How court judgment whittles down CAC’s power over charity, religious organisations

When in August 2020 President Muhammadu Buhari He signed the Business and Allied Affairs Bill into law, giving the Corporate Regulations Commission (CAC) regulatory powers to monitor the activities of religious and charitable organisations, sparking public debate over the appropriateness of the new legislation.

Specifically, the Christian Association of Nigeria (CAN) rejected the law, arguing that the regulatory roles it gave to the CAC registrar and an overseeing minister over churches were unconstitutional.

The Christian body subsequently 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 case on technical grounds.

In his ruling in December 2021, Mr. Ekwo said CAN’s certificate of incorporation reads “Registered Trustees of the Christian Association of Nigeria” and not “Incorporated Trustees of the Christian Association of Nigeria”, the name under which the suit was filed.

Eight sections of CAMA were struck

But in another suit filed by Emmanuel Ekpenyong, an Abuja-based human rights and constitutional lawyer, he asked the Federal High Court in Abuja to strike down some provisions of the CAMA law.

In the case filed on August 31, 2021, Mr. Ekpenyong said eight sections of CAMA violated the fundamental rights of Nigerians as they were inconsistent with the Nigerian constitution.

The National Assembly, the CAC and the Attorney General of the Federation (AGF) were indicted.

The lawyer appearing before Justice James Omotosho prayed the court to strike down sections 839, 842, 843, 844, 845, 846, 847 and 848 of CAMA for what he described as violation of the fundamental rights of Nigerians. freedom of thought, conscience and religion, according to article 38 of the constitution.

He also said the section violated the right to “freedom of peaceful assembly and association enshrined in Article 40 of the constitution”.

Another issue that Mr. Ekpenyong raised before the court was whether the “Administrative Procedures Committee” provisions in section 851 of CAMA are inconsistent with sections 6 (6) (b) and 36 (1) and 251 (1) (e). ) of the constitution.

According to the counsel, the Administrative Procedure Commission usurped the powers of the court to adjudicate disputes that may arise from entities under the oversight functions of the Corporate Affairs Commission (CAC) as set out in the CAMA.

The plaintiff prayed the court to compel the National Assembly to remove the offending sections of CAMA.

Faucet with CAMA

When the court struck down the anti-trafficking provisions of the law, Mr. Ekpenyong argued that CAMA 2020 violated his rights as a Nigerian citizen.

In his filings, Mr Ekpenyong said Section 839 of the new CAMA gives the CAC “unilateral powers” to “remove the administrators of an association and appoint an interim manager” to manage the affairs of an association that the CAC “deems to exist”. any misconduct or mismanagement in the administration of the association without a court of law”.

He ruled that sections 842, 843, 844, 845, 846, 847 and 848 of the Act gave the CAC “excessive control over registered associations” and thereby violated the rights to “freedom of thought, conscience and religion”. As enshrined in the Nigerian constitution.

The lawyer argued that it violates the “right to freedom of assembly and association” guaranteed in Article 40 of the Constitution.

In asking the court to quash the provisions of the law, the plaintiff said that the said sections will affect his livelihood and survival.’

National Assembly, defense of CAC

In its responses to the suit, the parliament asked the court to dismiss Mr. Ekpenyong’s case.

In a preliminary objection to the suit, the National Assembly informed the judge that Mr. Ekpenyong’s failure to give a pre-action notice to parliament regarding his grouse with some sections of CAMA rendered the case moot.

But responding to the objection, Mr. Ekpenyong said he should not have given advance notice to the lawmakers before challenging the violation of his fundamental rights.

On its part, the CAC said the plaintiff’s case was frivolous as “there is nothing in the Companies and Allied Act that affects his livelihood or violates his fundamental rights.”

Following CAC’s line of argument, the Attorney General of the Federation argued that Mr. Ekpenyong had no standing to sue.

The AGF said the plaintiff had failed to prove “any immediate danger or special injury that the general public has suffered or will suffer.”

As Nigeria’s chief law officer, the Attorney General said parliament has powers to “make, amend, amend and repeal acts and laws”.

The verdict

In ruling on the case on April 18, Justice James Omotosho said Mr. Ekpenyong had the right to file the suit.

As the judge explained, when asking the issue of the plaintiff’s ability to sue, the defendant must show how his rights have been violated.

“The clear implication of the foregoing is that if the case is based on the enforcement of fundamental rights, the lack of locus standi will not impede its progress,” Mr. Omotosho said.

The judge further noted that Mr. Ekpenyong “is clothed with the necessary locus standi to institute and maintain this action.”

While the judge overruled the AGF’s preliminary objection, he accepted the National Assembly’s argument for the plaintiff’s failure to issue prior notice.

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Mr Omotosho said the statutory bodies “must be notified of the intention to sue them”.

Deciding the core of the case, the judge stated that the provisions of articles 839 to 848 “give too much authority over the affairs of the trustees”.

Citing the CAMA section, which empowered the commission to appoint interim managers over the affairs of an association where there is a problem of mismanagement, the court found the provisions to be a “violation of the principles of freedom of association and assembly”.

In addition, Mr. Omotosho stated that “the phrase ‘in the opinion of the board’ is too vague,” saying, “the enjoyment of the right to freedom of association will always be subject to the whims of the board.”

Ruling on the question of the usurpation of judicial powers by the judges, the judge said: “This court will not allow another statute to be passed to take away the power conferred on it by the constitution.”

Speaking more about the “exclusion” of the judge’s powers, he said: “Section 851 of the Companies and Corporate Affairs Act 2020 is declared null and void for removing 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 that threatens these rights shall be nullified.

“Consequently, the said sections are struck down as inconsistent with the constitution of the Federal Republic of Nigeria.”

“The murdered sections of CAMA are dead”

Lawyers weighing in on the judge’s decision said sections of CAMA are “dead.”

Mike Ozekhome, a constitutional lawyer and human rights activist, in a telephone interview with PREMIUM TIMES, said that the suspended provisions are dead.

“These provisions are now empty, empty. They are not working,” said Mr. Ozekhome, a senior lawyer and law professor in Nigeria.

Mr. Ozekhome stated that the CAC must know its limits and avoid getting involved in religious matters and institutions.

In the same vein, a Lagos-based lawyer, Liborous Oshioma, said that although the sections struck down by the judge are still on the books, “but they have been annulled”.

He explained that if the commission decides to enforce those sections, the citizens “can face them”.

“Before the law, the sections that will be attacked by the court are dead.”

Mr. Oshioma, however, added that the repealed sections of the law could be reinstated if reinstated by the courts of higher jurisdiction.

AGF spokesperson Umar Gwandu could not be reached for comment on the judgment at press time.

But the CAC expressed displeasure with the verdict.

Dominic Inyang, head of the Public Affairs Unit of the CAC told this newspaper on Tuesday: “The commission is not satisfied with the judgment and has appealed to the Court of Appeal.”