Malcolm Omirhobo Rejoinder On Femi Atoyebi Take On S.839 Of CAMA 2020

LAGOS OCTOBER 8TH (NEWSRANGERS)-I have   pains takenly  read the write up of the learned silk, Pastor Femi Atoyebi SAN  on CAMA,  2020  and I am obligated without necessarily being legalistic to write a rejoinder  particularly as it  touches on Not-for-profit organizations (NFPOs)  in Nigeria which my learned senior focused on  in his write up.  In my rejoinder , I shall be  comparing notes with what obtains in  the United Kingdom (UK)  from  where  the  National Assembly of Nigeria (NASS) imported   the vexed issue of Government attempt to regulate NFPOs  through the Corporate Affairs Commission ( CAC ) without the support of law , logic , morals or common sense .

While I agree with my learned senior that all Companies , Associations ,  Charities ,Non Governmental Organizations (NGOs) and NFPOs must be regulated by  Government and its agencies for  probity , accountability and the good of the public  , I am of the school of thought  that believes that such regulations must be fair , equitable ,  reasonable sustainable and justifiable in a democratic society  . More importantly too I believe that such regulations  must be based on a  form,   legal frame work or regime  which is lacking in the  Nigeria corpus juris , a  lacuna  my learned senior failed respectfully to  factor into his write up. As it stands today, I make bold to say that the  Charities , NGOs and NFPOs,  in Nigeria are without form or legal backings . Apparently what Nigerians are confusing for Charities  NGOs and NFPOs are mere associations as per  S. 823 (1)(2) of CAMA,2020 , Part F which   provides thus:

823. (1) Where two or more trustees are appointed by any community of persons bound 

together by custom, religion, kinship or nationality or by anybody or association of persons established for any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, they may, if so authorised by the community, body or association (in this Act referred to as “the association”) apply to the Commission in the manner 

provided for registration under this Act as a corporate body.

(2) Upon being so registered by the Commission, the trustees shall become a corporate body in accordance with the provisions of section 830 of this Part.

Incorporation of trustees of certain 

communities, bodies 

and associations.

In the unreported  case of  the Board of Incorporated Trustees of Malcolm Omirhobo Foundation V. The National Judicial Council of Nigeria & 6 Ors.  Suit No: FHC/ABJ/CS/420/2019 , the Chief Justice of Nigeria Honorable Justice Onnoghen Nkanu Walter Samuel was standing trial at the Code of Conduct Tribunal over alleged non-declaration of assets in contravention of the Code of Conduct.  While the case was 

pending via an interim order  the said sitting C J N was unilaterally suspended and removed  from office by the President of Nigeria without the input of the National Judicial Council and the Senate.  In his place Honourable Justice  Ibrahim Tanko Mohammed was sworn in as the Acting Chief Justice of Nigeria and towards the expiration of his tenure as the Acting CJN , the NJC and  the Federal Judicial Service Commission recommended him to the President to be appointed as the substantive  CJN consequently  the Plaintiff in the capacity of an  NGO incorporated by CAC in line with her objects instituted a 

public interest case via  an originating summons praying the court to interpret the  provisions of Sections 1 (1) (2), 231(4), 292 (1)(a)(i)(b) and Sections 153(1)(i), 158(1), paragraph 21 (a)(b) of part 1 of the Third Schedule of the 1999 Constitution of Nigeria vis a vis the suspension and removal of the CJN , his replacement  and the misconduct of the Acting CJN  who is  being recommended for the office of the substantive CJN.

Honourable Justice I. E. Ekwo of the  Federal High Court , Abuja held Inter alia : that the Plaintiff misconceived  the 

provisions of S.590(1) part C of   CAMA  ( now S. 823 (1)(2) of CAMA,2020 , Part F ) relied upon by her  in arguing that by virtue of having been  registered as a  corporate person it is clothed with  the status of  an NGO.  The court held that  Nigeria does not yet have a statutory framework for the registration or operation of NGOs. His Lordship hope that the National Assembly will take serious note of this vacuum by taking  a cue from other Commonwealth Countries like Belize (Non-Governmental Organizations Act, Chapter 315 of Belize), Uganda (The Non-Governmental Organisation Act, 2016, Uganda), and, Zimbabwe (Non-Governmental Organizations Act, Zimbabwe).  His Lordship stated that these countries apart from having enactments that are similar to Part C of the CAMA do have separate enactments for N G Os.  The court held that it is una

ble to see how Part C of the CAMA makes provisions for the registration of NGOs as claimed by the Plaintiff and consequently struck out the Plaintif’s case for want of locus standi .

To lend weight to the aforesaid judgement is the fact that the Charity Commission (Commission) in UK an equivalent of   the CAC  in Nigeria   regulates and registers charities in England and Wales under the provisions laid out in the Charities Act 2011 ( Charities Act) while  in Nigeria,  apart from Sections   4  and  8   which  respectively  deals with the functions of the Board of  CAC and the functions of the CAC and the  12 paged part  F of CAMA 2020 ,   there is no Act or law  that lays  down the provisions under which CAC can regulate and register Charities , NGOs and NFPOs in Nigeria which exist in fact but not in.law . In the UK , the Charities Act and other laws defines  what charity , charitable purpose and public benefit is   but in Nigeria , there is nothing like that .

In the UK , apart from the Charities Act ,  there are the Charities (Protection and Social Investment) Act , the Companies (Audit, Investigations and Community Enterprise) Act , the  Co-operative and Community Benefit Societies Act , the  Corporation Tax Act 

, the  Taxation  Chargeable Gains Act  and the  Equality Act .Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act of 2014 on whose provisions the Charities Commission carries out her functions but in Nigeria there are none of such form,  legal frame work or regime to aid the CAC in the performance of her functions.  

With all humility, I refuse to  agree with my learned senior that  CAMA 2020 is eloquent or that it is necessarily  a  good  law in all ramifications  just because it  comprises 870 sections spread over 604 pages covering  apparently  a  wide range of areas on company law and related subjects. It  is my humble view that  the efficiency and effectiveness of a law  cannot be determined from how lengthen or voluminous it is but rather  from its transparency and  sincerely of purpose which  is lacking in S. 839 of   CAMA 2020 and some other sections therein . 

Furthermore , the  fact that members of the National Assembly (NASS) who enacted CAMA 2020,  are our  representatives and comprises of people of all faiths, beliefs and prejudices, including Moslem clerics and Pastors, etc does not make them infallible, perfect and all knowing and consequently , I implore us not to  judge them  here by the oath of their office but by character of  the content of the provisions of  S.839 of CAMA 2020

I couldn’t agree more  with my learned senior in his assertion that  CAMA, 2020 seeks to regulate the conduct of businesses of all classes as it is the responsibility of government, which includes companies of all descriptions, associations, including charitable organizations such as churches, mosques, educational institutions, social clubs but I beg to disagree with him that  it is the same laws that regulate the operations of Banks and Financial Institutions that regulates NFPOs . It is salient to note here that while the  former are set up to make profit for private individuals the later  are set up not to make profit but for the betterment of the public . I therefore humbly submit that it is anomalous to compare both  forms of companies .

No doubt , CAMA  2020  is revolutionary in many respect especially with the ease of doing business in Nigeria which will inturn attract  Foreign Direct Investment (FDI) into the country, if properly implemented as my learned senior opined ,  nevertheless it is my humble submission that CAMA 2020 ,   leaves a lot to be desired in the area of incorporated trustees as it  concerns NFPOs, NGOs and Charities  . In fact  it’s   drafters deserves some  hard knocks for their lazy ,  callous, reckless , irresponsible and dishonest cannibalisation,  bastardisation  and importation of the UK Charities  Act into the Nigeria legal space   picking and twisting  a few sections therefrom which favours the Government of the day’s draconian, autocratic and undemocratic  tendencies .

No doubt the learned silk’s observation of  the  drama and the display of ignorance by some church leaders and Christains in reaction to S . 839 of CAMA  2020 is correct , nonetheless,    in contemporary Nigeria , it  will be  wrong,    hypocritical, unfair  and naive for anybody to dismiss  the fears  of  Christains on  the mere ground of superstition alone  . Even if  the extant CAMA 2020  did not specifically mention church, mosque or any particular religion, there  is no gain  playing ostrich here because at the end of the day, the churches  are more into charities than other groups in Nigeria and as long as they   are  part of the class of associations affected by CAMA  2020,   they have every reason to be apprehensive bearing   in mind the fact  that we are living in a country where the  entire   judiciary is  on trial. Where the  Judiciary  have been comprehensively bullied,  cowed, dazed and overwhelmed by the executive to the extent that it is no longer independent and cannot act without fear or favour . During the   recent visit by the   delegates of a section of the Nigerian Christain community  to the president at the presidential villa seeking for the amendment of S.839 of CAMA 2020, they reverberated the fears of  many Christians   when they lamented    that  they know that if they  go to court to challenge the  Act in issue ,  they  will not get justice .  But come to think of it , can any right thinking person  blame them for their apprehension when  the Department of State Services (DSS), in Nigeria through sting  operation   attacked judges of superior court of records in their residence , arrested them and threated them like common criminals and  nothing  happened  ? Is not in  Nigeria that  a sitting Chief Justice was removed from office through a motion exparte order  and the heavens did not fall?  Is it not Nigeria where the judges are appointed by the president ? Is not Nigeria where  appointments to public offices and institutions are  not based on merit but on  who you know , your connections  or what part of the country that you come from ? Is  not Nigeria where there is a deep cut in religious differences between Christains  and Moslems ? Is it not Nigeria where the Government of the day is clannish and tribal to a fault ? Is not Nigeria where  all major public  institutions and offices  in the country like  the Armed Forces , para military institutions ,  the Police , NNPC  AMCON , FIRS NIMASA,  NPA , the judiciary , JAMB, NIDC,  CAC,  etc are headed and occupied by  Moslems of Hausa/ Fulani extraction to the disadvantage of other ethnic groups?  Is  it not Nigeria where the Government of the day criminalize opositions and gag the the press ? I am stunned that my learned senior and   many NIgerians  fail to see the Wolf in S. 839 of CAMA  and the fact  that many Nigerian Christains are not just crying Wolf and thus must be taken serious .

Unfortunately and regrettably  even though my  learned senior and many egg heads  fail to realise 

that the entire S. 839 of CAMA 2020 which  deals with the  CAC suspension of Trustees, appointment  of interim. managers  etc is a Wolf in sheep cloth  , I 

for one do.  My grouse of the said section  is not centered on the mischief  which the law intends to cure in Nigeria that is the   none  probity and accountability of NFPOs but  on its nebulousness,  politicalness , illegality and unconstitutionality.

The community Reading  of  S. 839  of CAMA , 2020  notwithstanding  , it is difficult to construe the  intention of the law makers  using the literal rule of interpretation of statutes  because its provisions  is    a maze of poorly drafted  inelegant  legal mumbo jumbo, full of contradictions  concocted and conjured by the Nigerian Government  to   violate the fundamental rights of Nigerians to fair hearing,  freedom of thought, conscience and religion and right to peaceful Assembly and of Association as enshrined and  guaranteed by  the 1999 Constitution of Nigeria .  In the circumstance ,  the appropriate rule of  interpretation of statute  open  to construe the intention of the law makers  vis a vis  the provisions of  S. 839  is  the mischief rule of interpretation of statute  which considers the state of the law before the enactment , the defect which the statute sets out  to remedy and/or prevent , the remedy adopted by the legislature to cure the mischief and the  reason of or behind the remedy . To make headway in this extant case , we must positively suppress the mischief and promote the remedy within the intent of the statute . The mischief behind this provision is that before now there was no probity and accountability  amongst many  NFPOs  in Nigeria . Many Trustees were converting monies meant for their associations  for personal use,  buying private  jets, luxurious cars and houses , building  private schools of their own , converting and applying  their associations monies   for things that are not in line with their objects or  for the benefit of the public  . Associations properties are seen as family properties of trustees who will them to their children and wives. There was the  case of  a church pastor who while divorcing his wife settled her  with part of the church properties abroad.  All these resulted in the   lost of public confidence in the NFPOs  and consequently   the need for the  Government  to intervene  through the passing into law S.839 of CAMA to regulate the activities of NFPOs . The regulation of the affairs of  NFPOs  by Governments   all over the world   is normal ,  in fact in England as far back as  1601 when  monies that were given for charitable purposes were  misapplied or mismanaged,   the situation was remedied by  the   British Government  via the Statue of Elizabeth  of 1601 which  established a commission to hear complaints about charities and in its Preamble, set out what purposes were considered to be charitable. It is also very normal for Governments to establish regulatory bodies  through the enactment of laws to monitor ,  manage and supervise  NFPOs by giving them powers to so act and the  powers so given to the regulatory bodies are  spelt out in  written laws which is justifiable in a democratic society so that the regulatory bodies do not act arbitrary  at their own whims and caprises or   under the influence   of any political office  holder .

In the UK ,  Charity law have continued to evolved for over 300 years through both legislation and codification of case law  and is still evolving . The Charities Act  principally  governs charities in England and Wales .  The Charities  Act defines  charity  and went on to  spell out the   list of charitable purpose. The  Charity Act  established  the Charity Commission  ( Commission ) which is a  non-ministerial  government department and  a body corporate in its own right. The powers, duties and responsibilities of the commission are set out in  black and white in the  Charities Act .   The Commission regulates and registers charities in England and Wales under the provisions laid out in the Charities Act (as amended by the Charities (Protection and Social Investment) Act ) 2016. The commission  carry out general  monitoring ,  regulatory advice and guidance   of charities as part of its regular casework ,  conduct statutory and   regulatory compliance  investigations on charities. via inquiries .Where there has been abuse of non-compliance in charities and it is not severe , the commission  advise and guide  the affected charities to  put them back on their right footings without using legal powers to intervene but if the abuse and non compliance  is severe   involving misconduct or mismanagement the commission  may invoke her temporary protective power of  suspending or removing  a trustee, freezing a charity’s bank account and  appointing an interim manager

 to protect the charity   property  while it continue  with investigation .  The Charities Commission in certain respect  have  the same jurisdiction as  the high court of England . The Commission undertakes a number of quasi-judicial functions like  establishing a scheme for the administration of a charity; appointing, discharging or removing a charity trustee or trustee for a charity, or removing an officer or employee;

vesting or transferring property, or requiring or entitling any person to call for or make any transfer of property or any payment,  restrict transactions a charity may enter in and appoint additional trustees.

The commission  remit does not extend to investigating criminal  or taxation matters . Nor is it a prosecuting authority.  Where there is the  commission of a crime or  or abusive tax arraignment the commission  make a referral for investigation to the police and other regulators or  law enforcement agencies. In the process of her inquiry the commission ensures that the trustees of charities under investigation are given fair hearing and their right to appeal are made known to them . All the above qualities are lacking in CAMA 2020 where the CAC is accuser, the prosecutor and the judge .

 I therefore submit that without a rich and robust  law like the Charities Act and other supporting legislation as those in the  UK  in place in  Nigeria  , there is  nothing upon which the CAC can exercise her highly subjective powers to by order suspend the trustees of an association and appoint an interim manager or managers to manage their  affairs  where the CAC  reasonably believes that —

(a) there is or has been any misconduct or 

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 purposes 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 .  In the circumstance , the CAC will only be functioning   on its  own whims and caprises because obviously the 12 pages of legislation on incorporated  trustees as per part F of   CAMA , 2020  will certainly  not do .

To cheer the  CAC on   without the necessary work tools is  dangerous  and inimical   to  fundamental rights  to fair  hearing, freedom of thought, conscience and religion and right to peaceful assembly and Association of Nigerians  .  Granted that these rights are not absolute and can be derrogated or restricted by law , I confidently submit that S  839  of CAMA do not qualify as one of such laws  that can restrict the fundamental rights of Nigerians to freedom of thought, conscience and religion and right to peaceful assembly and Association  because it is not reasonably  justifiably and sustainable in a democratic society for want of form ,  legislation , legal frame work and/or regime  . 

Without legislation on the establishment and operations of    NFPOs in Nigeria,  setting  out  the principles ,   rules,  guidelines and the  do’s and don’ts   for the government  and governed to follow , the arguement of  regulating  NFPOs   in Nigeria  in good faith  a over board can  not succeed  because it will amount to putting something on nothing and expect it to stand . It will definitely not stand.  It will  fall .

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