The Court of Appeal’s judgement took fundamental rights suits away from the realm of technicalities of pre-action notice requirements.
The Court of Appeal in Abuja, on 17 September, upheld a Federal High Court judgement nullifying several provisions of the Companies and Allied Matters Act (CAMA), 2020, Nigeria’s principal corporate regulatory law.
Both the Federal High Court and the Court of Appeal ruled concurrently that the provisions infringed upon constitutionally protected rights to freedom of thought, conscience, religion, association, and peaceful assembly.
But the Court of Appeal differed with the lower Federal High Court’s decision striking out the National Assembly’s name as a defendant in the suit filed as a fundamental human rights enforcement action.
In a landmark pronouncement in the judgement, the Court of Appeal held that the lower court’s decision striking out the National Assembly’s name from the suit on the grounds that it was not served with a pre-action notice before the suit was filed “cannot stand.”
The pronouncement on the judgement brings renewed attention to the special status of fundamental human rights suits and the limits of pre-action notice statutorily mandated to be served on some public institutions before suing them in court.
The Court of Appeal’s decision trashed the long-held notion that failure to serve a pre-action notice on some public institutions or serve them within the time stipulated by statute automatically rendered subsequent legal actions against the institutions incompetent.
The court’s three-member panel comprising Abba Mohammed, Donatus Okorowo, and Eberechi Nyesom-Wike ruled that fundamental rights enforcement suits are exempted from such statutory limitations or pre-action notice requirements.
“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 in the certified true copy of the lead judgement newly obtained by PREMIUM TIMES.
The decision was one of the two interrelated judgements the Court of Appeal delivered on 17 September.
The first, which arose from the appeal filed by the CAC, dealt with the crux of the matter – the legality or otherwise of the disputed CAMA provisions, while the other, which stemmed from the appeal filed by the plaintiff Emmanuel Ekpeyong who commenced the suit at the trial court, centred primarily on the effect of pre-action notice on the matter.
PREMIUM TIMES found after reviewing the verdicts that the Court of Appeal ordered the restoration of the National Assembly as a defendant in the matter.
The appeal court faulted the aspect of the 18 April judgement of James Omotosho of the Federal High Court that failure to serve the National Assembly with pre-action notice made the lawyer’s fundamental rights action against the legislative body incompetent.
Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, requires anyone intending to sue the National Assembly to give it three months’ notice before instituting the action.
However, Section 46(1) of the Nigerian constitution guarantees the right of any person to approach a court for redress over an alleged violation of their fundamental rights.
The Court of Appeal panel held that the constitutional provision superseded the provision of the Legislative Houses (Powers and Privileges) Act.
Mr Okorowo ruled 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 applied to fundamental rights proceedings.
The court also rejected the National Assembly’s claim to immunity, noting that the constitutional provision cited applied only to the removal of a governor or deputy governor.
It therefore held that the “part of the judgement” of the Federal High Court “which held the suit incompetent” against the National Assembly for failure to serve a pre-action notice under Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, and which accordingly struck out the name of the 1st Respondent, is hereby set aside.”
The court went on to declare that the failure to serve a pre-action notice on the National Assembly “does not render a fundamental rights action incompetent” against the National Assembly. It said the law 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 also ruled, while affirming “the substantive determinations” of the Federal High Court on the overall merits of the case. The substantive issue was not a subject of appeal in the particular case.
Mr Ekpenyong filed the suit less than a month after late President Muhammadu Buhari signed CAMA 2020 into law in August 2020.
The law expanded the CAC’s powers over incorporated trustees, including religious organisations, raising concerns about possible interference with their affairs.
Although the Act introduced several reforms to Nigeria’s corporate environment, its provisions on incorporated trustees, which cover churches, mosques, charities, NGOs and other associations, drew strong objections from religious organisations and civil society groups.
At the centre of the controversy was Section 839, which gave the CAC powers to suspend trustees and appoint interim managers where certain conditions existed, including alleged misconduct or mismanagement, fraud or where intervention was considered necessary in the public interest.
Religious organisations feared the provision could give the government excessive control over their internal affairs.
The Christian Association of Nigeria (CAN) called for the law to be amended, while the CAC maintained that it would not arbitrarily suspend trustees and that its actions remained subject to judicial review.
Amid the ensuing controversies, Mr Ekpenyong instituted the suit on 31 August 2020 at 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 suit, Mr Ekpenyong challenged the sections 839, 842 to 848 and 851 of the law, urging the court to rule that the disputed provisions infringed upon his freedom of thought, conscience and religion, freedom of association and peaceful assembly, as well as his right of access to court.
