The Court of Appeal in Abuja has overturned a Federal High Court decision striking out the National Assembly as a party to a suit challenging provisions of the Companies and Allied Matters Act (CAMA) 2020, ruling that failure to serve a three-month pre-action notice cannot invalidate proceedings instituted to enforce fundamental rights.
In a unanimous judgment delivered by Justice Donatus Okorowo, a three-member panel held that the constitutional right of citizens to seek judicial redress for alleged violations of their fundamental rights cannot be restricted by statutory requirements for pre-action notices.
The appellate court consequently restored the National Assembly as a party to the suit in which the Federal High Court had declared several provisions of CAMA 2020 unconstitutional.
The judgment, delivered on September 17, 2026, was contained in a certified true copy sighted in Abuja on Friday.
Justice Okorowo held that Section 21 of the Legislative Houses (Powers and Privileges) Act 2017, which provides for pre-action notice, could not override the constitutional guarantee of access to court under Section 46(1) of the 1999 Constitution.
“Section 21 is a subsidiary requirement that cannot lawfully clog the right of immediate constitutional access conferred by Section 46(1) and, largely, Chapter IV of the Constitution and it is, to the extent applied to a fundamental rights claim, void under Section 1(3) of the Constitution,” the court held.
The judgment arose from an appeal filed by constitutional lawyer Emmanuel Ekpenyong of Fred-Young & Evans LP, challenging the decision of Justice James Omotosho of the Federal High Court, Abuja, to remove the National Assembly from his fundamental rights enforcement suit.
Ekpenyong had instituted the original action, marked FHC/ABJ/CS/1076/2020, against the National Assembly, Corporate Affairs Commission (CAC) and Attorney-General of the Federation (AGF), challenging the constitutionality of several provisions of CAMA 2020.
In the originating summons filed on August 31, 2020, the lawyer questioned whether Sections 839, 842, 843, 844, 845, 846, 847, 848 and 851 of the Act violated constitutional guarantees relating to freedom of thought, conscience and religion, freedom of association and peaceful assembly, and access to the courts.
He relied on Sections 38, 40, 4(8), 6(6)(b), 36(1) and 251(1)(e) of the Constitution.
Delivering judgment in the substantive suit, Justice Omotosho agreed that the powers granted to the CAC to regulate and administer incorporated trustees under the challenged provisions were excessive and inconsistent with constitutional guarantees.
The trial court consequently declared Sections 839, 842, 843, 844, 845, 846, 847, 848 and 851 of CAMA 2020 null and void.
Justice Omotosho particularly held that Section 851, which empowered an Administrative Proceedings Committee to determine matters relating to the Act, was inconsistent with Section 251(1)(e) of the Constitution, which confers jurisdiction over specified company matters on the Federal High Court.
However, the judge struck out the National Assembly from the proceedings on the ground that Ekpenyong had failed to serve the legislature with the statutory three-month pre-action notice.
Dissatisfied with that aspect of the judgment, Ekpenyong filed an appeal dated April 28, 2023, marked CA/ABJ/CV/735/2023.
He argued that the trial judge erred in law by declaring his suit incompetent against the National Assembly solely because he had not served a pre-action notice.
The appellant maintained that Section 46(1) of the Constitution did not impose such a requirement on citizens seeking to enforce their fundamental rights against government agencies or statutory bodies.
He further relied on the Fundamental Rights (Enforcement Procedure) Rules, arguing that their overriding objective was to advance, rather than restrict, the enjoyment and enforcement of constitutionally guaranteed rights.
Opposing the appeal, counsel to the National Assembly, Mrs. Bukola Adeagbo, submitted that pre-action notice was a condition precedent to instituting proceedings against the legislature.
She argued that failure to comply with the requirement deprived the trial court of jurisdiction to entertain the suit.
Adeagbo further contended that the fundamental rights claimed by the appellant were “mere rights which can wait for the notice to be given since no life is at risk.”