated to be served on some public establishments earlier than suing them in court docket.
The Court of Appeal’s choice trashed the long-held notion that failure to serve a pre-action discover on some public establishments or serve them throughout the time stipulated by statute mechanically rendered subsequent authorized actions in opposition to the establishments incompetent.
The court’s three-member panel comprising Abba Mohammed, Donatus Okorowo, and Eberechi Nyesom-Wike dominated that elementary rights enforcement suits are exempted from such statutory limitations or pre-action discover necessities.
“Since the right of action in fundamental rights enforcement cases is specifically provided by the Constitution, such a right of action cannot be limited or affected by any statutory limitation or requirement of pre-action notice,” Mr Okorowo wrote within the licensed true copy of the lead judgement newly obtained by PREMIUM TIMES.
The choice was one of the 2 interrelated judgements the Court of Appeal delivered on 17 September.
The first, which arose from the appeal filed by the CAC, handled the crux of the matter – the legality or in any other case of the disputed CAMA provisions, whereas the opposite, which stemmed from the appeal filed by the plaintiff Emmanuel Ekpeyong who commenced the swimsuit on the trial court docket, centred primarily on the impact of pre-action discover on the matter.
PREMIUM TIMES discovered after reviewing the verdicts that the Court of Appeal ordered the restoration of the National Assembly as a defendant within the matter.
The appeal court docket faulted the facet of the 18 April judgement of James Omotosho of the Federal High Court that failure to serve the National Assembly with pre-action discover made the lawyer’s elementary rights motion in opposition to the legislative physique incompetent.
Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, requires anybody desiring to sue the National Assembly to provide it three months’ discover earlier than instituting the motion.
However, Section 46(1) of the Nigerian structure ensures the fitting of any particular person to method a court docket for redress over an alleged violation of their elementary rights.
The Court of Appeal panel held that the constitutional provision outmoded the supply of the Legislative Houses (Powers and Privileges) Act.
Mr Okorowo dominated that “Section 21 is a subsidiary requirement that cannot lawfully clog the right of immediate constitutional access conferred by Section 46(1).” He added that the requirement was void to the extent that it utilized to elementary rights proceedings.
The court docket additionally rejected the National Assembly’s declare to immunity, noting that the constitutional provision cited utilized solely to the removing of a governor or deputy governor.
It due to this fact held that the “part of the judgement” of the Federal High Court “which held the suit incompetent” in opposition to the National Assembly for failure to serve a pre-action discover underneath Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, and which accordingly struck out the identify of the first Respondent, is hereby put aside.”
The court docket went on to declare that the failure to serve a pre-action discover on the National Assembly “does not render a fundamental rights action incompetent” in opposition to the National Assembly. It mentioned the legislation relied on by the Federal High Court to make such a declaration was “inapplicable to proceedings for the enforcement of rights guaranteed under Chapter IV of the Constitution.”
“The name of the 1st Respondent, the National Assembly, is restored as a party to Suit No. FHC/ABJ/CS/1076/2020,” Mr Okorowo additionally dominated, whereas affirming “the substantive determinations” of the Federal High Court on the general deserves of the case. The substantive challenge was not a topic of appeal within the explicit case.
The swimsuit
Mr Ekpenyong filed the swimsuit lower than a month after late President Muhammadu Buhari signed CAMA 2020 into legislation in August 2020.
The legislation expanded the CAC’s powers over included trustees, together with spiritual organisations, elevating considerations about doable interference with their affairs.
Although the Act launched a number of reforms to Nigeria’s company setting, its provisions on included trustees, which cowl church buildings, mosques, charities, NGOs and different associations, drew sturdy objections from spiritual organisations and civil society teams.
At the centre of the controversy was Section 839, which gave the CAC powers to droop trustees and appoint interim managers the place sure situations existed, together with alleged misconduct or mismanagement, fraud or the place intervention was thought of crucial within the public curiosity.
Religious organisations feared the supply might give the federal government extreme management over their inside affairs.
The Christian Association of Nigeria (CAN) referred to as for the legislation to be amended, whereas the CAC maintained that it might not arbitrarily droop trustees and that its actions remained topic to judicial evaluation.
Amid the following controversies, Mr Ekpenyong instituted the swimsuit on 31 August 2020 on the Federal High Court in Abuja.
He sued the National Assembly, the CAC and the Attorney General of the Federation (AGF), over provisions of CAMA which he argued violated his constitutional rights.
In his swimsuit, Mr Ekpenyong challenged the sections 839, 842 to 848 and 851 of the legislation, urging the court docket to rule that the disputed provisions infringed upon his freedom of thought, conscience and faith, freedom of affiliation and peaceable meeting, in addition to his proper of entry to court docket.
He relied on Sections 38 and 40, amongst different provisions, of the Nigerian structure.
Federal High Court judgement
Delivering the judgment in April 2023, Judge James Omotosho agreed that the powers conferred on the CAC to control included trustees underneath Sections 839 and 842 to 848 of CAMA had been extreme and infringed Mr Ekpenyong’s rights to freedom of faith and affiliation.
He declared the disputed provisions unconstitutional. He additionally held that Section 851, which offers for an Administrative Proceedings Committee to listen to sure issues underneath CAMA, was inconsistent with the constitutional provision conferring jurisdiction on the Federal High Court.
But, whereas ruling in Mr Ekpenyong’s favour on the substantive points, Mr Omotosho struck out the National Assembly as a defendant on the grounds of the plaintiff’s failure to serve a pre-action discover on the legislative physique earlier than instituting the swimsuit.
Appeals
The ruling prompted two separate appeals.
The CAC challenged the choice nullifying the disputed CAMA provisions, whereas Mr Ekpenyong appealed in opposition to the choice to strike out the National Assembly as a respondent to the swimsuit.
Mr Ekpenyong’s appeal challenged the Federal High Court’s choice that failure to serve a pre-action discover might forestall him from pursuing his elementary rights claims in opposition to the National Assembly.
He argued that the decrease court docket erred in legislation by holding that his motion was incompetent in opposition to the National Assembly as a result of he had not served the required discover.
He maintained that Section 46(1) of the Constitution didn’t make pre-action discover a situation for commencing proceedings to implement elementary rights assured underneath Chapter IV.
He additionally argued that the Fundamental Rights (Enforcement Procedure) Rules had been designed to advance candidates’ rights and freedoms, not prohibit them.
The lawyer due to this fact requested the Court of Appeal to put aside the choice eradicating the National Assembly from the swimsuit.
However, the National Assembly opposed the appeal, arguing that pre-action discover was a situation precedent to instituting proceedings in opposition to it.
Its lawyer, Bukola Adeagbo, of the legislature’s Directorate of Legal Services, contended that the failure to serve the discover affected the trial court’s jurisdiction to listen to the case.
She additionally argued that the basic rights claims might wait till the required discover had been served and urged the appellate court docket to dismiss the appeal.
The Attorney-General of the Federation, represented by Samuel Gabriel, a principal state counsel within the Civil Appeals Department, equally argued that the absence of pre-action discover rendered the swimsuit untimely and incompetent.
Mr Gabriel relied on the doctrine of sovereign immunity, contending that the National Assembly loved such immunity and that Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, was meant to guard the legislature.
He additional argued that Mr Ekpenyong’s motion was basically a request for the interpretation of CAMA and didn’t qualify as a elementary rights swimsuit.
The CAC didn’t file a short in response to the appeal.
Federal High Court’s misapplication of legislation and inside inconsistency
Rejecting the respondents’ arguments, Mr Okorowo who gave the lead judgement consented to by the 2 different members of the panel, held that the character of a swimsuit was decided by the substance of the declare relatively than its title or the process used to begin it.
The court docket rejected the reliance on Section 188(10) of the structure to justify the National Assembly’s declare to immunity.
He dominated that the decrease court docket had misdirected itself in legislation by hanging out the legislature.
He mentioned the decrease court’s decide not solely misapplied the legislation to come back to that conclusion, however he was additionally “internally inconsistent with his own reasoning.”
“First, the internal inconsistency is patent,” Mr Okorowo wrote, noting that the decide earlier in the identical judgement “correctly held that “fundamental human rights suits are sui generis and are largely not governed by the ordinary rules of civil procedure.”
He added on the idea of the particular nature of elementary rights enforcement suits, the trial decide “refused to strike out the swimsuit for need of locus standi, relying on Paragraph 3(e) of the Preamble to the 2009 Rules, which offers that no human rights case could also be dismissed for need of standing (see web page 21 of the Judgement at web page 169 of the Record).
READ ALSO: Court fines former banker N1m over financial institution fraud in Lagos
“Yet, after treating the swimsuit as exterior bizarre civil process for functions of standing, he subjected the identical swimsuit to the bizarre civil-procedure requirement of a statutory pre-action discover, a creature of bizarre process and statutory privilege, with out reconciling the 2 positions. The two holdings can not stand collectively.
“If the suit is sui generis and distinct from ordinary civil procedure when the objection concerns standing, it does not lose that character when the objection concerns notice.”
The appellate court docket consequently put aside the half of the decrease court’s judgement that eliminated the National Assembly from the swimsuit.
It declared that the pre-action discover requirement didn’t apply to proceedings looking for to implement elementary rights assured underneath Chapter IV of the Constitution and ordered that the National Assembly be restored as a celebration to the case.
The choice is topic to appeal on the Supreme Court.
Discover extra from Premium Times Nigeria
Subscribe to get the most recent posts despatched to your e-mail.
