By Awa Kalu, SAN

Our print, electronic and social media have in the past couple of days been heavily inundated with disputation concerning recent proceedings at the National Assembly. What can immediately be said without equivocation is that the Senate did not vote to vary the age of marriage nor did it legitimize child marriage. Rather, what appears to have angered many Nigerians arose from a consideration by Senate, of the ‘age for renunciation of citizenship’, having regard to the provisions of section 29 of the constitution of the Federation of Nigeria, 1999 (hereafter, ‘the Constitution’).

For the avoidance of doubt, section 29 of the Constitution provides as follows: (1) Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the manner prescribed for the renunciation (2) The President shall cause the declaration made in subsection (1) of this section to be registered and upon such registration, shall cease to be a citizen of Nigeria. (3)

The President may withhold the registration of any declaration made under subsection (1) of this section if- (a) the declaration is made during any war in which Nigeria is physically involved; or (b) in his opinion, it is otherwise contrary to public policy. (4) For the purpose of subsection (1) of this section- (a) “full age” means the age of eighteen years and above; (b) any woman who is married shall be deemed to be of full age. Thus far, it is very clear that the raging controversy has arisen from section 29(4)(b) of the Constitution which in plain language states that any woman who is married shall be deemed to be of full age.

What the law is in this jurisdiction is that any provisions in a statute or other piece of legislation which is in subsections, must be read as a whole and not piecemeal. [See Inakoju v. Adeleke]. In that connection, it is legitimate to interprete section 29(4)(b) to mean that for the purpose of renunciation of citizenship, any person who wishes to take that monumental step must not be less than 18 years.

Should that citizen be married, then she will be deemed to be of full age should she express the desire renounce her Nigerian citizenship by making the declaration in the manner prescribed for the renunciation. By way of clarification, it is necessary to state that the word ‘deemed’ in section 29 (4)(b) is a term of art which has over the years, been interpreted over and over again. For instance, in Barrister Paul Ubom & Anor. v. Nseyen Anderson Anaka (1999) 6 NWLR (pt.605) 99, the Calabar Division of the Court of Appeal, interpreted the word ‘deem’ to mean ‘to hold, consider, adjudge, believe, condemn, determine, treat as if, construe’.

In that case, the piece of legislation which fell for construction was section 83 (2) of the defunct Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which provided that the person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, the electoral officer, presiding officer, a returning officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party. The court, in the final result, held that “where an election petition complains of the conduct of a returning officer, he shall for all purposes be deemed to be a respondent.

The effect of non-joinder of a returning officer where allegations of misconduct are made against him is that proof of the misconduct will not be entertained by the tribunal in the absence of the joinder. Such non-joinder is a fundamental vice which renders all allegations made against the officers unproved”. A more direct interpretation of the word ‘deem’ was provided very recently by the apex court, the Supreme Court, in Orji v. D.T.M. (Nig) Ltd., (2009) 18 NWLR (pt.1173) 467. In that case, two sections of the Companies and Allied Matters Act (CAMA) which contained the word ‘deem’ had to be construed. Section 79 (1) of CAMA provides that. The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members’.

The other section, that is section 223(3) of CAMA is to the effect that ‘Any meeting called, held and conducted in accordance with an order  under subsection (1) of this section, shall for all purposes be deemed to be a meeting of the company or of the board of directors duly called, held and conducted’. In the light of these provisions, the Supreme Court held that ‘A deeming provision in a statute is a provision which makes supposition. The deeming provision is intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within the main provision.

For example when a person is  deemed to be something, the only meaning possible is that though he is not in reality that something, the act of parliament requires him to be treated as if he were’. Tobi J.S.C specifically elaborated on the meaning of ‘deem’ when he said: ‘In my humble view, a deeming provision in a statute is more of a caricature than anything. It is also more of a camouflage than anything.

The word, in short, stands in the place of a reality. And a deeming provision in a section of a statute will always operate in the absence of the real provision; it cannot operate side by side with the real provision. In other words, both the real and deemed provision, cannot be in the same section dealing with the same subject matter. In such a situation, a supposed deeming provision will give way to the real provision.”

Having regard to the interpretation provided by the Supreme Court in Orji’s case above, how could the deeming provision in section 29(4)(b) of the constitution encourage child marriage? The existences of that subsection, could be assumed to enable those entitled to enforce any regulations related to the renunciation of Nigerian citizenship to assume that in the case of a married renouncer, there is no need to ask for proof of age.