There have been legal brawls between some local governments and the Federal government through the ministry of interior as to who is empowered to register marriages, issue certificates, and operate a marriage registry.
Before delving into all these, it is pertinent to trace the history of statutory marriage and the marriage Act being the law governing statutory marriages in Nigeria. Statutory marriage is one of the relics of colonialism in Nigeria. It was introduced as a form of marriage the moment the British government succeeded to colonized Nigeria.
The marriage Act as it is today is one of the received English laws which was re-enacted in various forms it transcends into up till today. The provisions of the Marriage Act of 1970 which was re-enacted in 2004 is basically the same thing as the marriage ordinance of 1914, hence section 3 of the said marriage Act provides that ‘’the president shall by order published in the Federal Gazette, divide Nigeria into districts for the purposes of this Act, and may from time to time, by like order alter the district’’ one will not be surprised to see this kind of provision in the Marriage Act this is basically because as at the time the marriage ordinance was enacted in 1914 the District Administrators perform the functions similar to that of the local government of today.
Even in 1970, when this current Marriage Act was enacted the system of the local government was not what it used to be. The functions of local government in Nigeria were well provided for in the 1979 Constitution after the local government reforms of 1976 which are also saved by the 1999 Constitution (as amended). The functions of local government were not provided for in the 1963 Constitution under which the marriage Act of 1970 was enacted.
Having laid this background, it is important to look at the provisions of the Marriage Act and marry it with the provisions of the 1999 Constitution as it relates to the powers of the Federal government over matrimonial issues vis-a-viz the power of local government to register marriages, issue certificates and operate marriage registry.
By Item 61, part 1 of the second schedule of the 1999 Constitution, it is only the Federal government that have exclusive power to determine issues that have to do with ‘’the formation, annulment and dissolution of marriages other than marriage under Islamic and Customary laws including matrimonial causes relating thereto’’ this provision implies that only the Federal government can make laws concerning the formation, annulment, and dissolution of marriage under the statute.
This is further amplified by the provisions of section 6 of the Marriage Act which empowers the minister to designate places of worship and other places as a license place for the celebration of marriage for the purpose of conducting a marriage. Although this position cannot be contested by the local government it further gives credence to the role the Federal government can play concerning the formation of statutory marriages in Nigeria.
Going further, the same Constitution under the fourth schedule, Item 1 (i) which provides that “the main functions of a local government council are as follows-
(i) registration of all birth, deaths, and marriages;”
By this provision of the constitution, it is only the local government that is empowered by the constitution to register marriages in Nigeria and by extension issue certificates and operate a marriage registry regardless of the provisions of the Marriage Act under section 5 which provides thus: “Every registrar shall have an office at such places as the Minister shall direct. The office of the registrar shall be at such place as the Minister shall direct” by proper construction of the above section it follows that only the minister shall decide where the office of the registrar shall be.
This is where the problem comes in because the framers of the 1999 Constitution envisage that marriage registry is domiciled within the local government to this end the provision of section 5 of the Marriage Act is inconsistent with the provisions of the Constitution as such should be declared void to the extent of its inconsistency with the provision of the constitution in line with the provision of section 1 (3) of the 1999 Constitution.
The other issues to be addressed in this write up is whether if the local government is the only authority empowered by the constitution to register marriage and issue certificates under the fourth schedule, item I (i) of the same constitution being the groud norm, what is the validity of other marriage certificates not issued by the local government?
The answer to the above question is that marriage certificates issued by any other authority other than the local government in Nigeria are void. Does this also affect the validity of those marriages if the certificate did not emanate from the proper source? The answer to the above question will be in the affirmative as it is only the certificate that evidences the existence of statutory marriages under sections 30 and 32 of the marriage Act. It is also important to know that one of the conditions under which a marriage can be void under section 4 of the matrimonial causes Act and section 33 of the Marriage Act is where both parties acquiesce in celebration of marriage in a place other than marriage registry or license place.
What is playing out in the legal tussle between the local government and the Federal government concerning issuing of a marriage certificate is the usual attempt or desperation the Federal government always display in trying to muscle up powers that are specifically provided to be exercised by other tiers of government forgetting that we are operating a Federal constitution which shares power between it and other tiers of government.
The moment the 1979 constitution came into operation which is still saved by the 1999 constitution it nullified any power arrogated to the minister of interior concerning the registration of statutory marriages, issuance of marriage certificates, and operating marriage registry as same having been transferred to the local government there is nothing left for the minister to be doing in this regard. To this end, the judgement of the Federal High Court sitting in Lagos nullifying the Ikoyi marriage registry and all the marriage certificates it issued in that regard as illegal and therefore void is in agreement with the letters and spirit of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Finally, it is our opinion that the Minister of Interior is misconstruing the power of the Federal government in the formation of marriage to registration, issuances of certificates, and, operation of marriage registry. With due respect, the power of the Federal government information of marriage is still very much protected by both the Marriage Act and the Constitution as only the minister of interior can designate a place of worship and other places apart from marriage registries at the local government as a license place for the celebration of marriage in Nigeria. The question that agitates one’s mind is does the licensed place of worship and other places designate for the celebration of marriages have the power to register marriage and issue marriage certificates in Nigeria? The answer to the above question is in the negative.
Therefore, if by extension the minister-designate Ikoyi as a licensed place to celebrate marriage at best it can only conduct marriages but cannot issue certificates because registration and issuance of marriage certificates will be done by the local government where that license place is domicile.