A Rejoinder to the Critique Of The Decision In Olumide Babalola V. Ikeja Local Government & ANR [Suit NO. LD/1343GCM/16]”
When my very dear learned senior, Tunde Esan, Esq. drew my attention to the critique written by my learned friend, Harvey Anyalewechi, Esq., I was caught up in a web of varied feelings.
First, I was grateful for the extent of public consciousness awakened by the class action as well as the attendant intellectual discourse it had attracted from numerous participants to whom I’m exceedingly appreciative.
On the flip side, I was however taken aback by the concluding statement in the critique, which seemingly disparages me for celebrating my wedding at the Local Government on the premise that “I should have known better”. I however take the author’s admonition in good faith because I now truly know better by virtue of the subsisting judgement of the Lagos High Court.
May I also add that, It was indeed the game plan to have a judicial pronouncement on the legality of the specie of certificates issued by local governments’ caucus in Nigeria which document does not have any input or role-playing from the federal government on a matter that is exclusively within the legislative competence of the Federal Government via the Federal Ministry of Interior. Needless to say that, we have had too many extra-judicially extrapolative opinions on the subject for so long.
Mr. Harvey however made some stimulating points on the judgment to which I have been repeatedly urged to do an opinionated rejoinder. It is also instructive to state here that, as at today, the 29th day of June 2017, I am yet to be served with any notice of appeal and appeal has been entered in respect of the class action judgement in question. Hence, I safely suppose this matter isn’t subjudice and I am at liberty to express my editorial opinion on the issues raised by my learned friend in the critique.
I must confess that, in his well-written critique, Mr. Harvey rightly posited that “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” but what the author however failed to do is to cite a portion of our laws that allows local governments to design and customize their own version of marriage certificates while severing all statutory ties and obligations to the federal marriage registry in the process.
More so, nowhere in the “judgement under attack” did the court hold either expressly or by implication that Form E is the only proof of marriage rather, the court was specific on legality of the brand of certificate exclusively created by the local governments without any legal justification whatsoever.
We must not, at all times lose sight of the law that, the authority to issue marriage certificates is derived from the Marriage Act. Hence, it goes to reason that, anyone who purportedly issues marriage certificates under the Act without authority does so in violation of the same Act. Also, the judgement does not contain any word or statement on “proof of marriage” and same ought not be imported into it.
Mr. Harvey cited section 32 of the Marriage Act (MA) and section 86 of the Matrimonial Causes Act (MCA) in support of his position. Again, for the avoidance of doubt, the said sections provide thus:
Section 32 MA:
“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.”(Emphasis mine)
While Section 86 MCA:
“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.” (Emphasis mine)
It is my humble view that the above provisions neither vitiate the judgment in question nor lend credence to Mr. Harvey’s submissions for the following reasons:
One, section 32 specifically provides that proper marriage certificate SHALL be admissible in evidence. Our case law is replete with decisions on the effect of the use of the word – “SHALL” in statutes. It commands mandatoriness. See Seplat Petroleum Development v Brittania Nig. Ltd (2014) LPELR-23126 (CA); Nonye Imunze v The Federal Republic of Nigeria (2014) LPELR -22254 (SC); Onochie V. Odogwu (2006) 6 NWLR (Pt. 975) 65 and Amokeodo v. IGP & 2 Ors (1999) 5 SCNJ 71 at 81.
The self same section goes further to provide that, for such certificate to be admissible, it must be signed by the marriage registrar of the district. The question that immediately arises from this is – are certificates issued by local governments signed by marriage districts registrars? Your answer is as good as mine.
Two, section 86 MCA relied on by Mr. Harvey, unsurprisingly contains the word “MAY” as opposed to “SHALL” in section 32 MA. It must also be noted that there is no mention of “admissibility” in section 86. These may arguably be the draftsman’s devil but that is the position of our laws at the moment. So it appears crystal clear that, while the tone of section 32 which recognizes a particular type of certificate is mandatory, section 82 that seemingly leaves it at large is permissive and this is understandably so, being a procedural provision.
In other words, the provision of section 32 MA is specific (Form E signed by the registrar) while section 86 MCA is general. Hence, should there be any conflict between the two provisions, it is trite that specific provisions would always prevail over general provisions. See Ibori v. Ogboru (2004) 15 NWLR (Pt. 895) 154 at 194 – 195, Martin Schroder v Major Nig. Ltd (2002) FWLR (Pt. 128) 1304.
It must also be observed that while the Marriage Act is a substantive law, which regulates formation of marriages, the Matrimonial Causes Act is a procedural law, which regulates practice and procedure in matrimonial causes and sundry matters. In Mobil Prod. (Nig.) UnLtd. v. LASEPA (2002) 18 NWLR (Pt.798) 1, the Supreme Court held that, procedural laws (in the ilk of Matrimonial Causes Act) do not define rights and obligations, they are mere vehicles that assist the courts in going into the matters in controversy.
It is my humble view that the phrase – “any certificate” in section 86 ought not be broadly interpreted so as to encompass “illegally” fabricated certificates emanating from persons, in the ilk of local government officials, who do not possess the slightest of authority to so issue them. “Any certificate” in the context, in my opinion, contemplates the registrar’s certificate, minister’s certificate, birth certificate, death certificate and other certificates which must have emanated from persons who have authorities to issue them otherwise any adeverse construction would mean, anyone can sit in his office and design a marriage certificate and same would still be received by the court in evidence of facts of celebration of marriage.
Again, Mr. Harvey’s isolated reliance on a portion of Anyaegbunam’s case in driving home his point ignored another portion of the same judgement on Form E when he wrote that “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” For the avoidance of doubt, the Court, per Fatayi-Williams, JSC (of blessed memory) held thus:
“To our mind, this document, described by the person who wrote it as a “Certificate of Marriage” is not in the form prescribed in Form E in the First Schedule to the Marriage Act. It could not even be regarded as a public document nor could it be described as “the original or a certified copy of any certificate, entry, or record of marriage.” A marriage register was referred to in the document but the register was not produced nor was the failure to produce it accounted for. At best, this document contains the hearsay evidence …” (Emphasis mine)
From the foregoing, it is crystal clear that the decision was particular about Form E as a prima facie proof of marriage under the Act but reference was made to section 86 MCA in respect of other circumstantial proofs of marriage as opposed to validity of a document, which purports to be Form E.
Mr. Harvey also opined in his critique that, “it is my argument that a marriage certificate no matter how customized is as valid as FORM E itself for the purpose of proving celebration of marriage” If I understand this interpretation well, anyone can create his/her own marriage certificate and it would still legally pass as Form E. God forbid!
With utmost respect to the learned author, assuming that is the case, wouldn’t this carte blanche desecrate the institution of marriage, express provisions of the law regarding proof of marriage as well as the sanity of our society by creating a banana republic of all sorts of ‘statutory’ marriages as long as any marriage certificate is brandished even if it was designed by a traditional ruler. This will not only make mockery of our laws, it would reduce the institution of marriage into a steady unit of dissonance and prevarication.
A critical examination of the local government’s joke of a certificate would reveal the following:
- It has an inscription of “Local Governments Unified Marriage Certificate”
- It is painted in green and white colours.
- It has National Data registration number (whatever that represents)
- It has Local Government registration number
- It laughably has a disclaimer. Perhaps to limit the local government’s liability in the event of discovery of its true status.
- It has no duplicate at the Federal Marriage Registry.
- It is never signed by a marriage registrar contemplated by the Marriage Act.
With all these “municipal swagger” can one safely say that such a certificate meets the standard of substantial compliance required under the Marriage Act? I think Not!
On the whole, the court’s judicial activism and inclination to social justice can be seen at pages 4 and 5 of the judgement when his lordship declined our prayers to deem the irregular certificates valid but instead held that:
“While the Court agrees also with the Claimant that the court has jurisdiction to grant the reliefs sought however the court will beg to differ from the Claimant in respect of relief 5, the court agrees that the said marriages conducted by local governments…by virtue of section 34 of the Marriage Act be regarded as good and valid in law to all intents and purposes, the court believes there should be a reissuance of proper certificates to all persons who are in possession of the invalid certificates… the court believes the above will synchronize the sector and the deeming order will relate to the validity of the marriages but nothing prevents the said local governments from doing the needful.”
Conclusively, I commend and thank my learned friend, Harvey Anyalewechi, Esq., for his educative and well-researched critique, which has tremendously opened my eyes to some other areas of the subject.
Olumide Babalola writes from Lagos. firstname.lastname@example.org