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 regulation.
The judgement struck down a string of CAMA provisions which conferred some powers on the Corporate Affairs Commission (CAC), to regulate and intervene within the working of included trustees, together with non secular 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 determination placing out the National Assembly’s title as a defendant within the swimsuit filed as a basic human rights enforcement motion.
In a landmark pronouncement within the judgement, the Court of Appeal held that the decrease court’s determination placing out the National Assembly’s title 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 basic 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 determination trashed the long-held notion that failure to serve a pre-action discover on some public establishments or serve them inside the time stipulated by statute routinely rendered subsequent authorized actions towards the establishments incompetent.
The court’s three-member panel comprising Abba Mohammed, Donatus Okorowo, and Eberechi Nyesom-Wike dominated that basic 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 determination 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 basic rights motion towards the legislative physique incompetent.
Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, requires anybody meaning to sue the National Assembly to present 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 strategy a court docket for redress over an alleged violation of their basic rights.
The Court of Appeal panel held that the constitutional provision outdated 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 basic rights proceedings.
The court docket additionally rejected the National Assembly’s declare to immunity, noting that the constitutional provision cited utilized solely to the elimination of a governor or deputy governor.
It subsequently held that the “part of the judgement” of the Federal High Court “which held the suit incompetent” towards the National Assembly for failure to serve a pre-action discover beneath Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, and which accordingly struck out the title 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” towards the National Assembly. It mentioned the regulation 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 problem was not a topic of appeal within the specific case.
The swimsuit
Mr Ekpenyong filed the swimsuit lower than a month after late President Muhammadu Buhari signed CAMA 2020 into regulation in August 2020.
The regulation expanded the CAC’s powers over included trustees, together with non secular organisations, elevating issues about potential interference with their affairs.
Although the Act launched a number of reforms to Nigeria’s company surroundings, its provisions on included trustees, which cowl church buildings, mosques, charities, NGOs and different associations, drew robust objections from non secular 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 essential within the public curiosity.
Religious organisations feared the supply may give the federal government extreme management over their inner affairs.
The Christian Association of Nigeria (CAN) known as for the regulation to be amended, whereas the CAC maintained that it will not arbitrarily droop trustees and that its actions remained topic to judicial evaluate.
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 regulation, 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 beneath Sections 839 and 842 to 848 of CAMA have 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 beneath 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 towards the choice to strike out the National Assembly as a respondent to the swimsuit.
Mr Ekpenyong’s appeal challenged the Federal High Court’s determination that failure to serve a pre-action discover may stop him from pursuing his basic rights claims towards the National Assembly.
He argued that the decrease court docket erred in regulation by holding that his motion was incompetent towards 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 basic rights assured beneath Chapter IV.
He additionally argued that the Fundamental Rights (Enforcement Procedure) Rules have been designed to advance candidates’ rights and freedoms, not prohibit them.
The lawyer subsequently 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 towards 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 elemental rights claims may 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 supposed 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 basic rights swimsuit.
The CAC didn’t file a short in response to the appeal.
Federal High Court’s misapplication of regulation and inner 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 moderately 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 regulation by placing out the legislature.
He mentioned the decrease court’s choose not solely misapplied the regulation 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 choose 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 premise of the particular nature of basic rights enforcement suits, the trial choose “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).
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“Yet, after treating the swimsuit as exterior abnormal civil process for functions of standing, he subjected the identical swimsuit to the abnormal civil-procedure requirement of a statutory pre-action discover, a creature of abnormal process and statutory privilege, with out reconciling the 2 positions. The two holdings can’t 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 in search of to implement basic rights assured beneath Chapter IV of the Constitution and ordered that the National Assembly be restored as a celebration to the case.
The determination is topic to appeal on the Supreme Court.
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