20th August, 2020
By Israel Olawunmi
With the hue and cry of religious bodies/leaders over the provisions of the new Companies and Allied Matters Act(CAMA) 2020 as to removal and suspension of trustees of churches, mosques, charitable bodies and non-governmental organisations, it’s pertinent to iron out the rough edges to lay to rest this cacophony
It is germane to state that, the above mentioned bodies have always been registered under CAMA and have had their activities regulated by the Corporate Affairs Commission(CAC).
About the new law and this misconception, it’s no gainsaying that the highest law of the land, the 1999 Constitution of the Federal Republic of Nigeria provides that everyone has a right to freedom of thought, conscience and religion, but like many fundamental rights, this right does not exist in absolute terms, it is subject to some limitations and restrictions as provided for in section 45. Primarily in the interest of public order, public health, public security and for the purpose of protecting the rights and freedom of other persons
The seemingly contentious section of CAMA 2020, section 839 (1) of CAMA 2020 empowers the CAC to suspend trustees of an association and appoint interim managers to manage the affairs of the association where it reasonably believes that:
a) There is or has been 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 purpose 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.
It can be gleaned from these provisions that the Corporate Affairs Commission(CAC) can lawfully suspend the trustees of a church, mosque, charitable organisation or NGO on the above stated grounds. The embers of concern may be better fanned if the subsection ends there without any check on the powers of the CAC, but no, it doesn’t end there.
Section 839(2) CAMA 2020 provides that:
“The trustees shall be suspended by an order of Court upon the petition of the Commission or Members consisting of one-fifth of the association, and the petitioners shall present all reasonable evidence or such evidence as requested by the Court in respect of the petition.”
So this begs the question as to who has the power to remove or suspend the trustees of these associations?. Both the CAC and the Members of these associations have the power to remove trustees of these associations
Furthermore, it is pertinent to ask what is the condition precedent before the removal or suspension of a trustee can be instituted? It is by a petition by either the CAC or by a quorum of one-fifth of the Members of the church, mosque, charitable organisation or NGO stating the grounds of the breach as stated above coupled with reasonable evidence. So this does not clothe the CAC with automatic powers to remove the trustee of these associations. And it doesn’t even end there.
The trustee(s) of these associations can only be removed after the petition has been filed and the Court orders the suspension or removal. So the CAC cannot unilaterally remove or suspend a trustee, the actions of the body is still subject to a valid court order ordering the removal or suspension as the case may be. So this new law is not as arbitrary as famed to be
Even with the discretion of the CAC as provided by CAMA with the use of “reasonable belief” is still subject to the approval of the Court, hence, this knocks the wind out of the sail of any palpable arbitrariness by the CAC
The Registrar General of the CAC cannot just decide one day to suspend or remove the trustee of a church or any similar non-profit making body. Where he does that, such removal or suspension shall be null and void, having no effect in law. The Court has the final say, not the CAC nor even the members of the association
This law is aimed at checkmating the excesses of these bodies, and to ensure accountability and transparency by every means necessary. It would be pure mischief to say the government aims to take over the leadership of the church or encroach on the right of freedom of religion with this new law