Enforcement Of Fundamental Rights Of Companies In Nigeria By Chidera Nwokeke

This article examines the enforcement of fundamental rights of
companies and its possibilities in Nigeria.  However, the
argument on this subject matter is not novel because some persons
claim that companies should not enjoy any fundamental right at all
on the ground that they were not in contemplation by the Nigeria
Constitution.  Without prejudice to their argument, the pith
of this article is that the fundamental rights of companies can be
enforced in Nigeria without having regards that companies are not
natural persons. Going further, this article will not consider the
different categories of companies (public and private) but on
certain rights companies can enjoy and how it can be enforced.

The concept of fundamental rights and the arguments on its
definition is not novel.  The learned authors of
Black’s Law Dictionary, 9th edition, page
744, describes the term fundamental right as a right
derived from natural or fundamental law. The court in plethora of
cases particularly in the case of OSONDU & ANOR V
AG ENUGU STATE & ORS (2017) LPELR-CA/E/25/2016
defined fundamental right to mean any of the rights provided for in
chapter IV of the constitution and includes any of the rights
stipulated in the African Charter on Human and People’s Rights
(Ratification and Enforcement) Act.

It is pertinent to state that in law, the fundamental rights
cannot exist except if the following indices are available:

(a)  The Subject of the right: This is the right holder. He
is the person on whom the law confers the freedom or power to act
or not to act and the capacity to permit a person to act or compel
another not to act. In the context of this article, the subject of
the right is the company.

(b)  The duty bearer: This is the person on who the law
imposes an obligation to respect the right assigned to the right
holder.

(c)  The object of the right: This is the purpose for which
the right is prescribed.

Fundamental rights have always been seen as a prevention of
dictatorship and despotism.  The Court in the case of
KELVIN PETERSIDE V IMB (1993) 2 NWLR (PT. 278)
710, held that it is a long settled issue that a
company could be liable for infraction of fundamental rights and
can also enforce same. In the case of ONYEKWULUYE v
BENUE STATE GOVERNMENT (2008) 8 NWLR (Pt. 28) 614,
the court of appeal held that a limited liability company is a
persona ficta- a juristic personality which conducts its affairs
through its agents like the managing director, directors and others
and as such, it will not be correct to say that fundamental rights
do not apply to artificial persons – OMEGBA & ORS V
DG NBC (2001) 1 FHCLR 547, ROBINSON INTERNATIONAL INSPECTORATE
LIMITED V ISEGHOHI (2000) 1 FHCLR 410

It is apposite to have a succinct overview on the corporate
personality of companies in Nigeria, to ascertain if they can enjoy
these fundamental rights.  The court in the case of
CDBI V COBEC (NIG)  LTD (2004) 13 NWLR (PT. 948)
376 held that as from the date of incorporation
mentioned in the certificate of incorporation, the subscribers of
the memorandum together with such other persons as may from time to
time become members of the company shall be a body corporate by the
name contained in the memorandum capable forthwith of exercising
all the powers and functions of an incorporated company including
the power to hold land and having perpetual succession and a common
seal.

Where a company is registered under the Companies and Allied
Matters Act or any other previous Act, it continues to retain its
status of a legal entity distinct from its members.  Companies
upon its incorporation is regarded as a person and the word
“Person” was defined in the case of KASANDUBU V
ULTIMATE PETROLEUM LTD (2008) 7 NWLR (PT. 1086) 274
to mean both artificial and natural persons and includes sole or
public bodies, corporate or incorporate.

In the Interpretation Act, the word “Person” is defined as
including any company or association or body of person, corporate
or incorporates. Corporate bodies are separate legal persons
capable of owning properties, entering into contracts and suing or
being sued- JIBO v. MINISTRY OF EDUCATION & ORS
(2016) LPELR-CA/OW/425/2013

Perusing from the aforementioned points, important question
often arise as to whether companies not being a natural person are
entitled to the same fundamental rights guaranteed by the Chapter
IV of the constitution and the African Charter available to natural
persons?

Chapter IV of the Constitution of Nigeria talks about the
fundamental rights.  However, there is a thin line of division
between the rights provided in this chapter.  While some of
these rights are available only to citizens others are available to
persons.  In circumstances where the constitution confers a
particular right to be enjoyed by citizens in contradiction to
those enjoyed by all. The constitution has used the phrase “Every
Citizen” or “A citizen” and in some sections the phrase “Every
Person” is also used.

It is in this context that the difference between persons and
citizens become vital to determine the right companies can
enjoy.  However, a question that crosses the mind at this
point is, can companies also enjoy fundamental rights that are
specifically assigned to citizens by the wordings of the
constitution? I answer in the affirmative. Firstly, it is important
to consider what is citizenship? The concept of citizenship in the
1999 constitution is provided for in Chapter III but unfortunately,
the word is nowhere defined either in the chapter or in
Section 318 dealing with interpretation.  The
word “Citizenship” has been defined by the Black’s Law Dictionary
as pertaining to a person who under the constitution and the laws
of a particular state is a member of the political community owing
allegiance and being entitled to the enjoyment of some fundamental
rights

Going by the provisions of Section 25, 26 and 27 of 1999
constitution of Nigeria, there are 3 categories/mode of acquiring
citizenship. A clear reading of the provisions will show that the
draftsmen never had the companies in mind to be a citizen or
acquire same. Howbeit, it is barefaced that from the definition and
mode of acquiring citizenship, that a company is not a citizen. But
it is my humble contention that even if companies are not citizens,
they can still enjoy certain fundamental rights specially assigned
to citizens. A perusal on certain sections of chapter IV will be
essential and they include:

Right to acquire and own immovable property anywhere
in Nigeria: This right is guaranteed under
Section 43 of 1999 CFRN and it provides:
“Subject to the provisions of this constitution, every citizen
of Nigeria shall have the right to acquire and own immovable
property anywhere in Nigeria”. Immovable property as the name
shows refers to landed property (empty lands and or buildings on
same). It is apposite to state here that even  though the
constitution stated that citizens have the right to acquire
immovable property, a company as an independent legal personality
though not a citizen can acquire properties (moveable and
immovable) in its name for the purpose of its existence and service
in anywhere in Nigeria.

The right to acquire immovable property by a company is not the
prerogative of any member or director of the company but that of
the company itself. In the case of MACAURA V NORTHERN
ASSURANCE CO LTD (1935) AC, P.615, the court held
that members of a company have no insurable interest in its
property as the property belongs to the company.  However,
this right to acquire land or an interest in land, like any person
is subject to the requisite approval as provided in the Land Use
Act 1978.

Right against compulsory acquisition of
property: This right is guaranteed under Section 44
(1) of 1999 CFRN and it provides: “No moveable property or any
interest in an immovable property shall be taken possession of
compulsorily and no right over or interest in any such property
shall be acquired compulsorily in any part of Nigeria except in the
manner and for the purposes prescribed by a law that, among other
things-

• Requires the prompt payment of compensation therefore and
• Gives to any person claiming such compensation a right of
  access for the determination of his interest in the property and
  the amount of compensation to a court of law or tribunal or body
  having jurisdiction in that part of Nigeria.

Implicit in this provision is that no moveable or immovable
property of a company shall be acquired compulsorily by another
company, government or individual without paying the necessary
compensation. However, it is pertinent to note that the government
can acquire immovable properties of a company but such acquisition
must be for public purpose as Section 28 of Land Use Act, 1978
provides that private lands must be acquired for public purposes.
So, where the government acquires a company’s immovable property or
land for a purpose other than public, the court will nullify such
acquisition.

Subsection 1(b) of 44 of 1999 CFRN gives to any person claiming
for compensation the right to approach the court for the
determination of interest in the property and the amount of
compensation. The court in the case of TELL
COMMUNICATION LIMITED & ORS V STATE SECURITY SERVICE (2002) 2
HRLRA 104 @ 138-139 the Respondents joined issues
with the applicants over the competence of the 1^st
applicant, a publishing company to sue for the enforcement of its
fundamental rights under the FREP Rules. In overruling the
preliminary objection, Adeyinka J. (as he then was) held
that the 1^st applicant Tell Communications Limited is
competent to institute an action under Section 40, 1979 CFRN and to
hold otherwise will mean that the Federal Government of Nigeria can
acquire the property of a company without compensation.

Right to Freedom of Expression: This
right is provided for in Section 39(1) of 1999 CFRN and it provides
“every person shall be entitled to freedom of expression, including
freedom to hold opinions and to receive and impart ideas and
information without interference”. The freedom of expression is of
utmost importance that even the government cannot do without it.
This right is available to companies to express their view and hold
diverse opinions of their choice. However, this is not a blanket
right. It must not be utilised or invoked in such a way that it
offends public safety, order, morality and must not be injurious to
the rights and freedom of other persons.

In CONCORD PRESS NIGERIA LIMITED V AG FEDERATION
& ORS (1994) FHCLR 144; PUNCH NIGERIA LIMITED & ANOR V AG
FEDERATION & ORS (1998) 1 HRLRA 488 – both
applicants separately challenged the closure of their business
premises under the 1979 FREP Rules. The Federal High Court upheld
the contention of the applicants that the Federal Military
Government violated their fundamental right to freedom of
expression. Apart from ordering the reopening of the companies’
premises, the court awarded exemplary damages against the
respondents.

Right to Fair Hearing: This right is
provided for in Section 36 of 1999 CFRN. The court in the case of
MARTMAN TRANSPORT LIMITED V AG FEDERATION (2003) 2
FHCLR– it was held that a limited liability company
can enforce an action for fair hearing as provided in Chapter IV of
the constitution. A company is also entitled to legal practitioner
of their choice if they have any matter in court and are entitled
to receive court processed served at their registered office
address.

Right to Freedom of Association:
Section 40 (1) of 1999 CFRN provides “that every person shall be
entitled to…freely associate with others and in particular, he may
form or belong any political party, trade union or any other
association for the protection of his interest”.  The import
of this section is that every company in Nigeria is free to relate
with other companies by way of joining associations for the
protection of their interest. A company can maintain an action
where they are forced to join association that they are not
interested in.

Going further, it is pertinent to outline the procedure a
company will use to enforce their fundamental rights when breached
or likely to be breached. Section 46 (1) and (2) of Chapter IV of
1999 CFRN vests jurisdiction over enforcement of fundamental rights
on the High Court. The section provides as follows: “Any person who
alleges that any of the provisions of this chapter has been, is
being, or is likely to be contravened in any state in relation to
him may apply to a High Court for redress. Although the 1999 CFRN
does not define “Court”, Order 1 Rule 2 2009 FREP Rules defines
Court as the Federal High Court, or High Court of a State or the
High Court of the FCT, Abuja.

Section 46(1) merely empowers or enjoys any aggrieved person
(natural person or juristic person) to seek redress in the High
court. For a company to commence an action for enforcement of their
right, such action must be made by any originating process which is
accepted by that court. The application shall, subject to the
Rules, lie without leave of the court. Such originating process
shall be supported by a statement setting out the name and
description of the applicant and the relief sought and the grounds
upon which the relief is sought. An affidavit setting out the facts
upon which the application is made and a written address- Order II
Rule 3.

In conclusion, it is now a settled position of our law that the
provisions in chapter IV of the Constitution are enforceable not
only by natural persons but also artificial persons. It is
important that the fundamental rights of companies are preserved
because it is essential for the growth of Nigeria. If companies are
expected to perform their duties and obligations according to the
laws of Nigeria for the interest of others, then at the same time
their rights and interest should also be protected. The importance
of companies to our nation’s economy and industrial development
cannot be overemphasised. I humbly submit that if companies can be
held liable under CAMA and other laws of Nigeria when they default
or contravene same, there should be no restriction of any kind to
the enforcement of their fundamental rights and it should be
preserved.

Written by Chidera Nwokeke

Chidera Nwokeke, is a graduate of Law from Ebonyi State
University, a law school candidate. He is academically motivated
and has passion for research in several areas of law. He has a keen
interest in dispute resolution, Litigation, Human Right and
Corporate Law Practice. He can be reached at [email protected]^[1] or
08120945787  

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