EXTRA: Court Upholds CAC’s Rejection Of Lesbian Association In Nigeria

Proponents of same sex union have suffered a major defeat as a
Federal High Court in Abuja has rejected their move to legitimise
their activities in the country.

Justice Nnamdi Dimgba, in a judgment on Friday, upheld the
decision by the Corporate Affairs Commission (CAC) to reject an
application for the registration of a lesbian group.

The judgment was on a suit, marked: FHC /ABJ/CS/827/2018 filed
by Pamela Adie, through her lawyer, Mike Enahoro-Ebah.

According to court documents, Pamela founded the group – Lesbian
Equality and Empowerment Initiatives (LEEI) – sometime in October
2017, with the aim to advocate for the rights of people with
same-sex sexual orientation.

She subsequently applied to the CAC for registration, an
application the agency turned down on the ground that it, among
others, offends public policy.

Pamela then approached the court, by way of a fundamental rights
enforcement application, contending the CAC’s decision amounted to
a violation of her constitutionally guaranteed right to form and
belong to an association.

She prayed the court for an order of mandamus, compelling the
CAC to forthwith issue notice of approval for her group, the
“Lesbian Equality and Empowerment Initiatives” for onward
registration with the Commission.

Justice Dimgba, in the judgment on Friday, upheld the
counter-argument by the respondent (the CAC), to the effect that
its refusal to register the group was in compliance with Section 30
(1)(C) of the Companies And Allied Matters Act (CAMA) Cap C20 Laws
of Federation of Nigeria 2004.

‎The judge said: “It is my view that, where either the proposed
name of the company or its aims and objectives are caught by the
provisions of Section 30 (1)(C) of CAMA, the respondent (CAC) is
duly empowered to reject such an application for reservation of
name or registration as it has done in this case.

“Section 30(1) (c) of CAMA reads: ‘No ‎company shall be
registered under this Act by a name which- (c) in the opinion of
the Commission is capable of being misleading as to the nature or
extent of its activities or is undesirable, offensive or otherwise
contrary to public policy.’

“There is no doubt that the applicant has the right to form or
belong to any association of her choice as provided by Section 40
of the 1999, in so far as the enjoyment of such a right is not
limited by Section 45 of the same Constitution, which provides the
basis for the limitation of the enjoyment of the rights guaranteed
by Section 40 above.

“Instances where the right to form and belong to an association
can be limited, as provided in Section 45 (1) (a) of the 1999
Constitution, includes situations where such a right is in conflict
with public safety, public order, public morality.

“As such, the rights of the applicant to form and register an
association are not absolute. They are to be exercised and enjoyed
within the precincts of the law.

‎”Strictly speaking, it is on the basis of the protection of
public morality, as provided by Section 45 (1) of the 1999
Constitution, that some laws were enacted by the National Assembly
to safeguard same.

“The Same Sex Marriage (Prohibition) Act of 2013 is an example
of one of these laws. Section 4 (1) of the Same Sex Marriage Act
prohibits the registration of same sex associations.

“It provides as follows: ‘The Registration of organisations, of
their meetings, is prohibited. Gay clubs, societies and sustenance,
processions and meetings are prohibited.’

“It could not have been the intention of the Legislature to
prohibit the registration of gay associations, while allowing
lesbian associations, as learned counsel (for the applicant)
appears to be advocating with this distinction.

“The court, being a court of law and justice, must give effect,
not just to the literal meaning of words, but also give effect to
the real intention of the Legislature in the construction of
statutes.

“Moreover, it is common knowledge that in recent times, the word
“gay” is used to denote homosexuals, lesbians, bisexuals and
transgenders.

“On the contention that the rejection of the reservation of the
applicant’s proposed name of an association is a violation of the
applicant’s right to freedom of expression, it is my view that such
an argument merits a summary dismissal as the arguments in support
of this contention are similar to the one earlier dismissed,” the
judge said.

He agreed with the applicant that she has the right to freedom
of expression, but held that the CAC did not violate Pamela’s right
to freedom of expression in rejecting her application.

The judge noted that the name of Pamela’s group was, in itself,
in collision with an existing and operational law.

Justice Dimgba added: “The respondent being a regulator, was
established to carry out functions as listed in Section 7 of CAMA,
which includes the regulation and supervision of the formation,
incorporation, registration, management, and winding-up of
companies.

“It is also empowered under Section 30 of CAMA to exercise its
discretion in the approval of names for registration.

“So far as the Same Sex Marriage (Prohibition) Act is still much
operative in Nigeria and has not been repealed, the case of the
applicant must fail,” the judge said and proceeded to dismiss the
suit.

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