CAMA 2020: Appeal Court affirms judgment nullifying sections on incorporated trustees

The Court of Appeal in Abuja Friday 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.

In a unanimous judgment delivered by Justice Donatus Okorowo and two other members, the three-member panel of justicea 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.

In his 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.