- August 17, 2020
- Posted by: Stephen Azubuike
- Categories: Legal Explainer, Opinions
The Companies and Allied Matters Act 2020 (“CAMA 2020”) which came into force on 7 August 2020 has been described as long over due, given the many good amendments, the updates and innovations it introduced since it was earlier passed thirty years ago. The bulky piece of legislation contain certain provisions whose core objectives and effects would be better appreciated as time go on with implementation.
Suspension of trustees and appointment of interim managers
One of the new introductions into the CAMA is the provisions seeking to regulate the activities of religious bodies and other associations. Section 839 provides that the Corporate Affairs Commission (“the Commission” or “CAC”) may by order, suspend the trustees of an association or a religious body and appoint an interim manager(s) to coordinate its affairs where it reasonably believes that there has been any misconduct or mismanagement, or to secure the property of the association or religious body (or the application of the property to the objects of the association or religious body), or where the affairs of the association or religious body are being run fraudulently or where it is necessary or desirable for the purpose of public interest.
A look at the provisions clearly shows that an Order is required before the Commission can take the regulatory steps mentioned such as suspension of trustees and appointment of interim manager(s) over the affairs of an association or religious body. The order in question must be an order of a court of competent jurisdiction as Section 839(6) states and not an order by the Registrar-General of CAC or the President of Nigeria.
The process of securing the order would require the filing of an application/petition by way of a motion in court supported by a strong affidavit evidence showing reasons why a suspension order and/or order for appointment of interim managers should be made. The application may be made by the Commission or one-fifth of members of the association or religious body. See Section 839(2). Meanwhile, Section 839(6)(a) states that the suspension cannot last forever as it must not exceed 12 months.
The provisions of Section 839 are robust in that the Section provides for the procedure for the possible suspension and appointment of interim managers. The court, the Commission and members of the association and religious bodies are all involved as stakeholders.
Clearly, the provisions touch on other associations. The extention to religious bodies including the churches is the cause for alarm and below are some of the reasons.
Reasons for alarm
A country where a former Chief Justice of Nigeria (Hon. Justice Walter Samuel Nkanu Onnoghen) was suspended based on an ex parte motion, brought pursuant to no known law or Rules of Court, contrary to the established procedure in the Constitution, calls for attention. Due process does not particularly enjoy a pride of place in Nigeria. Thorough investigation of allegation of facts cannot be guaranteed at all times. The provisions as it pertains to religious bodies pose worries considering the fact that Nigeria is made up of people of diverse religions, predominantly Muslims and Christians. Anything related to religion in Nigeria is considered delicate. The Commission can move against any association and there will not be much problem or agitation. But with religious bodies, care must be taken because matters of faith in Nigeria appears to be a matter of life and death. Recently, Pastor Oyedepo was reported to have expressed his reservations concerning the provisions with some less than accurate information. For example, he inadvertently failed to reckon with the fact that the order for suspension was to be made by a court. In a country where many Southern Christians have concerns over the dominance by Northern Muslims of virtually all sensitive top positions in Government today, there is growing discomfort that cannot be simply wished away.
The above are some of the reasons it is ordinarily important to avoid certain loopholes that can be easily exploited and to be more circumspect when a religious body is involved. For instance, it ought to be expressly stated in the statute that in the case of religious bodies, an interim manager must be a person who is a member of the faith and shares the same or similar religious beliefs. A Muslim cannot be made to act as interim manager in a church and vice versa. The Catholic Church cannot entertain a pentecostal acting as interim manager and vice versa. The courts are encouraged to exercise high discretion along these lines in the absence of clear express provisions.
Call to action
Beyond the above, the provisions make it clear however that the suspension of trustees and appointment of interim managers is to be invoked where there is misconduct or mismanagement, or where the affairs of the associations or religious bodies are being run fraudulently or where it is necessary or desirable for the purpose of public interest. This means that ordinarily, the State is willing to protect either the association or religious body and even the public as a whole. This is a call for religious bodies and other associations to remain on the path of righteousness and manage their affairs properly like a people who have the fear of God.
No constitutional violation
Let us quickly note that it cannot be safely concluded that the provisions gag freedom of religion. No. So, any agitation in this respect should be jettisoned. Aside the instant provisions, religious bodies are under the authority of the Government. That is why they are all registered with the Commission in the first place. Also, the Government in the wake of Covid-19 banned religious activities and the ban stood. Religious bodies also enjoy the mandate to work hand in hand with the Government. For instance, religious bodies especially the churches assist the Government to administer marriages under the Marriage Act, by issuance of valid Government marriage certificate after the celebration. Religious leaders assist the Government in making certain critical decisions.
How necessary are the provisions as it pertains to religious bodies?
On a close look, this question is pertinent in that we do not have any report establishing compelling reasons the Government wants to move against or in support religious bodies in this fashion. Whichever way one looks at it. It is common knowledge that religious bodies have effective internal mechanisms for sorting out issues of mismanagement or misconduct, even criminal allegations such as fraud. In appropriate cases, religious bodies will report allegation of criminality to the relevant authority for action. Where Dispute relating to property arises, we have seen religious bodies resort to court for determination of rights. It is submitted that whatever the good wishes of the Government might be in introducing Section 839 to apply to religious bodies, it is unnecessary! The Government should focus her attention to other important areas of governance and manage her own affairs more effectively.
In view of the foregoing, it is advised that the Government and its agencies should rise up to the occasion and ensure that due process is followed at all times and that the Constitution is respected and upheld. The Government and its agencies, especially the Commission, must not allow any act of dictatorship and reckless show of power. When a Government is responsible and enjoys credibility and integrity, the people will exercise more faith in its mission.
We call on the Government to take steps to expunge the provisions of Section 839 of CAMA 2020 as it relates to religious bodies.
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Your conclusions are at variance with your analysis. You state that a court order is required for the Registrar to sack a trustee yet you want the relevant section to be expunged from the act on the grounds that our government has a history of being dictatorial. I rather think that the law and it’s enforcement are different matters. Certainly the object of the law to ensure transparency and accountability where violation is present cannot be faulted. Complete lack of control cannot be a good thing.
I complete agree with the views of Matt Olomu. Stephen Azubuike calling on Government to expunge the provisions of section 839 entirely can not be supported by his analysis.
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