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CAC v. ERNEST & ORS (2022)

CAC v. ERNEST & ORS

(2022)LCN/16095(CA) 

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/K/114/2019

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

CORPORATE AFFAIRS COMMISSION (CAC) APPELANT(S)

And

1. NKWO ERNEST 2. MINISTER OF INDUSTRY, TRADE AND INVESTMENT 3. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

 

RATIO:

THE EFFECT OF THE FINDINGS OF THE FEDERAL HIGH COURT OF THE FUNDAMENTAL RIGHTS NOT BEEN BREACHED

It follows therefore that once it is found, as the Federal High Court did in this case, that the fundamental rights of an applicant/complainant under Chapter IV of the Constitution had not been breached, that ends the matter and the Court becomes functus officio, especially as that also means that no cause of action has been made out by the applicant for its intervention. Any other decision or conclusion, including the one the Federal High Court reached in this case is a perverse one being one that does not flow from the same Court’s finding. See Okhuarobo v. Aigbe (2002) 9 NWLR (PT 771)29 at 85 (SC), Ihunwo v. Ihunwo (2013) 8 NWLR (PT 1357) 550 at 569 (SC). BOLOUKUROMO MOSES UGO, J.C.A.

HUMAN RIGHT MUST ENCOMPASS ALL HUMANITY

That much Oputa, JSC, made very clear in Mustapha v. Governor of Lagos State (1987) LPELR-1931 (SC) p.96 when his Lordship said:
“There is however something I want to correct. Dr. Onagoruwa in his oral submissions touched on what he called the fundamental human rights of the appellant. He even wanted to refer us to the African Charter of the Organization of the African Unity. The short answer here is that human rights must encompass all humanity. The right to life is common to all human beings. It is a human right attaching to man as man because of his humanity. These rights must be clearly distinguished from civil rights, political rights, economic rights etc. Dr. Onagoruwa cannot effectively argue that the appellant has a human right to be Oloja of Igbogbo. Chieftaincy rights are not human rights.” BOLOUKUROMO MOSES UGO, J.C.A.

THE REMEDY FOR COMPLAINTS OTHER THAN THE FUNDAMENTAL RIGHT LIES IN A RESORT TO THE GENERAL LAW OF THE LAND

That again is the position as stated in Madukolu v. Nkemdilim (1962) 1 ALL N.L.R. 587 at 595 and specifically clarified in Tukur v. Government of Gongola State (1989) LPELR-3272 (SC). The remedy for complaints other than fundamental rights lies in a resort to the general law of the land and the provisions of the Constitution conferring jurisdiction directly on the different Courts therein recognized. It does not lie in an application brought pursuant to the special jurisdiction of the High Court vested by Section 46 of the Constitution and the rules made specifically for that purpose.
BOLOUKUROMO MOSES UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the final decision of the Federal High Court, Kano Division, of 19th November, 2018 in Suit No FHC/KN/CS/86/2018 granting an injunction against appellant restraining her (CAC) servants who are Legal Practitioners from further deposing to or signing the Statutory Declaration of Compliance requirement of Section 35(3) of Companies And Allied Matters Act Cap 20, Laws of the Federation of Nigeria, 2004.

The said action was taken out by 1st Respondent, a Legal Practitioner in private practice, against appellant and 2nd and 3rd Respondents to enforce what he, 1st Respondent, described as his freedom to exercise his right to practice his profession without illegal restriction. The breach of that right, he claimed, constituted an infringement of his right to life, right to the dignity of the human person and freedom from discrimination under the 1999 Constitution of this country as well as the African Charter on Human and Peoples Rights.

He brought his application in the lower Court by originating motion pursuant to Order ll Rule 1 of the Fundamental Rights  (Enforcement Procedure) Rules, 2009 and made it very clear on the face of that application that it was brought pursuant to the special jurisdiction conferred on the High Court by Section 46(1) of the 1999 Constitution to enforce fundamental rights and also Articles 2,4, 5,8 and 15 of the African Charter on Human and Peoples Rights Act, Cap A9, Laws of the Federation of Nigeria 2004. The reliefs he sought in his application were:
1. A declaration that Rule 11(b) of COMPANIES REGULATIONS, 2012 as amended on the 5th day of April, 2017 by the 1st Respondent without any legal backing threatens the Applicant’s right to life, is discriminatory towards the Applicant, violates the applicant’s fundamental right to freedom to exercise his profession without illegal restriction and constitutes an infringement of the Applicant’s right to the dignity of human person and freedom from discrimination, and therefore unconstitutional, null and void.
2. DECLARATION that the actions of the 2nd Respondent by causing to be lavishly published on both print and electronic media, information suggesting resistibly to no other rational hypothesis that the Applicant’s professional service vis-à-vis registration of companies in Nigeria are no longer mandatorily required by law vide Regulation 11(b) of Companies Regulations 2012 (as amended) is unlawful, illegal and unconstitutional.
3. A declaration that the joint actions and inactions of the Respondents with regards to Regulation 11(b) of Companies Regulations, 2012 threatens the Applicant’s right to life, violates the Fundamental right of the Applicant to freedom from discrimination, violates the Applicant’s right to freedom to exercise his profession without restriction and constitutes an infringement of the Applicant’s right to the dignity of human person.
4. A declaration that the psychological torture meted out to the applicant by the 1st and 2nd respondents by wrongly representing to the general public that the services of the applicant is no longer mandatorily required by law violates the Applicant’s right to respect for human dignity.
5. An order of perpetual injunction restraining the Respondents from further violating fundamental human rights of the Applicant by causing to be published by any means whatsoever to the general public that the Applicant’s professional services are no longer required for the purposes of registration of companies in Nigeria.
6. An injunction restraining the servants of the 2nd Respondent who are Legal Practitioners from further deposing to or signing the Statutory Declaration of Compliance requirement of Section 35(3) of Companies And Allied Matters Act Cap 20, Laws of the Federation of Nigeria, 2004.
7. A mandatory order compelling the 2nd Respondent to remove from its website any information representing or suggesting to the general public that the services of private legal practitioner and by implication, those of the Applicant are no longer required for the purposes of registration of companies in Nigeria.
8. A mandatory order compelling the 1st and 2nd Respondents to cause to be published in two national newspapers that the services of Private Legal Practitioners are expressly needed for complete registration of Companies in Nigeria.
9. AN order directing the 1st and 2nd respondents to jointly and/or severally pay the sum of N300,000,000.00 (Three hundred million naira only) as general and exemplary damages to the applicant for threatening the Applicant’s right to life for violating the applicant’s fundamental right to freedom from discrimination, for violating the Applicant’s Fundamental right to dignity of human person and for violating the Applicant’s fundamental right to freedom to exercise his profession since 5th day of April, 2017 to date.

The application was contested by appellant. In his judgment of 19th day of November, 2018, the learned trial, O.A. Atuegwu, J., held that appellant’s actions and inactions complained of by 1st respondent had not violated applicant/1st Respondent’s fundamental rights nor caused him any injury. His Lordship specifically said thus:
“In conclusion on this issue, I hold that Regulation 11(b) of the Companies Regulation 2012 and the action and inaction of the respondents has not in any way violated the applicant’s fundamental right to freedom to exercise his profession, his fundamental right to freedom from discrimination and his right to the respect for the dignity of human person and does not in any way threaten the applicant’s right to life.”

“I cannot see the injury caused to the applicant by the act of the 1st Respondent in making Regulation 11(b).”

One had thought that that negative finding sounded the death knell of the application and the end of the matter generally and the application would be dismissed in its entirety without further ado, especially given the nature of the proceedings and the special jurisdiction the Court was exercising in the application. The trial judge, however, very curiously, saw things differently and rather proceeded to grant an injunction against the servants of appellants in terms sought by applicant/1st respondent in his relief No. 6 above.

Appellant is understandably vexed by that order of injunction hence her instant appeal of five grounds to this Court. She distilled the following four issues from her five grounds of appeal for determination:
1. Whether the servants of the appellant who are legal practitioners pursuant to Sections 2(1) and 24(1) of the Legal Practitioners Act can be restrained from further deposing to or signing the statutory Declaration of Compliance requirement of Section 35(3) of the Companies and Allied Matters Act CAP C20, Laws of the Federation of Nigeria 2004.

2. Whether the final ruling/judgment of the 19/11/2018 by the learned trial judge restraining her servants who are legal practitioners from deposing to or signing the statutory declaration of compliance requirement of Section 35(3) of the Companies and Allied Matters Act CAP C20, Laws of the Federation of Nigeria 2004 is not perverse in view of the trial Court ignoring its findings in its final ruling/judgment to the effect that the provisions of Regulations 11(a) and (b) of the Companies Regulations 2012 have not prevented prospective clients from using the services of the 1st respondent and indeed other private legal practitioners.
3. Whether the learned trial judge was right in law to have elevated the provisions of Rule 8(2) of the Rules of Professional Conduct Legal Practitioners 2007 being a subsidiary legislation over and above the provisions of Section 24(1) of the Companies and Allied Matters Act and Sections 2(1) and 24(1) of the Legal Practitioners Act which are both principal legislations and Acts of the National Assembly and proceeded upon same to grant an injunction restraining her servants who are Legal Practitioners from further deposing to or signing the statutory Declaration of Compliance requirement of Section 35(3) of the Companies and Allied Matters Act CAP C20, Laws of the Federation of Nigeria 2004.
4. Whether the learned trial judge was right in amplifying or expanding the statutory provisions of Regulation 11(b) of Companies Regulations 2012 (as Amended) by holding that the word ‘shall’ used in Regulation 11(b) expressly excluded other private Legal Practitioners and that Section 35(3) of the Companies and Allied Matters Act CAP C20 does not anticipate the inclusion of Legal Practitioners who are in the employment of the appellant in performing the act of signing the statutory Declaration of Compliance. Meanwhile, the said Section 35(3) of the Companies and Allied Matters Act CAP C20 never differentiated or segregated between Legal Practitioners in the appellant’s employment and other private Legal Practitioners and the said Regulation 11(b) never expressly excluded other private legal practitioners.

Appellant argued and answered all her four issues in the negative, including her issue 3 where she argued that the ruling/judgment of the lower Court restraining Legal Practitioners in its employment from further deposing to or signing the statutory declaration of compliance requirement of Section 35(3) of the Companies and Allied Matters Act was perverse in that it ignored the Court’s earlier findings in her favour, and ended by urging us to allow the appeal and set aside the order of injunction the lower Court made in favour of 1st respondent.

None of the respondents filed briefs of argument and so did not also formulate issues for determination.

Having perused the records of appeal, it does not appear difficult to me to arrive at the conclusion that the trial Federal High Court erred gravely in its decision. In fact that Court, by the way it went about the whole application, did not even seem to have a clear understanding of the nature of the proceedings before it, which was an application for enforcement of 1st respondent’s fundamental rights alleged breached by appellant and brought pursuant to Section 46 of the 1999 Constitution which only confers special jurisdiction on the High Courts to entertain complaints of breaches of the fundamental human rights guaranteed by Chapter IV of the same Constitution and to enforce them. Section 46 of the Constitution states thus:
S.46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to the Court in that State for redress.
(2) Subject to the provisions of this Constitution a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this chapter.
(3) The Chief Justice of Nigeria may make such rules with respect to the practice and procedure of a High Court for the purposes of this section. By these provisions, the special jurisdiction of the High Court over the fundamental rights guaranteed by Chapter IV of the Constitution is only open to be enforced in favour of a person who (a) has been, (b) is being or (c) likely to be contravened in relation to him. It is only such persons who can seek redress from the High Court and can be entitled to the ‘orders, writs and directions’ of the Court to enforce the specific fundamental right alleged breached.

It follows therefore that once it is found, as the Federal High Court did in this case, that the fundamental rights of an applicant/complainant under Chapter IV of the Constitution had not been breached, that ends the matter and the Court becomes functus officio, especially as that also means that no cause of action has been made out by the applicant for its intervention. Any other decision or conclusion, including the one the Federal High Court reached in this case is a perverse one being one that does not flow from the same Court’s finding. See Okhuarobo v. Aigbe (2002) 9 NWLR (PT 771)29 at 85 (SC), Ihunwo v. Ihunwo (2013) 8 NWLR (PT 1357) 550 at 569 (SC).

But even over and above all the foregoing is the much more fundamental question of whether the application of 1st Respondent in the Federal High Court regarding his right as a lawyer in private practice to depose to or sign appellant’s Statutory Declaration Form is a fundamental human rights matter. The answer to that question can only be an emphatic No. Human rights are rights that are common to all human beings and attach to man as man simply because of his humanity. Such rights, it has been said by high authority, do not include, and should be distinguished from, economic or civil rights (like the one espoused by 1st respondent) or even political rights. That much Oputa, JSC, made very clear in Mustapha v. Governor of Lagos State (1987) LPELR-1931 (SC) p.96 when his Lordship said:
“There is however something I want to correct. Dr. Onagoruwa in his oral submissions touched on what he called the fundamental human rights of the appellant. He even wanted to refer us to the African Charter of the Organization of the African Unity. The short answer here is that human rights must encompass all humanity. The right to life is common to all human beings. It is a human right attaching to man as man because of his humanity. These rights must be clearly distinguished from civil rights, political rights, economic rights etc. Dr. Onagoruwa cannot effectively argue that the appellant has a human right to be Oloja of Igbogbo. Chieftaincy rights are not human rights.”
First respondent’s right to practice his profession as a lawyer in a certain way cannot be said to be a right that attaches to his existence as a human being and human being per se neither is appellant’s right to make regulations on the category of lawyers that can sign and depose to its documents a fundamental human rights issue the breach of which is enforceable by the procedure under Section 46 of the 1999 Constitution of this country. The corollary of that is that, if the complaint of 1st respondent that he has a right to sign and depose to appellant’s statutory forms is not a fundament human right issue, the Federal High Court lacked jurisdiction to entertain 1st Respondent’s application under the special procedure specifically provided by the Constitution for enforcement of fundamental human rights. That again is the position as stated in Madukolu v. Nkemdilim (1962) 1 ALL N.L.R. 587 at 595 and specifically clarified in Tukur v. Government of Gongola State (1989) LPELR-3272 (SC). The remedy for complaints other than fundamental rights lies in a resort to the general law of the land and the provisions of the Constitution conferring jurisdiction directly on the different Courts therein recognized. It does not lie in an application brought pursuant to the special jurisdiction of the High Court vested by Section 46 of the Constitution and the rules made specifically for that purpose.

The net effect of all the foregoing is that this appeal is meritorious and is allowed and the order of injunction granted by the Federal High Court restraining the servants of appellant who are Legal Practitioners from further deposing to or signing the Statutory Declaration of Compliance requirement of Section 35(3) of Companies and Allied Matters Act Cap 20, Laws of the Federation of Nigeria, 2004 is hereby set aside.
Parties shall bear their costs.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft of the lead judgment just delivered by my learned brother, B. M. Ugo, JCA, and I agree completely with his beautiful resolution of the issues, and conclusion, that the appeal is meritorious.

It is baffling that the learned trial Court, after holding rightly that 1st Respondent did not prove that his fundamental rights were violated by Appellant’s Rule 11(b) of Companies Regulations, somersaulted to impose injunctions against Appellant, over the same Regulation. That amounted to judicial contradiction, and a case of approbating and reprobating, at the same time by the Judge, which is not allowed in law. See Nasko & Anor Vs Bello & Ors (2020) LPELR-52530 (SC).

I also think the 1st Respondent was only trying to manipulate the fundamental rights procedure rules to advance his private professional practice interest, as a private legal practitioner, as against the right of his colleagues working in the employ of the Appellant. Certainly, such claims or entitlement cannot qualify as fundamental rights, as the right to employment and/or to advance one’s professional calling, is not within the purview of fundamental right, in my view. See the case of Abba Vs Joint Admission and Matriculation Board & Anor (2014) LPELR-24205 (CA), where it was held:
Thus, the issue of the enforcement of a fundamental right according to the Fundamental Rights (Enforcement Procedure) Rules did not arise at all. In any event, an action challenging termination does not partake of the nature of an action for breach of fundamental rights. See Uzondu V UBN Plc (2009) 5 NWLR (Pt.1133) 1 & Grace Jack V University of Agriculture, Makurdi (2004) 1 SCNJ 335 at 346; (2004) 5 NWLR (Pt.865) 208.” Per SANKEY, JCA.

I too allow the appeal and abide by the consequential orders in the lead judgment.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA, and I am in agreement with the reasoning and conclusion reached therein that the appeal is meritorious and ought to be allowed. I too allow the appeal and set aside the decision of the trial Court. I also abide by all other consequential orders in the lead judgment including order as to cost.

Appearances:

A.U. Micheal, Esq. For Appellant(s)

Respondents were unrepresented For Respondent(s)