By Ekenobi ThankGod Chinonso

 

INTRODUCTION

The media space has over the past few days been dominated with debates over the fate of marriages conducted in Federal marriage registries following a recent landmark and revolutionary Judgement of the federal high Court Lagos Judicial division, delivered on 8/12/2021, by Hon. Justice D. E. Esiagor, in the case between ETI-OSA LOCAL GOVERNMENT COUNCIL LAGOS STATE & 3 ORS V. HONOURABLE MINISTER OF INTERIOR & 2 ORS FHC/L/CS/816/2018. 

The controversy which followed the judgement of the Court is not unexpected, considering the premium our society places on marriage and the exalted place it occupies in our jurisprudence. Lots of views have been expressed by commentators on the legal correctness of judgement, with a popular Nigerian Celebrity Banky-W, even jokingly referring to his wife, Adesua Etomi as “Baba Mama”. Some of the commentators however, seem to have misconstrued the decision of the Court, hence, stretching it beyond the actual scope of the judgement, thereby reading into the judgement words that were never intended by the Court. Consequently, making it appear as though the Court intended to invalidate all marriages conducted by the federal government owned marriage registries and worship centres licensed by the ministry of Interior, including those conducted in Ikoyi and the Federal Capital Territory Marriage Registries. But it is clear from the Judgment of the Court that this narrative is a dubious exaggeration and misconstruction of the Court’s decision.

I have had the privilege of reading the full details of the decision of the Court released on 13/12/2021, hence, this article seeks to give the reader an insight into the judgement of the Court and the reason why the Court decided the Case the way it did.

THE FACT OF THE CASE AND THE JUDGEMENT OF THE COURT

The case was instituted vide an originating Summons, wherein the plaintiffs sought the Court’s Interpretation of certain provisions of the Marriage Act vis-a-vis the Constitution, especially as they relate to the power of the Federal Ministry of Interior to establish and maintain marriage registries in the various marriage districts ( local government councils) across the federation, having regards to an earlier decision of the Federal High Court in the earlier case of Prince L. Hasstrup & Anor v. Eti-Osa Local Government Council & 2Ors FHC/L/870/2002, Coram Hon. Justice R. Oyindamola Olowojobi, of the same Federal High Court Lagos Judicial division, delivered on 8th June 2004. The plaintiffs equally sought seven reliefs from the Court out of which five reliefs where granted, and 2 refused. The major issue before the Court was whether by the combined reading of sections 7(5) and part 1(i) 4th Schedule to the 1999 Constitution of the Federal Republic of Nigeria, and sections 6, 8, 9,10,11, 12, 13, 26, 27, 28,29 30 of the marriage Act, Cap M6 LFN 2004, and further putting into consideration the FHC’s decision in the case of Prince L. Hasstrup &Anor (Supra), the federal ministry of Internal affairs as against the the states of the federation through their various local government councils, could validly establish and maintain marriage registries to register marriages, contract marriages, issue certificates and celebrate Marriages in the marriage districts of the applicants’ local government councils.

The gravamen of the instant suit was the agreement between the ministry of internal affairs (1st defendant) and Anchor Dataware Solutions Ltd (joined as 3rd defendant), to establish additional marriage registries across the states of the federation under a public private partnership, thereby outlawing Local government marriage registries. Sequel to the project, local government marriage registrars were directed vide notices from the ministry of Internal affairs, to obtain licences from the ministry, and further writing to the Nigerian Immigration Service and Foreign Embassies to forthwith recognize marriage certificates issued by federal marriage registries. Aggrieved by the action of the defendants, the plaintiffs instituted this action before the Federal High Court praying amongst other reliefs for an order of the Court directing the 1st defendant to close down all marriage registries established and maintained by the federal government in the 1st, 2nd, 3rd and 4th plaintiffs marriage districts; Further order of the Court prohibiting the defendants from further issuing marriage certificates, conducting marriages, registering marriages and celebrating marriages within the marriage districts of the 1st to 4th plaintiffs.

In its judgement, the Court granted in part the reliefs sought but declined to grant the reliefs seeking to compel the 1st defendant to return or transmit all marriage certificates issued since the decision of the Court in the Prince L. Hasstrup & Anor’s (Supra) case in 2004 and the the other relief seeking to compell the defendant to return to the plaintiffs all monies realized from marriages solemnized and marriage certificates issued by the 1st defendant. According to the Court, whilst the 1st defendant is exclusively empowered to issue licences to religious bodies to conduct marriages, however, such power does not extend to the establishment of marriage registries in the 2nd to 4th plaintiffs’ marriage districts, as that is the province of the marriage registries of the various local government councils. Hence, the ministry of Interior can only legally maintain marriage registries in Lagos (Ikoyi Registry) as a former Federal capital territory and Abuja the the Current Federal capital territory, but can not establish or operate marriage registries in other States of the federation, as that is constitutionally within the powers of the states through their local government councils.

The Court equally held that since the Ikoyi and the Abuja marriage registries predated the 1999 Constitution and no provision in the Constitution expressly outlawed or abolished them, then they must be regarded as having been preserved by the Constitution, hence, their powers to contract marriages, issue marriage certificates and celebrate marriages within their respective domains remain constitutionally preserved and recognized.

REASONS FOR THE COURT’S DECISION.

It is trite principle of law that by virtue of the Federal system of government Nigeria operates, we have 3 tiers of government, to wit: Federal, States and Local governments, this is lucidly reinforced in of Sections 2 and 3 of the Constitution, and the functions of each tier of Government is expressly provided under the Constitution. Section 4 sub. 1-7 of the Constitution, the Exclusive Legislative list contained in part 1, 2nd Schedule to the Constitution which contains 68 items and also the Concurrent Legislative List which contains 30 items and is contained in part2, 2nd Schedule to the Constitution; collectively delineates and defines the powers of the Federal vis-a-vis the states. For instance, Item 61 of the Exclusive list which the federal government alone is constitutionally empowered to legislate on to the exclusion of states, empowers the federal government to make laws regulating the formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law, including matrimonial causes relating thereto. This may have may have been instrumental in influencing the Court’s ruling that the federal ministry of Interior alone is constitutionally empowered to issue licences to recognized religious centres and other designated places permitted to contract and celebrate marriages, this according to the Court, is to the exclusion of the other tiers of government. This may have further influenced the Court’s decision declining to invalidate marriages conducted in Ikoyi marriage registry (Lagos) as the former federal capital territory and Abuja federal marriage registries, as there is nothing in the Constitution or any statute divesting them of powers to contract, celebrate, register and issue marriage certificates, having served that purpose even before the coming into force of the current Constitution.

The Court further declined to order the closure of federal government owned marriage registries in Ikoyi (Lagos) and Abuja, but ordered the closure of federal marriage registries established in other states of the federation, giving fresh force and vigour to the subsisting judgement of the Court in the Prince L. Hasstrup’s case.

Local governments are equally constitutionally empowered to contract marriages, register marriages, celebrate marriages and issue marriage certificates within their jurisdiction, by the combined effect of sections 7(5) and paragraph 1(i) of the 4th Schedule to the Constitution and section 30(1) of the Marriage Act CAP M6 LFN 2004. The states’ directors general in charge of marriages appoints registrars whose duties are to man the marriage districts (local governments councils) and to handle issues relating to solemnization of marriages generally within their marriage districts.

The Court further noted that, albeit, there is no law in Nigeria making marriage related matters the exclusive preserve of the local governments. Howbeit, the federal government must remain on its own lane and desist from taking actions capable of prejudicing the local governments from performing their constitutionally defined functions. Also, according to the Court, marriage under the Act can be validly and lawfully contracted and celebrated by any of the following authorities or bodies:

  1. Registrars in designated offices.
  2. Recognized religious ministers in licensed religious houses.
  3. Marriage conducted under a licence granted by the minister of Internal affairs, State government director general in charge of marriages, any officer in any of aforesaid ministries, and of course, the minister of Internal affairs.

IMPLICATION OF THE JUDGEMENT

The implication of the recent judgement of the Federal High Court Lagos judicial division in the case being critiqued is that couples who contracted, celebrated, registered and obtained their marriage certificates from federal marriage registries other than the Ikoyi and Abuja registries which the Court recognized as valid, may need to proceed with all dispatch, to their marriage districts (local government) registries to register and regularize their marriages, at least, to be on the safe side.

Furthermore, intending couples should avoid federal marriage registries other than those of Ikoyi and the federal capital territory, at least for the meantime, and instead, conduct their marriage solemnization in their various local government marriage designated registries (ex abundanti coutela), as that is the safer alternative at the moment.

Though the federal government’s reaction sequel to the judgement clearly indicates an ardent determination on its part to appeal the judgement, howbeit, the judgement of the federal high Court remains the law pending when it is reversed on appeal by the appellate courts. Hence, going forward, it is expected that parties conduct their affairs in accordance with the recent judgement of the Federal High Court Lagos Judicial Division, pending when the federal government appeals the judgement and a fortiori, its determination.

This writer would be very much interested in the outcome of the appeal and how the appellate Courts would go about interpreting the Constitution, especially as it relates to the correct interpretation to Item 61 of the exclusive legislative list and paragraph 1(i) of the 4th Schedule to the Constitution. But until then, we will keep our fingers crossed.

ABOUT THE WRITER

Ekenobi ThankGod Chinonso is a 300 level student, in the faculty of law Ahmadu Bello University, Zaria.

Email: [email protected].

Phone number: 07067942565.

LinkedIn:. https://www.linkedin.com/in/ekenobi-thankgod-chinonso-a4a1821aa