By Onikepo Braithwaite
Two incidents caught my attention last week – the fact that the President did not renominate Lauretta Onochie as INEC National Commissioner, and the judgement of the Federal High Court per Osiagor J., which held inter alia, that except in Ikoyi, Lagos and Abuja there should not be Federal Marriage Registries in the Marriage Districts, and inter alia, made an order of perpetual injunction restraining the Minister of Interior and his agents from contracting marriages and issuing certificates, except for in the two aforementioned locations.
Lauretta Onochie and the Electoral Process
I could not but follow up on the issue of the former nomination of Ms Lauretta Onochie for the position of INEC National Commissioner, which I wrote about in July. Thankfully, President Muhammadu Buhari did the right thing, by not renominating her.
I referred to her nomination as repugnant, and rightfully so too, and raised serious objections to it, on the grounds that she is not just partisan but an active member of the All Progressives Congress (APC), contrary to Section 156(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution), a fact she had sought to conceal during her Senate screening. Also see the Third Schedule to the Constitution Part 1 F – INEC Section 14(2)(a) & 3(b) on partisanship and unquestionable integrity. I submitted that because of this, it would be an injustice for Ms Onochie to be confirmed, because apart from the fact that her attempt to mislead the Senate about her political activities showed that she lacked the requisite credibility and integrity for such a sensitive position since she is prone to being economical with the truth, at least, when it will be of benefit to her, there was a high likelihood that she would be biased in favour of the APC. I cited the cases of Deduwa v Okorodudu & Ors 1976 1 NMLR 237 and Rafiu Womiloju & 6 Ors v Fatai Ogisanyin Anibire & 4 Ors SC.211/2002 per Ibrahim Tanko Muhammad JSC (now CJN), to support my assertion, and concluded that the objections raised against her nomination, were verified facts which amount to admissible evidence against her nomination. Furthermore, there was already an INEC National Commissioner from Delta State in the South South zone, where Ms Onochie’s hails from.
I had therefore asked that, either Ms Onochie reject her nomination, or the President withdraw it, or that the Senate should not confirm her – whichever way, she should not be given the job. The Senate rejected her, but on the basis of Federal Character because of the other Commissioner from Delta State (Section 14(3) of the Constitution), and not for the other aforementioned cogent reasons. I expressed my reservations about the Senate’s sole ground for rejecting Ms Onochie’s nomination without mention of her other impediments, and hoped that it was not a ruse to give the opportunity for her future renomination. I’m glad that the President proved me wrong.
President Buhari has undertaken, to leave our electoral process better than he found it. Aside from putting the right law in place to achieve this goal, it is crucial that the officials of INEC, especially the high level ones, are non-partisan, intelligent, innovative people with unimpeachable integrity, whose sole purpose is to conduct free and fair elections, and deliver true and accurate results. Sadly, Ms Onochie, for the reasons I espoused, cannot fit into this mould for this particular role. Nevertheless, there are other positions that she can be considered for, like APC Women’s Leader!
The Marriage Saga
For those who may be tired of the institution of matrimony, and were happy that by virtue of the decision in Suit No. FHC/L/CS/816/18 Eti-Osa Local Government Council & 3 Ors v Honourable Minister of Interior & 2 Ors per Osiagor J., (2018 case) their marriages are null and void since they were conducted at a Federal Marriage Registry and not by the Local Government, I am sorry to disappoint you; you will have to go through the proper process of obtaining a divorce from the High Court, if you want to opt out of your marriage which was contracted under the Marriage Act 1955, subsequently 2004 (MA)!
Abuse of Court Process
If there was ever any, the aforementioned suit qualifies to be high on the list of abuse of court process. Even though new litigants were added to the matter to give it a semblance of being a completely new and different case, firstly, Eti-Osa Local Government was a recurring decimal in this case, the Haastrup case, and the Federal High Court case that was dismissed. Secondly, even though Osiagor J. had tried to distinguish the 2018 case from that of the Haastrup case, some of the prayers in the 2018 case had already been adjudicated upon and decided in the earlier Suit No. FHC/L/CS/870/2002 Prince Haastrup v Eti-Osa Local Government, and should therefore, have been excluded from this matter. Thirdly, the 2018 case, a matter that is so contentious, was commenced by means of an originating summons, instead of a writ of summons. Some of the Plaintiffs’ prayers, in my opinion, sought to reverse the decision in the Haastrup case, and indeed, it was somewhat overturned! In the Haastrup case, the court upheld the Federal Government’s power, through the Ministry of Interior, to conduct marriages (anywhere in Nigeria), and held that “the Local Governments were delegated by the Federal Government to conduct marriages by virtue of Legal Notices issued pursuant to the Marriage Act”; and that the Local Governments were constitutionally empowered to register all forms of marriage.
Instead of appealing the decision in the Haastrup case, apart from the aforementioned 2018 matter, there were two other cases on same issue, one in 2016 at the Federal High Court – Suit No. FHC/L/CS/170/16 Eti Osa Local Government & Anor v Hon. Minister of Interior & 2 Ors (which was struck out as an abuse of court process), and another at the Lagos High Court, Suit No. LD/1343/GCM/2016 Olumide Babalola v Ikeja Local Government & ALGON, which inter alia, affirmed the Federal Government’s right to conduct marriages. See the cases of Allanah v Kpolokwu 2016 6 N.W.L.R. Part 1507 Page 1 at 27 per Sanusi JSC and Ogboro v Uduaghan 2013 13 N.W.L.R. Part 1370 Page 33 at 53 per Ogunbiyi JSC for the definition of abuse of court process.
Fourthly, it is trite law that, the subsequent judgement of the 2018 case at the same Federal High Court that touched upon the same subject-matter of the earlier 2002 Haastrup case, and came to a different decision, cannot purport to set aside the decision that was first in time, especially as the subsequent decision is ‘per incuriam’, as it was decided without reference to the Constitution, and a thorough examination of the MA and EA. It is perverse, that is, “one that is persistent in error….”- Ukatta v Ndinaeze 1997 4 N.W.L.R. Part 499 Page 251 at 276; “unacceptable and unreasonable” – per Galadima JSC in Emeka v State 2014 13 N.W.L.R. Part 1425 Page 614 at 632.
Can the same Federal High Court purport to interpret the judgement of its sister court, and in the process of the so-called interpretation, tamper with the previous decision as if it is the Court of Appeal? A court of coordinate jurisdiction, has no right “to sit as an appellate court in another case and review/adjudicate on a decision or order made by another court of the same hierarchy”. Does the doctrine of res judicata not apply? That is, “a final judgement rendered by a court of competent jurisdiction on the merits, is conclusive as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action”. See Suit No. CA/L/1440/2017 Jonathan Uba & Anor v Bore Auta 2021 Legalpedia (CA) 10615. See also Section 241(1)(a) of the Constitution which provides inter alia that, appeals from the Federal or State High Courts shall lie to the Court of Appeal.
Item 61 of the Exclusive Legislative List of the Constitution states thus:
“The formation, annulment and dissolution of marriages other than marriages under Islamic and Customary law including matrimonial causes relating thereto”.
This clearly shows that by virtue of Section 4(1) & (2) of the Constitution, by which the National Assembly (NASS) is the body empowered to make laws for all matters included on the Exclusive Legislative List, all marriages (except those excluded from Item 61), including the contracting of marriage (formation) fall under the purview of the Federal Government – this power applies to all of Nigeria, and not Ikoyi and Abuja only.
Existing Law
Assuming that the Constitution did not place Marriage as Item 61 of the Exclusive Legislative List, and it was a Residual Item, marriages that predate the 1999 Constitution would still not have been adversely affected, because it is trite that a law cannot be retrospective or retroactive. The former law would simply qualify to be an existing law by virtue of Section 315 of the Constitution, and all marriages contracted under the MA would have shifted to one which the House of Assembly only is empowered to make laws for. The law would still have been valid. The question would then have been, whether marriages conducted under a subsisting law by the wrong government agency, are valid. I would answer in the affirmative, because Section 114(1) of the Evidence Act 2011 (EA) provides for the presumption of genuineness of every document “…..which is by law declared to be admissible as evidence of a particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorised thereto, to be genuine……”. Section 114(2) of the EA further provides that: “The court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such a paper”.
This simply means that, even if marriages were not included as Item 61 on the Exclusive Legislative List, by virtue of Section 315 of the Constitution and Section 114 of the EA, marriages conducted at the Federal Registries under the MA, even after the enactment of the 1999 Constitution, remain valid, because the law which the marriages were conducted under is saved by Section 315 of the Constitution as an existing law, and Section 114 of the EA regularises the document which evidences marriage, that is, the marriage certificate if there is any anomaly, in terms of the officer who may have signed the document. Section 34 of the MA also declares that, all marriages celebrated under the MA are good and valid.
Conclusion
Possibly, Marriage should have been Item 37 and not 61 on the Exclusive Legislative List, if it was placed in alphabetical order as starting with the letter ‘M’ (whether marriage should be a Federal or State affair, is an argument for another day). A quick look at the List, may have made one overlook the presence of Marriage on that list. I did, initially. It was on my second, more careful perusal, that I saw it on the List. But, one would expect that judicial officers who are adjudicating upon an issue that is the subject-matter of a case, would not just take a second look like I did, but exhaust themselves researching the issue before handing down judgement! In Mini Lodge Ltd v Ngeri 2009 18 N.W.L.R. Part 1173 Page 254 the Supreme Court held that a finding of fact is said to be perverse, inter alia, where the trial court shuts its eyes to the obvious and the decision has occasioned a miscarriage of justice.
In the aforementioned 2018 case, Eti-Osa Local Government Council & 3 Ors v Honourable Minister of Interior, the trial Judge, Osiagor J. definitely shut his eyes to Section 241 & Item 61 of the Exclusive Legislative List of the Constitution, certain provisions of the Marriage Act and Evidence Act, and the doctrine of res judicata, thereby arriving at a somewhat faulty decision. See the Supreme Court case of Baridam v The State 1994 1 N.W.L.R. Part 320 Page 250 at 260 per Iguh JSC.
The Principal Registrar of Marriages, therefore, rightfully instructed that people should carry on with the contraction of their marriages as usual. The Haastrup judgement is subsisting, and remains so until it is overturned on appeal. The matter itself, did not go on appeal, and even if it had, given the extant constitutional and statutory provisions, the outcome would possibly not have been different.
