Ekpenyong, a constitutional lawyer and human rights crusader, from the law firm of Fred-Young & Evans LP, 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 a 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 CAMA 2020 received commendations from the business community, as it is said to facilitate the ease of doing business in the country. It also faced backlash from religious, non-governmental and human rights organizations, who kicked against some sections of the law, particularly section 839.
Section 839 (1) empowers the Commission to suspend trustees of an association and appoint interim managers to manage the affairs of the association where it reasonably believes that- (a) There is or has been misconduct, mismanagement in the administration of the association. Subsect (1) empowers the Commission to suspend trustees of an association and appoint interim managers to manage the affairs of the association where it reasonably believes that- (a) There is or has been misconduct, mismanagement in the administration of the association; (b) it is necessary or desirable for the purpose of; i. Protecting the property of the association. ii. Securing a proper application for the property of the association towards achieving the objects of the association, the purpose of the association of that property or of the property coming to the association, iii. Public interest; or (c) the affairs of the association are being run fraudulently.”
One of the major criticisms of the law came from Christian Association that described the act as unacceptable, ungodly and reprehensible.
Ekpenyong 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 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 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 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 1st 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 of 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, 842-848 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 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 which the 1st respondent and other Nigerians exercise their fundamental human rights enshrined in the Nigerian Constitution must be overly burden with too many restrictions and laws to fetter their liberty?”
Ekpenyong, in his argument, 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.
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 and is a member of the Catholic faith and exercises his constitutional right to associate 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 26th May, 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, is provocative, draconian and barbaric.
According to him, it is also an affront on Nigeria’s Constitution which granted the freedoms to the 1st respondent and other persons in Nigeria in the first place.
He argued that the limitation of the freedom of thoughts, 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 is 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 2nd respondent, is yet to file his brief of argument.
No date has been fixed for hearing.
It would be recalled that 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.
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