Before Their Lordships
TASLIM OLAWALE ELIAS Justice of The Supreme Court of Nigeria
ATANDA FATAYI-WILLIAMS Justice of The Supreme Court of Nigeria
DAN IBEKWE Justice of The Supreme Court of Nigeria
Between
Christopher Anyaegbunam –Appellant
AND
Catherine Anyaegbunam –Respondent
…………………….A…………………….
A. FATAYI-WILLIAMS, J.S.C. (Delivering the Leading Judgment): In her amended petition dated 23rd day of December, 1971 the petitioner, now respondent, in suit No. E/16D171 brought in the Enugu High Court, prayed that she should be judicially separated from the respondent, now appellant. She also asked the court to grant her the custody of their two children, alimony pendente lite, and also secure sums by way of maintenance for herself and the said children. Paragraph one of the said petition reads
Following the service of the amended petition on him, the respondent entered appearance “on protest.” In compliance with the provisions of rule 14 (2) of the Matrimonial Causes Rules, 1957, the respondent moved the court on 11th January 1972, for the following orders
“(a) That the marriage between the petitioner and respondent was not celebrated under the Marriage Ordinance;
(b) That the said marriage was a customary marriage followed by church marriage or church blessing;
(c) That the court cannot therefore properly entertain the petitioner’s action for judicial separation;
(d) That this honourable court has no jurisdiction to adjudicate on customary or church marriage.”
The motion was supported by an affidavit stating the grounds on which he relied.
This application is, in effect, a denial of the averment in paragraph one of the petition that the petitioner was lawfully married to the respondent. Consequently, the learned trial judge, at the hearing on 11th January, 1972 noted in his record book as follows:
“The issue raised in the protest is so vital that it should be determined before any other matter. I therefore direct that the matter be tried not by affidavit but by oral evidence. Adjourned to 17-1-72 for hearing.”
This direction was probably given pursuant to the provisions of rule 27 of the Matrimonial Causes Rules, 1957, which read:
“27. Any application for direction for the separate trial of any issue or, except in a case to which Rule 14 (2) applies, of any question as to the jurisdiction of the court shall be made to a judge. ”
The direction which a judge should give in those circumstances is stated in Rayden on Divorce, 9th Edition, page 580, paragraph 29 as follows:
“A judge may direct, and any petitioner and any party in a cause who has entered an appearance may apply on summons to a judge for the separate trial of any issue or fact, or any question of jurisdiction. The order states, inter alia, who is to be the plaintiff in the issue, and who the defendant or defendants, whether the incidence is to be by affidavit or oral, and the place of trial.”
Although the learned trial judge did order that the evidence should be oral, he gave no indication as to who should be the plaintiff in the issue. We should have thought that the petitioner, who had stated in her petition of 23rd December, 1971 that there was a lawful marriage between her and the respondent, and who had sworn to an affidavit on 11th January, 1972 that the statement was true, should have been made to begin. Be that as it may, the respondent was made to begin at the trial of the issue on 19th January 1972.
At the hearing, the respondent testified in support of the statements deposed to in his affidavit. Part of his testimony reads:
“I know the petitioner. She is my wife. She is married to me under our native law and custom followed by a subsequent church blessing at the Catholic Church, Abatete. I swore to an affidavit deposing to the circumstances of our association and the nature of our marriage…… There was never a time that I contracted with the petitioner that I would marry her under the Act. No marriage certificate was issued to any of us after the church blessing and nothing was given to me by the church or any other body.”
The respondent then went on to describe what took place at the “church blessing” at the Church at Abatete as follows:
“The Rev. Father at Abatete said that what mattered in the eyes of God was the church marriage and he did not require the Registrar’s Certificate to perform one. We did not sign any document after the marriage ceremony. We were not given anything. We just finished the ceremony and drove back to Enugu.”
The respondent was cross-examined at length about this marriage. Some of the questions asked and the answers given are reproduced hereunder
“Q: You were given a notice to produce a Marriage Certificate in respect of this Marriage.
Ans: Yes.
Q: Have you got it there?
Ans: There was no marriage certificate issued and I cannot produce any.
Q: You signed a marriage Register in the Catholic Church after the marriage.
Ans: I signed a register in the Catholic Church.
Q: A marriage certificate was issued and you collected it.
Ans: No.
Q: You also obtained a Registrar’s Certificate before the marriage.
Ans: Of course not. I did not apply for nor collect a Registrar’s Certificate. ”
The respondent was then re-examined. During this re-examination a document signed by one Father Roche who performed the church ceremony was tendered. The relevant part of the contents of this document (Ex. 6) reads
“Church of the Holy Name of Mary,
Roman Catholic Mission,
Abatete, Onitsha,
Eastern Nigeria
Certificate of Marriage
This is to certify that the under-named parties were lawfully married by me according to the Marriage Rites of the Roman Catholic Church
…………………….B…………………….
SPONSUS. Christopher Anyaegbunam
…..
AND
SPONSA……. Catherine Nwachuku
Date of Marriage…………………… 28th January, 1961
Minister….Reverend Hugh Roche, C.S. Sp.
Place of Marriage …..Church of the Holy Name of Mary,
Witnesses to Marriage..Abatete, Onitsha, Eastern Nigeria
Joseph O. Emodi of Onitsha, Eastern,
Nigeria
and
Veronica N. Nwosu of Nnewi, Onitsha,
Eastern Nigeria
Number in Marriage Register..93
(Sgd.) H. Roche
Priest in charge
Date: 21st Oct., 1965″The petitioner did not testify nor did she call any evidence in rebuttal of the testimony of the respondent.
In his ruling, the learned trial judge, after considering the evidence adduced by the respondent and the documents tendered through him by the petitioner, found as follows
“Taking all these into consideration I do not accept that the marriage was ever agreed by the parties to be a polygamous one.
There was a marriage or call it church blessing in the Roman Catholic Mission between the parties in 1961. What is the effect of the marriage in law?
It is not in dispute that there was no Registrar’s Certificate before the marriage but it is my view that it cannot be disputed on the strength of the evidence before me that the petitioner and respondent had always regarded the marriage solemnised on the 28th day of January, 1961, at Abatete as a monogamous marriage which is the union of one man to one woman to the exclusion of another.”
The learned trial judge then referred to a number of cases and thereafter found finally as follows:
“These cases are quite clear and I am of the opinion that they cover the issue in this case. The petitioner believed that she underwent a monogamous marriage and in fact so did the respondent. His conduct in writing to the wife that she must accept the status quo and that his children were not illegitimate beliefs his claims. It will be expected that if the respondent had entered into an understanding with the petitioner that their marriage was a polygamous one he should remind her of that understanding in one of his letters to the petitioner. The respondent failed to do so. On the evidence, I am of the opinion that respondent’s evidence is nothing more than a cock and bull story. I disbelieve it.
Finally, I rule that this court has jurisdiction to hear the case.”
Against this ruling, the respondent has now appealed. At the hearing of the appeal, a number of points were urged upon us by Mr Sikuade, learned counsel for the respondent/appellant. The gist of these points is this. The learned trial judge was in error in assuming jurisdiction when upon the evidence before him the marriage between the parties was not celebrated under the provisions of the Marriage Act, but was a customary marriage followed by a church blessing. He was also in error in failing to hold that, even if the purported marriage could rightly be claimed to be under the Marriage Act, it is null and void for non-compliance with the provision of section 33 sub-sections 2 (c) and (3) of the said Act. Learned counsel also pointed out that since the case of the respondent/appellant is that the parties knowingly and willfully decided not to bring their marriage within the provisions of the Marriage Act, and that the purported marriage is not within the provisions of that Act and is therefore void, the onus is on the petitioner/respondent to prove that it is. Having failed to give evidence or call any witnesses, she has failed to discharge this onus and her petition should have been struck out for want of jurisdiction.
In his reply, Mr. Mogboh, for the petitioner/respondent, conceded that no evidence was led by the petitioner/respondent to contradict the categorical denials of the respondent/appellant that there was no marriage between him and the petitioner/respondent in accordance with the provisions of the Act. He submitted, nevertheless, that even in the absence of any proof that the formalities required under the Act had been complied with, the court could still look into the intention of the parties and base its decision, as had been done in the case in hand, on that intention.
In his ruling, the learned trial judge referred to a number of cases in support of his views namely-Russell v. Attorney-General (1949) p. 391; Taylor v. Taylor (1965) 2 W.L.R. 779; Obiekwe v. Obiekwe (1963) 7 E.N.L.R. 196. In Russell v. Attorney-General, the marriage was presumed to be valid, because unlike the case in hand, there was no “decisive evidence to the contrary.” The decision in Taylor v. Taylor, where there was also no clear evidence to the contrary, followed that in Russell v. Attorney-General and is, in any case, based on the particular facts of that case; these facts are different in many respects from those of the case in hand. Also, unlike the parties to the present case, both parties in Obiekwe v. Obiekwe “believed that they were contracting a valid marriage under the Ordinance,” and they both testified as to the validity of the marriage. Moreover, it would appear that the officiating priest, again unlike the case in hand, testified in that case because the learned trial judge observed in his judgment as follows
“Neither party appreciated the necessity of getting the Registrar’s certificate of notice. The fault is entirely that of the officiating priest who on his own admission made no attempt whatever to explain to the parties this legal position, or even to ask them whether they wanted to be married under the Ordinance or not. His attitude seems to be that he knows very little about the Marriage Ordinance and is not interested!” .
Again, in Akuwudike v. Akuwudike, both sides gave evidence. The petitioner testified before the court and it was on
…………………….C…………………….
her evidence that the court based its decision as to the validity of the marriage because the learned trial judge said in his judgment “Now on the evidence before me, I feel quite sure that the petitioner-Justina-had no knowledge of the legal requirements of a valid marriage under the Ordinance and she told me that it was her intention and belief that she was going through a form of marriage recognised by both the Church (Le. R.C.M.) and the Ordinance
In view of the above, it is our view that none of these cases is in pari materia and cannot, therefore, form any justifiable basis for the decision of the learned trial judge in the present case. This appeal will therefore be considered solely on the evidence adduced before him.
It is common ground that there was a ceremony of marriage between the parties in the Church of the Holy Name of Mary on 28th January, 1961. It is also not disputed that this ceremony was performed by one Rev. Father Roche. The respondent/appellant contended that it was not a marriage but only a “church blessing” following a marriage under native law and custom. On the other hand, the priest who performed the ceremony certified in the “Certificate of Marriage” (exhibit 6) that
“The under-named parties were lawfully married by me according to the Marriage Rites of the Roman Catholic Church.”
The question is, does this constitute proof of marriage in a “matrimonial cause” as provided for in the Marriage Act (Cap. 115 of the Laws of the Federation) and in the Matrimonial Causes Decree, 1970 (Decree No. 18 of 1970).
Provisions are made in sections 21, 24, 25 and 26 of the Marriage Act for the procedure to be followed when a marriage is being celebrated in a licensed place of worship such as a church. These provisions are as follows:
“21. Marriage may be celebrated in any licensed place of worship by any recognised minister of the church, denomination or body to which such place of worship belongs, and according to the rites or usages of marriage observed in such church, denomination or body. Provided that the marriage be celebrated with open doors between the hours of eight o’clock in the forenoon and six o’clock in the afternoon, and in the presence of two or more witness besides the officiating minister.
24. The Principal Registrar shall cause to be printed and delivered to the several registrars, and to the recognised ministers of licensed places of worship, books of marriage certificates in duplicate and with counterfoils as in the Form E in the First Schedule. Such books shall be kept by the several registrars and the recognised ministers for the time being of such places of worship, under lock and key, and be in custody of such registrars and ministers respectively who shall, as soon as all the certificates in any such books shall have been used, send the said book with the counterfoils duly filled in to the Principal Registrar.
25. Immediately after the celebration of any marriage by a minister, the officiating minister shall fill up in duplicate a marriage certificate with the particulars required by the said Form E, and state also and enter in the counterfoil the number of the certificate, the date of the marriage, names of the parties, and the names of the witness.
26. The certificate shall then be signed in duplicate by the officiating minister, by the parties, and by two or more witnesses to the marriage. The minister having also signed his name to the counterfoil, he shall sever the duplicate certificate therefore, and he shall deliver one certificate to the parties, and shall within seven days thereafter transmit the other to the registrar of marriages for the district in which the marriage takes place, who shall file the same in his office.”
For evidence of such marriage, it is provided further in section 32 of the Act as follows:
“32. Every certificate of marriage which shall have been filed in the office of the 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 as 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. ”
It must be noted, however, that the above section did not say that such certificate of marriage, or a certified true copy of it, shall be the only evidence of such marriage. Indeed the standard of proof required in matrimonial causes is clearly stated in sections 82 and 86 of the Matrimonial Causes Decree, which read
“82. (1) For the purposes of this Decree, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the court.
(2) Where a provision of this Decree requires the court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.
86. In proceedings under this Decree the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of any certificate, entry or record of a birth, death or marriage alleged to have taken place whether in Nigeria or elsewhere. ”
It seems to us that, 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 H.L. 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 solemnisation 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 E.R. 281 P.C. In petitions for nullity, the law is that the ceremony of marriage must be strictly proved, although in Ponticelli v. Ponticelli [1958] 1 All E.R. 357 at p. 360, the court held, in a petition for nullity, where the certificate of a marriage in Italy was produced, that the maxim omnia
…………………….D…………………….
praesumuntur rita esse acta applied and presumed the validity of the marriage.
It must be pointed out, however, that in all the cases to which we have referred, there was evidence in favour of the marriage and no decisive evidence against.
In the case in hand, the only evidence adduced before the court is that of the respondent/appellant who testified in categorical terms that what took place in the Church of the Holy Name of Mary on 28th January, 1961, was a “church blessing” and not a marriage. One would have thought that the petitioner/respondent would have produced the marriage certificate or a certified copy thereof, or called the priest who performed the ceremony, or if the priest was not available, explain why and then call any of the witnesses or any of those who were present at the ceremony. Instead she offered no evidence and only put in the document (Ex. 6) to which we have referred earlier. 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 nor could it be described as “the original or a certified copy of any certificate, entry, or record of . . . marriage.” A marriage register was referred to in the document but the register was not produced nor was the failure to produce it accounted for. At best, this document contains the hearsay evidence of what somebody called Father H. Roche could have come to court to say on oath and be cross-examined by the respondent/appellant. No reason was given why this priest was not called. As proof of the marriage it is, in our view, completely lacking in weight and value.
In the absence of any rebutting evidence, we fail to see how the learned trial judge could have found as he did that “the petitioner believed that she underwent a monogamous marriage” or “that the petitioner did not know at any time of the marriage that a Registrar’s Certificate was necessary.” The only evidence before him was that of the respondent/ appellant. Even if he disbelieved this evidence as he was entitled to do and as he had done, there is still no relevant evidence on which he can base his belief that the ceremony at Abatete was that of a monogamous marriage. In our view, he was clearly in error in holding that it is.
In section 114 subsection (6) of the Matrimonial Causes Decree, it is provided that
“Nothing in this Decree shall have effect in relation to a marriage which is not a monogamous marriage on which is entered into in accordance with Muslim rites or with any customary law in force in Nigeria.”
Therefore, by virtue of the above provisions of the Decree, the matrimonial causes in respect of which jurisdiction is conferred by section 2 thereof on the High Court of a State apply only to those arising out of a monogamous marriage. Since the petitioner/respondent has failed to testify and prove by evidence that she underwent a ceremony of marriage with the respondent/ appellant at the Roman Catholic Church at Abatete on 16th January, 1961, and that the said marriage is monogamous the learned trial judge, on that ground alone, should not have entertained the petition. But the matter does not end there. It is provided in section 33 sub-section (2) (c) and (3) of the Marriage Acts as follows
“(2) A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration.
(c) Without a registrar’s certificate of notice or licence issued under section 13 duly issued.
(3) But no marriage shall after celebration, be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied with.”
The respondent/appellant testified in categorical terms that no registrar’s certificate was obtained before the ceremony at Abatete. Not only did the petitioner/respondent not dispute this statement she did not think it prudent enough to go into the witness-box, as had been done by the petitioner in the two Nigerian cases referred to earlier, and testify that the omission to obtain the necessary Registrar’s certificate was not done “wilfully and knowingly. ” This omission on her part not only makes the purported marriage null and void, it also lends additional support to our view that the learned trial judge, faced with all these irregularities, was in error in entertaining the petition.
In our view of the facts available to the learned trial judge, so far as the burden of proof is concerned, the burden of proving that there is a subsisting lawful marriage has been shifted by the respondent/appellant’s unequivocal denial of its validity on to the petitioner/respondent. As there are other matters which point to its invalidity, she could not and did not escape this burden by merely resting her case on the few immaterial admissions of the respondent/appellant both as to the formalities of the ceremony at Abatete and as to the period of cohabitation which followed.
The appeal therefore succeeds and it is allowed. The ruling of the learned trial judge delivered on 8th March, 1972, in suit No. E/16D/71, at the Enugu High Court, including the order as to costs, is accordingly set aside. The petition is struck out and this shall be the judgment of the court. There will be no order as to costs.
Appeal allowed; petition struck out.
Appearances
Mr Sikuade For Appellant
AND
Mr Mogbor For Respondent