The famous Latin maxim “debile fundamentum fallit opus” translates that where the foundation is weak, the entire work collapses. This conversely translates that where the foundation is strong, the strength of what is built upon it is certain. Same was the admirable line of thought of Lord Denning in Macfoy v. United Africa Company where he held that:
If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of a court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
In one way or the other, the maxim above can be said to have birthed the age-long principle of “privity of contract” which stipulates generally that a person who is not a party to an agreement cannot enforce same, even if the contract was made for his benefit therefrom. In Nospetco Oil & Gas Ltd v. Oloruninmbe, it was succinctly held as follows:
Privity of contract is the relation between the parties in a contract, which entitles them to sue each other, but prevents a third party from doing so. Thus, the doctrine of privity of contract is all about the sanctity of contract between the parties to it, and it does not extend to others from outside.
The Court is also not silent on the importance of the principle of privity, as it states that same is fundamental to the enforcement of contractual obligations between the parties to a contract. This principle can be rightly extended to marriage. As elementary as it can be, marriage remains a specie of contract and the principles of general contract apply.
The Supreme Court defined ‘marriage’ in the case Amobi v. Nzegwu & Ors as follows:
“Marriage under Marriage Act generally means the legal union of a couple as spouses. In other words, it is ‘the voluntary union for life of one man and one woman to the exclusion of all others.’ See Hyde v. Hyde and Woodmansee (1866) LRP&D 130, per Lord Penzance.”
Adopting this definition, one would see that marriage is definitely an agreement (voluntary union) between a man and a woman, to be husband and wife. Thus, only two parties are involved thereto. To this end, only parties to this marriage can validly bring an action to enforce their corresponding inherent matrimonial rights, including the right to seek the dissolution of such marriage. Also, it should be noted that the Marriage Act does not recognise marriage by proxy, so, the claim of any right therefrom cannot be by proxy. Thus, the only person that can commence, institute, and prosecute a petition for dissolution of marriage shall be either the husband or the wife of such marriage and not by any other person.
Giving statutory credence to this position is the express provision of Section 15 (1) of the Matrimonial Causes Act, which provides to the effect that the judicial doors of matrimonial causes are only open for parties in the marriage to seek r regarding the marriage. Section 15(1) is hereby reproduced:
“A petition under this Act by a party to a marriage for a decree of dissolution of marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.
It is noted that the word MAY is used in the section, and of course, the word may is an enabling word that gives the power to either do or not do an act. It is our submission that the word may as used, does not give the right to any person outside the marriage to sue or institute a petition on behalf of the parties in the marriage.
A very crucial pre-requisite for instituting a petition is the compulsory filing of a verifying affidavit by the Petitioner as provided under the Matrimonial Causes Rules. In Order V Rules 10 (1) of the Matrimonial Causes Rules, it is provided that:
“A petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed-
- verify the facts stated in his petition which he has personal knowledge; and
- depose as to his belief in the truth of every other fact stated in his petition.”