By LawPavilion

CASE: OLISA AGBAKOBA v. ATTORNEY GENERAL OF THE FEDERATION (2021) LPELR 55906 (CA)

JUDGMENT DATE: 1ST NOVEMBER, 2021

JUSTICES: JOSEPH SHAGBAOR IKYEGH, JCA

ONYEKACHI AJA OTISI, JCA

ABUBAKAR SADIQ UMAR, JCA

COURT DIVISION: LAGOS

PRACTICE AREA: Constitutional Law- Right to Freedom of Thought, Conscience and Religion

The Appellant was born and raised according to Biblical standards and values of the Catholic faith. It was the Appellant’s contention that the State, through Sections 21 to 26, 33[2][a] & [b] of the Marriage Act and 15[1] & [2] of the Matrimonial Causes Act infringed on his right to freedom of thought, conscience and religion, and impeded his faithful observance of the Sacrament of Matrimony in the manner prescribed by the Catholic Cannon Law and Practice.

Aggrieved by the alleged statutory coercion and validation of his marriage, the Appellant instituted an action against the Respondents in the trial Court seeking declarations that Sections 21 to 26, 33(2)(a) & (b) of the Marriage Act and Section 15(1) & (2) of the Matrimonial Causes Act ​interfere with and impede his right to freedom of thought, conscience and religion; that they violate his fundamental right to freedom from discrimination; that they are inconsistent with Section 38 (1) and 42(1) (a) of the Constitution and are therefore null and void, to the extent that they purport to regulate and confer validity on his Christian Marriage. Also, that non-provision of Courts exercising jurisdiction in his religious affairs is discriminatory against him as a Christian and therefore contravenes Section 42 of the Constitution which guarantees his right to freedom from discrimination.

In response, the 1st Respondent filed a Motion on Notice to challenge the jurisdiction of the trial Court to entertain the suit. In its considered judgment, the trial Court struck out the 1st Respondent’s motion on notice challenging its jurisdiction, and dismissed the Appellants’ Originating Motion.

Dissatisfied, the Appellant appealed.

ISSUES

The appeal was determined upon consideration of the following issues thus:

Whether the Court below was right when it held that the right to freedom of religion does not include the right to a particular procedure for marriage or a particular procedure for dissolution of marriage, while holding that State intervention in the Appellant’s marriage is not a violation of his Constitutional right to freedom of thought, conscience and religion. Whether the Court below was right when it held that the key word in Section 42 of the Constitution is ‘Disabilities’ and that the Appellant has failed to show how the non-provision of Courts in his religion has subjected him to any disability or discrimination Whether the Court below was right when it held that the Applicant did not establish his locus standi or cause of action and that the reliefs if granted would confer no benefit on the Appellant. COUNSEL SUBMISSION

Learned Counsel to the Appellant submitted that from the interpretation placed on Section 38 of the Constitution, the Appellant has a right to choose the course of his life, fashioned upon what he believes in, and the right not to be coerced into acting contrary to his religious beliefs. That these rights include his right to solemnize or dissolve a marriage in accordance with his religious beliefs. That the Catholic Cannon Law is a complete legal regime for the solemnization, validity and annulment of marriages, once it is administered by a Catholic Priest and it does not require any certification for its spiritual validity or efficacy. Counsel submitted that Sections 21 – 26 of the Marriage Act, which provide that any marriage celebrated in accordance with the Catholic faith, without resort to the Marriage Registry and Registrar’s certification is void in the face of the law, impedes the Appellant’s constitutionally guaranteed rights and are desecrations of the Appellant’s right to freely practice his religion.

Learned Counsel for the 1st Respondent submitted that the trial Court rightly interpreted the provisions of Section 38(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That the freedom of religion expressed in Section 38 of the Constitution made no mention of a fundamental right of marriage or as in this case, the fundamental right to marry vide a particular procedure and any such submission will amount to a violent reconstruction and amendment of the Constitution. That nothing in the Marriage Act and Matrimonial Causes Act prevented the Appellant from conducting his marriage in accordance with his religion, such a marriage would be recognized as a marriage valid under customary law, but not as a marriage under the Act.

Learned Counsel for the 2nd Respondent also submitted that the trial Court rightly interpreted the provisions of Section 38(1) of the 1999 Constitution, as amended. That the Appellant ostensibly waived that right when he contracted his marriage at the Marriage Registry, Benin, Edo State, without complaining but rather waited until 34 years after that marriage was contracted to institute the present action in 2014. Having ostensibly waived any perceived right, the Appellant cannot be heard to complain later.

DECISION/HELD:

In the final analysis, the Court of Appeal dismissed the appeal.

RATIOS

CONSTITUTIONAL LAW- RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION: Whether Sections 21 – 26, 33(2)(a) and (c) of the Marriage Act and 15 of the Matrimonial Causes ]Act impede the right of a person to freedom of religion in relation to solemnization and dissolution of marriage – “…I have carefully read through the provisions in issue and the constitutional freedom guaranteed by Section 38(1) of the 1999 Constitution, and I remind myself that I am restrained from attaching to these statutory provisions any meaning which the words of the statutes cannot reasonably bear. In this light, I make the following observations. In the first place, there is no gainsaying the fact that different forms of marriage may be celebrated in Nigeria. There is the statutory marriage in Nigeria, described and governed by the Marriage Act, and the Matrimonial Causes Act. This is a monogamous marriage. There is the religious marriage, which is governed by the rules of the particular religious group or sect that the parties belong to. Depending on the religious group or sect, this marriage could also be monogamous. Then there is the traditional or customary marriage, which is governed by the marriage customs and traditions of the particular ethnic communities that the parties belong to. A traditional or customary marriage is not usually monogamous. A polygamous marriage is acceptable. Each couple enters into a relationship and celebrates the form of marriage that they desire. The marriage ceremony, and every issue arising thereunder, including issues of separation, divorce and inheritance, is guided and governed by the peculiar laws, rules, customs and tradition of the form of marriage… There is no compulsion to enter into any of these forms of marriage. That is to say, for a valid marriage under any of the forms of marriage, the parties consciously make the choice of which form of marriage shall cement and govern their relationship… It is important to note, and I must emphasize that there is no compulsion for any couple to enter into a particular type of marriage. If a couple decides that all they desire is a traditional or customary marriage, then they go for it. Their union will be governed by the traditions and customs governing such marriages within the applicable ethnic group. This includes issues of divorce or inheritance… If the couple desires a religious marriage, then they go for it. Again, their marriage, including issues of divorce or inheritance will be governed by the rules within the said religious body… If the couple desires a statutory marriage under the Marriage Act, then they must comply with the provisions of the Act, specifically Sections 7 – 23 thereof. Such statutory marriage may be celebrated in a Marriage Registry or in a licensed place of worship or Church. All issues concerning their marriage, including divorce and inheritance will be so governed. It is vital to underline the fact that each couple decides what type of union they desire. A couple may decide that they want to have a marriage under the Act, but they also want divine blessings pronounced over their union. In which event, they must go to a place of worship or a Church, licensed under the Marriage Act, to celebrate their union. This way they get both divine blessings pronounced upon their union, and a statutory marriage in one fell swoop. The mere celebration of their marriage in a place of worship or in a Church, ipso facto, does not convert the marriage to one under the Act, if the place of worship or Church has not been so licensed under the Act. See Sections 21 and 23 of the Marriage Act. Another couple may decide to have a Church blessing or traditional marriage first, then later convert their union to a marriage under the Marriage Act. Again, there must first be compliance with the provisions of the Marriage Act… Most importantly, whatever decision the couple takes, there is no compulsion. It is purely the decision of the couple.” Per OTISI, J.C.A.

2. FAMILY LAW- MARRIAGE UNDER THE ACT: Position of the law on church marriage and marriages conducted in a licensed place of worship –

“The depositions of the Appellant reveal that he is a devout Christian of the Catholic denomination. Also revealed is the fact that he and his wife decided to cement their union in the Catholic Church, and under the Marriage Act. If they decided to simply opt for a marriage in the Catholic Church, with divine blessings pronounced on them, that would suffice as a marriage under the Catholic Church. They would be recognized as a married couple within the tenets of the Catholic Church, and all benefits accruing, as well as any rules governing such marriages, shall bind them. I do not see any provisions in the Marriage Act that pronounce a marriage contracted in accordance with the Catholic Church marriage rites as invalid. The Marriage Act has no connection with the Catholic Church marriage rites. These marriages are on two parallel lines. Thus, while such marriage celebrated within the Catholic Church, without compliance with the Marriage Act, may be recognized as a valid marriage within the Catholic Church, it will not be recognized as a statutory marriage…” Per OTISI, J.C.A.

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