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Lawyer Asks Court to Dismiss CAC’s Appeal

The Abuja Court of Appeal has been asked to dismiss an appeal filed by the Corporate Affairs Commission (CAC) challenging the judgment of the Federal High Court that nullified some sections of the Companies and Allied Matters Act (CAMA) 2020 on incorporated trustees.

In a notice of appeal dated March 27, but filed on March 28, the appellant and legal practitioner, Emmanuel Ekpenyong urged the court to determine “whether the wide powers granted to the appellant (CAC), an agency of the executive arm of the Federal Government of Nigeria, under Sections 839, 842-848 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 first respondent’s fundamental human rights?

The lawyer is further seeking a determination as to “whether the combined provisions of Sections 839, 842, 843, 844, 845, 846, 847, 848 and 851 of CAMA, which grants the appellant too much powers over religious associations and other Incorporated Trustees and empowers the appellant to act based on its own whims to interfere in the management of religious associations and other incorporated trustees is reasonably justified in Nigeria’s constitutional democracy?

“Whether in light of the provision 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 gives the appellant powers to oust and usurp the jurisdiction of the Federal High Court, is unconstitutional?

“Whether religious associations and other incorporated trustees as a vehicle in which the first respondent and other Nigerians exercise their fundamental human rights enshrined in the Nigerian Constitution must be overly burdened with too many restrictions and laws to fetter their liberty?”

He submitted that the freedom of thoughts, conscience and religion as well as the freedom of association and peaceful assembly constituted one of the pillars of a democratic society, adding 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.

Justice James Omotosho of the Abuja Federal High Court (FHC), 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 first to third defendants, respectively.

In the originating summons dated and filed on August 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 judgement, 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 thoughts, 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 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 first and second 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 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 December 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.

On March 21, 2023, Justice Inyang Ekwo of a FHC, 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 body. No date has been fixed for the hearing of the appeal.

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