Proponents of same sex union have suffered a major defeat as a Federal High Court in Abuja has rejected their move to legitimize 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 organizations, 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.