Nigeria - A legal system that fails to make justice affordable and available is defective and an aberration of democracy. Part 1, section 2 (3) of the Matrimonial Causes Act, Chapter 220, Laws of the Federation of Nigeria states thus "For the avoidance of doubt it is hereby declared that a person domiciled in any State of the Federation is domiciled in Nigeria for the purposes of this Act and may institute proceedings under this Act in the High Court of any State whether or not he is domiciled in that particular State". This provision of the Matrimonial Causes Act is a total reflection of the incompleteness of our legal system and the laws governing our indigenization procedures. We all know that a person's state of origin is an integral part of our legal and political considerations in all matters.

Even the Federal Character Commission emphasizes this in their drive for equitable distribution of offices at the Federal level. Why then should matrimonial causes especially divorce petitions be foisted with unlimited jurisdictional competence irrespective of logistic log jams inherent with such a wide spectrum or authority.

Why would a marriage contracted in a Southern state be annulled in a Northern state? Who will be responsible for transporting the witnesses to the state where the court is situated? Where the Respondent cannot come to court due to distance and other logistic reasons, should the court be justified in granting the petitioner judgment in default?

Even if the Matrimonial Causes Act has universal application in the country, it must be operated with respect for the needs of the litigants. Its operation as it affects jurisdiction and legal costs must be considered. Hence a wealthy petitioner will obviously get judgment if the indigent Respondent fails to attend court.

Therefore, the Petitioner will seek to go outside his or her normal residency to seek for Divorce as most probably the Respondent may not be able to sustain the numerous court sessions preceding judgment. Has the judicial system taken into cognizance the fact that parties are never on the same pedestal in terms of ability to pay for legal representation? Justice must be affordable and available. It must be within the reach of every citizen. Matrimonial causes should be restricted to the area of domicile or place of contracting the marriage or place of domicile of any of the parties. This will reduce the cost of litigation and expense to attend on the litigants or at best the less privileged party.

The granting of unlimited jurisdictional power and competence to all courts of Nigeria to litigate in marital cases especially divorce makes nonsense of the entire idea of jurisdiction in our jurisprudence. Marriage is an all encompassing area of existence and marital causes remain exclusive part of our law that must not be given such a floating authorization. It must be given sanctification and respect and the law has to accommodate the logistics of the litigants in seeking justice. Expensive justice is justice denied.

Section 17 (1) of the 1999 constitution states that the State Social Order is founded on the ideals of Freedom, Equality and Justice and subsection (2) (a) states thus "In furtherance of the social order-every citizen shall have equality of rights, obligations and opportunities before the law;" if Justice and the attainment of it is a pivotal consideration of the framers of our constitution and indeed of any democratic institution, then Justice must be made easily available and affordable. I still wonder, in the face of several evidences, how this random choice of court by litigants in matrimonial causes can aid the dispensation of Justice. To do justice to such a matter, the petitioner and respondent must be able to afford the cost of such exercise. Every person is entitled to fair hearing and this can only be achieved when the person(s) have the simplicity to appear and state their matter before a competent court of law.

The matrimonial cause must be heard and the litigants must have equal opportunity to state their positions. The non appearance of either party at all the hearings should again not have the capacity to frustrate the matter so instituted. Therefore, every party must have the ability to appear in court and be heard and this can only be done when all the parties and their witnesses have the equality of opportunity to present their cases. For this to effectively play out, the matrimonial causes must be accommodated in the state of domicile of any of the parties or in the state where the marriage was celebrated.

Section 25(1) of the 1999 constitution states thus "The following persons are citizens of Nigeria by birth, namely (a) every person born before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria...." The issue of indigenization comes to question in the matter of citizenship. Every citizen of Nigeria must claim to be an indigene of a community in Nigeria. You are required to present an indigene certificate when applying for an E-passport. The issue of statehood remains an integral part of our political, cultural and social system. The judiciary should be neutral but the matters of jurisdiction must have its boundaries clearly set so that it doesn't seem as if it is confined to matters where parties could use it to their advantage to score easy technical points. Why should a marriage contracted in Lagos State be annulled in Abuja for instance? The circumstances and cultural ideas are different.

The Matrimonial Causes Act is a law that has national application but its provision as regards divorce is not making justice affordable and available for the litigants. It is a common cliché that justice must not only be done but must be seen as done. It must appear to an objective bystander that fairness and justice have been met in any matter before the court. Why make justice and the search for it cumbersome and expensive? Can a litigant file a civil suit in any High court in Nigeria where no part of the matter or transaction took place? The issue of jurisdiction will be invoked here.

The intention of the framers of the constitution must have been that the State courts shall adjudicate over cases in that state and cases that have issues that originate therefrom. A matter that has nothing to do with a state should not be handled by any court of that state. State courts should handle cases that have some link with the state, either took place there or a part of it took place there. The issue of Jurisdiction as original and fundamental as it is must be made a matter of universal application.

QUOTE FOR THE DAY

The law must afford the people the opportunity to access fair hearing with minimal cost.

Buchi Okoli

Leadership/11/03/2011