Agbakoba (SAN) against the Attorney General of the Federation and the
National Assembly over non-creation of special court to preside over
Christian affairs, including marriage solemnisation and divorce.
Agbakoba had argued that since there were Sharia Courts for Muslims and
Customary Courts for those who practice the African Traditional Religion
in Nigeria, the respondents had violated his right to freedom from
discrimination by not creating Christian Courts to preside over Christian
affairs.
He had challenged the provisions of sections 21-26 and 33(2)(a)(b) of the
Marriage Act and Section 15(1)(2) of the Matrimonial Causes Act, which
implied that “marriages celebrated by Catholics and other Christians
without resort to the Marriage Registry and the Registrar’s certification
is void in the face of the law.”
He had also challenged the situation whereby Christian marital disputes
were adjudicated upon at the high courts “by persons with little or no
knowledge of the Christian religion”, while Muslims and ATR adherents had
the benefit of taking their disputes before the Islamic and Customary
courts manned by Islamic scholars and people knowledgeable in customary
laws respectively.
The former President of the Nigerian Bar Association had sought a
declaration that sections 21-26 and 33(2)(a)(b) of the Marriage Act as
well as Section 15(1)(2) of the Matrimonial Causes Act interfered with
his right to freedom of thought, conscience and religion.
He urged the court to nullify sections 21-26 and 33(2)(a)(b) of the
Marriage Act and Section 65(1)(2) of the Matrimonial Causes Act for being
inconsistent with sections 38(1) and 42(1)(a) of the 1999 Constitution.
But in a judgment delivered on October 5, 2015, Justice C.J. Aneke said
Agbakoba failed to show how the non-provision of courts in his religion
had subjected him to any disability or discrimination and therefore
dismissed the suit.
The judge said Agbakoba failed to show how he would benefit from the
reliefs that he was seeking since he was already married and did not
depose to any affidavit that he was contemplating a divorce.
He rejected Agbakoba’s argument that the right to marry in accordance
with Christian belief is part and parcel of his (Agbakoba’s)
constitutional right to freedom of religion.
The judge said, as opposed to Agbakoba’s argument, the word ‘marriage’
did not appear at all in Section 38 of the 1999 Constitution, neither did
the section stipulate the procedure for solemnising a marriage or
dissolving it.
“The court is therefore of the opinion that the right to freedom of
religion does not include the right to a particular marriage or a
particular procedure for dissolution of marriage.
“This court is also of the opinion that the applicant has not established
his locus standi and his cause of action in bringing this suit. The
applicant is already married and did not depose that he is contemplating divorce.
Moreover, he has not proved how the reliefs, if granted, would confer a
benefit on him,” Justice Aneke held.
He added, “The applicant failed to show how non-provision of courts in
his religion has subjected him to any disability or discrimination…All
the reliefs sought by the applicants are hereby refused.
“This suit is one for the interpretation of sections 38 and 42 of the
Constitution, I make no order as to cost,” Aneke held.
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