NIGERIA: Proof Of Marriage

There are several methods of proving a statutory marriage. By section 30(1) of the Marriage Act, every Registrar of Marriage is obliged to keep in his office a Marriage Register Book in which every certificate of marriage filed in his office shall be registered. Section 32 of the Act further provides that:

"Every certificate of marriage which shall have been fded in the Office of 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 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".

The section, therefore, admits as satisfactory evidence of a marriage the certificate or certified copy thereof, entry in a marriage register book and a certified copy of such entry. It does not, however, cover, for instance, an extract from a Church register or other certificate of marriage not appropriately filed. Nevertheless, such documents may be treated as copies of public documents which under section 116 of the Evidence Act80 are admissible in evidence as proof of the matters to which they relate. By section 86 of the Matrimonial Causes Act 1970, a court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified true copy of any certificate, entry or record of birth, death or marriage alleged to have taken place, whether in Nigeria or elsewhere. Section 86 of the Act does not refer either expressly or by implication to the earlier provision of the Marriage Act.

The important question is whether the two provisions are co-extensive, or whether the subsequent provision repealed the former by implication. It is clear that both provisions are not contradictory. Rather they are complementary in the sense that section 86 of the Act has a wider scope and includes the former. Consequendy, while before 1970 admissible evidence of a statutory marnage consists only of the official marnage certificate or entry in the marriage register, now a marriage may be proved by a document which purports to be a copy of any 'certificate, entry or record'. This is particularly relevant where the marriage is celebrated in a licensed place of worship and the official marriage certificate was not issued to the parties nor an entry made in the appropriate book. It is now possible under the Act to prove the marnage by a certificate of marriage issued by or under the authority of a religious denomination which does not comply with the provisions of the Marriage Act. The Act also admits any entry or record of marriage kept by such organization. In AkparanSa v Akparanla, the parties were married in May 1963 in accordance with the rites of the Roman Catholic Church at the Christ the King Church, Uyo after the banns of the marriage were duly published. Before this ceremony, the parties were married under customary law.

After the 1963 marriage, the officiating priest issued a marnage certificate exhibit H to the parties. That certificate was not in form E. Subsequently, the wife petitioner prayed for the dissolution of the marriage. She contended that she intended to contract a monogamous marriage and relied on the respondent to fulfil all the preliminaries. The respondent, on the.other hand, argued that the ceremony was a mere blessing of the earlier customary law marriage. On the question of proof of the marriage, Agbakoba, J. held that proof of marriage may be effected either by the production of a marriage certificate in form E or under section 86 of the MCA, 1970. For the purposes of the MCA, the certificate need not be in form E.

The expression "any certificate'' excludes any restrictive interpretation of section 86. In the opinion of the learned judge, exhibit H is a document purporting to be the original or copy of a marriage certificate issued by the officiating priest which under section 86 may be proof of the marriage. But that document may be challenged as evidence of valid marriage under the Marriage Act because of non-compliance with certain preliminaries. There was no evidence, for instance, that a registrar's certificate was obtained before the marriage ceremony took place. Again, while the certificate or entry under the Marriage Act relates only to marriages celebrated in Nigeria under that statute, the docume it or entry referred to in the Act may deal with a marriage celebrated abroad. While, however, under Section 86 of the Act the document or entry is admissible as evidence of its contents that is, the marriage and details of its celebration it is still open to the other side in a matrimonial proceeding to contend that the marriage so proved is not a valid one under the Marriage Act.12 A marriage alleged to have been celebrated abroad may be challenged on the ground that it is invalid by the lex loci celebrationis.

In Anyaegbunam v Anyaegbunam.83 the parties were married at the Church of the Holy Name of Mary, Abatete, in the East Central State on 28 January 1961. The marriage was celebrated by Reverend Hugh Roche, who issued the parties a 'Certificate of Marriage' which was not in the form prescribed in form E in the First Schedule to the Marriage Act. In December 1971 the wife petitioned for judicial separation. The husband raised a preliminary objection that the court had no jurisdiction to adjudicate on the petition because the marriage was a customary marriage followed by church marriage or church blessing. Only the respondent gave evidence during the court hearing in the course of which the Certificate of Marriage was tendered. The respondent in his evidence bluntiy denied contracting a monogamous marriage with the petitioner. In the court of first instance, Phil-Ebosie, J, held that there was a valid marriage between the petitioner and respondent in 1961. This marriage, the learned judge held, was a valid monogamous union because the petitioner intended to contract a monogamous marriage and believed the church marriage had that effect. On appeal, the Supreme Court held that it was the petitioner's task to prove that there was a valid monogamous marriage, and that she had tailed to discharge that burden. Consequently, the court came to the conclusion that the court of first instance had no jurisdiction to hear the petition.

With regard to the proof of the marriage, the Supreme Court stated 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 or could it be described as the original or a certified copy of any certificate, entry, or record of . . . marriage'. The courts' rejection of the Certificate of Marriage was in effect based on the tact that it was not in the form prescribed in Form E of the First Schedule to the Marriage Act. It is respectfully submitted that this interpretation of section 86 of the Matrimonial Causes Act 1970 distorts the plain language of that provision. The section refers to the original or a certified copy of 'any certificate, entry or record of birth, death or marriage. . .'The phrase'any certificate'in the section is not qualified anywhere, and therefore cannot be restricted to a certificate in Form E. If this was intended it would have been clearly expressed therein. This view is strengthened by the tact that the 'certificate . . . of marriage' in the section relates to a marriage 'alleged to have taken place whether in Nigeria or elsewhere'. Certainly, foreign countries need not necessarily issue a certificate of marriage in Form E. Therefore, a certificate of marriage other than in Form E issued abroad is admissible under this section. Lastly, the object of admitting a document under section 86 is to enable a court 'receive as evidence the tacts stated in it', that is,thai a marriage was in fact contracted between the parties. Having received 'any certificate' as evidence of a marriage, the next issue is whether this certificate is evidence of a monogamous marriage.

Probably the Supreme Court was led to adopt this restrictive interpretation of section 86 by the fact that the only party who gave evidence was disputing the nature of the marriage and it was easy to require at the outset that a certificate (in Form E) which was previously the only form of certificate of a monogamous marriage should be tendered. If this dispute as lo the nature of the marriage did not exist, then the certificate tendered plus any extrinsic evidence that the marriage was monogamous under the Marriage Act would have been accepted. The Supreme Court itself expressed the view that a monogamous marriage can be proved by means other than the production of a certificate in Form E.

In its present form, the Marriage Act is far from satisfactory and therefore requires urgent modification. First, it should clearly define the age of marriage and thereby put an end to the present uncertainties on this point. Second, while the Act allows the parties lo a subsisting customary-law marriage to contract a subsequent statutory marriage, it is silent on the legal implications of such an act. It is submitted that such an important matter should not be left to conjecture. Third, it is irrational for the statute to punish in all cases parties to a statutory marriage who contract a subsequent customary-law union. A distinction should be made between the case where a party to a statutory marriage marries another party under customary law, and the celebration of the customary-law marriage between the same parties to the prior union. The first should he made punishable but not the later.

If the same statue permits a subsequent statutory marriage between the spouses to a customary-law union it cannot, without being regarded as discriminatory, punish the reverse situation. It is submitted that the two systems of marriage should be given equal weight, and the parties to one be free lo marry in accordance with the other, with clearly prescribed incidents. Fourth, the Marriage Act and the Criminal Code prescribe different punishments for bigamy. This is obviously unsatisfactory, as the term of imprisonment imposed in each case may depend on which of the statutes a person is charged under. A uniform punishment should be laid down in each of the statutes. Moreover, it should be clearly stipulated that when there is a subsisting statutory marriage the offence of bigamy is committed when one of the spouses contracts either a subsequent statutory marriage or a customary-law marriage.