Month: January 2022

A statutory marriage is an institution regulated by law. As such, certain requirements must be fulfilled before there could be a valid celebration or dissolution of marriage. In Nigeria, the principal legislations governing statutory marriage are the Matrimonial Causes Act (MCA) and the Marriage Act.

In life, nothing lasts forever. Even a Hausa powder does not. So, when a man and a woman exchange vows, walk down the aisle, cut the cake and do the paparazzi, one would think that the union between them would last forever. Well by default, it was expected to be like that. Forever baby. Innit? However, some instances could give rise to the dissolution of such marriage. It could either be by the death of one of the spouses or divorce. In this analysis, our attention would be on the two-year rule of divorce.

The principle of law, by virtue of section 30(1) of the Matrimonial Causes Act (MCA), is that a divorce proceeding cannot be instituted within two years after the date of marriage. For instance, if Clinton got married to Cynthia on August 1, 2021, the law is that either of the parties cannot bring divorce proceedings from then till July 31, 2023.

The rationale behind this rule is hinged on enhancing the longevity of marriage. Also, the rule ensures that divorce should not be made too easy so that people will not rush out of their marriage as soon as they discover that the marriage was not what they expected it to be. Do we then have an instance that could make Clinton bring a divorce proceeding within the two years rule? let’s say, four months after his marriage to Cynthia? Yes. Being an LSPite, you should know that for every general principle of law, there is an exception.

The exception, statutorily provided for in section 30(3) of the MCA, is that a divorce proceeding within the two years rule is allowed if:
• One of the parties is guilty of exceptional hardship.
• If the case involves exceptional depravity on part of the other party to the marriage.

Furthermore, though the terms Exceptional Depravity and Hardship were not defined in the laws, the Courts have interpreted these phrases, based on the circumstances of each case presented before them. Hence in Fletcher v Titt (1979)10 FLR 151, Mr. & Mrs. Titt Married in August 1977. In April 1978, Mrs. Titt applied for leave to petition for divorce. She alleged that her husband often beats her up and he had twice tried to strangle her whilst he was drunk. She also alleged that their marital difficulties were affecting her standard at work since both of them were police officers working in the same police station. It was held that the leave should be granted.

Moving on, if the exception doesn’t apply and the marriage has lasted beyond two years, the petitioner must then prove to the satisfaction of the Court that the marriage has broken down irretrievably by virtue of section 15(1) of the Matrimonial Causes Act. This is the only sole ground for the dissolution of marriage in Nigeria.

To establish irretrievable breakdown, the petitioner must prove the existence of one or more of the facts stated in section 15(2)(a-h) of the MCA which are:
(a) that the respondent has willfully and persistently refused to consummate the marriage;
(b) that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
(e)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
(f) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
(g) that the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act;
(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.

In Ekrebe v. Ekrebe(1999) 3NWLR (pt.596) 514 at 517, Mohammed JCA (as he then was), held that, for a divorce petition to succeed, the petitioner must plead one of the facts contained in section (15) (2) (a)-(h) of the MCA and that if the petitioner fails to prove any of the facts stated in the law, the petition must be dismissed, even if the dissolution is desired by both parties.

In conclusion, a petitioner has to clear two hurdles before the Court can grant the decree for the dissolution of marriage. The first hurdle is that the marriage must be at least two years. If not, then the exception will apply. And the second hurdle is that such marriage must have broken down irretrievably.

Thank you for reading. See you next week.🥰

Names are perhaps the easiest and fundamental means of identifying an individual. The rationale behind it is to distinguish one individual from another since no two persons can have exact names.

Given at birth, it runs from cradle till death unless there are instances that call for a change of name. The law recognises instances for a change or correction of name.

Over time, the changing of names in Nigeria involves bilateral processes. The deponent or maker has to swear an affidavit stating the intention to change or correct his name. An affidavit is simply a written statement of fact that is signed under an oath in presence of an official recognised authority such as a Solicitor, a Notary of the Public, Justice of the Peace, or Commissioner of Oath, etc.

Once this has been done, the maker of the affidavit is to publish the notice of change of name in a national newspaper. This is to ensure the general public becomes aware of the change in name and subsequent correspondence or interaction should reflect the new name.

However in a recent case of PDP & Ors v Degi- Eremienyo & Ors (2020) LPELR-49734(SC), the federal high court Judge, I.E Ekwo held that “the affidavit of correction and confirmation of name does not in his opinion, conform to the proper manner of changing a name or correcting a name on a certificate and that it is only by deed poll, and not by mere deposition that a name on an official certificate can be effected and further that the procedure necessarily affects official record and archives of the nation. That is after the deed poll that the deponent approaches the Nigerian Civil Registry to have the change published in the official gazette. None of these procedures had been done by the 1st respondent.”

From this, the law is one cannot change or correct one’s name by swearing an affidavit and publishing change of name in a newspaper. One can only change or correct your name by a Deed poll, and then proceed to the Nigerian Civil Registry to have it published in an official gazette. This principle held by the federal high court was accepted by the supreme court.

Furthermore, the difference between an affidavit of and a deed of poll is that while the former has to be witnessed by a recognised authority, the latter is to be witnessed by two adults who should not be related to the maker. But the two processes have the same legal effects – that is, changing one’s name. This is the summary of this recent case. Simple and straightforward!

IS THERE ANOTHER PERSPECTIVE ON THIS CASE?
Moving on, if the judgment is viewed from another perspective and read in context, then it seems that this case did not establish a new principle but only extended the practice of changing of name to include A PUBLICATION IN AN OFFICIAL GAZETTE. This perspective is further strengthened provided that the main difference between an affidavit and a deed of poll, mentioned in the preceding paragraph, did not come into play and emphasis was just on the effects. In fact, in the case under review, the crux of the suit was not on the publication of the changed name, it was on the falsity of the names in which the 1st respondent claimed to have changed.

In that case, the names the respondent bear at each stage of his life were fraught with lots of inconsistencies and falsity. Instances are:
•The name in his First School Leaving Certificate issued in 1976 Degi, Biobragha.
•His WAEC/GCE, 1984 bears the name Adegi Brokumo.
•His first degree bears the name- Degi Biobarakuma Wangawa.
•In his affidavit of correction and confirmation of name sworn to on 9 August 2018, he asserted that his correct name is Biobarakuma Degi.
•In another affidavit of regularisation of name sworn to on 18 September 2018, he averred that his correct name is Biobarakuma Wanagha Degi Eremienyo.

Based on this, the Supreme Court justice, Ejembi Eko held that the respondent had told a lie and his inconsistencies portrayed a chameleon nature. The consequence of this is that the Court had to invoke section 31(6) of the Electoral Act to cancel the 1st respondent, and consequently the 2nd respondent’s victory in the Bayelsa governorship election and then made another candidate who came second in the governorship election, the governor of the state. This is irrespective that the 1st respondent, nominated as a deputy governor, was the one who gave fraudulent details, and not the 2nd respondent who was the Governor-elect.

As a corollary, it has always been the law that a person’s name and initials must be constant and consistent as the rising and the setting of the sun. The Supreme Court reiterated this fact with more emphasis in the case of Titilayo Plastic Ind. Ltd v. Fagbola (2019) LPELR-SC.205/2004. where the Apex Court held that “the exact names used for professional purposes must be the same used in an official capacity or else render such documents defective and not a mere misnomer.”

As such, it could mean once an affidavit for a change of name has been sworn, the maker then proceeds to the Nigerian Civil Registry to get it published rather than just publishing it in a national newspaper. This of course would be valid provided that an affidavit for a change of name and a deed of poll can be used interchangeably while still retaining the legal effect. If not, then the practice of changing name through an affidavit is no longer the law and henceforth, only a deed of poll can be used.

In conclusion, the writer posits that a prospective individual who wishes to change or correct his name should employ the service of a lawyer.

Thank you for reading. See you next week😚

The rank of the Senior Advocate of Nigeria (SAN) is a prestigious position in Nigeria. It is the apogee position any legal practitioner could attain and it certainly comes with privileges. See Here

Over the years, the question has been whether a SAN can appear before an inferior court? This legal question also brings to limelight the societal attachment of hierarchy that is well observed among legal practitioners in Nigeria.

It is pertinent to note that the Constitution did not use the phrases inferior and superior courts. The phrases are used solely for convenience in academic parlance. By virtue of Section 6(5) of the Constitution, superior courts of records are:
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(cc) The National Industrial Court
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State;
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;

From this list, courts such as area, customary, and magistrate courts are exempted. These courts are known as the inferior courts. The question, whether a SAN can appear before an inferior court first came up for determination in the case of Registered Trustees of ECWA. Church v. Ijesha (1999) 13 NWLR (pt.635)368 where the Court of Appeal held in disaffirmation. The court’s ratio decidendi (reason for judgment) was based on Senior Advocate of Nigeria (Privileges and Functions) Rules, 2004 (hereinafter referred to as SAN Rules) which is the principal law regulating Senior Advocates in Nigeria and the literal interpretation of the provisions of the rules.

For the purpose of clarity and proper guidance, the relevant rules are reproduced hereunder:
• A Senior Advocate of Nigeria may appear as counsel in any criminal cause or matter before any court of superior record with or without another counsel.
• A Senior Advocate of Nigeria shall not apply for or issue originating process or any other process from or application before a court in any cause or matter except in relation to for process those matters in which he is entitled to appear pursuant to rules 2 and 3 of these Rules.
•In these Rules, unless the context otherwise requires, superior court of record means the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court, or any other court or tribunal with powers not less than those of a High Court.

With this, the position of law seems to have been settled. However, seventeen (17) years after this decision, the Magistrate Court of Lagos State, being an inferior court, in Attorney General of Lagos State v. Persons Unknown (2016) All FWLR (pt.815) held that a SAN can appear before a magistrate court, and by inference, all inferior courts.

While it is necessary to laud the brilliant points raised by the learned judge in that case, this writer humbly submits that based on the landmark principle of judicial precedent, it was no place for the learned justice to overturn the decision of the Court of Appeal. The principle of judicial precedent is that lower courts must always follow the decisions reached by superior courts in cases that are of similar fact. And it is immaterial that the decision of such a superior court was decided wrongly.

Based on this, until and unless the supreme court of Nigeria overturns the Court of Appeal’s decision in ECWA’s case, the decision remains the true position of law in Nigeria.

Thank you for reading. See you next week🥰