A lawyer, Emmanuel Ekpenyong, has prayed the Court of Appeal in Abuja to dismiss an appeal filed by the Corporate Affairs Commission (CAC) challenging a lower court’s judgement that nullified some sections of the Companies and Allied Matters Act (CAMA), 2020.
Ekpenyong, a constitutional lawyer and human rights crusader from the law firm Fred-Young & Evans LLP, told an Appeal Court in his brief of argument dated March 27 but filed March 28.
It would be recalled that Justice James Omotosho of the Federal High Court (FHC), Abuja, had, on April 18, 2023, nullified some sections of CAMA, 2020, which were considered to infringe on the fundamental human rights of persons in Nigeria, following a suit filed by Ekpenyong.
The lawyer had, in the suit marked FHC/ABJ/CS/1076/2020, sued the National Assembly, CAC, and the Attorney-General of the Federation and Minister of Justice (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 court.
Ekpenyong asked the court to determine whether these rights had been infringed on as guaranteed under Section 38, Section 40, as well as Section 4 (8), Section 6 (6) (b), Section 36 (1), and Section 251 (1) (e) of the 1999 Constitution (as amended).
Delivering the 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 infringed on his right to freedom of thought, conscience, and religion.
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, declaring the same to be null and void, having been inconsistent with the provisions of the constitution.
Dissatisfied with the judgment, the CAC, in its notice of appeal dated May 25, 2023 and filed June 9, 2023, by Jibrin Okutepa, SAN, sued Ekpenyong and AGF as 1st and 2nd respondents, respectively.
The commission gave five grounds why the appeal should be allowed and the judgment delivered by the trial court be set aside.
In one of the grounds, it was argued that Justice Omotosho erred in law when he entertained Ekpenyong’s claim under the fundamental rights action, even when it was apparent from the claim filed that he lacked the locus standi to have instituted the action.
In the brief of argument with appeal number CA/ABJ/CV/373/2023 dated and filed Dec. 12, 2023, the CAC wants the appellate court to determine “whether, from the totality of evidence, the trial court was correct in holding that Ekpenyong was able to prove that Sections 839, 842, 843, 844, 845, 846, 847, and 848 of CAMA infringed on his fundamental rights,” among others.
The commission, therefore, submitted that the trial judge was wrong to have assumed jurisdiction, heard and determined the case of the first respondent, and then granted all the reliefs in the originating summons.
“We urge your Lordships to uphold this appeal,” it said.
But Ekpenyong, in his brief argument, gave four issues for determination.
These include “whether the wide powers granted to the appellant (CAC), an agency of the executive arm of the Federal Government of Nigeria under Sections 839, 842, and 848 of CAMA to remove the leadership of religious associations and other incorporated trustees under any guise and replace them with whoever it pleases as interim managers as well as manage the affairs and accounts of such associations is draconian, unconstitutional, and an infringement of the 1st respondent’s fundamental human rights?
“Whether the combined provisions of Sections 839, 842, 843, 844, 845, 846, 847, 848, and 851 of CAMA, which grant the appellant too much power over religious associations and other incorporated trustees and empower the appellant to act based on its own whims to interfere in the management of religious associations and other incorporated trustees, are reasonably justified in Nigeria’s constitutional democracy?
“Whether, in light of the provisions of Section 4(8), Section 6(6)(b), Section 36(1), and Section 251(1)(e) of the Nigerian Constitution, the provisions of Section 851 of the CAMA, 2020, which give the appellant powers to oust and usurp the jurisdiction of the Federal High Court, are unconstitutional?
“Whether religious associations and other incorporated trustees, as a vehicle through which the 1st respondent and other Nigerians exercise their fundamental human rights enshrined in the Nigerian Constitution, must be overburdened with too many restrictions and laws to fetter their liberty?”
Ekpenyong, in his argument, submitted that the freedom of thought, conscience, and religion, as well as the 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 by himself or in association with those who share his faith and beliefs.
“The 1st respondent belongs to and is a member of the Catholic faith and exercises his constitutional right to associate with and practice his religion and faith by participating in the traditions, practices, doctrines, and teachings under the Catholic Archdiocese of Abuja registered with the appellant as an association with Reg. Number 6797 since May 26, 1992,” he said.
He said his religious association is led by distinguished Catholics, who are also the trustees of the association.
The lawyer, therefore, said that the excessive powers granted to CAC, an agency of government, by the offending provisions of CAMA, 2020, to suspend trustees of his religious association and other incorporated trustees and appoint interim managers of its own choice who may not profess the same beliefs with him or belong to his association, and powers to even manage the accounts of the association, are provocative, draconian, and barbaric.
According to him, it is also an affront to Nigeria’s Constitution, which granted freedoms to the first respondent and other persons in Nigeria in the first place.
He argued that the limitation of freedom of thought, conscience, and religion and peaceful assembly and association under Section 45 of the constitution is to prevent anarchy by ensuring that persons in Nigeria practice their religion and beliefs without infringing on others’ freedoms.
“Since the offending provisions of CAMA, 2020, infringed on the 1st respondent’s constitutional and fundamental human rights, which are capable of retrogressing Nigeria back to the dark days of the draconian military regime, the trial court was right in law to strike down the offending provisions of CAMA, 2020, in order to safeguard the constitutional freedom of the 1st respondent and other persons in Nigeria,” he argued.
The AGF, who is the second respondent, has yet to file his brief of argument.
No date has been fixed for the hearing.
It would be recalled that on March 21, 2023, Justice Inyang Ekwo of a FHC in Abuja had equally restrained the CAC from suspending or appointing trustees of the Christian Association of Nigeria (CAN) and the churches.
Justice Ekwo, in that judgment in a suit filed by the Registered Trustees of CAN, held that the provisions of Sections 17 (1), 839 (1) and (7) (a), 842 (1) and (2), 851 and 854 of CAMA, 2020, and Regulations 28, 29, and 30 of the Companies Regulations (CR), 2021, were not applicable to CAN, the churches, and other religious bodies. (NAN)
