Wednesday, 21 November 2018

NIGERIA: Court Bars CAC Lawyers From Deposing To Statutory Declaration Of Compliance Requirements For Registration Of New Companies

By Unini Chioma

Corporate Affairs Commission
*As Kano Based Lawyer, Ernest Nkwocha Fights For Fellow Lawyers
*Lawyers Needed For Registration Of Companies In Nigeria- Court Holds

A Federal High Court sitting in Kano presided over by Hon. Justice A. O. Egwuatu has on Monday the 19th of November, 2018 barred legal practitioners who are in the service of Corporate Affairs Commission (CAC) from further deposing to the Statutory Declaration of Compliance requirement for registration of new companies.

You may recall that on 5th April, 2017 the Minister of Industry, Trade and Investment amended Companies Regulation, 2012 by inserting amongst others, a new Regulation 11(b) which in essence whittles down the role of legal practitioners other than those who are in the employment of Corporate Affairs Commission in registration of companies and particularly from deposing to the Statutory Declaration of Compliance requirement of Section 35(3) of Companies and Allied Matters Act Cap. 20 LFN 2004., when first directors or subscribers to a Memo in respect of new company present application for new registration. Relying on the new Regulation, CAC had lavishly published to the public that lawyers are no longer needed for registration of companies in Nigeria.

Angered by the new Regulation and conducts of the Minister of Industry and CAC, Ernest Nkwocha Esq. a Kano based constitutional lawyer who is the Principal Counsel and Head of Chambers of Ernest Nkwocha Chambers, Kano and also a counsel in the law office of M.A. Lawan the current Chairman of Nigerian Bar Association, Kano., had dragged the Minister of Industry, CAC and Attorney General of the Federation to the Federal High Court arguing that the conducts of the Minister and CAC are unknown to the Nigerian laws.

Ernest Nkwocha had contended that the Sections 585 and 609 of CAMA the Minister placed reliance on do not in any way grant the Minister the power to make the kind of provision the Minister made in Regulation 11(b) of Companies Regulation 2012 (as amended), he stated that the only valid law the minister relied upon is Sections 16 of CAMA and argued further that the Section does not also grant the Minister such powers, he stated that Sections 16 of CAMA is a general rule while Section 35(3) of CAMA dealing with Statutory Declaration Compliance is a special and particular provision appearing subsequently to the general rule in Section 16.

He then argued that one does not need to be an astute lawyer to know the legal import and purport of this in our laws, He stated that one of the trite rules of interpretation of statutes is that generalia specialibus non derogant, and that this in law means that Section 35(3) of CAMA overrides the general rule in section 16 of CAMA.

In the suit filed on Friday, the 11th May, 2018 with suit no. FHC/KN/CS/86/2018 against the Minister of Industry, Trade and Investment, Corporate Affairs Commission and The Attorney General of the Federation where the respondents were represented by Dr. Femi Ogunlade and Bashir Imam while Ernest Nkwocha represented himself in person all through the proceedings and gave clear account of how the particular actions of the Minister and CAC violated his right as a private legal practitioner.

The court though dismissed the preliminary objection of the Attorney General of the Federation founded on jurisdiction and others, the court refused granting most of the reliefs sought by Nkwocha Ernest, but granted relief “F” sought and restrained legal practitioners in the employment of CAC from further deposing to or signing the Statutory Declaration of Compliance requirement of Section 35(3) of CAMA. What this means is that the Regulation 11(b) of Companies Regulation 2012 (as amended) has been rendered void and nugatory and the role of lawyers in registration of companies in Nigeria restored.

While reacting to the judgement, Ernest Nkwocha stated that “…this is neither a victory for me nor for Ernest Nkwocha Chambers because as you can see the court did not grant almost all the reliefs I sought. However, I think this is a victory for Nigerian Bar Association particularly for her teeming young members who do settle for this area of law practice and whose right to practice this area of their profession had been illegally restricted and curtailed.

When you advertise to the world that lawyers are not needed for registration of companies in Nigeria, you are making a mockery of the whole system and creating the impression that people here do not have brains in their skulls because every serious minded investor be it local or foreign knows the importance of seeking professional legal services in business except you only want to attract mediocres as investors.

I sincerely commend the presiding judge for a very robust and well researched judgement. However, we would further beam the legal searchlight on the judgement towards finding what options there are for us. I cannot really say much now until I had studied the judgement.”

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