Proof of Nigerian Marriages in Foreign Courts: Any lessons from Kareem v Secretary of State for Home Department

Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. Proof of Nigerian Marriages in Foreign Courts: Any lessons from Kareem v Secretary of State for Home Department? Abubakri Yekini* 1.0 Introduction Since the advent of globalisation, there has been a continuous increase in cross-border relationships, not just in trade and commerce, but social interactions. This phenomenon, aided by easier modes of communication, has provided easier to other countries.1 Residents from different parts of the world leverage on ‘shrinking’ state borders to enter into various social transactions on daily basis. In the last ten years, several platforms, such as Facebook, Instagram, WeChat, Viber amongst others, have emerged to provide interactive mediums for billions of people all over the world to socialise. It is not surprising that cross-border (transnational) marriages are increasingly popular today. Cross-border movement of persons is one of the consequences of cross-border marriages. Where the couples are resident in different countries, one of the them will at one point or the other need to join the other. The couple may decide to be domiciled in a third state where only one of the couple has an unrestricted residence right. To put the issue in context, Mr A is a European Economic Area (EEA) national from Germany. He marries Mrs B, a Nigerian at Ikoyi, Lagos, Nigeria. Mr A, as an EEA national decides to be domiciled in England. He seeks to bring his wife, Mrs B to England. The only ground available to Mr A to bring Mrs B to England is the basis of their marriage. Thus, the UK Home Office has to determine whether Mr A and Mrs B are legally married. This dovetails into the question of the validity of the purported marriage between Mr A and Mrs B in Lagos, Nigeria. This hypothetical scenario raises questions of private international law. Several issues can arise from this hypothetical case because of the EU element that is involved. However, the focus of this article is to consider the Nigerian element. By English traditional conflict rules, the question will be determined by the validity of the marriage under the Nigerian laws.2 Nigerian *Abubakri Yekini, LL. M, B.L, LL. B (Hons) is a Lecturer at the Department of International and Islamic Law, Lagos State University. He is also a doctoral researcher at the Centre for Private International Law, University of Aberdeen, United Kingdom. The author could be reached via abubakri.yekini@lasu.edu.ng. 1 Garbi Schmidt, ‘Migration and Marriage: Examples of Border Artistry and Cultures of Migration?’ (2011) 1 Nordic Journal of Migration Research 55, 57; Kate Mayberry, ‘The Newlyweds with No Country to Call Home’ (BBC News) <http://www.bbc.com/capital/story/20160525-the-newlyweds-with-no-country-to-call-home> accessed 22 November 2018. 2 McCabe v McCabe [1993] 8 WLUK 31; John Murphy, ‘The recognition of overseas marriages and divorces in the United Kingdom’ (1996) 47 Northern Ireland Legal Quarterly 35; Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell Ltd 2012) Rule 73; James 1 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. marriage laws before the English court is a question of fact. 3 It bothers on evidentiary issues, which is resolved by the substantive laws of England.4 Therefore, it is possible that a marriage would be valid in Nigeria but fail evidentiary proof under English law. This article seeks to examine the recent English decision in Kareem v. Secretary of State for Home Department5 concerning the proof of the validity of Nigerian marriages. The decision laid down some landmark points, which implicate the choice of marriage (s) that may be open to Nigerians, who wish to bring their spouse(s) into the United Kingdom based on such marriage(s). It also has far-reaching consequences on the immigration rights of stranded Nigerians whose only alternative means to remain is a valid Nigerian marriage. The article argues that this recent decision, together with others affirming it, reinforces the call for the review or overhaul of the Nigerian marriage laws. It suggests some recommendations that the Nigerian government should consider in solving some of the challenges posed by Kareem’s case. 2.0 Kareem v Secretary of State for Home Department a. Facts Saheed Gbadebo Kareem is a Nigerian citizen. He got married to a Dutch citizen, who works and lives in the United Kingdom. The purported marriage was conducted under customary law in Lagos on 26 November 2011. Neither Kareem nor the spouse was present at the marriage ceremony. In other words, it was a marriage by proxy. The marriage took place in Kareem’s parents’ house in Mushin, Lagos, Nigeria. In proving that he is legally married to the Dutch woman, Kareem claimed that the customary marriage was conducted under native law and custom and that it was registered at a Lagos Customary Court, which issued a marriage certificate to that effect. Kareem also supported his Fawcett, Janeen M Carruthers and Peter North, Cheshire, North & Fawcett: Private International Law (Sir Peter North ed, 14th edn, Oxford University Press 2008) 878. 3 Fawcett, Carruthers and North (n 3) 113; Richard Fentiman, ‘Foreign Law in National Courts’ in Mads Andenas and Duncan Fairgrieve (eds), Courts and Comparative Law (Oxford University Press 2015) 81. 4 The authors of Dicey & Morris state the means of proving foreign marriages as follows: (1) the evidence of one of the parties or of someone else who was present at the ceremony, coupled with production of the marriage certificate when it is available; (2) the production of the certificate together with the addiction of evidence identifying the parties named therein with the persons alleged to have been married; (3) reliance on the presumption of marriage; and (4) reliance on various declarations admissible in criminal cases under exceptions to the hearsay rule and, in civil cases, as statements or records under the Civil Evidence Act 1995, which rendered hearsay evidence admissible in civil proceedings. See Lord Collins of Mapesbury and others (n 3) at para 17-039. 5 [2014] UKUT 24 (IAC). 2 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. claim with an affidavit from his father, a court order and statements from himself and other persons who witnessed the marriage. Under the EU’s Immigration Regulations 2006, a spouse of an EEA6 national has equal right of free movement in the European Union. Therefore, if Kareem is regarded as a spouse of the Dutch national, the UK immigration office must accord him that right and grant him necessary residency permits since he would be free to live anywhere in the EEA. The Secretary for Home Department seriously doubted Kareem’s marriage and as such, she did not accept that Kareem was married as claimed. The Secretary came to that conclusion after examining all the documents presented by Kareem. She was of the view that Kareem’s proxy marriage is not valid under Nigerian law. b. Decision The Upper Tribunal makes several pronouncements covering EU and English law. The Tribunal ruled on the validity of the Nigerian marriage from the perspective of Dutch law since the other partner is an EEA national. In the later part of the judgment, the Tribunal examined what the English law would have been provided it would be relevant to the case. The English Court of Appeal has reversed the part of the Tribunal’s decision, which focused on Dutch law recently in Albert Awusu v Secretary of State for the Home Department.7 It means that English law (including its conflict of laws) is the relevant law. Therefore, the paper will only focus on the English law considerations in Kareem’s case. Generally, in English conflict of laws, the validity of marriages is governed by lex loci celebrationis (the law of the place of celebration).8 In this regard, whether Kareem’s marriage of 26 November 2011 is valid or not will be determined by Nigerian law. In several English cases, Nigerian law has been used to determine the validity of Nigerian marriages. Thus, in Alhaji Mohamed v. Knott,9 the validity of a marriage conducted in northern Nigeria with a 13year old girl was upheld having considered that it was valid under Maliki law, which generally applies in northern Nigeria. Similarly, in GE v. KE,10 an Igbo customary law was considered in examining the question of the validity of a marriage and divorce that took place in Igbo land. 6 The European Economic Area comprises the EU states and Iceland, Liechtenstein, Norway. Nationals of Member States have the right to live and work anywhere in the EEA. 7 [2017] EWCA Civ 178. 8 Awuku v Secretary of State for the Home Department (ibid); Lord Collins of Mapesbury and others (n 3), Rule 73 stating that A marriage is formally valid ‘if the marriage is celebrated in accordance with the form required or (semble) recognised as sufficient by the law of the country where the marriage was celebrated’. See also Fawcett, Carruthers and North (n 3) 878. 9 [1969] 1 QB 1. 10 [2013] EWHC 1938 (Fam). 3 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. Returning to the decision in Kareem, the Tribunal rejected Kareem’s appeal by holding that: A proxy marriage would be regarded as valid under English and Welsh law if it was valid according to the law of the place where it took place, recognising that the marriage took place where it was celebrated. The fact that the evidence does not support the view that the appellant’s proxy marriage would be regarded as a marriage in Nigeria means that it would not be regarded as a marriage under the law of England and Wales11 This holding confirms two cardinal principles of English conflict of laws, which were mentioned in the introductory part of this paper. One is that, the law of the place under which a marriage was conducted determines the validity of that marriage. Two, the validity has to be established, satisfactorily, to the court by evidence. The Tribunal considered Nigerian marriage laws and the documents presented by Kareem in support of the marriage. It noted the plurality of marriage laws in Nigeria. The following issues were specifically discussed and for the sake of clarity, it is desirable that they are spelt out: i. Marriage Certificate and Competent Issuing Authority The Secretary of State’s contention was that having considered the Nigerian Births, Deaths, etc. (Compulsory Registration) Act 1992 and two letters issued by UK High Commission in Nigeria on proxy marriages in Nigeria, she concluded that the marriage certificate issued by the Customary Court did not establish any marriage. While the letters from the High Commission suggested that proxy marriage is valid under customary law provided the requisite conditions are met, the High Commission added that customary marriages should be registered under the Act and a certificate ought to be issued carrying some details such as registration number, date of marriage, date of registration and signature of registrar. The Tribunal noted the lack of concrete expert evidence on the implication of the Act and the effect of marriage not registered under the Act or those registered outside the sixty days required. The case of the Secretary was further buttressed because there was no evidence to show that the person who signed the court order or the certificate was a registrar as required by the Nigerian law (the Act). The tribunal doubted whether the certificate was issued by a competent authority thus: ‘the document is no more than a written note of a statement made by a person with no legal authority. The document is not the emanation of an 11 Para 64-65. 4 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. authority with legal power to create or confirm what it attests; it adds nothing to the case’12 ii. The Validity of the Marriage under Nigerian Law The Tribunal went ahead to further consider the validity of the marriage on the merit. It considered several scholarly works on Nigerian family law such as Alfred Kasunmu’s Nigerian Family Law,13 and Harinder Boparai’s ‘The Customary and Statutory Law of Marriage in Nigeria’.14 The court also considered the following Nigerian authorities on proof of customary marriage. These cases include Abisogun v. Abisogun and others,15 Abidoun v. Soluade and Beckley,16 Lawal v. Younan.17 The Tribunal observed from these cases that the following must be established by evidence before a customary marriage could be inferred; parties’ consent, capacity to marry and a formal giving away of the bride.18 It considered these criteria as laid down by the Supreme Court of Nigeria in these cases and concluded that the evidence of Kareem was so week to be considered to have discharged the standard of proof laid down in those cases because: There is no evidence in the letters that the parents of the bride gave consent. There is reference to a dowry being received on behalf of the bride’s family but no details of the dowry are given. The affidavit provided by the appellant’s father does not mention either dowry or parental consent. In summary, the Tribunal noted that proxy marriage is clearly not valid under the Nigerian Marriage Act (federal law) but valid under the customary laws provided all the formal requirements be complied with. In this circumstance, Kareem was not able to prove the validity of the customary marriage by registration because the purported marriage certificate did not emanate from a competent authority. He also failed to prove the marriage by other evidence because of the weaknesses observed in the testimonies. 3.0 The Implication of Kareem’s Decision The decision in Kareem’s case has some implications on immigration and Nigerian marriage laws. The major impact of Kareem is the restrictions that may be placed on the right of a Nigerian spouse from joining his partner abroad. In a global world, Nigerians, especially 12 Para 43. (Butterworths, London, 1966). 14 (1982) 46 The Rabel Journal of Comparative and International Private Law 530. 15 (1963) All Nigeria LR 75. 16 (1943) 17 NLR 59. 17 (1961) All Nigeria LR 245. 18 Para 54. 13 5 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. females, can enter into a cross-border relationship with foreign partners. Where the wife is a Nigerian, who resides in Nigeria, it is very likely that the marriage would be conducted in Nigeria. Where there are ambiguities in the requirement for the validity and registration of marriages in Nigeria, the wife may find herself unable to satisfy foreign High Commissions or embassies of her status. The conundrum in the plurality of Nigerian marriage laws and numerous controversies as to registration of marriages have pushed couples to present all manners of certificates at embassies. Those who married under customary laws are mostly affected since the customary marriages are usually unregistered. Perhaps, the embassies would have taken note of the several ‘improperly procured’ marriage certificates from Nigerians who seek to travel abroad on marital ground. Therefore, it is not out of place that the UK Home Department would be strict when considering Nigerian marriage certificates. The decision also has serious implications for some Nigerians who are stranded in the United Kingdom for whatever reason and could not attend a marriage in Nigeria. Notably are the overstayers who have remained in the United Kingdom illegally but could have otherwise validated their stay by marrying a UK or EEA national. This position is buttressed by Oyekan v Secretary of State for the Home Department19 where the English Court of Appeal confirmed the Secretary’s decision to refuse to recognise Oyekan’s marriage conducted in Nigeria. Oyekan was a Nigerian student who over-stayed after her studies. She applied for further leave to remain as a student, but the Home Department rejected her application. Two months thereafter, she applied in December 2011 for a residence card because she claimed she was then married to an EEA Swedish national of Nigerian origin. Oyekan presented a marriage certificate dated 3 February 2010 to establish a customary marriage conducted by proxy in Lagos. The Secretary rejected the certificate for reasons, which have been examined earlier in this paper. Oyekan and her spouse continued to live together and presented a new application for residence card. This time, she presented another certificate dated 3 February 2011. The Secretary rejected the second application because the appellant could not satisfactorily explain why he submitted a ‘fraudulent’ certificate to support the first application. Oyekan’s case is on all fours with Ms Ngozi Blessing Udemba v The Secretary of State for the Home Department20 except that in this case the husband is a national of Czech Republic. In Udemba, the Tribunal’s ruling also underscores the difficulty that lies in proving proxy 19 [2016] EWCA Civ 1352. Unreported Upper Tribunal ruling in Suit No: IAIA/14885/2012 delivered on 16 January 2014. Available at https://tribunalsdecisions.service.gov.uk/utiac/ia-14885-2012. Accessed 22 November 2018. 20 6 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. marriages under native law and customs because of the strict vetting of certificates, and other documents submitted to support the claim. The Tribunal discountenanced Udemba’s claim, as she could not establish through any travel document that the husband’s parent or any relative for that matter was present at the marriage ceremony. It was even suggested that it could be a marriage of convenience. The challenge these applicants faced is a unique one. Since they are over-stayers, they cannot leave the UK to attend any marriage in Nigeria.21 Hence, they can only marry by proxy in Nigeria and no other place. In addition, they can only marry under customary laws, which allow proxy marriages, and not under the statute. At present, there is no systematised scheme in Nigerian for registration of customary marriages. Therefore, any marriage certificate obtained to prove a customary marriage would be suspect. Even where it is obtained from governmental authorities, one could hazard a guess that the Home Department would be weary of such certificates as it has taken ‘judicial notice’ of the fact that marriage certificates evidencing customary marriages are presumptively irregular. 4.0 The Conundrum of Marriage Laws in Nigeria and the Need for a Reform One of the cardinal principles of conflict justice is that civil causes are resolved by the laws that are mostly connected with them.22 This has the advantage of achieving a uniform result for actions irrespective of where they are litigated. Once a right is acquired under a legal system, it is pragmatic that such right should be recognised and enforced everywhere. It provides certainty and predictability of results, which do help parties in ordering their affairs.23 In a globalised world, marriage transactions concluded in a locality could become a subject matter of litigation or other administrative considerations elsewhere. Since the rights acquired in foreign lands are recognised in other jurisdictions, the proof of such rights in other relevant jurisdictions becomes a major task. The task is usually not an easy one. Actually, it has always been a delicate issue for courts to handle.24 The reason is not farfetched. The forum court who 21 Having breached immigration rules, they are subject to removal from the UK. Where they voluntarily leave, they cannot enter the country unless a fresh leave to enter is granted by the Home Department. 22 Jürgen Basedow, ‘Methods of Private International Law’ in Jürgen Basedow and others (eds), Encyclopedia of Private International Law (Edward Elgar Publishing 2017) 1404; Giesela rühl, ‘Foundtions of Private International Law’ in Jürgen Basedow and others (eds), Elgar Encyclopedia of Comparative Law, Second Edition (Edward Elgar Publishing 2017). 23 Basedow (n 22); H. Muir Watt, Private International Law and Global Governance (Horatia Muir Watt and Diego P Fernández Arroyo eds, Oxford University Press 2014) <http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198727620.001.0001/acprof9780198727620> accessed 2 July 2017. 24 See Fentiman (n 3); Hon Justice P L G Brereton AM RFD, ‘Proof of Foreign Law – Problems and Initiatives’, an address to the Sydney University Law School Symposium: The Future of Private International Law, 16 May 7 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. is considering the content of foreign laws may not be familiar with the laws in issue or its language, it is always expensive to get expert evidence, and, in some cases, such evidence may be at variance with the law and practice it seeks to establish. In addition, the foreign laws may not be adequately reported or entirely unclear. It is for this reason that it is time that Nigeria reviewed its Marriage laws to take care of the modern needs of its citizens and to make it clearer and straight forward for foreign courts to act upon. The controversial areas will be discussed under the following: a. Statutory Marriage The formation, annulment and dissolution of statutory marriage fall under the competence of the Federal Government of Nigeria. In this regard, the Federal Government enacted the Marriage Act25 to regulate the conduct of statutory marriages in Nigeria. The legal framework stipulates that Marriages can only be celebrated in designated registries26 or licensed places of worship27 and before duly appointed registrars or recognised clergymen. These, amongst others, are issues of formal validity, the breach of which may affect the validity of statutory marriages when such are subjected to scrutiny or challenge elsewhere. The Act provides that: (1) There may, from time to time, be appointed a fit and proper person to be the Principal Registrar of Marriages. (2) There may likewise be appointed a fit and proper person to be the registrar of marriages for each marriage district, and may also appoint a deputy registrar of marriages for any district to act in the absence or during the illness or incapacity of the registrar28 It goes further that: Every registrar shall have an office at such place, as the Minister shall direct. The office of the Principal Registrar shall be at such place, as the Minister shall direct29 2011. Available at http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre2015%20Speeches/Brereton/brereton160511.pdf. 25 CAP M6, LFN 2004. 26 ibid., s.3. 27 ibid., s.21. 28 Marriage Act, s.4. 29 ibid., s.5. 8 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. The power to designate marriage districts was last exercised in 1971 when the Marriage (Designation of Districts) Order of 1971 was issued. This Order, together with Marriage (Location of Marriage Offices) Directions 1971, created the so-called ‘Federal Registries’ as are widely known today. There are registrars appointed for these Federal Registries as well. One constitutional problem that arises since the enactment of the 1979 Constitution and the extant 1999 Constitution (as amended) is that there seems to be an imperfect devolution of powers with respect to marriage(s) among the tiers of government. The Exclusive List grants the Federal Government powers over ‘formation, annulment and dissolution’ of statutory marriage.30 It can be assumed that this necessarily includes the registration of such marriages and issuance of the certificate. However, such an assumption is challenged by a provision of the fourth schedule, which vests in the local government councils, the power to register marriages.31 This ambiguity has created many controversies in recent times. The local government councils have established marriage registries, appointed marriage registrars and issued marriage certificates for statutory marriages. Recently, these issues have been litigated in several cases such as Haastrup v Eti-Osa Local Government,32 Egor Local Govt, Edo State & Ors v. Hon Minister of Interior33 amongst others. The media was awash with different headlines like ‘Court Declares LG Marriage Certificates Illegal’,34 ‘High Court Reaffirms Rights of Lagos State Registries to Conduct Marriages’35 and so on. The author has addressed the legal perspectives to these controversies elsewhere and it is not necessary in this piece.36 The relevant point is that the Federal Government must now holistically address these controversies so as to set a proper record for litigants, lawyers and foreign judicial and administrative bodies to follow. It is instructing to know that the couple in Hasstrup were both resident in London and they could not get any meaningful legal advice from lawyers concerning which marriage registry has the competence to issue a marriage certificate. This 30 Item 61, Second Schedule, 1999 Constitution (as amended). Item I (1), Fourth Schedule, 1999 Constitution (as amended). 32 Unreported, Suit No: FHC/L/8702002 delivered on 8 December 2004. 33 Unreported, Suit No: FHC/L/CS/1760/16 delivered on 30 April 2018. 34 Adelani Adepegba, ‘Court Declares LG Marriage Certificates Illegal – Punch Newspapers’ Punch Newspaper (2017) <https://punchng.com/court-declares-lg-marriage-certificates-illegal/> accessed 24 November 2018 (reacting to a Lagos High Court decision in Olumide Babalola v Ikeja Local Government & Anor). 35 Lagos State Government, ‘High Court Reaffirms Rights of Lagos State Registries to Conduct Marriages’ (Lagos State Government News, 2018) <https://lagosstate.gov.ng/blog/2018/05/17/high-court-reaffirms-rights-of-lagosstate-registries-to-conduct-marriages/> accessed 24 November 2018 (reacting to a Federal High Court decision in Egor Local Govt, Edo State & Ors). 36 A.O Yekini and M.A Lateef, ‘Haastrup v Eti-Osa Local Government: Do Local Government Councils Really Have Power to Conduct a Statutory Marriage in Nigeria?’ (Forthcoming in (2019) Ife Law Journal). 31 9 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. prompted them to instigate an action against Eti-Osa Local Government Council in order to get a possible interpretation from the court. Unfortunately, this has not solved the problem. The legal framework must be revisited to harmonise the existing laws and practices with international standards and best practices. It should be noted that the Tribunal in Kareem wondered whether the registrar who issued the marriage certificate tendered by Kareem has any statutory right to do so. Apart from the constitutional controversies surrounding marriage registration and certification, the other relevant issue thrown up in Kareem and other cases such as Oyekan is whether proxy marriage is allowed under the Marriage Act and if not, what should be Nigeria’s response. It should not come as a surprise that the English courts have taken a position that proxy marriage is not valid under Nigerian federal enactment, i.e Marriage Act. They arrived at this position from several reports issued by foreign governmental bodies. A cursory look at the Marriage Act suggests that it is impracticable to have a proxy marriage under the Act. The Act envisages the presence of the couple and requires them to carry out some actions in person.37 Also, as part of the marriage rites, the registrar is expected to extract certain information from the couple personally and he could only pronounce marriage upon receiving such information from the couple.38 The inability to meet these requirements have restricted the choice of the intending couples to only customary marriage. This has bigger implications as statutory marriages seems to offer better protection to women in particular. Where for whatever reason(s), they decide to undergo a second statutory marriage; it creates other problems that come with what is generally referred to as ‘double-decker’ marriage. There may be good reasons why couples may want a statutory marriage by proxy. Nigerians who are resident in foreign countries and are subject to immigration restrictions such as presented by Kareem, Oyekan and Udemba may have no better option than a statutory proxy marriage. Proof of statutory marriage is less complicated compared to the onerous standards that have been imposed on customary marriages. Apart from immigration issues, a Nigerian member of the armed forces, who is serving on a foreign mission, for instance, may need a proxy statutory marriage. It would work great hardship and inconvenience, or even impossible For instance, section 7 of the Act provides that ‘whenever any person desires to marry, one of the parties to the intended marriage shall sign and give to the registrar of the district in which the marriage is intended to take place a notice as in Form A in the First Schedule’ (emphasis supplied). 38 Section 27 of the Act mandates the Registrar to ask the couple the following: "Do I understand that you, A.B., and you, C.D., come here for the purpose of becoming man and wife?”. 37 10 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. for him to return to Nigeria just for marriage purposes. Therefore, there is no justifiable reason why the Act should not make provision for proxy marriages in deserving circumstances. b. Customary Marriage Apart from statutory marriages, customary marriages and Islamic law marriages are other types of marriages recognised by Nigerian laws. The Constitution clearly exempts these marriages from the control of the Federal Government. Therefore, the validity of customary and Islamic law marriages is governed entirely by native law and customs applicable in the locality of the marriage and Islamic law respectively. As revealed by the English cases discussed earlier in this paper, proving customary marriages in the English courts have been a herculean task. This is an evidentiary matter and standard to be used is determined by the English law of evidence. Although, the standard is similar to what obtains in Nigerian law, the problem lies in the inability of the couples to present satisfactory evidence of specific native laws and customs of the locality where the marriage took place. This is not unreasonable bearing in mind that the English court is not versed in customary law. Therefore, the onus is on the couples to convince the court that their marriage satisfies the requirement of native law and custom under which the marriage took place. On the other hand, proving Islamic marriage may not be difficult since Islamic law is homogenous, and its contents are widely available in numerous authoritative texts. An easier way out of this conundrum is registration of customary and Islamic marriages. Couples could easily proof customary marriages by the production of a marriage certificate, which is duly issued by a competent authority. In the absence of any defect in such certificates, foreign courts could accord them with the presumption of regularity. Apart from that, foreign embassies can easily liaise with government departments for confirmation of such certificates. As it stands today, it is doubtful whether any such request can be made by foreign embassies in the light of the well-established authorities that customary marriages in Nigeria are not registered. This brings us to the issue of the Births, Deaths, Etc. (Compulsory Registration) Act.39 The Act makes provisions for mandatory registration of customary marriages and divorce to be registered within sixty days. The Act states thus: (1) Notwithstanding anything contained in any enactment, every customary marriage contracted in or dissolved in Nigeria shall 39 Cap B9, LFN 2004. 11 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. immediately after the commencement of this Act, be registered within sixty days in the area court or customary court where the marriage was contracted or dissolved. (2) Every court registrar shall keep a marriage registrar and such books as may be prescribed by the Registrar – General and as soon as practicable after the end of each month deliver to the Chief Registrar such returns and in such form as the Registrar – General may require. The English courts were misled to arriving at a conclusion that customary marriages are registrable in Nigeria under this Act. They might have relied on the work of Professor Nwogugu who opined that the Act instituted a national registration system for customary marriages.40 The Act predates the 1999 Constitution. Today, it is only a federal enactment whose provisions apply only in the Federal Capital Territory. By the provision of the Fourth Schedule to the Constitution, only the Local Government Councils have the competence to register all marriages.41 The States of the Federation have enacted a similar law. For instance, in Lagos State, there is a Birth, Death and Burials Law.42 While the provisions of the Lagos State Law are similar to the Federal Act, the entire sections of registration of marriages are excluded from the Law. This further buttresses the constitutional argument that only Local Government Councils have the legislative competence to register marriages.43 Having said that, there are a plethora of State Laws and Local Government Bye-Laws that make provisions for the registration of customary marriages. These various legislation have divergent positions on registration of customary marriages. For instance, the Registration of Marriages Adoptive By-Laws Order, 195644 that applies in western states such as Ogun and Oyo States requires a husband to gives details of the marriage to a Registrar of Marriage at the local council. The Registrar is expected to keep a Marriage Register and the parties on payment of fees, could obtain a certified true copy of the register. It should be added that it is a criminal offence for a husband to fail or neglect to register a customary marriage. 45 Lagos State has a 40 EI Nwogugu, Family Law in Nigeria (HEBN Publishers Plc 2014). 76. Fourth Schedule, Item I(i), 1999 Constitution (as amended). 42 Cap B2, laws of Lagos State 2015. 43 Other states have similar Law in place. 44 Western Region of Nigeria Legal Notice (in Western Region Gazette), No. 4 of 1957. The said Order still applies in the states of the former Western Region where the same has been adopted in various Local Government Laws applicable in those states. See further EI Nwogugu, Family Law in Nigeria (HEBN Publishers Plc 2014) 75; Charles Mwalimu, The Nigerian Legal System (Peter Lang Publishing Inc 2005) 703. 45 Nwogugu (n 40). 75. 41 12 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. Registration of Marriage Law46 which does is antiquated. While it requires that every marriage (without distinction) should be registered, it neither places any specific responsibility on any of the couple nor impose any penalty for default. In the northern and eastern part of the country, various local government laws prescribe the registration of marriages. However, some of those laws neither makes it mandatory nor prescribe any punishment for non-registration.47 One cannot but agree with the views of Nwogugu and Boparai that the state of registration of customary marriages in Nigeria is entirely unsatisfactory.48 The whole scheme is convoluted. It is hard to conclude whether such registration law is available in all the States of the Federation of the 774 local councils across the federation. In states where such law exists, they are unknown as some of the enabling laws or instruments predate the establishment of many states and local councils. It is not surprising, therefore, that the whole concept of registration of customary marriages is not popular to both local councils and couples. The time is ripe to make a case for the systematisation of the registration of both customary and Islamic marriages. This move may necessitate a constitutional amendment, which shall properly delineate governmental powers over formation and registration of all marriages. The current framework, which grants the federal government powers to regulate the formation and dissolution of statutory marriage but with a shared or exclusive responsibility of registration and certification vested in the local councils, is not a good one. While there appears to be some practical benefit inherent in a dualist regulatory approach where statutory marriages are regulated by the federal government and customary and Islamic marriages are regulated by states or local councils, there is a need to emphasise uniformity in the registration of statutory, customary and Islamic marriages. Marriage is a vital institution, which every society takes seriously because of the important rights that usually arise from it. A uniform registration process would ensure that uniform marriage certificates are issued to all Nigerian couples. The benefit to be derived from this approach is that Nigerian marriage certificates are easily recognisable and verifiable by foreign immigration bodies. It makes it easier for Nigerians to establish the validity of their customary and Islamic marriages before foreign tribunals and courts. 46 CAP R2, Laws of Lagos State 2015. see s.74 Local Government Law of Kaduna State; section 66 Local Government Law of Katsina State; section 3, Anambra State Reproductive Rights of Women Law, 2005 all cited in Nwogugu (n 40) 75. see also Harinder Boparai, ‘The Customary and Statutory Law of Marriage in Nigeria’ (1982) 46 The Rabel Journal of Comparative and International Private Law 530.553. 48 Nwogugu (n 40)76; Harinder Boparai (n 47). 554. 47 13 Published in F.A Adeleke (Ed), Reflections on the Dynamics of the Law: Essays in Honour of Professor Olanrewaju Fagbogun, SAN, (2019) pp 460-479. For re-use, see the publisher's terms and conditions. 5.0 Conclusion Lord Westbury’s dictum in Shaw v. Gould49 is a good way to conclude. It underscores the points that have been made so far in this paper. According to the learned jurist, ‘marriage is the very foundation of civil society, and no part of law and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and the conditions of forming, and if necessary, of dissolving, the marriage contract.50 The Nigerian law of marriage is highly convoluted. This has far-reaching implications for Nigerian citizens both within and outside the shores of Nigeria. In a globalised world, it is given that Nigerian marriages would be the subject of administrative and judicial examination in foreign countries. The law on registration of marriages for both statutory and non-statutory marriages are riddled with many ambiguities as shown by series of litigation that were witnessed in the recent time. This does not only make it hard for couples to get informed opinions on choice(s) of marriage to make, it is also difficult for foreign courts to get any reliable expert opinion. Several Nigerians have suffered untold hardship because of this conundrum. For those abroad, it has impacted negatively on their immigration rights as it becomes a herculean task to validate their marriages in foreign courts. This has been established by three recent English cases that are discussed in this paper. The time is, therefore, ripe for the Nigerian governments at all levels to seek a complete overall of the legal infrastructure for the registration of marriages in Nigeria. 49 50 (1868) L.R. 3 H.L. 55. Ibid 88. 14