Following the hearing of the above
named suit, Hon. Justice Ibironke Harrison of the High Court of Lagos State,
Igbosere division delivered a judgement declaring the marriage certificates
issued by all local governments in Nigeria illegal and unconstitutional while
restraining them from further issuance
1. Declaration that the 1st Defendant
(Ikeja Local Government) does not have powers to issue modified and/or
customized marriage certificates different from that provided in Form E under
section 24 of the Marriage Act, LFN 1990.
2. Declaration that the 2nd Defendant’s
(ALGON) “Local government Unified Marriage Certificate” is unknown to our law,
unconstitutional, null and void.
3. Perpetual injunction restraining the
Defendants, their agents, officers, employees and representatives from further
issuing modified and/or alter marriage certificate apart from the form as
provided under Form E (1st schedule) and section 24 of the Marriage Act, LFN
1990.
4. Perpetual injunction restraining the
2nd Defendant, their agents, officers, employees and representatives from
further issuing “Local Government Unified Marriage Certificates.
5. An Order that all modified marriage
certificates issued by 1st and 2nd Defendants be surrendered to the appropriate
local government where the marriage was conducted and an appropriate
certificate in line with Form E should be re-issued to the Claimant herein and
all concerned persons.
As interesting as this judgment would
appear, I am of the opinion that the judgement of the Honourable court that
Local government Unified Marriage Certificate is unknown to our law and null
and void is not in tandem with the provisions of the Marriage Act, Matrimonial
Causes Act, and decisions of the Supreme Court on the issue of marriage
certificate particularly FORM E. The above decision would at best be adjudged
partially but not wholly correct.
The overall premise upon which the
court rest its decision is on the fact that the "Customized Marriage
Certificate" issued by the Ikeja Local Government and the Association of
Local Governments of Nigeria (ALGON) is different from that provided for in
FORM E under section 24 of the Marriage Act.
It is not the position of the law that
FORM E is the only certificate recognised by the Marriage Act and the
Matrimonial Causes Act as constituting proof of marriage. The salient provisions
of Sections 32 and 86 of the Marriage Act and Matrimonial Causes Act
respectively are instructive, unambiguous and clear.
Section 32 Marriage Act provides thus:
" Every certificate of marriage
which shall have been filed in the office of the registrar of any district, or
a copy thereof, purporting to be signed and certified as a true copy by the
registrar of such district for the time being, and every entry in a marriage
register book, or copy thereof certified as aforesaid, shall be admissible as
evidence of the marriage to which it relates, in any court of justice or before
any person having by law or consent of parties authority to hear, receive, and
examine evidence."
Section 86 Matrimonial Causes Act
provides thus:
"In
proceedings under this Act the court may receive as evidence of the facts
stated in it, a document purporting to be either the original or a certified
copy of any certificate, entry or
record of a birth, death or marriage alleged to have taken place, whether in Nigeria or
elsewhere."
His lordship in his judgement cited and
referred to the case of ANYAEBUNAM v. ANYAEBUNAM (1973) 3 ECSLR, 243; (1973)
ANLR, 320. It is also my view that the decision of the Supreme Court in that
case was applied out of context in this case. The rationale behind the decision
of the Supreme Court in ANYAEBUNAM'S case was not because FORM E was not issued
and obtained by the parties. In fact, the Supreme Court had this to say in
ANYAEBUNAM'S case after considering Section 32 Marriage Act and Section 86
Matrimonial Causes Act-
"It must be noted, however, that
the above section (section 32 M.A) did not say that such certificate of
marriage, or a certified true copy of it, shall be the only evidence of such
marriage. Indeed the standard of proof required in matrimonial causes
is clearly stated in section 82 and 86 of the matrimonial Causes act…. It seems
to us that, while section 82 provides for a general standard of proof, section
86 provides for what is required as proof of birth, death or marriage.
"Again, it will be inappropriate
to suggest that the only way to prove a birth, death or marriage
is by the production of the relevant certificate or a certified copy thereof.
Thus, where there is evidence of a ceremony of marriage having been gone
through, followed by the cohabitation of the parties, everything necessary for
the validity of the marriage will be presumed…."
[Emphasis mine]
See also, AKPARANTA v. AKPARANTA
By the combined provisions of the Acts and
case laws, it is my argument that a marriage certificate no matter how
customised is as valid as FORM E itself for the purpose of proving celebration
of marriage.
It is my opinion that the Court could
have, in the alternative and circumstance, ordered the Ikeja Local Government
and ALGON to issue FORM E in addition to any Customised Marriage Certificate.
The "Customised Marriage Certificates" cannot be said to be null and
void as Section 32 Marriage Act and 86 Matrimonial Causes Act acknowledges other
forms of certificates, entries or records.
Also, the Standard of Proof of marriage
is as stated in Section 82 Matrimonial
Causes Act, to wit:
(1)
“For the purposes of this Act, a matter of fact shall be taken to be proved if
it is established to the reasonable
satisfaction of the court.
(2)
Where a provision of this Act requires the court to be satisfied of the
existence of any ground or fact or as to any other matter, it shall be
sufficient if the court is reasonably satisfied of the existence of that ground
or fact, or as to that other matter.”
On
the other hand, can the Ikeja Local Government and ALGON be said to licensed
places to celebrate marriage?
His lordship in his judgement made it
clear that the constitutional powers vested on Local governments Council is
only “registration of all births, deaths and Marriages” while “the formation,
annulment and dissolution of marriage” is an exclusive matter vested on the
National Assembly to legislate on. See, Item 1(i) Fourth Schedule and Item 61 Second Schedule to the
Constitution of Federal Republic of Nigeria, 1990 (as Amended) respectively.
Under the Marriage Act, marriage can only be
celebrated in_
a. A licensed placed of worship, except a
license is issued under Section 13 (see, Section 21 of the Act); and
b. The office of a Registrar of marriages.
(Section 27 of the Act)
Section 33(2) (a) of the Marriage Act
also provides that a marriage will be invalid where it is celebrated “in any
place other than the office of a registrar of marriages or a licensed place of
worship (except where authorised by the licence issued under section 13 of this
Act)”.
It is trite position of the law that,
except it can be shown that a Local Government Council has been so designated
as a licensed place of worship or that a license has been so issued to the
intending couple under section 13 of the Act, any marriage so celebrated in
such Local Government Council is invalid ab initio except both parties can show
that they did not knowingly and wilfully acquiesce in its celebration.
In conclusion, as much as I applaud
Olumide Babalola Esq’s courage for instituting this action, it is my opinion
that Mr. Olumide of all persons should have known the position of the law when
it comes to celebration of marriage and that the Local Government is not the
appropriate forum to celebrate marriage under the Act and that, even if a
license under section 13 of the Act was issued to him, he was supposed to
obtain marriage certificate in FORM E from the Marriage Registry after the celebration
of the marriage.
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