Court of Appeal's Ruling Boosts Human Rights Cases in Nigeria

The Court of Appeal in Abuja, on 17 September, supported a Federal High Court ruling that canceled parts of the Companies and Allied Matters Act (CAMA), 2020. This law is Nigeria’s main corporate regulation.

The ruling removed several CAMA sections that gave the Corporate Affairs Commission (CAC) power to control and intervene in the affairs of incorporated trustees, such as religious groups and other associations, in specific situations.

Both the Federal High Court and the Court of Appeal agreed that these provisions violated rights protected by the constitution, including freedom of thought, conscience, religion, association, and peaceful assembly.

But the Court of Appeal disagreed with the Federal High Court’s decision to remove the National Assembly from the case. The Assembly was a defendant in a fundamental human rights enforcement suit.

In a crucial part of the judgement, the Court of Appeal stated that the lower court’s choice to strike out the National Assembly’s name because it did not receive a pre-action notice was incorrect. This ruling reaffirms the importance of fundamental human rights cases and clarifies the limits of pre-action notices that must be served to some public institutions before legal action.

The Court of Appeal's decision challenged the long-held belief that not serving a pre-action notice automatically made legal actions against certain public institutions invalid.

The three-member panel, which included Abba Mohammed, Donatus Okorowo, and Eberechi Nyesom-Wike, decided that fundamental rights enforcement suits do not need to follow the usual pre-action notice rules.

Mr. Okorowo wrote in the official judgement that “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.”

This ruling was one of two linked decisions made by the Court of Appeal on 17 September. The first dealt with the main issue - whether the disputed CAMA provisions were legal. The second was about the effect of pre-action notice on the case.

PREMIUM TIMES found that the Court of Appeal ordered the National Assembly to be restored as a defendant in the case. The appeal court criticized the Federal High Court’s 18 April ruling that said the failure to serve the National Assembly with a pre-action notice made the fundamental rights action against it invalid.

Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, requires anyone who wants to sue the National Assembly to give it three months’ notice before going to court. But Section 46(1) of the Nigerian constitution allows any person to seek court help for violations of their fundamental rights.

The Court of Appeal panel ruled that the constitutional provision is more important than the Legislative Houses Act. Mr. Okorowo stated 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 this requirement is invalid when it comes to fundamental rights cases.

The court also turned down the National Assembly’s claim to immunity, stating that the constitutional rule applies only to the removal of a governor or deputy governor. It held that the part of the Federal High Court’s judgement that deemed the suit invalid against the National Assembly due to a lack of pre-action notice was set aside.

The court also said that not serving a pre-action notice on the National Assembly does not make a fundamental rights case against it invalid. It noted that the law used by the Federal High Court for this ruling was not relevant to actions for enforcing rights 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 ruled, while also affirming “the substantive determinations” of the Federal High Court on the case merits. The main issue was not up for appeal in this particular instance.

Details of the Case

Mr. Ekpenyong filed the lawsuit less than a month after late President Muhammadu Buhari signed CAMA 2020 in August 2020. The law gave the CAC more power over incorporated trustees, including religious organizations, raising fears of government interference.

While the Act brought several changes to Nigeria’s corporate sector, its rules on incorporated trustees sparked strong pushback from religious groups and civil society. The focus was on Section 839, which allowed the CAC to suspend trustees and appoint interim managers under certain conditions, such as misconduct or mismanagement.

Religious groups worried this provision could lead to excessive government control over their internal matters. The Christian Association of Nigeria (CAN) called for changes to the law, while the CAC insisted it would not arbitrarily suspend trustees and that its actions could be reviewed by courts.

Facing these issues, Mr. Ekpenyong filed 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 CAMA provisions he believed violated his rights.

In his case, Mr. Ekpenyong challenged sections 839, 842 to 848, and 851 of the law, asking the court to declare these provisions as violations of his rights to freedom of thought, conscience, and religion, as well as freedom of association and peaceful assembly.

He based his arguments on Sections 38 and 40 of the Nigerian constitution.

Federal High Court Ruling

When delivering the judgement in April 2023, Judge James Omotosho agreed that the powers given to the CAC under Sections 839 and 842 to 848 of CAMA were too much and violated Mr. Ekpenyong’s rights.

He declared those provisions unconstitutional. He also ruled that Section 851, which allows an Administrative Proceedings Committee to hear certain matters under CAMA, was inconsistent with the constitutional rule giving jurisdiction to the Federal High Court.

But while ruling in favor of Mr. Ekpenyong on the main issues, Mr. Omotosho struck out the National Assembly as a defendant because the plaintiff did not serve a pre-action notice before starting the case.

Appeals

This ruling led to two separate appeals. The CAC challenged the decision that nullified the CAMA provisions, while Mr. Ekpenyong appealed against the removal of the National Assembly from the case.

Mr. Ekpenyong’s appeal argued that the Federal High Court’s decision to remove the National Assembly because of the lack of a pre-action notice was wrong. He insisted that Section 46(1) of the Constitution did not make pre-action notice a requirement for beginning proceedings to enforce fundamental rights guaranteed under Chapter IV.

He also said that the Fundamental Rights (Enforcement Procedure) Rules were meant to support applicants’ rights, not limit them. Therefore, he asked the Court of Appeal to reverse the decision that removed the National Assembly from the case.

But the National Assembly opposed the appeal, saying that pre-action notice was necessary before suing it. Its lawyer, Bukola Adeagbo, argued that not serving the notice affected the trial court’s ability to hear the case.

She also stated that the fundamental rights claims could wait until the required notice was served and urged the appellate court to dismiss the appeal. The Attorney-General of the Federation, represented by Samuel Gabriel, similarly argued that the absence of a pre-action notice made the suit premature and invalid.

Mr. Gabriel relied on the doctrine of sovereign immunity, claiming that the National Assembly had such immunity and that Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, aimed to protect the legislature.

He also argued that Mr. Ekpenyong’s action was mainly a request for interpretation of CAMA and did not count as a fundamental rights suit. The CAC did not respond to the appeal.

Court’s Rejection of Arguments

Rejecting the respondents’ claims, Mr. Okorowo, who wrote the lead judgement supported by the other two panel members, stated that the nature of a suit is based on the substance of the claim, not its title or the way it was started.

The court dismissed the use of Section 188(10) of the constitution to support the National Assembly’s immunity claim. He ruled that the lower court made a legal error by removing the legislature from the case.

He said the lower court judge misapplied the law and was inconsistent in his own reasoning. “First, the internal inconsistency is clear,” Mr. Okorowo wrote, noting that the judge had earlier stated that “fundamental human rights suits are unique and are generally not governed by the usual civil rules.”

He added that based on the special nature of fundamental rights enforcement suits, the trial judge did not strike out the suit due to standing issues, relying on a rule that no human rights case may be dismissed for lack of standing.

“Yet, after treating the suit as different from ordinary civil procedures regarding standing, he subjected it to normal civil procedure requirements without reconciling the two positions. The two cannot coexist.

“If the suit is unique and different from ordinary civil procedures when it comes to standing, it does not lose that unique character when it comes to notice.”

The appellate court therefore set aside the part of the lower court’s ruling that removed the National Assembly from the case. It declared that the pre-action notice requirement does not apply to actions seeking to enforce fundamental rights under Chapter IV of the Constitution and ordered that the National Assembly be added back to the case. This decision can be appealed at the Supreme Court.