OLUWASOLA OPEYEMI EGBETOLA
The Nigeria Constitution by virtue of Section 40 provides for the right to freedom of association, giving the religious bodies the power to establish churches and mosques without the need to register.
However, in a bid of creating a legal structure around the association, the religious bodies are advised to register under Part C of CAMA to enable them enjoy numerous benefits for growth and sustainability amidst the benefits are;
a. They become a corporate body
b. They enjoy perpetual succession
c. They have an enhanced corporate image
d. They can apply to the relevant government authority to be granted license as a place of worship
e. They can access loan facility from financial institutions
f. Protection of name
g. They can open and operate a bank account with the registered name.
Furthermore, On the 7th of August 2020, President Muhammadu Buhari assented to the Companies and Allied Matters Act, 2020 (CAMA 2020), which in effect repeals the Companies and Allied Matters Act, 1990 (the “Repealed Act”). By popular opinion, the passage into law is a welcome development and both the 9th Assembly and the President are duly commended.
The new act however introduces a section that affects the Non-governmental organizations (Church Included) which has led to a call for amendment of the section by agitators with more aggressive rebuttal from the religious bodies, noting that the new section is a sneaky way of introducing the Unpopular NGO Bill into CAMA and seen as an uprising of the Antichrist against the church.
It is worthy to note that the Act did not specifically mention church or any particular religion, the act aims at introducing long overdue reforms in the conduct of business of all classes which includes association, charitable organization such as Churches, Mosques, educational institutions, social clubs etc.
THE SECTION 839 CAMA 2020
It is a well-known fact that the guaranteed fundamental human right enshrined in the Nigerian constitution is not absolute, it’s still subject to certain checks and limitation that is reasonably justifiable in a democratic society in the interest of public safety, public order, public morality etc (See Section 45 of the 1999 Constitution as amended).
The introduction of Section 839 CAMA 2020 can be described as a form of check on the registration of Incorporated Trustees in Nigeria. The introduction of this new section is long overdue to reflect the international standard and practices as seen in other jurisdictions.
However, the misconception of the section can be traced to the faulty interpretation of the section by non-lawyers. A proper analogy is when a carpenter decides to sew Christmas cloth in a bid to impress the public, an utter colossal damage.
One of the misconceptions is the view that the Corporate Affairs Commission possess a sole arbitrary power to suspend at will the Trustees and appoint interim mangers. Another misconception is that the section is seen as a sign of end time through which the government would control churches.
Section 839 (1) empowers the Commission 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.
This section provides for reasonably justifiable grounds in which the commission can validly suspend trustees of an association, a proper definition of no smoke without fire. If the law had ended with this section, we would have presumed that the decision to suspend rests solely on a commission controlled by the government.
However, subsection 2 of 839 provides that;
‘’The trustees shall be suspended by an order of Court upon the petition of the Commission or members consisting 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’’
This section gives a clear procedure on how trustees can be suspended thereby resolving the misconception that the commission possess a sole arbitrary power to suspend trustees. It’s crystal clear that the suspension of trustees of an association can only occur when a competent court of gives an order on same.
The section states the condition precedent upon which the order can be made;
a. Petition from the commission
b. Petition from 1/5th of the members of the association
c. Presentation of reasonable evidences
N.B: The petition must detail the infractions committed by the trustees which has been laid down in subsection 1.
Thus, the Registrar General of the commission cannot wake up on the wrong side of the bed and decide to suspend trustees of an association to calm his nerves. Subsection 2 curtails the power of the commission to suspend trustees of an association. Any action done without recourse to Subsection 2 would be null and void.
Consequently, subsection 3 of 839 further provides for the appointment of the interim managers and their functions which must be approved by the court. It’s crystal clear that the suspension of trustees and appointment of interim managers rests on the shoulder of the court and not the commission as generally misconstrued by the public.
WHY THE CHURCH NEED TO CALM DOWN??
The church is not the only one affected by the new enactment but all charitable organisation registered under this part of CAMA (Now Part F). Pastors are not trustees of the church, therefore the belief that the government wants to control the church is wrong, the replacement of the trustees won’t stop the church from holding on Sundays nor will they bring a Non-Christian to head the church and preach during our cross over night.
I am surprised at the sudden blackish on the new enactment from prominent men of God when same laws exist in other jurisdiction, they have branches. We read the report from UK of the appointment of interim managers to replace the trustees of 2 prominent churches known in Nigeria on the allegation of mismanagement and misconduct.
I am of the opinion that if we (Churches) could abide by the charity laws in other jurisdictions similar to this section why the hypocritical attitude when same is introduced in Nigeria??
This new enactment has been in existence in other jurisdictions for years aimed at checking excess of charitable organization. The law is clear, once you submit to it you ought to abide by it. By registering under CAMA, you are bound by the law to comply with it.
The aim of the enactment is for transparency of the management of the association. It is worthy to note that the Section does not in any way suggest that churches are liable to pay taxes as argued by some agitators. The law is trite that Non-Profit organizations are not taxable.
However, where the charitable organization (Inclusive of Church) decides to diversify their fund into a commercial venture aimed at making profit, they would become liable to tax. The taxable income would be limited to the business aspect of the organization.
One of the greatest problems of the church today is lack of information, members are ready to take in everything said from the pulpit without recourse to verify the information.
Are we scared of living by what we preach? Are we scared of transparency and accountability? if No, the Church need to calm down.
If the agitators of this section base their argument on lack of faith in the Judiciary to perform its role without bias, well taking into consideration recent happenings in the country I might pitch a tent with the agitators.
However, the aim of the article is to clear the misconstrued interpretation that the commission holds a sole arbitrary power to suspend and appoint new interim managers without fair hearing from the association. The presentation of the petition to the court is not an exparte application both sides will be heard before an order is made. In my opinion the new enactment is a welcome development to the extent that the tenets of rule of law will be adhered to by the commission and the court. We all know that the government has done nothing but look away at the contravention of the application of income and property of the NGOs from time immemorial.
Will this section be used as a tool to witch hunt antagonist of the government??
Will this section be used to fish out the judas amidst the registered NGOs??
Will this section cause a change in the administration of NGOs (Churches Included)??
For the 1st and 2nd Question I a not a prophet that can see into the future and answer same but for the 3rd Question Yes. Trustees will be kept on their toes now that the law is like a lamp aimed at revealing the skeleton in our cupboards.