Two marriage ceremonies were celebrated on Zoom video conference platforms last week. The couples are based in Abuja and Lagos.

The officiating priests, DJs, participants, and other essential service providers all dialed in via Zoom. Food was physically delivered to the homes of some of the online participants. Section 33(2) of the Marriage Act provides that a marriage shall be null and void if both parties knowingly and willfully acquiesce to its celebration in any place other than the office of a registrar of marriages or a licensed place of worship, except where authorised to do so by an exemption license issued under the Act.

There have been arguments that the celebration of marriages in a licensed place of worship or a marriage registrar’s office are very critical in determining the validity of marriages contracted under the Marriage Act – save where the exemption license provided under the Act was obtained (or at least applied for) by the couple, authorising celebration of the marriage in a place other than a licensed place of worship or a marriage registrar’s office, prior to the marriage ceremony. On these premises, it has been argued that the marriages celebrated on Zoom video conference platforms last week may be null and void under the Act.

I don’t think “licensed place of worship” in the Act should be limited to a physical building. The Act effectively approves any place of worship recognised by the State as valid for the celebration of marriages contracted under the Act. At the time being in force, the State recognised online forums as valid and necessary worship platforms given the COVID-19 crisis. It follows that marriages celebrated on online platforms like Zoom, and officiated by clergymen ordained and recognised in licensed places of worship, should ordinarily qualify as valid marriages under the Act – especially taking into account the special circumstances of the COVID-19 crisis.

That is, “licensed place of worship” should be interpreted broadly in this instance to include online forums hosted by licensed places of worship in Nigeria – in so far as the officiating clergyman is one ordained and recognised in a licensed place of worship in Nigeria. I have had very engaging conversations with contemporary and senior colleagues who have expressed opposing views and generally insist the marriages celebrated on Zoom last week are null and void from a literal interpretation of the Marriage Act. While they accept that the law is inadequate given the COVID-19 reality, they believe a legislative amendment is required to update the law and bring it in tune with the times.

Some others have expressed a more moderate view. They opine that the Zoom marriage ceremonies could be construed as mere marriage blessings, and that a subsequent visit to the marriage registry post COVID-19 to formalise the process could validate the Zoom marriage ceremonies. Others opined that the physical presence of the officiating priests within the premises of licensed places of worship at the time they dialed into the Zoom video conference platforms may validate the Zoom marriage ceremonies, since the Act does not expressly mandate the physical presence of the couples in the licensed places of marriage. These are all excellent views that provide a rich perspective to the debate.

Others have argued that the Zoom marriages will be void unless the couple can show that they at least tried to get an exemption license under the Act but were unable to do so by reason of the lockdown.

The challenge with this view is that the marriage registries are on lockdown since they were not amongst the public services designated as essential services in the lockdown order. It is unlikely that the marriage registries have reliable digital platforms through which applications for the exemption licenses may be made.

Clearly, the Marriage Act did not foresee a world with COVID-19 where human contact, free movement, and public gatherings would be a major health concern and economic concern.

And the challenge with the view regarding visit to the registry post COVID-19 to formalise the process is that it may raise a question on the date of commencement of the marriage – that is, did the marriage commence on the date of solemnization by the priest on Zoom video conference platform or on the date of the couples’ visit to the marriage registry post COVID-19 to formalise the process, which may be months apart?

Everyday, the inadequacy of our laws keep getting exposed. Updating these laws to conform with contemporary reality is best achieved through the process of legislative amendment. Unfortunately, this does not always happen as quickly and as efficiently as necessary.

Hence, assuming I’m a High Court judge faced with interpretation of the question of validity of the Zoom marriage ceremonies held last week, I’ll apply judicial activism to hold that the Zoom marriage ceremonies are valid under the Act. The Court of Appeal and Supreme Court may then exercise their discretion to overrule me.

During my time as the Chief Judge of the University of Nigeria Students’ Union Government in 2014, my judicial role model was Lord Denning. I made a point of reading at least one of his judgments daily. Even now as a practicing lawyer, I still read his judgments – though not that consistently anymore due to time constraints and competing obligations. Lord Denning was the patron of judicial activism. He believed it was judicial laziness and laxity for a judge to fold his hands when faced with the interpretation of a defective law and simply wait for the Parliament to amend the statute. Such amendment (if it ever happens) would not apply retrospectively to do justice in the instant case.

In Seaford Court Estates Ltd. v Asher (1949) 2 KB 481, 498, Lord Denning held that:

“Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold set of facts which may arise and even, if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were.”

Lord Denning also held in Seaford Court Estates Ltd. v Asher (1949) 2 KB 481, 498, that:

“It would certainly save judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament… A judge must not alter the material of which it is woven, but he can and should iron out the creases.”

In Magor v Newport Corporation (1950) 2 All ER 1226, 1236, Lord Denning held that:

“We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

Holding in Parker v Parker (1954) All ER 22, that the relevant statute enabled the court to order a husband to pay maintenance for his child born before marriage, and refusing to follow an earlier decision to the contrary, Lord Denning observed thus:

“What is the argument on the other side? Only this: that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on; and that will be bad for both.”

In Pepper (Inspector of Taxes) v Hart (1992) 3 WLR 1032, Lord Denning held that:

“To apply the words literally is to defeat the intention of the legislature. To achieve the intent and produce a reasonable result, we must do some violence to the words.”

Lord Nicholls mirrored Lord Denning when he held in Inco Europe Ltd. & ors. v First Choice Distribution (A Firm) & ors. (2000) UKHL 15, that:

“It has long been established that the role of the courts in construing legislation is not confined in resolving ambiguities in statutory language. The courts must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function, the court will add words or omit words or substitute words.”

In Ohuka v The State (1988) 1 NWLR (Pt. 72) 1, the relevant statute limited criminal appeals to a period of 30 days from the date of the decision appealed against. The appellant was in custody and was not aware of the judgment delivered against him. He later filed his appeal much later than 30 days from the date of delivery of the judgment – as that was the time he became aware of the judgment. Oputa JSC did not wait for the legislature to amend the statute. He rather construed the 30 days limitation period specified in the relevant statute to mean 30 days after the appellant became aware of the judgment appealed against, and not 30 days from the date of delivery of the judgment.

In reaching the decision in Ohuka v The State (1988) 1 NWLR (Pt. 72) 1, Oputa JSC held that: “The court is not a mechanical and automatic calculator. No, it is a court of law dealing with varying situations and applying the same to those situations in order to do justice in each and every situation according to its peculiar surrounding circumstances”.

For further reading on the extent of judicial activism in Nigeria, see Emmanuel Onyeabor & Nwora Ike Obiora, Understanding Law from the Perspective of the Bad Man, The University of Nigeria Law Students’ Journal, Vol. 3 No. 1, 2017, pp. 84 – 103.

Written By EMMANUEL ONYEABOR ( ASSOCIATE – BANWO & IGHODALO )