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Court throws out suit seeking registration of lesbian group

By Ikechukwu Nnochiri
ABUJA – The Abuja Division of the Federal High Court has dismissed as lacking in merit, a suit challenging refusal of the Corporate Affairs Commission (CAC)‎, to register a same sex group under the aegis of “Lesbian Equality and Empowerment Initiatives”‎.

The court, in a judgment that was delivered by Justice Nnamdi Dimgba, held that the decision of CAC not 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.

It held that where the proposed name of a 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.

According to Justice Dimgba, “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.”

The judgment followed a suit that was filed by one Pamela Adie, who disclosed that she had sometime in October 2017, established “Lesbian Equality and Empowerment Initiatives” with an aim to advocate for the rights of Nigerians that have inclination to same sex relationships.

She told the court that in her bid to legitimize the group, she applied to the CAC through her lawyer, Fajenyo‎ Kayode for the reservation of the association’s name.

However, the Commission declined to approve the proposed name on the ground that it was misleading and contrary to public policy.

Dissatisfied with action of the CAC, the Applicant, through another lawyer, Mr. Mike Enahoro-Ebah wrote a petition to the Registrar General of the Commission to rescind the earlier decision that denied registration to her group.

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Following refusal of the CAC boss to intervene in the matter, Adie, approached the court for redress.

She urged the court to grant an order of mandamus to compel the CAC to immediately issue notice of approval for her proposed name of an Association- “Lesbian Equality and Empowerment Initiatives”, for onward registration with the Commission.

In an originating summons marked FHC /ABJ/CS/827/2018, the Applicant sought an order for the enforcement of her fundamental human rights to freedom of association and expression.

Among issues she formulated the for the determination of the court included: “Whether having regard to the express provisions of sections 40 of the Constitution of the Federal Republic of Nigeria and Article 10 (1) of the African Charter on Human And Peoples’ Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation on Nigeria 2004, the Respondent’s rejection of the registration/reservation of the Applicant’s proposed name of an Association- Lesbian Equality and Empowerment Initiatives” is a violation of the Applicant’s right to Freedom of Association.

“Whether having regard to the express provisions of Sections 39 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and Article 9 (2) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004, the Respondent’s rejection of the registration/reservation of the Applicant’s proposed name of an Association- “Lesbian Equality and Empowerment Initiatives”, is a violation of the Applicant’s rights to freedom of expression.

“Whether upon proper consideration of Section 39 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and Article 9 (2) of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004, vis-à-vis Section 30 (1) (c) of the Companies And Allied Matters Act (CAMA) Cap C20 Laws of Federation of Nigeria 2004, the Applicant’s proposed name of an Association- “Lesbian Equality and Empowerment Initiatives” can be said to be misleading and contrary to public policy”.

She equally sought for, “A declaration that by the express provisions of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and Article 10 (1) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004, the Respondent’s rejection of the registration/reservation of the Applicant’s proposed name of an Association-“Lesbian Equality and Empowerment Initiatives”, is a violation of the Applicant’s rights to Freedom of Expression.

“A declaration that by the express provisions of Section 39 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and Article 9 (2) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004, the Respondent’s proposed name of an Association“Lesbian Equality and Empowerment Initiatives”, is a violation of the Applicant’s rights to Freedom of Expression.

“A declaration that by the express provisions of Section 39 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and Article 9(2) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004, visa-vis Section 30 (1) (c) of the Companies And Allied Matters Act (CAMA) Cap C20 Laws of Federation of Nigeria 2004, the Applicant’s proposed name of an Association-“Lesbian Equality and Empowerment Initiatives”, is not misleading and contrary to public policy. “A declaration that the Applicant is entitled to Assemble and Associate under the name “Lesbian Equality and Empowerment Initiatives” as well as to be registered as an organization under the same name.

As well as “An order of court setting aside the Respondent’s “Notice of Denial” dated the 27/10/2017 as a violation of the Applicants rights to Freedom of Association and Expression provided in Section 40 and 39 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Article 10 (1) and 9 (2) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004.

However, the CAC, through its lawyer, Dr. Femi contended before the court that the name sought to be registered by the Applicant could not be approved as it was misleading, offensive, contrary to public policy and violated an existing law that prohibits same-sex marriage in Nigeria.

Meantime, though Justice Dimgba noted that the Applicant has the right to form or belong to any association of her choice as provided by section 40 of the 1999 constitution, he however held that those rights were not absolute as they are to be exercised and enjoyed within the precincts of the law.

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‎”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 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 CFRN 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 organizations, of their meetings is prohibited. gay clubs, societies and sustenance, processions and ‎meetings is 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 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”, he held.

‎While acknowledging the right of the Applicant to freedom of expression, Justice Dimgba, held that “in exercising its discretion to reject the name sought to be reserved, the Respondent has not violated the right to freedom of expression since the proposed name itself is in collision with an existing and operational law”.

He said: “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 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.”

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