Enforcement of fundamental rights of companies in Nigeria

By Nwokeke Chidera

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 1st 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 1st 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.

Chidera Nwokeke, a graduate of Law can be reached at Nwokekechidera@gmail.com

FG to generate $800m revenue from concession of Abuja, Kano airports, says Sirika

From Abubakar Yunusa Abuja

Hadi Sirika, the minister of aviation, says the federal government will generate about $800 million from the concessioning of two international airports.

The federal executive council (FEC) approved the concessioning of the Nnamdi Azikiwe International Airport (NAIA), Abuja, and the Mallam Aminu Kano International Airport, Kano.

Speaking to journalists after the FEC meeting, Sirika said the Abuja airport would be concessioned for 20 years, while the international airport in Kano will be concessioned for 30 years by Corporación America Airports.

Sirika also said the approval was part of the ministry’s roadmap aimed at putting the nation’s assets under concession rather than privatisation.

According to the minister, the concession would generate $797.4 million (N368.8 billion) as fees and taxes from the concessionaire.

“Put together, it is about $800 million. And this is equal to the amount of money that we borrowed to build those four airports,” Sirika said.

“The consortium that won the bid is Mssr Corporación America Airports consortium and in the consortium, they have Mssr MotaEngil Africa and Mssr Mota-Engil Nigeria and this is through a PPP, and it’s for 20 years for Abuja, and 30 years for Kano.”

Speaking further on revenue expected from the deal, Sirika gave a breakdown of the amounts payable to the government as fees and taxes.

“The concession fees or upfront fees for Abuja is $7 million while $1.5 million will be given for Kano. The fixed concession fee is $401.2 million for Abuja and fixed fees for Kano is $21 million,” he said.

“The variable costs concession fee is $154 million for Abuja, and $26.9 million for Kano. Tax $111.2 million for Abuja and $42.7 million for Kano. The Infrastructure Concession Regulatory Commission (ICRC) supervision fees for Abuja is $16.4 million and $5.3 million for Kano.

“So, the total amount of money that is accruing to the government is $700 million for Abuja and then $97.4 million for Kano.”

The aviation minister also said the aforementioned fees are different from the direct fees the Federal Airports Authority of