The New Company Law and the Constitutional Rights

A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognised and established by a sovereign state or union of states.

The Companies and Allied Matters Act, 2019 recently signed into law by the President of the Federal Republic of Nigeria is a welcome development to Nigerian businesses. It has addressed the bottlenecks in formation of business entities and improved Nigerian corporate governance.

It has also given leverage to small companies to thrive and incorporated technological innovations to the processes of the Corporate Affairs Commission to facilitate the ease of doing business in Nigeria.

However, the legislature in extending the powers of the Companies’ Registry to effectively regulate the activities of Churches, Islamic Religious Organisations, Charity and Non-Government Organisation which are registered as Incorporated Trustees has introduced some new provisions in the new CAMA which are capable of usurping the fundamental rights of citizens to their freedom of thoughts, conscience and religion, freedom of peaceful assembly and association and constitutional rights of access to Courts.

The Plaintiff contends that Section 839 of the new CAMA which gives power to the Companies’ Registry to remove trustees and appoint an interim manager to take over an association where it reasonably believes that there is misconduct, mismanagement, fraudulent practices, for protection of the property of the association and public interest; Section 842, Section 843, Section 844 of the new CAMA which gives the Companies’ Registry the powers to control the proceeds of a dormant account of an association and dissolve an association on account of its dormant account; Section 845, Section 846, Section 847 and Section 848 of the new CAMA which directs associations to keep and submit their statement of affairs and accounting records to the Companies’ Registry, infringes the Plaintiff’s freedom of thoughts, conscience and religion enshrined in Section 38 of the Constitution of the Federal Republic of Nigeria, 1999.

The Plaintiff opines that Churches, Islamic religious organisations, Charity and Non-Governmental Organisations give hope to the Plaintiff and the Nigerian people. The activities of associations augment the efforts of government. They act as watchdogs for the people and put the government in check.

It is unfortunate for the provisions of the new CAMA to put the activities of associations under the complete whims and caprices of the Companies’ Registry which is an agency of the Federal Government.

The law provides for every association to have a Constitution which regulates the affairs of the association and protect them against misconduct, mismanagement, fraudulent or other activities which are contrary to the objects of the association.

Hence, the Companies’ Registry has no business whatsoever in suspending trustees and appointing interim managers for them. This is a sure recipe for disaster. The activities of associations are not against public interest to warrant such draconian provisions.

The funds of associations are not public funds. They are contributions, offerings and freewill donations of members to carrying out their objectives. There is no legal justification for the Companies’ Registry to be interested in the dormant account of associations.

Associations are non-profit making organisations. They are not business ventures as such the Companies’ Registry cannot be ingrained in the affairs of associations by expecting them to submit statement of affairs or accounting records to the Registry.

The Plaintiff has a freedom to his thought, conscience and religion alone or in community with others. The Plaintiff has a right to propagate his religion, worship, teaching, practice and observance in public or private and does not even need to register same with the Companies’ Registry to propagate same.

Therefore, giving powers to the Companies’ Registry who is an outsider and complete stranger to determine the affairs of a place where the Plaintiff professes his thoughts, conscience and religion is an aberration which is in contravention of Section 38 of the Constitution.

Furthermore, the Plaintiff contends that Section 839, Section 843, Section 844, Section 845, Section 846, Section 847 and Section 848 of the new CAMA infringe his freedom to peaceful assembly and association. This is because the Companies’ Registry has a wide discretion to appoint interim managers to replace suspended trustees.

The interim managers to be appointed by the Companies’ Registry may have nothing in common with the members of the association and the members will not have a right to challenge such appointment.

This will impair the rights of members of associations to actively participate in activities of their associations and determine its direction. The enormous and dictatorial powers given to the Companies’ Registry to intrude and interfere with the operations and management of associations is not legally justifiable.

The use of phrases such as “is satisfied”, “reasonably believes”, “deem it necessary”, “public interests” in relation to the powers of the Companies’ Registry over associations are ambiguous phrases that can easily lead to an abuse of power by the Companies’ Registry and contravene the Plaintiff’s freedom to associate peacefully with other persons enshrined in Section 40 of the Constitution.

Again, the Plaintiff contends that the provisions of Section 851 of the new CAMA which gives powers to the Administrative Proceedings Committee to hear cases arising from the provisions of the new CAMA limits the Plaintiff’s constitutional rights of access to Courts. Section 6 and 6 of the Constitution confers judicial powers to the Courts. Section 36 of the Constitution gives citizens the right to access an independent and impartial Court to determine their civil rights and obligations.

Section 251 of the Constitution provides for the Federal High Court to hear any matter arising from the provisions of the new CAMA.

Hence, the provision of Section 851 of the new CAMA comes as a very huge surprise. The composition of the Administrative Proceedings Committee is made up mostly of employees of the Companies’ Registry who are involved or aware of the issue which caused the dispute in the first place.

It is against the principle of natural justice for a person to be a judge in his own case. In most disputes arising from the provisions of the company law or regulations, the Companies’ Registry is usually a party to the dispute.

The Companies’ Registry cannot independently and impartially determine a dispute which it is also a party. If this is allowed the Companies’ Registry will be a party and judge in its own case.

It is without doubt that Section 851 of the new CAMA is contrary to the Plaintiff’s rights of access to Courts enshrined in Section 6 6, Section 36 and Section 251 of the Constitution.

In conclusion, the Plaintiff contends that his freedom of conscience, thoughts and religion, freedom of peaceful assembly and right to access to Court are so serious and the only way to ensure that the rights are protected in the circumstance, is for the provisions of Section 839, Section 843, Section 844, Section 845, Section 846, Section 847 and Section 848 and Section 851 of the new CAMA to be expunge from the new CAMA.

The Plaintiff prays for an order of mandatory injunction of the Court directing the Defendants to expunge the offending provisions of the new CAMA.

Incompetence of The French Judicial Tribunal

This article establishes a new derogatory scheme creating a possibility to challenge the competence of the judicial tribunal. The judicial tribunal was recently created with the merger of the TGI and the TI, such jurisdictions dealing with civil matters. Due to the coronavirus Covid-19 sanitary crisis, legal practitioners did not really have the time to test this new regime.

As a general rule, an incompetence exception has to be raised in limine litis, that is to say, at the first hearing, before any discussions on the ground of the case, and by way of principle, before the same judge ruling on the case. On the contrary, and by way of derogation, the new scheme sets up a possibility to raise an incompetence exception, before the first hearing, either the parties or the judge raising it. If trigged, the parties or their lawyers are informed right away by any means giving fixed date. In this perspective, the file is transmitted to the registry of the judicial tribunal, which in turn, transfers the case to a designated judge.

The competence of this newly appointed judge may also be challenged, by him or the parties, during a period of 3 months, by the transfer of the case to the President of the judicial tribunal. According to the new regulation, the President of the judicial tribunal has to transfer the case to a new appointed judge, and such a decision cannot be challenged. However, the competence of this new appointed judge may be challenged before this new judge by the parties, and the decision ruling on the competence may be appealed within a period of 15 days, as of the date of the notification of the decision.

The President of the judicial tribunal appears to be the keystone of the scheme, which is in line with the role usually attributed to him, as already in charge for example of summary proceedings. The fixed date and the 3 months timeframe appear to be crucial, and purport to avoid endless discussions on the competence.

However, and surprisingly, this new scheme creates a very sophisticated legal architecture, not to mention the potential right to call the case before the French Cour de cassation. In such a context, these new rules may unfortunately be used to artificially challenge a procedure and lengthen it. An author has recently described this mechanism as a potential Trojan Horse, allowing dilatory procedures.

This remains true to a certain extent, as this new Article 82-1 has been introduced in a context where, on the contrary, a lot of other procedural rules are aimed at streamlining the procedure e.g. concentration of the legal means, estoppel or prohibition of dilatory procedures.

In a constant movement, the French Cour de cassation draws the outlines of the concentration of the legal means principle. The French Cour de cassation, recently stated that the plaintiff, before any ruling on the case, has to expose all the legal means considered as the ground for the claim. This means that, in a same instance, an overruled legal claim cannot be raised again in connection with another ground based on the same object, as the one on which the tribunal has already definitely stated. According to this case law, the rule of the concentration of the legal means, uses the same underpinned concept as the fin de non-recevoir, but is not an exception procedure as rather deals with the ground of the case.

It remains to be seen however how this case law and all the case law hereof, will be used by legal practitioners to limit the import of this new Article 82-1. In this perspective, it is reasonable to think that they may wish to use the concentration of the legal means principle, also in connection with procedure exceptions, such as incompetence.

In addition, the estoppel theorie, albeit originally English law concept, is now part of the French legal system. In a considerably important decision, the French Cour de cassation, recognised and introduced into French law, this Anglo-Saxon concept and considers it as a fin de non-recevoir. In this respect, the French Cour de cassation has stated that actions of the same nature based on the same conventions, opposing the same parties may give rise to a sanction, provided that a party kept contradicting itself, at the expenses of others. More specifically, the French Cour de cassation, Civ. 2, dated 15 March 2018 reiterated this position, ruling that « the principle according to which no one may contradict itself at the expenses of others, sanctions the procedural attitude consisting, for a party, during a same instance, to adopt contrary or incompatible positions leading the adversary in error as to its intentions ». Thus, it is reasonable to think that legal practitioners will use, inter alia, the estoppel theory to limit the possibility to use incompetence exceptions. In addition, even if the contradiction may occur in the same instance, it cannot be excluded that a judge may wish to streamline the procedure and prevent a party from utilising incompetence exceptions several times, in a same context.

A judge would also have the possibility to use article 32-1 of the French Code de procédure civile, which states that a person acting in justice in a dilatory manner may be convicted to a civil fine up to 3.000 euros, without prejudice of damages that would be claimed. In that event, the amount related to the civil fine is paid to the French Trésor Public.

To remain in the real trend of the procedure regulation, i.e. constant equilibrium between defence rights and efficiency of the legal system, judges and legal practitioners are in the position to put forward a strict construction of Article 82-1 of the French Code de procédure civile. Constructions rules are clear in this respect: exceptions or derogations have to be interpreted strictly, and the scheme created is created by way of exception.

This means that each time a lawyer would invoke a competence exception on the basis of this new Article 82-1, the judge would have to conduct a teleological construction, in the view of maintaining a sufficient level of efficiency of the procedure, especially in a context where ECHR already imposes an effective recourse in every steps of the procedure and numerous litigations deal with international matters, allowing the parties to raise incompetence exceptions, also on the ground of judicial international private law.

Liability of the French State and Judicial Review

On 24 December 2019 the Conseil d’Etat ruled that indemnification can be granted under French law on the ground of a prejudice suffered due to the application of a law ruled contrary to the Constitution by the Conseil Constitutionnel.

The Conseil d’Etat now leaves the door open to a new possibility for indemnification, within the framework of a QPC examination or by application of Article 61 of the Constitution. Based on the hierarchy of norms, this new kind of liability of the State is stated in three decisions dated 24 December 2019.

This new regime lives now next to the already existing liability due to the application of the law based on equal treatment before public burdens.

A QPC is a question raised by a tribunal or a court aiming at determining the conformity of a law to the Constitution. Article 61-1 of the French Constitution states in this respect that during an instance before a tribunal or a court, a plaintiff can support the view that a law contravenes rights and liberties guaranteed by the French Constitution.

In such a situation, the Conseil Constitutionnel can be seized after remand of the case by the Conseil d’Etat or the Cour de Cassation.

The general principle under French administrative law is that the French State can be sued simply because of the application of a law, provided that the plaintiff has suffered a prejudice qualifying as important and specific and the law in question does not exclude the possibility for a plaintiff to be indemnified.

This type of liability is applicable even if the French State is not considered as being in default with the application of the law and is named liability without misconduct.

This possibility started in France at the beginning of the 20th century, with the admission of liability without misconduct of the French State due to an administrative decision of non-enforcement of judicial decisions. In such a case, in the general interest, the French State may decide not to enforce a judicial decision, but in turn, has to indemnify the plaintiff. The ground for indemnification is the breach of equal treatment before public burdens principle.

This principle is taken from the French 1789 declaration of the human rights and the citizen: each member of the community has to bear a certain amount of public burdens, but equal treatment shall prevail.

This principle has expanded thereafter with the admission of such a claim against a law by the Conseil d’Etat in 1938. Such a case establishes that, in the silence of the said law, a plaintiff shall not bear a charge created by a law that he / she would not normally lie with, it being specified that, in the event of silence of the said law, such law shall not be considered as excluding the liability of the French State.

The liability of the French State can also be triggered due to its obligations to ensure the application of its international conventions, to indemnify all the prejudices resulting from the application of a law passed illegally because contrary to an international convention.

Now, according to the new decisions of the French Conseil d’Etat dated 24 December 2019, the other grounds for indemnification are that the decision of the Conseil Constitutionnel does not decide that no indemnification shall be granted either by excluding it expressly or by letting alive all or only a part of pecuniary effects caused by the law, that an indemnification would challenge, the existence of a prejudice and the link between the prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be indemnified in the following conditions: no express exclusion of indemnification by the Conseil Constitutionnel no all or part of pecuniary effects left alive by the Conseil Constitutionnel that an indemnification would challenge and a link between the prejudice and the unconstitutional application of the law.

According to the decision of the Conseil d’Etat, certain pecuniary effects of the law declared unconstitutional may prevail upon an indemnification.

In this respect, it is reasonable to think that an administrative judge would apply an economic balance check between the necessity of indemnifying the plaintiff and the profit of letting alive all or only a part of pecuniary effects caused by the unconstitutional law. An economic balance check is already applied in other circumstances, by the Conseil d’Etat.

In this perspective, it is reasonable to think that the application of an unconstitutional law may survive if it is more interesting from an economic point of view. This mentioned carve out is quite important as it gives the possibility to the Conseil Constitutionnel to let alive, even if the law is declared unconstitutional, and then cancelled, parts of its pecuniary effects.

In addition to the breach of equal treatment before public burdens principle, it can be suggested that other principles may underpin this kind of liability: preservation of legal safety and /or granted rights, and / or economic balance check, to take into account all the adverse financial effects that an indemnification would cause.

The claim for indemnification can obviously be barred by effluxion of time, it being specified that the 4 years period during which such a claim can be brought only starts if the prejudice resulting from the application of the law may be known in its reality and its scope by the plaintiff, without the possibility for him or her to be regarded as ignoring the existence of his / her right to claim until the declaration of unconstitutionality.

The indemnification request has to be brought before the administrative judge. It remains however to be seen whether legal practitioners will try to use these decisions of the Conseil d’Etat to sue the French State before the judicial order.

Under French law, the French Conseil d’Etat is the highest court entitled to address administrative cases and is part of the administrative order whereas the judicial order is composed of judiciary tribunal and courts and is competent for private matters. How dealing with the fact that a tribunal or a court may apply deliberately after the declaration of unconstitutionality a law previously declared unconstitutional outside the scope of the carve out of the ratio decidendi of the Conseil d’Etat?

Would Article 141-1 of the Code de l’organisation judiciaire, which gives competence to the judicial order in the event of indemnification of a prejudice due to malfunction of judicial public service, apply? It is reasonable to think that such indemnification would not be allowed even if legal practitioners may wish to test it, and may be, open this possibility, for the residual adverse effects on the plaintiff of the law declared unconstitutional.

Law Offices of Howard G. Smith Announces Securities Class Action

Law Offices of Howard G. Smith announces that a class action lawsuit has been filed on behalf of investors who purchased Avon Products, Inc. (“Avon” or the “Company”) (NYSE: AVP) securities between August 2, 2016 and August 2, 2017, inclusive (the “Class Period”). Avon investors have until April 15, 2019 to file a lead plaintiff motion.

Investors suffering losses on their Avon investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com.

On August 3, 2017, Avon issued a press release announcing its second quarter 2017 financial results and held a conference call to discuss the results. The Company reported a net loss of $0.12 per share and a 3% decline in active representatives. Avon also reported that Brazil revenue was “down 2% in constant dollars, primarily driven by a decrease in Active Representatives.” On the call, Avon’s Chief Financial Officer acknowledged that, despite Avon’s earlier representations, the remedial actions in Brazil (i.e., stricter credit terms applied to recruiting new representatives) were negatively impacting active representatives and revenue in Brazil. On this news, shares of Avon fell $0.36, or 10.71%, to close at $3.00 per share on August 3, 2017, thereby injuring investors.

The Complaint filed in this class action alleges that Defendants made materially false and misleading statements and/or failed to disclose that: (1) Avon was engaged in an undisclosed scheme whereby it significantly loosened its credit terms in order to recruit new representatives in Brazil, its largest market; (2) its specific credit terms in Brazil; (3) Avon failed to increase its allowance for doubtful accounts to account for the changes to its credit terms in Brazil; and (4) as a result of these concealments, Avon stock was trading at artificially inflated prices throughout the class period.

If you purchased shares of Avon, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020 by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at http://www.howardsmithlaw.com/

This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules.

Clifford Law Offices Recognised by Best Lawyers

Ten Clifford Law Offices lawyers have been included in the 2020 Edition of The Best Lawyers in America. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Since 1984, Clifford Law Offices has been dedicated to serving the needs of clients in the Chicago area and throughout the nation. Today, we are one of the premier law firms in Chicagoland and are known nationally for our success in complicated legal matters.

Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

Several of the recognised attorneys at Clifford Law Offices have been listed in Best Lawyers for years. Robert A. Clifford has been listed as a Best Lawyer for over 25 years.

The following lawyers were named to the 2020 The Best Lawyers in America list:

  1. Richard F. Burke, Jr. (Recognised in Best Lawyers since 2015)
  2. Robert A. Clifford (Recognised in Best Lawyers since 1993)
  3. Bradley M. Cosgrove (Recognised in Best Lawyers since 2019)
  4. Sean P. Driscoll (Recognised in Best Lawyers since 2018)
  5. Kevin P. Durkin (Recognised in Best Lawyers since 2011)
  6. Keith A. Hebeisen (Recognised in Best Lawyers since 2011)
  7. Shannon M. McNulty (Recognised in Best Lawyers since 2015)
  8. James C. Pullos (First year recognised in Best Lawyers)
  9. Henry Simmons (Recognised in Best Lawyers since 2019)
  10. Robert P. Walsh (Recognised in Best Lawyers since 2018)

“Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession.

After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says Chief Executive Officer Phillip Greer.

About Clifford Law Offices

Clifford Law Offices is ranked as one of the top law firms in Illinois and the country. They are recognised leaders in aviation litigation, complex personal injury, wrongful death cases, medical malpractice, products liability, premises liability and transportation litigation.

Clifford Law Offices also has a reputation in class action litigation, whistle-blower cases and commercial litigation cases.

Singapore Convention on Mediation

The signing ceremony for the United Nations Convention on International Settlement Agreements Resulting from Mediation was held on 7 August 2019 in Singapore.

The United Nations is an intergovernmental organisation whose purpose is to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a centre for harmonising the actions of nations.

There is a great expectancy by the players involved in international commercial disputes concerning what really wait from this point in the mediation international scenario.

It is true that the Convention is a milestone. An international convention is very likely to bring us various benefits, and contribute with the development of mediation as an adequate method of dispute resolution in the international arena.

Many users are expecting the same positive effects that New York Convention has brought to arbitration.

The text of the Convention gives a wide interpretation of the term Mediation and sets grounds under which the recognition and enforcement of the agreement could be denied by State courts.

It seems there will be no more excuses not to consider Mediation as an option for the ones who are involved in actual our potential conflicts.

Singapura is giving us the example, by leading an International Mediation Competition during the week of the Singapore Convention signature, and, thus, putting together many of the young generation representatives, that will be soon dealing with international dispute resolution.