Haastrup v Eti-Osa Local Government: Do Local Government Councils Really Have Power to Conduct a Statutory Marriage in Nigeria?

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By  Abubakri Yekini* & M.A. Lateef**

 Abstract

The decision of the Federal High Court in Haastrup v Eti-Osa Local Government (hereinafter referred to as Haastrup) has created some confusions on who has the authority to conduct statutory marriage in Nigeria. This article reviews Haastrup, inlight of its recent affirmation by Egor Local Govt, Edo State v Hon Minister of Interior. The review reveals that there are some fundamental misconceptions of certain provisions of the Marriage Act, which led the court to erroneously conclude that the existing local government councils can validly conduct statutory marriage. It is, thus, suggested that the Federal Government needs to review the judgments, the Marriage Act and extant subsidiary legislation with a view to coming up with a new policy that will regularise the current anomalies and provide more certainty.

Key words: statutory marriage, formal validity, license to marry, marriage districts

I           Introduction

Haastrup & Anor v. Eti-Osa Local Government & Ors[1] raises fundamental questions that affect a core aspect of the foundation of Nigerian society, i.e. the statutory marriage system. Surprisingly, apart from appearing as a footnote in Nwogugu’s work, this case has hardly caught the attention of academic writers[2] or members of the bar and bench[3] until it was recently affirmed by Egor Local Govt, Edo State v. Hon Minister of Interior.[4] The latter case reignited the controversy regarding who has the authority to conduct and register statutory marriages in Nigeria. Some commentators erroneously opined that the case has stripped the Federal Government of any power to conduct or register statutory marriages in Nigeria.[5] On the part of the Federal Government, a press release was issued clarifying its position and reaffirming the validity of marriages conducted in ‘Federal’ registries.[6] The Lagos State Government also seized the opportunity to affirm the power of its Local Government Areas and the Local Council Development Areas to conduct and register statutory marriages.[7]

Statutory marriage is one leg of the tripod of marriage systems in Nigeria. The other two legs are customary and Islamic marriage systems.[8] Like the other two systems, statutory marriage, by far the foremost marriage system in Nigeria,establishes the status of the couple. It is the foundation of a matrimonial home with all the accruing rights and responsibilities. It determines the couple’s respective rights to matrimonial properties in the case of separation, succession in the case of intestacy, custodial rights, maintenance and so many other legal issues arising from marriages. Lord Westbury in Shaw v. Gould[9] underscores this point by positing that:

Marriage is the very foundation of civil society, and no part of law and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and the conditions of forming, and if necessary of dissolving, the marriage contract.[10]

For the several legal issues highlighted above, the law approaches the whole concept of statutory marriage from a strict perspective. It lays out mandatory requirements for a valid marriage. Otherwise, there is no marriage in the eyes of the law even if parties have lived together under a mistaken belief that they are married.[11] To this end, it is necessary to stress that the requirement of formal validity relates to those formalities or other marriage rites, which the law mandatorily requires for a marriage to take place. Under the Marriage Act[12], such requirements of formal validity include the issuance of notice of intention to get marry, issuance of a license to marry, obtaining a registrar’s certificate, marrying in a recognised marriage district, marriage being conducted in a district registrar’s office or in a licensed place of worship.

It is imperative to take these issues of formal validity of marriage seriously in today’s global world because Nigerian marriages may be subject of judicial examination in foreign courts.[13]This is the build-up to Hasstrup’s case as the Applicants therein alleged that ‘the Home Office in Britain will verify whether the marriage was actually solemnized in a recognized place’.[14] It is trite in private international law that a marriage would only be valid if it complied with the law of the place of celebration.[15] This is otherwise expressed as a rule of compliance with lex loci celebrationis.

Therefore, it is essential to review Haastrup’s case with a view to addressing some of the shortcomings in the decision and to draw the attention of the policymakers to certain gaps, which must be addressed forthwith. Although, Haastrup is aHigh Court decision, it remains the law having been reiterated byEgor Local Govt, Edo State. More so, the Federal Government has not deemed it fit to test these decisions on appeal.

II         Facts of the case: Prince Haastrup v Eti Osa Local Government

Two Nigerian citizens, Prince Haastrup and Miss Habeebat Akinfemi, both resident in England, agreed to conduct their marriage in Nigeria. While Habeebat preferred that the marriage should be conducted at the Ikoyi ‘Federal’ registry, Lagos, the groom preferred the marriage registry at Eti –Osa Local Government because he is a prince from that local government. The parties were keen on conducting the marriage at the appropriate venue because the British Home Office might confirm the validity of the marriage. They approached a marriage counsellor who opined that the issues raised are purely legal and would be best determined by a law court. Thus, the parties, supposedly working in concert with the Eti-Osa Local Government,[16] approached the Federal High Court in Lagos to determine, amongst other issues, whether it is not the exclusive function of the Local Government to conduct and register marriages in Nigeria.

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III        Decision:

The court examined several provisions of the 1999 Constitution (as amended) and the Marriage Act and concluded that both the Federal Government – Ministry of Internal Affairs[17]– and the Local Government Councils have the powers to conduct statutory marriages. However, the Local Government Councils have the exclusive power to register marriages.The Court confirmed that by sections 2, 3 and 6 of the Marriage Act, marriages can only be conducted in marriage districts designated by the President in an official gazette. Such marriages must be conducted at licensed premises or before district registrars appointed by the Government.

The Court further examined the Marriage Act (Delegation of Power) Notice, Legal Notice 44 of 1973 wherein the power to issue a license to marry was delegated to a Director-General in a State Ministry charged with the responsibility for marriage or Officers in his department not below the rank of Administrative Officer II. The court reasoned that since the power to issue a license to marry has been delegated to States, the Local Government areas share the power to conduct statutory marriages with the Minister of Internal Affairs. According to Justice Olomojobi:

From the totality of the provisions of the Marriage Act, therefore, the Marriage Act (Delegation of Power) Notice, Legal Notice 44 of 1973, section 71(5) of the Constitution of the Federal Republic of Nigeria 1999 and paragraph I(i) of the Fourth Schedule thereof, I am of the view that the following is the position as regards celebration of marriages, contracting of marriages and registration of marriages: –

All marriages celebrated in a licensed place of worship or contracted before a registrar are valid.

Marriages contracted under a license [18]granted by any of the following persons:

  • The Director-General in the Ministry of Internal Affairs, or
  • Director-General in any State Ministry which is charged with the responsibility for marriage in that state or
  • Any Officer in any of the Ministries stated in (1) and (2) above or
  • The Minister of Internal Affairs, all such marriages are valid under our Law.

Finally, on registration, the court rightly affirmed that Fourth Schedule to the 1999 Constitution vests the power to register marriages exclusively in the LGAs.[19]

IV        Critique

To start with, the Federal Government has the exclusive competence to determine issues bordering on the formation, annulment and dissolution of statutory marriages.[20] Having enacted the Marriage Act to that effect, the Act and its subsidiary legislation exclusively determine the issues raised inHasstrup’s case.

The first fundamental misconception in the judgment is the failure of his lordship, with due respect, to specifically identify and address the issue bordering on the establishment of a marriage district since marriages can only be celebrated in a marriage district designated by the President. By extension, only the registrars appointed by the Minister of Internal affairs can carry out the responsibilities imposed by the Act. To the best of our knowledge, the last Presidential Order, which divided the country into marriage districts, was issued in 1971.[21] By that Order, Lagos State was divided into 5 marriage districts, to wit: Lagos, Badagry, Ikeja, Epe and Ikorodu. The Lagos Marriage District Office was situated at Federal Ministry of Internal Affairs complex, Alagbon Close, Ikoyi while other districts have divisional offices.[22] As of today, it appears that it is only the Lagos District office that is functional in the state as there is no record of the existence of other divisional offices.[23]

By this legal framework, statutory marriages in Nigeria are meant to be centrally administered. This accounts for why there is, hitherto, only a marriage registry in a state and usually referred to as ‘Federal’ registry. This arrangement has not changed because no Order has been made since 1971 altering the extant marriage districts. In other words, there is no instrument designating the 774 Local Government Areas in Nigeria as marriage districts. The learned judge, with due respect, erroneously assumed that ‘district’ as used in the Marriage Act means the Local Councils established under the 1999 Constitution.  On this note, his lordship’s conclusion that Local Governments’ marriage registries can conduct marriages is not supported by any law and may not stand legal scrutiny on appeal.

Aside from the erroneous classification of districts as Local Government Councils, the appointment of marriage registrars in these Local Government registries is another factor that exposes the weakness in the wrong classification of marriage districts. By the provisions of the Marriage Act, marriages can only be celebrated before marriage registrars appointed under the Act. In this regard, the Act provides that:

  • There may, from time to time, be appointed a fit and proper person to be the Principal Registrar of Marriages.
  • There may likewise be appointed a fit and proper person to be the registrar of marriages for each marriage district, and may also appoint a deputy registrar of marriages for any district to act in the absence or during the illness or incapacity of the registrar[24]

The Act goes further that:

Every registrar shall have an office at such place as the Minister shall direct. The office of the Principal Registrar shall be at such place as the Minister shall direct[25]

It is understood that for marriage registries created under the Act, a Registrar or Principal Registrar of Marriage must be appointed by the Minister to that office to carry out the responsibilities imposed by the Act. Therefore, all the Local Government marriage registries and registrars not created under the Marriage Act, nor appointed by the Minister cannot conduct marriages. Neither can a marriage be validly celebrated in those offices as well.[26] It may be added that this power has neither been exercised by the Minister of Internal Affairs nor delegated to any other authority.

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The second error in the judgment, our humble view, is the misapplication of section 13 of the Marriage Act, which governs the issuance of a license to marry. ‘License to marry’ is not the same as marriage in a licensed place of worship or registrar’s office. The provision of section 13 is reproduced hereunder:

The Minister upon proof being made to him by affidavit that there is no lawful impediment to the proposed marriage, and that the necessary consent, if any, to such marriage has been obtained, may, if he shall think fit, dispense with the giving of notice, and with the issue of the certificate of the registrar, and may grant his license, which shall be according to Form D in the First Schedule, authorising the celebration of a marriage between the parties named in suchlicenseby a registrar, or by a recognised minister of some religious denomination or body.

Section 13 simply provides an alternative route to the issuance of a clearance/permission for the couple intending to marry. The otherwise requirements are that the couple must approach the registrar in a district to sign the notice of marriage,[27] publication of the notice for three months,[28] and the issuance of registrar’s certificate confirming that the essential requirements for a valid marriage have been met.[29] The Minister’s license is a special license, which may be given in disregard of the preliminaries to marriage. It is nothing more than a confirmation of compliance with the essential requirements for a valid marriage. This does not obviate the fact that marriages can only be conducted before a duly designated marriage registrar[30] or a licensed public place of worship.[31]

The judge, respectfully, missed the point by assuming that license to marry –permitting marriage- is the same as marriage in a licensed place or a registrar’s office. A couple may obtain a license to marry but conduct the marriage in an unauthorised place. Assuming that this position is wrong, there is nothing in the Marriage Act (Delegation of Power) Notice, which extends the power to issue a license to marry to the Local Government Councils or its officers. At best, only a State’s Director-General or officers in his department can grant such license to marry. The delegated legislation cannot be interpreted by any stretch of the imagination to arrive at a general conclusion that the Local Governments Councils have the power to conduct or celebrate marriages. Such a position is contrary to item 61 of the Constitution, Sections 13, 21 and 27 of the Marriage Act and the Marriage Act (Delegation of Power) Notice.

V         Conclusion and Recommendation

The Ministry of Internal Affairs seems to have tacitly approved the celebration of marriages by the Local Government Councils. This is buttressed by the reference of the Ikoyi registry as ‘Federal Marriage Registry’ for instance. It suggests there may be other registries for the State or Local Government Areas. Indeed, the Federal Government is aware of the existence of these registries at the Local Councils as it is a matter of public knowledge.  Similarly, the Federal Government showed no serious interest in these two cases, which challenged its powers. Hasstrup was not really defended by the Federal Government. Thus, the conclusion of the judge that it was a concert between the couple and the Local Government Council.

In this regard, it is imperative for the Federal Government to review the legal framework for the conduct and celebration of marriages in Nigeria in view of the emerging controversies. The Ministries of Interior and Justice need to come up with a clear policy on whether statutory marriages should continue to be centrally administered or a decentralised regime is preferred. This will inform what aspect of the Marriage Act or its subsidiary legislation needs to be reviewed, amended or updated and what form of amendment is required. For a serious issue such as the validity of marriage, there should be no ambiguity as to who has authority to carry out the responsibilities imposed by the Marriage Act.

It is recommended that the Federal Government should review the extant subsidiary legislation, particularly Marriage (Designation of Districts) Order 1971, Marriage (Location of Marriage Offices) Directions 1971 and the Marriage Act (Delegation of Power) Notice, Legal Notice 44 of 1973 to address the issues that have been raised in this paper. The constitutional structure of Nigeria has changed since 1971 and 1973 when the extant subsidiary instruments were made. Consequently, the Marriage (Designation of Districts) Order should be reviewed to designate the existing 774 Local Government Areas and others that may be created in the future as marriage districts. This will translate to political and administrative efficiency as prospective couples can validly celebrate their marriage in the closest local council. The second deficiency which needs to be cured is the appointment of marriage registrars. In this regard, it is desirable that the appointment of these registrars should be delegated to the local councils as against the current arrangement where such power was delegated to a Director in the state. Direct delegation to local councils is pragmatic because that the constitution already grants the exclusive power to register marriages. Thus, each local council, presumably, already has an officer in charge of marriage registrations. The amendment would therefore validate the function -celebration of marriages- which is already being performed by such officers. These two amendments would regularise and harmonise the existing anomalies, and create more certainty and predictability in marriage laws in Nigeria.

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Footnote

* Abubakri Yekini, LL. M, B.L, LL. B (Hons) is a Lecturer at the Department of International and Islamic Law, Lagos State University. He is also a doctoral researcher at the Centre for Private International Law, University of Aberdeen, United Kingdom. Abubakri.yekini@lasu.edu.ng; +447550493535.

** M.A. Lateef, Ph.D. candidate and a lecturer in the Department of Jurisprudence and Private Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria; Visiting Scholar and Participant at the Summer 2018 Business Law Academy, Columbia Law School, New York City, United States of America.Tel.: +2348033955817. E-mail: malateef@oauife.edu.ng

[1] Unreported, Suit No: FHC/L/8702002 delivered on 8 December 2004

[2] E.I Nwogugu,Family Law in Nigeria (3rd edn, Ibadan, HEBN Publishers Plc 2014), 71.

[3] The case has, however, recently appeared in several blogs and media platforms following the uproar from Egor Local Govt, Edo State’scase. See ‘Does Ikoyi registry have power to conduct marriages?’ The Punch (Lagos 24 May 2018) <http://punchng.com/does-ikoyi-registry-have-power-to-conduct-marriages/> accessed 25 May 2018; Oliver Omoredia, ‘Marriages At The Ikoyi Marriage Registry: What The Federal High Court Really Decided’ The NigerianLawyer (Lagos 21 May 2018) <http://thenigerialawyer.com/marriages-at-the-ikoyi-marriage-registry-what-the-federal-high-court-really-decided-by-oliver-omoredia/> accessed 24 May 2018. ; ‘Federal High Court Did Not Nullify Marriages Contracted at Ikoyi Marriage Registry’ Lawyard (Lagos 18 May 2018)<https://www.lawyard.ng/federal-high-court-did-not-nullify-marriages-contracted-at-ikoyi-marriage-registry-download-full-judgment/> accessed 24 May 2018.

[4] Unreported, Suit No: FHC/L/CS/1760/16 delivered on 30 April 2018.

[5]J Augoye, ‘High Court bars Ikoyi Registry from conducting marriages’ Premium Times (Lagos 18 May 2018) <https://www.premiumtimesng.com/regional/ssouth-west/268873-high-court-bars-ikoyi-registry-from-conducting-marriages.html> accessed 24 May 2018.

[6]Jayne Augoye, ‘Federal govt counters Lagos, says it’s legal to marry in Ikoyi registry’ Premium Times, May 19, 2018 at https://www.premiumtimesng.com/regional/ssouth-west/268952-federal-govt-counters-lagos-says-its-legal-to-marry-in-ikoyi-registry.html

[7] Lagos State Government, ‘High Court Reaffirms Rights of Lagos State Registries to Conduct Marriages’, (Lagos 24 May 2018) <https://lagosstate.gov.ng/blog/2018/05/17/high-court-reaffirms-rights-of-lagos-state-registries-to-conduct-marriages/>accessed 24 May 2018.

[8] The composition of the Nigerian legal systemincludesthe Received English Law (i.e. common law and doctrine of Equity), customary and Islamic laws. Each of these components prescribes peculiar system of marriage. The Received English law prescribes what is popularly known as statutory marriage or marriage under the Marriage Act; the formation, annulment and dissolution of which is within the exclusive legislative competence of the Federal Government of Nigeria pursuant to the provision of Item 61 of Part I of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended). On the other hand, both the customary and Islamic systems of marriages are within the legislative competence of the States alone. Thus, their formation, annulment and dissolution are respectively governed by customary and Islamic laws under the tutelage of the states.

[9](1868) L.R. 3 H.L. 55.

[10]Ibid 88.

[11]Indeed, section 33 (2) (c) of the Marriage Act expressly provides that a marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration without a Registrar’s certificate of notice or license duly issued under section 13 of the Act.

[12]CAP. M6 L.F.N. 2004. See generally ss. 7 & 11 and Form A in the First Schedule.

[13] For instance, see N v D[2015] EWFC 28 where the validity of a Nigerian customary marriage was in issue; Kareem v Secretary of State for the Home Department[2014] UKUT 24 where the Secretary of State disputed that a Nigerian Marriage certificate with other supporting documents were not enough to sufficiently establish that marriage according to Nigerian law took place.

[14]Haastrup, p. 5.

[15]R.F Oppong,Private International Law in Commonwealth Africa (Cambridge University Press 2013) 185.

[16] This is the observation of the learned trial judge because their arguments are similar with those of Eti Osa Local Government which is the 1st Respondent. The judge opined that Eti-Osa Local Government ought to be joined as an Applicant. See Haastrup, p. 11.

[17] Now Ministry of Interior since the merger of the erstwhile Ministry of Internal Affairs with the Ministry of Police Affairs.

[18]Haastrup, p.21.

[19] Item 1 (i) of the Fourth Schedule to the 1999 Constitution (as amended) lists the main functions of local government council to include “registration of all births, deaths and marriages.”

[20] 1999 Constitution of the Federal Republic of Nigeria (as amended), Item 61 of the Exclusive List.

[21] See Marriage (Designation of Districts) Order 1971.

[22]  See Marriage (Location of Marriage Offices) Directions 1971.

[23] Aloysius Enemali also made an erroneous conclusion that the registrar’s office is located in all the local government areas without providing any law to back up the creation of such offices in all the local government areas. See A.Enemali,The Formal Requirements of the Celebration of Marriage: A Comparative Studyof Canon Law, Nigerian Statutory Law and Customary Law (Trafford Publishing 2013) 10.

[24]  Marriage Act, s.4.

[25] Marriage Act, s.5.

[26] Although, Nigerian courts have been very pragmatic in saving marriages that do not comply with some of the formal requirements of the Marriage Act especially in cases where the couple are genuinely unaware of those infractions. For some cases on this point, see E.I Nwogugu, Family Law in Nigeria, 150-153.

[27] Marriage Act s.7.

[28]Ibid s.10.

[29]Ibid s. 11.

[30]Ibid s.27.

[31]Ibid s.21.

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