From Godwin Tsa, Abuja
The Court of Appeal sitting in Abuja has faulted a Federal High Court judgment striking out the name of the National Assembly from its decision which nullified some sections of the Companies and Allied Matters Act (CAMA) 2020 for infringing on the fundamental rights of citizens.
A three-member panel of justices, in a unanimous judgment delivered by Justice Donatus Okorowo, held that failure of the appellant, Emmanuel Ekpenyong Esq, to serve a three-month pre-action notice on the National Assembly did not render his case against the legislature incompetent.
Justice Okorowo found that the appellant was right that a fundamental rights action is not defeated by failure to serve a pre-action notice under Section 21 of the Legislative Houses (Powers and Privileges) Act 2017.
The appellate court hinged its decision on the ground that “Section 21 is a subsidiary requirement that cannot lawfully clog the right of immediate constitutional access conferred by Section 46(1) and, largely, Chapter IV of the Constitution and it is, to the extent applied to a fundamental rights claim, void under Section 1(3) of the Constitution.”
Although the appellate court delivered the judgment on 17 September, its certified true copy was sighted on Friday in Abuja.
It would be recalled that a constitutional lawyer, Emmanuel Ekpenyong Esq of the law firm of Fred-Young & Evans LP, had instituted the suit marked FHC/ABJ/CS/1076/2020 before Justice James Omotosho of the Federal High Court in Abuja.
The legal practitioner had sued the National Assembly, Corporate Affairs Commission (CAC) and the Attorney-General of the Federation (AGF) as 1st to 3rd defendants respectively.
In the originating summons dated and filed on 31 August 2020, Ekpenyong 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 thought, conscience and religion, freedom of association and peaceful assembly and right of access to the court.
He asked the court to determine whether these rights had been infringed as guaranteed under Sections 38, 40 as well as 4(8), 6(6)(b), 36(1) and 251(1)(e) of the Constitution.
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 were excessive.
He held that the sections infringed on the lawyer’s right to freedom of thought, conscience and religion and freedom of association and peaceful assembly.
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 851 of CAMA 2020.
He declared them null and void, having been inconsistent with the provisions of the Constitution.
The judge found that Section 851, which empowered the Administrative Proceedings Committee to hear matters relating to CAMA 2020, was inconsistent with the provisions of Section 251(1)(e) of the Constitution, which confers such jurisdiction on the Federal High Court.
The judge, however, struck out the name of the National Assembly because pre-action notice was not served on it.
Dissatisfied with that part of the judgment, Ekpenyong filed a notice of appeal dated 28 April 2023.
The lawyer sued the National Assembly, CAC and AGF as 1st to 3rd respondents respectively in Appeal No CA/ABJ/CV/735/2023.
He argued that the trial judge erred in law when he held that his suit was incompetent against the National Assembly (1st respondent) because he failed to serve a three-month pre-action notice on the legislative body.
He further argued that the provisions of Section 46(1) of the Constitution did not make service of pre-action notice on government agencies and statutory bodies, including the National Assembly, a condition precedent before he can apply to the trial court to enforce his fundamental human rights provided in Chapter IV of the Constitution.
He said Paragraph 3(b) and (c) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules provided that the overriding objectives of the rules were for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms.
Ekpenyong, who sought four reliefs, prayed the court for an order allowing his appeal.
The National Assembly, represented by Mrs Bukola Adeagbo of its Directorate of Legal Services, contended that pre-action notice is a condition precedent to commencing a suit against a statutory corporation like the National Assembly.
She argued that failure of the appellant to serve pre-action notice on the legislature before commencing the suit affects the jurisdiction of the trial court to hear the suit.
Counsel further submitted that “fundamental rights so claimed by the appellant are mere rights which can wait for the notice to be given since no life is at risk”.
She urged the court to dismiss the appeal and affirm the decision of the trial court.
No brief was filed for CAC, the 2nd respondent.
Samuel Gabriel, Principal State Counsel, Civil Appeals Department, who represented the 3rd respondent (AGF), contended that pre-action notice is a condition precedent and without it the appellant’s suit is “premature and incompetent”.
Counsel argued that the “historical background of the principle of pre-action notice is traceable to the doctrine of sovereign immunity and that the National Assembly as an institution enjoys sovereign immunity”.
He relied on Section 188(10) of the Constitution as providing another instance of sovereign immunity distinguishing the legislative institution from other bodies.
He stated that Section 21 was enacted to preserve the sovereign immunity of the National Assembly.
Counsel submitted that the appellant commenced the suit by originating summons for interpretation of the provisions of CAMA 2020, as such his suit is not a fundamental rights suit.
Delivering the judgment, Justice Okorowo found that “the character of a suit is determined not by its label or its mode of commencement but by the pith and substance of the claim”.
The court found that “the rights guaranteed by Chapter IV are not graded by urgency into those that may wait and those that may not, they are each of them, rights of immediate constitutional access”.
The appellate court opined that “Section 188(10) concerns the removal of a governor or deputy governor and the ouster of judicial review of proceedings for that removal”.
“It has nothing to do with the amenability of the National Assembly to a suit for the enforcement of fundamental rights and cannot be pressed into service as a general charter of legislative immunity.”
The court held that Ekpenyong was right that a fundamental rights action is not defeated by failure to serve a pre-action notice under Section 21 of the Legislative Houses (Powers and Privileges) Act 2017.
“And I hold that the failure of the appellant to serve a three-month pre-action notice on the 1st respondent pursuant to Section 21 of the Legislative Houses (Powers and Privileges) Act 2017 did not render the appellant’s fundamental rights action incompetent against the 1st respondent.”
“The finding of the court below declaring the suit incompetent against the 1st defendant proceeded from a misdirection in law and from a reasoning internally inconsistent with the court’s own characterisation of the suit as sui generis, and it cannot stand.”
“In the result, the appeal succeeds and is allowed,” the judge ruled.
The appellate court, therefore, proceeded to set aside the lower court’s judgment which struck out the National Assembly’s name from the suit.
“It is hereby declared that the failure to serve a pre-action notice under Section 21 of the Legislative Houses (Powers and Privileges) Act 2017 does not render a fundamental rights action incompetent against the 1st respondent, the requirement being 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, and the substantive determinations of the court below on the merits, not being the subject of any appeal, are otherwise undisturbed.”
“I make no order as to costs; each party shall bear its own costs of this appeal,” Justice Okorowo declared.
Justice Abba Mohammed and Justice Eberechi Nyesom-Wike aligned with the decision of Justice Okorowo.
It would be recalled that the panel of justices, in another appeal by CAC, also affirmed the judgment of the Federal High Court delivered by Justice Omotosho, which nullified some sections of the Companies and Allied Matters Act (CAMA) 2020 considered to infringe on the fundamental human rights of Nigerian citizens and provisions of the Constitution.
Justice Okorowo, who delivered the unanimous judgment, dismissed the CAC’s appeal on the grounds that the sections are inconsistent with the Constitution.
The panel also affirmed that Ekpenyong had the legal right to have instituted the suit at the lower court, the sections having breached his fundamental rights.
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