Whether Celebration of Marriage Under the Marriage Act is an Exclusive Duty of LGCs

In the Federal High Court of Nigeria
Holden at Lagos

On Wednesday, the 8th Day of December, 2021

Before His Lordship
D.E. Osiagor
Judge, Federal High Court

Between

1. ETI-OSA LOCAL GOVERNMENT
COUNCIL, LAGOS STATE
2. EGOR LOCAL GOVERNMENT
COUNCIL, EDO STATE
3. OWERRI MUNICIPAL LOCAL
GOVERNMENT COUNCIL, IMO STATE
4. PORT-HARCOURT CITY LOCAL
GOVERNMENT COUNCIL, RIVERS STATE … PLAINTIFFS

And

1. HON. MINISTER OF INTERIOR
2. ATTORNEY-GENERAL OF THE
FEDERATION AND MINISTER OF JUSTICE
3. ANCHOR DATAWARE SOLUTIONS LIMITED
(PARTY JOINED BY THE ORDER OF COURT
ON THE 9TH DAY OF APRIL, 2019) … DEFENDANTS

(Judgement delivered by D.E. Osiagor, Judge, Federal High Court)
Judge, Federal High Court)

Facts

By an Amended Originating Summons, the Plaintiffs posed some questions for determination of the court. The questions revolve around the interpretation of the judgement delivered by the Honourable Justice R. Oyindamola Olomojobi, in Suit No. FHC/L/870/2002 between Prince L. Haastrup & Anor v. Eti-Osa Local Government Council & 2 Ors., delivered on 8th June, 2004. The Plaintiffs’ question, inter alia, whether the court can grant perpetual injunction restraining the 1st Defendant, his privies, agents and officers/delegates from contracting, celebrating and registering marriages as required to be carried out by the Plaintiff’s Registrar under Section 27 and other relevant provisions of the Marriage Act. The Plaintiffs also raised the question whether the 1st Defendant can only issue or grant licences to authorise intending parties to marry, contract and/or celebrate marriages without more, in line with the provisions of Section 13 of the Marriage Act.

Further to the questions above, the Plaintiffs sought the following reliefs: An Order of perpetual injunction restraining the 1st Defendant and/or his privies, agents, or delegates from further contracting, celebrating, issuing certificates of marriage, and registering marriages contracted or celebrated under the Marriage Act, within the Plaintiffs’ Local Government Council Areas. They also sought an order of court directing the 1st Defendant to return all marriage certificates issued within the respective Plaintiffs’ Local Government Councils, subsequent to the delivery of the judgement in Suit No. FHC/L/870/2002; as well as an order of court directing the 1st Defendant to return all the fees/money paid by couples, since the referenced judgement, to the Plaintiffs’ Marriage Registries for re-issuance. The Plaintiffs also sought an order of court sealing all the Federal Marriage Registry established by the 1st Defendant in the Plaintiffs’ Local Government in Nigeria, or an order restricting the 1st Defendant’s Marriage Registries or agencies to only issue “licences” to places of public worship for the celebration of marriage or to contract marriage under the Act at the Local Government Registrar’s office or to celebrate marriage in a licensed place of worship.

Issues for Determination

The issues raised for determination are :

1. Whether by the judgement of Hon. Justice R. Oyindamola Olomojobi of the Federal High Court, Lagos in Suit No. FHC/L/870/2002 between Prince L. Haastrup & Anor v Eti-Osa Local Government Council & 2 Ors., delivered on the 8th day of June 2004, the 1st Defendant should not be restrained in contracting, celebrating, registering marriages and issuing of certificate of marriage within the Plaintiff’s Local Government Council.
2. Whether the present suit is caught of by the doctrine of estoppel and constitutes an abuse of court process, given the judgement of court in Suit No. FHC/L/870/2002 and FHC/L/CS/1760/2017, where Obiozor, J. struck out the suit for lack of jurisdiction.

Arguments
Arguing the first issue, counsel for the Plaintiffs submitted that in view of the 2004 judgement and given the succinct provisions of Section 7.1(5) and paragraph 1(i) of the Fourth Schedule of the 1999 Constitution and Section 30(1) of the Marriage Act, registration of marriages under the Marriage Act is within the exclusive preserve of the Registrars of the Marriage District, which he submitted, refers to the Local Government Councils in Nigeria. Counsel argued further that the 1st Defendant cannot celebrate or contract marriages. He can only grant licenses to parties proposing to get married, while the Registrars or a recognised Minister of some religious denominations, by virtue of Section 27 of the Marriage Act, can act on the license by celebrating the marriage between the parties named on the licence issued under Section 13 of the Marriage Act.

Responding to the submissions above, Counsel for the 2nd Defendant submitted that there is no law, either under the Constitution of the Federal Republic of Nigeria or under the Marriage Act, which gives exclusive authority to the Registrar to contract and celebrate marriages in Nigeria. He submitted further, relying on Section 27 of the Marriage Act, that parties have the option of where to celebrate and contract their marriage, and that every marriage celebrated in any licensed place or District is valid. Counsel argued that the Plaintiffs did not disclose any cause of action to maintain the suit, and therefore, urged the court to dismiss the suit.

The 3rd Defendant, on its part, argued that the instant suit is an abuse of court process, as the subject has already been decided by the court in the referenced Suit. No. FHC/L/870/2002 and therefore, caught up by the doctrine of Estoppel/ res judicata. Counsel submitted that forum shopping is an abuse of court process, and where such is shown as in this case, the proper order to be made by the court is that of dismissal. Responding to this submission, counsel for the Plaintiff argued that Suit No. FHC/L/CS/1760/2017 was struck out by Obiozor, J. for lack of jurisdiction, and same was not determined on its merit. More importantly, the said suit is different from the present suit. With regard to Suit No. FHC/L/870/2002, counsel argued that by the declaration in the judgement, the 1st Defendant can only issue licenses to place of public worship for the celebration of marriages and that this function can also be carried out by States’ Government department in charge of marriages. He posited that there is nothing in the judgement which empowers the 1st Defendant to engage the 3rd Defendant, a private organisation, as a contractor of the 1st Defendant to register, contract and celebrate marriage under the Marriage Act.

Court’s Judgement and Rationale
Deciding the issues, the trial Judge summarised the earlier decision of court in Suit No. FHC/L/870/2002, wherein it was held that by the combined provisions of the 1999 Constitution, the Marriage Act, and the Marriage Act (Delegation of Powers) Notice, Legal Notice 44 of 1973, the power to issue/grant licence to marry, which was within the exclusive powers of the Minister of Internal Affairs, can now be carried out by the Director-General of the Federal Ministry of Internal Affairs, the Director-General of a State Government and any officer in either the Federal Ministry of Internal Affairs or State Ministry charged with the responsibility of marriage. And that all marriages celebrated in a licensed place of worship or contracted before a Registrar, is valid.

Regarding registration of marriages, the court found that it is within the exclusive authority of the Registrar within the Marriage District (Local Government) in accordance with the provisions of Section 30(1) of the Marriage Act, and Section 7(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and paragraph 1(i) of the Fourth Schedule of the Constitution.

Guided by the decision above, Obiozor, J. in Suit No. FHC/L/CS/1760/2017, declined jurisdiction to entertain the suit, and struck it out. The court declined to dismiss, stating (albeit obiter), that the Plaintiff may decide to file a proper action as a corollary to the decision in FHC/L/870/2002, against which there is no appeal. The advice above, informed the present action.

After a consideration of the present suit, the court found that it is not a re-litigation of issues in the decided case, as posited by the Defendants. The issue in Suit No. FHC/L870/2002 dwells on whether only Local Government Authorities are to contract and register marriages in Nigeria, contrary to the present suit where the issue relates to the legality of the Defendants foraging into Marriage Districts (Local Government Areas) to establish Federal Marriage Registries and declaring certificates issued by the Local Government Areas as illegal. More so, the law even permits two actions to be brought in respect of the same facts, where those facts give rise to two distinct causes of action – A.I.C. LIMITED v MANNESMANN ANLAGENDAU A.G. & ANOR. (1993) LPELR-14510(CA).

The gravamen of the instant suit is the Public-Private Partnership Agreement between the 1st Defendant and the 3rd Defendant for the establishment of Marriage Registries across the States of the Federation. By the arrangement, the 1st Defendant portends to outlaw any marriage conducted by the Local Government (Marriage Districts) Registrars, in view of the directive by the 1st Defendant to the Nigerian Immigration Department, to make the Federal Marriage Certificate an inclusive eligibility requirement for all married applicants for issuance of international passports. To this effect, the 1st Defendant established three Federal Marriage Registries in the 2nd, 3rd and 4th Plaintiffs’ Local Government Councils and wrote a letter to the 2nd Plaintiff to obtain licenses from the Ministry of Interior. The court found that the directive to the Nigerian Immigration Service and Foreign Embassies in Nigeria to recognise federal marriage certificate only, is a complete abuse of power which undermines the constitutional recognition of the three tiers of government in Nigeria. … The stealthy manner in arrogating marriage territories beyond the statutorily delineated Central Licensing place of worship and undermining the Local Governments (Marriage Districts), is illegal.

The court held further that any marriage registry established by the 1st Defendant outside the former Federal Capital Territory of Lagos and present Capital Territory of Abuja, is a voyage in futility into the Marriage District (Local Government Councils) designated for such Registrars of such Marriage Districts to conduct marriages, and it is contrary to the spirit, intent and purpose of the Marriage Act and the judgement in Suit No. FHC/L/870/2002, which recognised only Registrars in places designated as an office; recognised Minister of religion in a licensed place of worship; and marriages contracted under the licence granted by the Director-General, Ministry of Internal Affairs, Director-General of a State Government in charge of marriages, any other officer in the aforementioned Ministrand the Minister of Internal Affairs (now Interior).

The law is settled on interpretation of statutes or enactment, that where there is specific mention of things or persons, then, those mentioned are not intended to be included. Where a statute confers power or schedule on an organ/body, those specifically not mentioned are excluded – AGNES U. EBUBEDIKE v FRN & ORS. (2013) LPELR-22061(CA).
The court went further to hold that only the Local Government has the exclusive responsibility of registration of marriages, contrary to the agreement between the 1st and 3rd Defendants. Under a Constitution conferring specific powers, a particular power must be granted, or it cannot be exercised – MARWA v NYAKO (2012) ALL FWLR 1622 at 1669-1670.

Given the findings above, the court held that conducting marriages is not an exclusive duty of the Local Government Councils; the court also made an order of perpetual injunction, restraining the Minister of Interior and his agents from further contracting marriages and issuing certificates of marriage under the Marriage Act in the Plaintiff’s local Government Councils, except in the former Federal Capital Territory of Lagos (Ikoyi) and the present Capital Territory of Abuja. The court held further, that there shall not be a Federal Marriage Registry in the Marriage Districts, save for Ikoyi and Abuja Federal Marriage Registry, predating the 1999 Constitution, without prejudice to the powers of the Minister of Interior to issue licences to places of public worship to celebrate marriages all over the Federation.

Reliefs Granted in Part.

Representation
Roger Michael Adedimeji for the Applicant.
T.A. Mokuolu for the 2nd Respondent, holding the brief of John Otuka for the 1st Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)