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.
According to the court, any attempt to apply the statutory requirement in a manner that restricts the enforcement of fundamental rights would conflict with the supremacy of the 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.”
She urged the appellate court to dismiss the appeal and uphold the trial court’s decision.
The Attorney-General of the Federation, represented by Principal State Counsel Samuel Gabriel, similarly argued that failure to serve the notice rendered the proceedings premature and incompetent.
Gabriel traced the principle of pre-action notice to the doctrine of sovereign immunity, contending that the National Assembly enjoyed protection as an institution of government.
He also cited Section 188(10) of the Constitution in support of his argument concerning immunity from judicial proceedings.
The AGF’s counsel further submitted that Ekpenyong’s action, commenced by originating summons for interpretation of CAMA provisions, was not properly a fundamental rights enforcement suit.
The CAC, listed as the second respondent, did not file a brief in the appeal.
Resolving the dispute, Justice Okorowo rejected the argument that the procedure adopted in commencing an action determined whether it qualified as a fundamental rights case.
“The character of a suit is determined not by its label or its mode of commencement but by the pith and substance of the claim,” the appellate court held.
The court also dismissed the contention that some fundamental rights could be subjected to procedural delays because no immediate threat to life had been established.
“The rights guaranteed by Chapter IV are not graded by urgency into those that may wait and those that may not; they are each of them, rights of immediate constitutional access,” Justice Okorowo declared.
On the reliance placed on Section 188(10) of the Constitution, the appellate court held that the provision concerned proceedings relating to the removal of a governor or deputy governor and could not be extended to confer general immunity on the National Assembly.
“It has nothing to do with the amenability of the National Assembly to a suit for the enforcement of fundamental right and cannot be pressed into service as a general charter of legislative immunity,” the court stated.
Justice Okorowo consequently held that Ekpenyong’s failure to serve a three-month pre-action notice did not invalidate his fundamental rights action against the legislature.
“And I hold that the failure of the appellant to serve a three-month pre-action notice on the 1st respondent pursuant to Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017 did not render the appellant’s fundamental rights action incompetent against the 1st respondent.
“The finding of the court below declaring the suit incompetent against the 1st defendant proceeded from a misdirection in law and from a reasoning internally inconsistent with the court’s own characterisation of the suit as sui generis, and it cannot stand.
“In the result, the appeal succeeds and is allowed,” the judge ruled.
The court accordingly set aside the portion of the Federal High Court judgment striking out the National Assembly and ordered its restoration as a party to the original proceedings.
“It is hereby DECLARED that the failure to serve a pre-action notice under Section 21 of the Legislative Houses (Powers and Privileges) Act, 2017, does not render a fundamental rights action incompetent against the 1st respondent, the requirement being inapplicable to proceedings for the enforcement of rights guaranteed under Chapter IV of the Constitution.
“The name of the 1st respondent, the National Assembly, is restored as a party to Suit No. FHC/ABJ/CS/1076/2020, and the substantive determinations of the court below on the merits, not being the subject of any appeal, are otherwise undisturbed.
“I make no order as to costs; each party shall bear its own costs of this appeal,” Justice Okorowo declared.
Justices Abba Mohammed and Eberechi Nyesom-Wike concurred with the lead judgment.
In a separate appeal filed by the Corporate Affairs Commission, the same appellate panel also upheld the Federal High Court judgment invalidating the challenged provisions of CAMA 2020.
The court dismissed the CAC’s appeal, affirming that the affected provisions were inconsistent with the Constitution and that Ekpenyong had the legal standing to institute the action challenging them.