CAN President
A Nigerian court has restrained the Corporate Affairs Commission (CAC) and its supervising government ministry from suspending or appointing trustees of the Christian Association of Nigeria (CAN) and churches in the country.
Justice Inyang Ekwo of the Federal High Court in Abuja, the nation’s capital, in his judgement on Tuesday March 20, held that the provisions of Sections 17 (1), 839 (1) and (7) (a) and (2), 851 and 854 of the Companies and Allied Matters Act (CAMA), 2020 and Regulations 28, 29 and 30 of the Companies Regulation (CR) 2021, cannot be applied to the churches and mosques as a religious body.
The Law
The country’s leader, Muhammadu Buhari, had in August 2020 signed the CAMA into law empowering the Registrar-General of the CAC to strictly regulate religious bodies and charity organisations.
The law specifically empowers the agency to suspend trustees of companies and churches and appoint the interim manages to manage their affairs for some given reasons.
The leadership of CAN, the umbrella body of all Christians in Nigeria, had in 2021 challenged the law, especially as it applies to the regulatory roles that the law gave the registrar and a supervising minister of trade, industry and investments, over churches.
CAN’s prayers
CAN, in the suit filed by a senior Nigeria lawyer and Christian, Joe Gadzama, asked the court to determined whether Section 839, subsections (1), (7) (a) and (10) of the CAMA, 2020 and regulations 28-30 of the CR, 2021 are inconsistent with Sections 4 (8), 6 (6) (b) and 40 of the 1999 Constitution and the right to seek redress.
The association also asked the court to determine whether the provision of Section 854 of the CAMA is inconsistent with section 39 of the Nigerian constitution which guarantees the right to freedom of expression.
Part of the prayers sought by the plaintiff included “a declaration that Section 839(1), (7) (a) and (10) of the CAMA are inconsistent with Section 40 of the CFRN and thus unconstitutional, null and void.
“A declaration that Section 839(1) and (7) (a) of the CAMA are inconsistent with Section 36(1) of the CFRN and thus unconstitutional, null and void.
“A declaration that Section 839(1) and (7) (a) of the CAMA has a direct effect on the judicial power of the court under Section 6(6) (b) of the CFRN, and is therefore void.
“An order striking down Sections 839(1), (7) (a) & (10), 842(1) and (2), 843, 851 and 854 of the CAMA for being unconstitutional.
“A declaration that Section 17 (2) (a) and (d) of the CAMA demand an impossible and impracticable action, thus, void and for being impracticable and unknown to Law.
It also asked for an order of perpetual injunction restraining and barring the defendants (CAC and Trade Ministry) from taking any step to give effect to the provisions of Sections 17 (2) (a) and (d), 839 (1) and (2), 842, 843, 851 and 854 of the CAMA against it as mentioned in Article of its constitution, to prevent further contravention of the provisions of Sections 4 (8), 6 (6)(b), 251 (1) (e) and 251 (3) of the 1999 Constitution.
The association said, if allowed to suspend its trustees and name interim managers to manage its affairs, CAC would be usurping its powers under the constitution and the powers of the standing committee and the plenary session which would contradict the provisions of the constitution.
Judgement
Justice Ekwo, in his judgement, held that the CAC did not controvert the averment of the association that it was constituted by the churches.
He said, “It is settled that averments without contradicting evidence or averments are deemed admitted. There is a need at this point to define what a church is in order to see how applicable the provisions of the CAMA 2020 can be applicable to it.”
The judge, while citing a previous case, further noted that “a church in its true definitions is the body of Christ. One person cannot constitute the body of Christ, it connotes a congregation, an assembly of people. An individual cannot own a church. A church property must be the collective responsibility of all the members.”
According to Justice Ekwo, the church is an ecclesiastical being,” adding that “each church is characterised by its distinct dogma or creed and same for each congregation and denomination that constitutes the church.
“It is on this ground that it is impossible for one church to be administered by another church and the church being what it is for the soul of man, the doctrinal distinctness and difference must be respected by the authorities within and without.
“This being so, it is then impracticable for the church or a denomination thereof to be administered by secular arrangement such as interim manager or managers stated in Section 839 of the CAMA 2020 or any other arrangement put in place by the CAMA which does not take into account the doctrinal composition of the church.
“It is also my opinion that to suspend the trustees and appoint an interim manager or managers to manage the affairs of the church will conflict with the sacerdotal order of its divine administration and desecrate the same.”
The judge noted that the trade and investment minister, who is the 2nd defendant, was not represented in court neither did he file any application on the matter and therefore held that the effect is that the assertions of claimant stands unchallenged and are deemed admitted and established. He stated that CAN’s case succeeds on the merit.
Justice Ekwo subsequently made seven declarations, among which are that Section 839 (1), (7) (a) and (10) of the CAMA 2020 and Regulations 28, 29 and 30 of the CR, 2021 are not applicable to religious organisation as CAN and churches as they violated the right to worship guaranteed by Section 40 of Nigerian Constitution.
The presiding judge also restrained perpetually the defendants “from taking any step to give effect to or implementing and/or continuing with any act to implement the provisions of Sections 839 (1), 842 (1) and (2), 843, 851 and 854 of the CAMA.
However, he failed to make a generic order striking down the sections from the Act as requested by CAN, stating that doing so would affect other bodies and organisations registered under Part F of the CAMA.
His words, “These provisions are applicable in respect of the administration, supervision and regulation of other bodies like company, limited liability partnership, business name or incorporated trustee registered for other purposes stated in Section 823 (1) of the CAMA.
“The court is also unable to strike down the provision of Section 17 (2) (a) and (d) of the CAMA 2020 which provides for mandatory pre-action notice to the Ist defendant, as prayed, as the practicability of compliance with such provision depends on the circumstances of each case thereby affected.”