Who has Power to Conduct a Statutory Marriage in Nigeria?

 

By Michael O. Dedon (Attorney at law)

 

1.      Introduction

The social media is presently agog with the news that a Federal High Court in Lagos in Suit No: FHC/L/CS/816/18 – Eti-Osa Local Government Council & 3 Ors. v. Honourable Minister of Interior & 2 Ors. has declared all marriages conducted by Ikoyi marriage registry to be illegal and invalid. The Judge, Honourable Justice D. E. Osiagor, was quoted as declaring that it was unconstitutional for the Federal Government to conduct marriages and that only the Local Government Council was empowered to conduct marriages by the provisions of the 1999 Constitution (as amended). The judge was also said to have ordered the closure with immediate effect, of all Federal Marriage Registries opened by the Ministry of Interior, including that of Ikoyi.

The implication of this ruling will be that all those who conducted their marriages at the Ikoyi Marriage Registry and all other such federal marriage registries across the country have had their marriages nullified as a consequence and may need to take steps to have such marriages regularized. This essay sets out to set the record straight and allay such fears. It will be shown that this decision is inconsistent with the extant provisions of the 1999 Constitution and therefore invalid. A reform in the law regulating marriages in Nigeria will also be proposed.

2.      Contradicting decisions of Courts

Before delving into the constitutionality of the latest decision, it may be pertinent to point out that there had been earlier decisions of both the Lagos State High Court and the Federal High Court on the same subject that are inconsistent with the latest decision, viz:

·       * Suit No. FHC/L/870/2002 between Prince Haastrup & Anor v. Eti Osa Local Government & Ors. where the Federal High Court held that the Federal Government, through the Ministry of Interior is constitutionally empowered to conduct marriages in Nigeria alongside local governments. That Court however vested the power to register such marriages exclusively in the Local Governments;

·      *The above decision was affirmed by the Federal High Court, Benin-city in Suit No: FHC/L/CS/1760/16 between Egor Local Govt, Edo State v. Hon Minister of Interior in a decision delivered on 30 April 2018;

·     * The same issue was also adjudicated in the case of Olumide Babalola v. Ikeja Local Government and the Registered Trustees of the Association of Local Government of Nigeria (ALGON) in Suit No. LD/1343/GCM/2016 with judgment delivered on 15^th May, 2017 where Justice Ibironke. O. Harrison stated that the issuance of customised marriage certificates by local government councils contravened Section 24 of the Marriage Act and Item 6, Part 1, 2^nd Schedule of the 1999 Constitution as amended, which lists marriage in the exclusive legislative list. The Court therefore barred local governments from issuing forthwith marriage certificates and declaring such marriages as unlawful and unconstitutional.

The apparent contradiction notwithstanding, the latest decision does not alter the existing status quo which recognizes marriages contracted by the Federal Marriage Registries since Honourable Justice Osaigor cannot sit on appeal over his brother justices being Courts of coordinate jurisdiction. It is trite law that a Court of coordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy (See: Gani v. AG Lagos State No. 1 (1989) 3 NWLR (Pt. 112) 707, 774). What this means is that until an appellate Court affirms this latest decision or any one of the other contradicting decisions, the status quo remains.

3.      Status quo of the law

By virtue of item 61 of the second schedule to the 1999 Constitution, the Federal Government has the exclusive competence to determine issues bordering on the formation, annulment and dissolution of statutory marriages same being items on the exclusive legislative list. What this means is that statutory marriage in Nigeria is a matter reserved for the Federal Government and it is only the National Assembly that can legislate on the subject. The National Assembly has therefore enacted the Marriage Act to regulate celebration of marriages in Nigeria and the power to perform this function is vested in the Ministry of Internal Affairs whose Minister is empowered by the Marriage Act to appoint a fit and proper person to be the registrar of marriages for each marriage district, and may also appoint a deputy registrar of marriages for any district to act in the absence or during the illness or incapacity of the registrar. The Minister also has powers to license any place of public worship to be a place for the celebration of marriages.

By this legal framework, statutory marriages in Nigeria are meant to be centrally administered and for this purpose, marriages can only be conducted in marriage districts designated by the President in an official gazette. The Marriage Act empowers the President to designate marriage districts and for this purpose the country was divided into several marriage districts by a Presidential Order (Marriage (Designation of Districts) Order 1971). In other words, there is no instrument designating the present 774 Local Government Areas in Nigeria as marriage districts other those designated by the President aforesaid. For clarity, only the registrars appointed by the Minister of Internal affairs can carry out the responsibilities imposed by the Marriage Act in those marriage districts designated by the President and none other. In other words, any marriage contracted in a local government council which was not designated as a marriage district under the Presidential Order is illegal and invalid.

It would appears like the confusion behind the contradicting Court decisions comes from item 1(i) of the fourth schedule to the 1999 Constitution that saddled local governments in Nigeria with the registration of all births, deaths and marriages. For legal clarity, the formation of marriage and registration of marriage are two separate concepts. This distinction was aptly captured in the decision rendered by Honourable Justice Harrison above which barred local governments from conducting marriages across the country. The trial Judge held that local and state governments cannot make separate arrangements outside that provided for in the Marriage Act under which marriages must be in conformity with Form E of the first Schedule to the Marriage Act.

In Anyaegbunam v. Anyaegbunam, 1973 3 ECSLR 243, the Supreme Court declared a marriage certificate invalid on the ground that it was not in line with Form E as provided by the Marriage Act. It will seem like the local governments are desperate to hijack the celebration of statutory marriages for purely a commercial reason but this does not detract from the fact that there is a lacuna in our laws that needs to be filled in order to redress the present anomaly or uncertainty.  

4.      Reform

It is recommended that some reforms are desired on the subject of the formation and registration of statutory marriages in Nigeria in order to bring about absolute clarity or certainty on the subject especially in view of the emerging controversy brought about by the latest decision of Honourable Justice Saigor.

First, the Government needs to come up with a clear policy on whether statutory marriages should continue to be centrally administered or a decentralised regime is preferred. In the U.S. for instance, celebration of marriages is regulated by the laws of the different states and not centrally administered. Perhaps each state in Nigeria may be allowed to legislate on marriages in accordance with local exigencies and in the spirit of federalism which allows for greater autonomy.

Finally, the dichotomy between the formation and registration of marriage can be bridged by a constitutional amendment that vests the power on the same authority. It is incongruous that the formation, annulment and dissolution of statutory marriages is in the exclusive legislative list of the federal government whereas the power to register same is vested in the local governments under the concurrent legislative list. Both should be vested in either the one or the other and not separately administered to avoid confusion.

For a serious issue such as the validity of marriage, there should be no ambiguity as to who has authority to carry out the responsibilities imposed by law. The institution of marriage is very vital in any civil society. Lord Westbury in Shaw v. Gould (1868) L.R. 3 H.L. 55 underscores this point thus:

“Marriage is the very foundation of civil society, and no part of law and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and the conditions of forming, and if necessary of dissolving, the marriage contract.”

Statutory marriage is one leg of the tripod of marriage systems in Nigeria. The other two legs are customary and Islamic marriage systems. The present ambiguity as who between the Federal Government and Local Governments has the authority to issue a marriage certificate will be needless if one authority has both the power to formalize a marriage and to register it.