1.1. This is an address in a case in which Mr. A, now deceased, married Mrs. B under the Marriage Act. He subsequently married Mrs. C under Islamic Law.
Upon the death of Mr. A, Mrs. C filed an action in a Sharia Court for the distribution of the estate of the deceased under Islamic Law. Mrs. B filed a preliminary objection challenging the jurisdiction of the court on the ground that she had a prior marriage under the Act, hence, Mrs. C’s marriage was null and void.
This is Mrs. C’s response to the preliminary objection.
1.1. The argument being proffered by Mrs. B is that because she was married to the deceased under the Marriage Act, then any marriage between the deceased and the Mrs. C is invalid.
However, Mrs. B failed to cite any provision of the Marriage Act that specifically provided that the Mrs. C’s marriage to the deceased under Islamic law is a nullity by virtue of Mrs. B’s marriage under the Marriage Act. This we submit was not an omission. The fact is that there is no such provision.
1.2. In her attempt to show that the marriage of the Mrs. C to the deceased is a nullity, Mrs. B cited the provisions of Sections 27, 34, 36 and 47 of the Marriage Act as well as the case of THE QUEEN VS BATHLOWMEW PRINCEWELL.
None of these sections and case is of any use in support of Mrs. B’s arguments. None of the sections nullifies or render invalid the Mrs. C’s marriage to the deceased under Islamic Law.
1.3. The only section that would probably have been relevant would have been Section 35 of the Marriage Act. This section provides that:
“Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.”
It is our humble submission that the Provision of Section 35 of the Marriage Act are clear and devoid of any ambiguity. Therefore, the ordinary and natural meaning of the words therein must be given to them. See the case of OLOFU VS ITODO (2010) 18 NWLR (PART 1225) 545 @ 577 PARAS C – D. In this case, the Supreme Court held that:
“Where the provisions of a statute are clear and unambiguous the court is to apply as they are as there is nothing to be interpreted.”
1.4. By the provisions of Section 35 of the marriage Act therefore, a person married under the Act shall be incapable of contracting a subsequent marriage under the customary law. This provision does not mention Islamic Law, which for all intents and purposes is a set of laws distinct and separate from customary law. A clear reading of section 35 of the Marriage Act definitely and without any iota of doubt will exclude marriages contracted under Islamic law. This is predicated on the well know principle of interpretation ‘expression unius est exclusion alterius’. Meaning “The express mention of one thing is the exclusion of another”.
In the case of OJUKWU VS YAR ADUA (2008) 4 NWLR (PART 1078) 435 @ PAGE 461 PARAS B – C The Court of Appeal per Fabiyi JCA (as he then was) explained the principle as follows:
“The express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication”.
The implication of this decision on the provisions of section 35 of the Marriage Act is that the express mention of Customary Law therein expressly excludes Islamic Law which otherwise would have been included by implication. Thus, it cannot be implied that a subsequent marriage under Islamic Law is a nullity or void for the purposes of the Act. Therefore, unless there is an express provision preventing a person from contracting a subsequent marriage under Islamic Law, no provision of the Marriage Act can prevent him by implication.
1.5. In any event, the provisions of section 35 of the Marriage Act, to the extent that it legislates against a subsequent marriage under Customary Law after a prior marriage under the Act is unconstitutional and therefore null and void. The section is a provision against the formation of a marriage under Customary law after a prior marriage under the Act. It effectively annuls, nullifies or voids such subsequent marriage.
1.6. The Marriage Act is a law made or deemed to have been made by the National Assembly. The power of the National and State Houses of Assemblies to enact legislations is governed by the provisions of Section 4 of the 1999 Constitution as amended. It is under that section that the list of items that the national Assembly and the State Houses of Assemblies can legislate upon is provided for. The section created the Exclusive Legislative List and The Concurrent Legislative list.
1.7. The Exclusive Legislative List contains items on which only the National Assembly has power to legislate upon while the Concurrent list contains items that both the National and State Houses of Assembly can legislate upon. Anything not contained in the two lists is part of what is termed “The Residual List” and any item in this list can only be legislated upon by the State Houses of Assembly to the exclusion of the National Assembly. Customary Law and Islamic Law are neither in the exclusive nor in the concurrent list. They are therefore matters on which only State Houses of Assemblies can legislate upon.
1.8. By item 61 on the Exclusive Legislative list, the National Assembly can legislate on:
“The Formation, annulment and dissolution of marriages other than marriages under Islamic Law and Customary law including matrimonial causes relating thereto.”
The implication of this is that the National Assembly cannot make any legislation that will regulate, annul, nullify or void any marriage contracted either under Islamic Law or Customary Law. To the extent that it indirectly sought to prevent the formation of a customary law marriage (albeit after a marriage under the Act) section 35 is unconstitutional null and void. It cannot annul, void or nullify any such customary law marriage.
1.9. The implication of this to the case at hand is that by whatever provision, the Marriage Act cannot regulate, directly or indirectly the formation, annulment or dissolution of the Mrs. C’s marriage under Islamic Law. It cannot nullify or make void the marriage. To the extent that it is alleged to have done, it is unconstitutional, null, void and of no effect.
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