Two marriage ceremonies were celebrated on Zoom video conference
platforms last week. The couples are based in Abuja and Lagos. The
officiating priests, DJs, participants, and other essential service
providers all dialed in via Zoom. Food was physically delivered to
the homes of some of the online participants. Section 33(2) of the
Marriage Act provides that a marriage shall be null and void if
both parties knowingly and willfully acquiesce to its celebration
in any place other than the office of a registrar of marriages or a
licensed place of worship, except where authorised to do so by an
exemption license issued under the Act.
There have been arguments that the celebration of marriages in a
licensed place of worship or a marriage registrar’s office are very
critical in determining the validity of marriages contracted under
the Marriage Act – save where the exemption license provided under
the Act was obtained (or at least applied for) by the couple,
authorising celebration of the marriage in a place other than a
licensed place of worship or a marriage registrar’s office, prior
to the marriage ceremony. On these premises, it has been argued
that the marriages celebrated on Zoom video conference platforms
last week may be null and void under the Act.
I don’t think “licensed place of worship” in the Act should be
limited to a physical building. The Act effectively approves any
place of worship recognised by the State as valid for the
celebration of marriages contracted under the Act. At the time
being in force, the State recognised online forums as valid and
necessary worship platforms given the COVID-19 crisis. It follows
that marriages celebrated on online platforms like Zoom, and
officiated by clergymen ordained and recognised in licensed places
of worship, should ordinarily qualify as valid marriages under the
Act – especially taking into account the special circumstances of
the COVID-19 crisis.
That is, “licensed place of worship” should be interpreted
broadly in this instance to include online forums hosted by
licensed places of worship in Nigeria – in so far as the
officiating clergyman is one ordained and recognised in a licensed
place of worship in Nigeria. I have had very engaging conversations
with contemporary and senior colleagues who have expressed opposing
views and generally insist the marriages celebrated on Zoom last
week are null and void from a literal interpretation of the
Marriage Act. While they accept that the law is inadequate given
the COVID-19 reality, they believe a legislative amendment is
required to update the law and bring it in tune with the times.
Some others have expressed a more moderate view. They opine that
the Zoom marriage ceremonies could be construed as mere marriage
blessings, and that a subsequent visit to the marriage registry
post COVID-19 to formalise the process could validate the Zoom
marriage ceremonies. Others opined that the physical presence of
the officiating priests within the premises of licensed places of
worship at the time they dialed into the Zoom video conference
platforms may validate the Zoom marriage ceremonies, since the Act
does not expressly mandate the physical presence of the couples in
the licensed places of marriage. These are all excellent views that
provide a rich perspective to the debate.
Others have argued that the Zoom marriages will be void unless
the couple can show that they at least tried to get an exemption
license under the Act but were unable to do so by reason of the
lockdown.
The challenge with this view is that the marriage registries are
on lockdown since they were not amongst the public services
designated as essential services in the lockdown order. It is
unlikely that the marriage registries have reliable digital
platforms through which applications for the exemption licenses may
be made.
Clearly, the Marriage Act did not foresee a world with COVID-19
where human contact, free movement, and public gatherings would be
a major health concern and economic concern.
And the challenge with the view regarding visit to the registry
post COVID-19 to formalise the process is that it may raise a
question on the date of commencement of the marriage – that is, did
the marriage commence on the date of solemnization by the priest on
Zoom video conference platform or on the date of the couples’ visit
to the marriage registry post COVID-19 to formalise the process,
which may be months apart?
Everyday, the inadequacy of our laws keep getting exposed.
Updating these laws to conform with contemporary reality is best
achieved through the process of legislative amendment.
Unfortunately, this does not always happen as quickly and as
efficiently as necessary.
Hence, assuming I’m a High Court judge faced with interpretation
of the question of validity of the Zoom marriage ceremonies held
last week, I’ll apply judicial activism to hold that the Zoom
marriage ceremonies are valid under the Act. The Court of Appeal
and Supreme Court may then exercise their discretion to overrule
me.
During my time as the Chief Judge of the University of Nigeria
Students’ Union Government in 2014, my judicial role model was Lord
Denning. I made a point of reading at least one of his judgments
daily. Even now as a practicing lawyer, I still read his judgments
– though not that consistently anymore due to time constraints and
competing obligations. Lord Denning was the patron of judicial
activism. He believed it was judicial laziness and laxity for a
judge to fold his hands when faced with the interpretation of a
defective law and simply wait for the Parliament to amend the
statute. Such amendment (if it ever happens) would not apply
retrospectively to do justice in the instant case.
In Seaford Court Estates Ltd. v Asher (1949) 2 KB 481, 498, Lord
Denning held that:
“Whenever a statute comes up for consideration, it must be
remembered that it is not within human powers to foresee the
manifold set of facts which may arise and even, if it were, it is
not possible to provide for them in terms free from all ambiguity.
The English language is not an instrument of mathematical
precision. Our literature would be much the poorer if it were.”
Lord Denning also held in Seaford Court Estates Ltd. v Asher
(1949) 2 KB 481, 498, that:
“It would certainly save judges trouble if Acts of Parliament
were drafted with divine prescience and perfect clarity. In the
absence of it, when a defect appears, a judge cannot simply fold
his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament… A judge
must not alter the material of which it is woven, but he can and
should iron out the creases.”
In Magor v Newport Corporation (1950) 2 All ER 1226,
1236, Lord Denning held that:
“We sit here to find out the intention of Parliament and of
Ministers and carry it out, and we do this better by filling in the
gaps and making sense of the enactment than by opening it up to
destructive analysis.”
Holding in Parker v Parker (1954) All ER 22, that the relevant
statute enabled the court to order a husband to pay maintenance for
his child born before marriage, and refusing to follow an earlier
decision to the contrary, Lord Denning observed thus:
“What is the argument on the other side? Only this: that no case
has been found in which it has been done before. That argument does
not appeal to me in the least. If we never do anything which has
not been done before, we shall never get anywhere. The law will
stand still while the rest of the world goes on; and that will be
bad for both.”
In Pepper (Inspector of Taxes) v Hart (1992) 3 WLR 1032, Lord
Denning held that:
“To apply the words literally is to defeat the intention of the
legislature. To achieve the intent and produce a reasonable result,
we must do some violence to the words.”
Lord Nicholls mirrored Lord Denning when he held in Inco Europe
Ltd. & ors. v First Choice Distribution (A Firm) & ors. (2000) UKHL
15, that:
“It has long been established that the role of the courts in
construing legislation is not confined in resolving ambiguities in
statutory language. The courts must be able to correct obvious
drafting errors. In suitable cases, in discharging its
interpretative function, the court will add words or omit words or
substitute words.”
In Ohuka v The State (1988) 1 NWLR (Pt. 72) 1, the relevant
statute limited criminal appeals to a period of 30 days from the
date of the decision appealed against. The appellant was in custody
and was not aware of the judgment delivered against him. He later
filed his appeal much later than 30 days from the date of delivery
of the judgment – as that was the time he became aware of the
judgment. Oputa JSC did not wait for the legislature to amend the
statute. He rather construed the 30 days limitation period
specified in the relevant statute to mean 30 days after the
appellant became aware of the judgment appealed against, and not 30
days from the date of delivery of the judgment.
In reaching the decision in Ohuka v The State (1988) 1 NWLR (Pt.
72) 1, Oputa JSC held that: “The court is not a mechanical and
automatic calculator. No, it is a court of law dealing with varying
situations and applying the same to those situations in order to do
justice in each and every situation according to its peculiar
surrounding circumstances”.
For further reading on the extent of judicial activism in
Nigeria, see Emmanuel Onyeabor & Nwora Ike Obiora, Understanding
Law from the Perspective of the Bad Man, The University of Nigeria
Law Students’ Journal, Vol. 3 No. 1, 2017, pp. 84 – 103.
Written By EMMANUEL ONYEABOR ( ASSOCIATE – BANWO &
IGHODALO )
Two marriage ceremonies were celebrated on Zoom video conference
platforms last week. The couples are based in Abuja and Lagos. The
officiating priests, DJs, participants, and other essential service
providers all dialed in via Zoom. Food was physically delivered to
the homes of some of the online participants. Section 33(2) of the
Marriage Act provides that a marriage shall be null and void if
both parties knowingly and willfully acquiesce to its celebration
in any place other than the office of a registrar of marriages or a
licensed place of worship, except where authorised to do so by an
exemption license issued under the Act.
There have been arguments that the celebration of marriages in a
licensed place of worship or a marriage registrar’s office are very
critical in determining the validity of marriages contracted under
the Marriage Act – save where the exemption license provided under
the Act was obtained (or at least applied for) by the couple,
authorising celebration of the marriage in a place other than a
licensed place of worship or a marriage registrar’s office, prior
to the marriage ceremony. On these premises, it has been argued
that the marriages celebrated on Zoom video conference platforms
last week may be null and void under the Act.
I don’t think “licensed place of worship” in the Act should be
limited to a physical building. The Act effectively approves any
place of worship recognised by the State as valid for the
celebration of marriages contracted under the Act. At the time
being in force, the State recognised online forums as valid and
necessary worship platforms given the COVID-19 crisis. It follows
that marriages celebrated on online platforms like Zoom, and
officiated by clergymen ordained and recognised in licensed places
of worship, should ordinarily qualify as valid marriages under the
Act – especially taking into account the special circumstances of
the COVID-19 crisis.
That is, “licensed place of worship” should be interpreted
broadly in this instance to include online forums hosted by
licensed places of worship in Nigeria – in so far as the
officiating clergyman is one ordained and recognised in a licensed
place of worship in Nigeria. I have had very engaging conversations
with contemporary and senior colleagues who have expressed opposing
views and generally insist the marriages celebrated on Zoom last
week are null and void from a literal interpretation of the
Marriage Act. While they accept that the law is inadequate given
the COVID-19 reality, they believe a legislative amendment is
required to update the law and bring it in tune with the times.
Some others have expressed a more moderate view. They opine that
the Zoom marriage ceremonies could be construed as mere marriage
blessings, and that a subsequent visit to the marriage registry
post COVID-19 to formalise the process could validate the Zoom
marriage ceremonies. Others opined that the physical presence of
the officiating priests within the premises of licensed places of
worship at the time they dialed into the Zoom video conference
platforms may validate the Zoom marriage ceremonies, since the Act
does not expressly mandate the physical presence of the couples in
the licensed places of marriage. These are all excellent views that
provide a rich perspective to the debate.
Others have argued that the Zoom marriages will be void unless
the couple can show that they at least tried to get an exemption
license under the Act but were unable to do so by reason of the
lockdown.
The challenge with this view is that the marriage registries are
on lockdown since they were not amongst the public services
designated as essential services in the lockdown order. It is
unlikely that the marriage registries have reliable digital
platforms through which applications for the exemption licenses may
be made.
Clearly, the Marriage Act did not foresee a world with COVID-19
where human contact, free movement, and public gatherings would be
a major health concern and economic concern.
And the challenge with the view regarding visit to the registry
post COVID-19 to formalise the process is that it may raise a
question on the date of commencement of the marriage – that is, did
the marriage commence on the date of solemnization by the priest on
Zoom video conference platform or on the date of the couples’ visit
to the marriage registry post COVID-19 to formalise the process,
which may be months apart?
Everyday, the inadequacy of our laws keep getting exposed.
Updating these laws to conform with contemporary reality is best
achieved through the process of legislative amendment.
Unfortunately, this does not always happen as quickly and as
efficiently as necessary.
Hence, assuming I’m a High Court judge faced with interpretation
of the question of validity of the Zoom marriage ceremonies held
last week, I’ll apply judicial activism to hold that the Zoom
marriage ceremonies are valid under the Act. The Court of Appeal
and Supreme Court may then exercise their discretion to overrule
me.
During my time as the Chief Judge of the University of Nigeria
Students’ Union Government in 2014, my judicial role model was Lord
Denning. I made a point of reading at least one of his judgments
daily. Even now as a practicing lawyer, I still read his judgments
– though not that consistently anymore due to time constraints and
competing obligations. Lord Denning was the patron of judicial
activism. He believed it was judicial laziness and laxity for a
judge to fold his hands when faced with the interpretation of a
defective law and simply wait for the Parliament to amend the
statute. Such amendment (if it ever happens) would not apply
retrospectively to do justice in the instant case.
In Seaford Court Estates Ltd. v Asher (1949) 2 KB 481, 498, Lord
Denning held that:
“Whenever a statute comes up for consideration, it must be
remembered that it is not within human powers to foresee the
manifold set of facts which may arise and even, if it were, it is
not possible to provide for them in terms free from all ambiguity.
The English language is not an instrument of mathematical
precision. Our literature would be much the poorer if it were.”
Lord Denning also held in Seaford Court Estates Ltd. v Asher
(1949) 2 KB 481, 498, that:
“It would certainly save judges trouble if Acts of Parliament
were drafted with divine prescience and perfect clarity. In the
absence of it, when a defect appears, a judge cannot simply fold
his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament… A judge
must not alter the material of which it is woven, but he can and
should iron out the creases.”
In Magor v Newport Corporation (1950) 2 All ER 1226,
1236, Lord Denning held that:
“We sit here to find out the intention of Parliament and of
Ministers and carry it out, and we do this better by filling in the
gaps and making sense of the enactment than by opening it up to
destructive analysis.”
Holding in Parker v Parker (1954) All ER 22, that the relevant
statute enabled the court to order a husband to pay maintenance for
his child born before marriage, and refusing to follow an earlier
decision to the contrary, Lord Denning observed thus:
“What is the argument on the other side? Only this: that no case
has been found in which it has been done before. That argument does
not appeal to me in the least. If we never do anything which has
not been done before, we shall never get anywhere. The law will
stand still while the rest of the world goes on; and that will be
bad for both.”
In Pepper (Inspector of Taxes) v Hart (1992) 3 WLR 1032, Lord
Denning held that:
“To apply the words literally is to defeat the intention of the
legislature. To achieve the intent and produce a reasonable result,
we must do some violence to the words.”
Lord Nicholls mirrored Lord Denning when he held in Inco Europe
Ltd. & ors. v First Choice Distribution (A Firm) & ors. (2000) UKHL
15, that:
“It has long been established that the role of the courts in
construing legislation is not confined in resolving ambiguities in
statutory language. The courts must be able to correct obvious
drafting errors. In suitable cases, in discharging its
interpretative function, the court will add words or omit words or
substitute words.”
In Ohuka v The State (1988) 1 NWLR (Pt. 72) 1, the relevant
statute limited criminal appeals to a period of 30 days from the
date of the decision appealed against. The appellant was in custody
and was not aware of the judgment delivered against him. He later
filed his appeal much later than 30 days from the date of delivery
of the judgment – as that was the time he became aware of the
judgment. Oputa JSC did not wait for the legislature to amend the
statute. He rather construed the 30 days limitation period
specified in the relevant statute to mean 30 days after the
appellant became aware of the judgment appealed against, and not 30
days from the date of delivery of the judgment.
In reaching the decision in Ohuka v The State (1988) 1 NWLR (Pt.
72) 1, Oputa JSC held that: “The court is not a mechanical and
automatic calculator. No, it is a court of law dealing with varying
situations and applying the same to those situations in order to do
justice in each and every situation according to its peculiar
surrounding circumstances”.
For further reading on the extent of judicial activism in
Nigeria, see Emmanuel Onyeabor & Nwora Ike Obiora, Understanding
Law from the Perspective of the Bad Man, The University of Nigeria
Law Students’ Journal, Vol. 3 No. 1, 2017, pp. 84 – 103.
Written By EMMANUEL ONYEABOR ( ASSOCIATE – BANWO &
IGHODALO )