Legal Nuggets (57): The Validity of a Marriage Contracted in the Marriage Registry in the Republic of Biafra.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI


ISSUE: MARRIAGE UNDER THE ACT-Position of the law as regards the validity of a marriage contracted in the marriage registry in the Republic of Biafra

"This matter is indeed a very simple one and concerns primarily the validity of Exhibit D, the marriage certificate issued by the Marriage Registry Owerri, Biafra. The answer is
to be found in the Marriage (Validation) Act Cap 219 LFN 1990 under which marriages contracted in the Marriage Registries in "the Republic of Biafra" were validated by law and are valid as statutory marriages celebrated in Nigeria. As submitted by learned counsel for the Respondent, the Act came into force on the 11th day of August 1971 and is described as "An Act to validate certain marriages celebrated in the Western, Eastern and Northern States of Nigeria between 1st January, 1964 and the commencement of this Act, which were considered to be of doubtful validity". Section 3 of the Act provides as follows: "Subject to this Act, all marriages purporting to have been celebrated
under the Marriage Act between 30th May, 1967 and the coming into operation of this Act in the East-Central, Rivers and South-Eastern States which would have been valid if

(a) in duly designated marriage districts;

(b) before duly appointed registrars of marriages; and

(c) in duly appointed marriage offices, shall be and be deemed always to have been valid in law as if they had been celebrated with due observance of the requirements of
the law." Exhibit D shows that the marriage between the Respondent and Osita Obidiegwu satisfied all the conditions set out above and has put to rest every doubt about the validity of
the statutory marriage between the Respondent and the late Osita Obidiegwu.

In the case of FELICIA ONUKWUDORO V. ANTHONY ONUKWUDORO (UNREPORTED) SUIT NO. O/12D/72 referred to by Respondent's counsel the parties were married in the Divisional Registrar's Office Mgbidi, Ihiala Division in December, 1969. The Marriage Certificate
issued to the parties at the Marriage Registry, Ihiala was headed in "Republic of Biafra". The
Court held that the marriage was retrospectively validated and accepted the certificate issued in respect thereof as evidence of a valid statutory marriage. Of Section 3 of the
Marriage (Validation) Act Cap 219 LFN 1990 Agbakoba J. (as he then was and of blessed memory) held as follows:

"I am of the view that it validates all marriages contracted in contravention of the provisions of the Marriage Act Cap 115 provided such marriages were purportedly celebrated under the Marriage Act whether or not celebrated in duly designated marriage districts or before duly appointed
registrar of marriage or duly appointed marriage offices. I am further of the view that the Act cured all defects of form, regularized all irregularities and so legalized all such
marriages which but for its promulgation would have been invalid."

In AFONNE V. AFONNE (1975) 3 ECSLR VOL 5 P. 159 Oputa J. (as he then was and also of blessed memory) reached a similar decision on the effect of the provision of Section
3 the Marriage (Validation) Act 1971 (in pari materia with Section 3 of the Marriage Validation Act 1990) on any purported defect of marriage celebrated in Biafra during the
civil war thus:

"If the marriage was valid; if its only defect was that it was celebrated in Biafra, then the Marriage (Validation) Act No. 46 of 1971 had cured that particular defect and
therefore the objection solely on the ground that it was celebrated in Biafra was not well founded."
It is thus obvious that the objection to Exhibit D by the Appellant is of no consequence. This law regretfully was not brought to the attention of the learned trial Judge as it
would have saved the parties and the Court the time spent on the back and forth as to the validity of Exhibit D. Section 4 of the Marriage (Validation) Act further provides:

"The certificates in respect of marriages to which this Act relates and the entries thereof in any marriage register book or copies of such certificates or entries shall be
received in all Courts as evidence of such marriages to the same extent as similar certificates, entries or copies in the case of marriages duly celebrated under the Marriage
Act are by law receivable in evidence." Exhibit D being a certificate of marriage issued by the Marriage Registry, Owerri in Biafra is evidence and proof of a statutory marriage between the Respondent and late Osita Obidiegwu. The trial Court was therefore right in attaching weight to and basing its judgment on Exhibit D when it held that there was a valid statutory marriage between the Respondent and late Osita Obidiegwu. Failure to rely on the Marriage (Validation) Act or to base its judgment on the law is of no consequence. The fact still remains that co-habitation for over 39 years, four children of the marriage and the death of the deceased in London while co-habiting with the Respondent adds credibility to the existence of a statutory marriage evidenced by Exhibit D. All the arguments of the Appellant such as the allegation that no person from the Appellant's family attended the marriage; the alleged series of maltreatments and neglect of the deceased by the Respondent; the allegation that the Respondent came back to Nigeria and moved out all her belongings from the purported husband's reserved apartment in Lagos and took them to a place of her choice
without informing the purported husband; the failure of the Respondent to accompany her husband's body back to Nigeria for burial do not detract from the validity of the statutory marriage as evidenced by Exhibit D the marriage certificate duly issued by the Marriage Registrar at Owerri in Biafra. Exhibit D is valid as evidence of a legal marriage between the Respondent and late Osita Obidiegwu. See IJIOMA V. IJIOMA (supra) @ 609 E-F, where the Court held:
"Every certificate of marriage filed in the office of the registrar of marriages of any district, or any copy thereof purporting to be signed and certified as a true copy by the
registrar and every entry in a marriage registry book or copy thereof certified shall be admissible as evidence of the marriage to which it relates in any Court of justice, or
before any person having by law authority to hear, receive and examine evidence." Exhibit D was witnessed by Chiagorom Udeariry and Godwin Obidiegwu, the elder brother
of the Appellant. The Appellant did not challenge the authenticity of the signatures of the witnesses or that of the marriage Registrar; nor did he lead evidence to show that the said Registrar or the office was not licensed to issue or celebrate marriage under the Act. In MOTOH V. MOTOH (2011) 16 NWLR (PT. 1274) 474 @ 526 G-H, the Court held:

"The production of the original or certified copy of a certificate of marriage is the best recognized method of proving a marriage under the Marriage Ordinance or Marriage Act." Exhibit D substantially complied with Form E in the First Schedule to the Marriage Act notwithstanding that it was headed in the Marriage Registrar Owerri in Biafra. Even though this grouse has been settled by Section 3 of the Marriage (Validation) Act Cap 219 LFN 1990, Counsel is right that there is a presumption of regularity expressed in the maxim omnia praesumuntur rite esse acta in favour of the Respondent which places the burden on the Appellant to rebut the presumption.

See CBN V. BECKITI CONST. LTD. (2011) 5 NWLR (PT.1240) 203 @ 223, E-F, where it was held: "By virtue of the provision of Section 150 (now 168) of the Evidence Act, when any judicial or official act (as in
the instant case) is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. This is based on the
doctrine of omnia praesumuntur rite esse acta, that is, there is a general presumption that things are rightly and properly done." The Appellant failed woefully to rebut the
presumption. Learned counsel is right that the acts of celebration of marriage at the Marriage Registry, Owerri, execution and issuance of Exhibit D (marriage certificate) by
the Registrar of Marriage which exhibit substantially complied with FORM E of the First Schedule to the Marriage Act cannot be impeached peremptorily by a Court in the
absence of rebuttal evidence of the statutory presumption.

To show how difficult it is to rebut the presumption, see the observation of the Supreme Court in the case of ANYAEGBUNAM V.
ANYAEGBUNAM (1973) LPELR-507(SC) per FATAYI-WILLIAMS ,JSC, (Pp. 14-15, paras. D-C) : "... while Section 82 provides for a general standard of proof, Section 86 provides
for what is required as proof of birth, death, or marriage. Again, it will be inappropriate to suggest that the only way to prove a birth, death or marriage is by the production of
the relevant certificate or a certified copy thereof. Thus, where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the
parties, everything necessary for the validity of the
marriage will be presumed, in the absence of decisive evidence to the contrary, even though it may be necessary to presume the granting of a general licence. For example,
in Piers v. Piers (1849) 2 HL Cas. 331, a marriage was solemnised by a regularly ordained clergyman of the Church of England, in a private house as if by special licence;
there was in fact no such licence, nor any entry of its having been granted, nor could any registration of the marriage itself be found. The Bishop of the Diocese, thirty years
after the solemnization of the marriage, testified that, in his belief, he had not granted the licence but that it might have been granted by his predecessor who died about one
and a half years before the marriage. The Court held that the grant of a special licence as well as the validity of the marriage must be presumed. This decision was followed in
Hill v. Hill (1959) 1 All ER 281 PC." The Appellant with due respect has not adduced any meaningful evidence to rebut the presumption of a valid marriage between the
Respondent and late Osita Obidiegwu as evidenced by Exhibit D and with whom she co-habited for 39 years, which marriage produced four children whom the Appellant admitted are the lawful children of his deceased elder brother. Contrary to the contention of the Appellant, the decision of the Court was not against the weight of evidence. As submitted by learned counsel for the Respondent, when the totality of the evidence adduced by the parties are put on an imaginary scale
and weighed together, the evidence adduced by the Respondent preponderates that of the Appellant.

The Court consequently in arriving at its decision followed the principle
of evaluation of evidence laid down in ODOFIN & ORS. V. MOGAJI & ORS. However, the arguments of learned counsel for the Appellant on evaluation of the evidence
by the learned trial Judge pales to insignificance in the face of the Marriage (Validation) Act Cap 219 LFN 1990 which validated Exhibit D. Furthermore, as submitted by learned counsel to the Respondent the oral evidence adduced by the Appellant was erroneously meant to contradict Exhibit D as to the existence and validity of a statutory marriage between the Respondent and his deceased brother, Appellant's oral evidence cannot be used to contradict the documentary evidence Exhibit D. Section 28 of the Evidence Act. See KWARA HOTELS LTD. V. ISHOLA (2002) 9 NWLR (PT. 773) 604 @ 622-623 F-A and BONGO V. GOV. ADAMAWA STATE (2013) 2 NWLR (PT. 1339) 403 @ 444 A-B. The Appellant admitted that the four children of the marriage are the children of Osita Obidiegwu and the Respondent and that the children are entitled to the right wing of the duplex belonging to late Osita Obidiegwu. What then is this legal battle all about? From the evidence,
the children are no longer minors. The Appellant should allow them fight their own battle instead of dissipating energy in the attempt to discredit their mother's marriage to
their father with the obvious resultant effect of rendering them illegitimate. I am in total agreement with learned counsel for the Respondent that the evidence adduced by
the Respondent at the trial was admissible, relevant, credible and more probable than that adduced by the Appellant and that same was strengthened by Exhibit D. The trial
Court was right in finding in favour of the Respondent. Indeed the justice of this case dictates that judgment be entered for the Respondent. The deceased brother of the
Appellant if he had wanted would have declared in his lifetime that the Respondent with whom he had co-habited for 39 years was not his lawful wife or initiated divorce proceedings if he was unhappy with the marriage. Not having done so, it is unconscionable for the Appellant to embark on this ill fated venture to have the Court declare that the Respondent was never married to his deceased brother, thereby rendering the lawful children of the marriage illegitimate. To this extent, the reference made by learned counsel to the dictum of Aboki, JCA, in MOTOH V. MOTOH @ 532, PARAS. B-D is most apt:

"Courts in the exercise of their interpretative jurisdiction are enjoined to lean where the justice of the case demands. The proper role of the Court is to do justice between the parties before it. If there is any rule of law which impairs the doing of justice, then it is the province of the Court to do all it legitimately can to avoid that rule so as to do justice in the case before it. The Courts in Nigeria exercise the dual role of being Courts of law and of equity. A Judge in such system has a duty to ameliorate the harsh content of the law, where it is equitable to do so." Per IYIZOBA, JCA.(Pp.9-20,Paras.C-F).

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