By Adewuyi Stella Jesuloluwa
Unarguably, rights are the most advantageous gift to man. The average human is vested with a set of rights to exercise to the fullest of his capacities. The existence of a right means the converse duty on another to respect such rights. When infringed upon, there are legal consequences.
On one hand, the right to freedom of thought, conscience and religion is provided in Section 38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The freedom of religion connotes the right to change one’s religion or propagate it in worship, teaching, practice and observance. Religious institutions are empowered to issue instructions pertaining to their religion.
On the other hand, Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides for the right to peaceful assembly and association. A person or group of persons may also form or belong to a political party, trade union, or other association to protect his, her or their interests.
In relating the above rights to Section F of the Companies and Allied Matters Act 2020, it is important to provide a general purview of the provisions of the law guiding the formation, management and dissolution of incorporated trustees.
Section 823 of the Companies and Allied Matters Act 2020 provides that, “Where any 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, literacy 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 the registration under this Act as a corporate body.”
From the above provision, churches, schools, cultural organizations, charitable bodies, etc. are covered by the broad name of incorporated trustees. The Corporate Affairs Commission oversees the qualifications governing the registration of incorporated trustees. There must be a duly signed application for such registration.
When the application is made, the Commission will publish same in at least two daily newspapers and await objections within 28 days. Where there is an objection, the Commission may consider it and take a stand. However, whether or not there is an objection, the Commission may exercise its discretion to approve or disapprove the registration.
The Commission may also treat an association as forming part of another or state that associations with the same trustees will be a single association. Trustees may also be removed by the Commission on stipulated grounds.
One of the impact of the provisions of Chapter F of the Act on the right to religion include Section 850 of the Act which empowers the governing board, fifty percent of the members, one or more trustees or the Corporate Affairs Commission itself to apply for the dissolution of an association on specified grounds is rather deficient. This is because of the high possibility that the applicants may act out of prejudiced interests or malice against such an association.
On the subject of grounds for dissolution, a question may be raised as to whether a religious or cultural association can be said to have an expiry date? Another subject for objection is the power vested in the Corporate Affairs Commission to withdraw, revoke or cancel the certificate of incorporation of an association at will. This posits numerous disadvantages to the continuous existence of an association whose existence may be cut short at any time.
On freedom of association, Section 831 of the Act provides that the Commission may treat an association as forming part of another or state that associations with the same trustees will be treated as one. Even though this provision is without prejudice to Section 849 of the Act which provides for the right to merger, it may infringe upon the right of an association to willingly do so when the Commission has already vetoed it. The provisions on dormant accounts of associations also reveals the unending impact of the Corporate Affairs Commission on the survival of incorporated trustees.
In conclusion, it may be rightly perceived that the Corporate Affairs Commission has almost overbearing powers with respect to incorporated trustees. This foretells serious impacts on the legal exercise of the fundamental rights of religion and association which should not be dispensed with or breached unduly.
It is therefore highly imperative to recommend the safeguard of the essential human rights to associate freely within the limits of the law and exercise their respective religions wholly. This can mostly be achieved by limiting the powers of the Corporate Affairs Commission. Otherwise, the provisions will continue to constitute a stumbling block to human rights protection, enhancement and promotion.
Stella Adewuyi is a student of Adeleke University, Osun State.
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