Breach Of Promise To Marry In Nigeria: What You Need To Know By Chinedu Innocent Nwobodo

Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology, and it has been defined as the voluntary union for life of one man and one woman to the exclusion of others. See HYDE V. HYDE {L.R.} 1 P. & D. 130.

Accordingly, an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage.

Marriage involves stages; the meeting of the parties, dating (in most cases), discussions, the promise to get married and getting married.

It is the breach of this promise to marry that the writer wishes to examine, thereby informing each party the extent of his rights and liabilities.

A promise to marry may give rise to a contract to marry. Where it gives rise to contract to marry, it means that the valid elements of a binding contract are present and that the breach of the agreement can give the jilted party the right to sue for damages.

It will be pertinent to note that the exchange of love and affection are not enough to give rise to promise to marry. See EZEANAH V. ATTA (2004) 7 NWLR (PT. 873) 468.

The fact of Atta’s case is that the Respondent and the Appellant were into a relationship which made the Respondent to fund her to further her studies in England in 1994. The Respondent was in Nigeria, but he made visits to London to see the Appellant. It would appear the love or romance continued when the appellant was in England. Subsequently, the Respondent provided the money with which the Appellant used to purchase the land in dispute in Abuja. However, the land was purchased in the name of the Appellant but the certificate of occupancy was signed by the Respondent. When the relationship went sour the Respondent refused to hand over the certificate of occupancy. The Appellant sued.

At the Supreme Court, the main issue was:

“Whether the learned Justices of the Court of Appeal were right in holding that the property in dispute was procured by the respondent for the appellant in furtherance of a marriage agreement”

The Supreme Court per Niki Tobi J.S.C. held thus:

“In view of the fact that the case of the respondent is breach of agreement on the part of the appellant to marry him, I will take here what constitutes breach of agreement to marry. Two elements are necessary to constitute a breach of agreement or promise of marriage. First, the party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990, or under Islamic Law or under Customary Law, on the part of the other sex. Second, the party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage… A mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry… I could not place my hand on any evidence by the witnesses that the property in dispute was developed because the appellant and the respondent agreed to marry. If anything, appellant said in her evidence that there was no issue of marriage between them.”

He continued and further observed that:

“While the law may at times require that an agreement to marry should be in writing, the law will be prepared to hold, in appropriate cases, that the parties intended to marry in the absence of any written agreement…

It seems to me that the learned trial Judge was carried away by the quantity, quality and magnificence of the gifts in coming to conclusion that there was an agreement to marry. Is that the law? No. Premarital gifts, in order to qualify as gifts in furtherance of an agreement to marry, must be clearly, cleanly and unequivocably traceable to an agreement on the part of the parties to marry. Where gifts part from any of the parties to the other on love and not on the business of agreement to marry, with all the ingredients of offer, acceptance, consideration, intention to create legal relation and capacity to contract the agreement, the court must not come to the conclusion that the parties agreed to get married hence the gifts. That is not talking law.”

In USO V. IKETUBOSIN (1975) WRNLR 187, the defendant promised to marry the plaintiff in 1947. In 1957 the defendant married another woman in breach of his promise to the plaintiff. Iswin, J., held that the defendant’s act constituted a breach for which the plaintiff was entitled to damages. See also MARTINS V. ADENUGBA (1946) 18 N.L.R 63 and MABAMIJE V. OTTO (2016) LPELR 26058 (SC).

PROOF OF BREACH OF PROMISE TO MARRY:

Flowing from the foregoing, in order to succeed in an action for breach of promise to marry, the Claimant (the jilted party) has to prove two elements:

1. The party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990, or under Islamic Law or under Customary Law, on the part of the other sex.
2. The party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage. See EZEANAH V. ATTA (supra).

In order to satisfy the court that there was a binding promise of marriage, the jilted party has to show that consideration was furnished to support the promise and may need to corroborate facts by calling a witness or witnesses as the case may be.

It is a basic principle of law that a party can only enforce a contract if the party has given consideration, unless the contract is under seal (which derives its validity from the form). Consideration need not be adequate, but sufficient, i.e., something of value in the eyes of the law, which could be in form of performance.

Lush J. defined ‘Consideration’ in CURRIE V. MISA (1875-76) LR 1 APP CAS 554 in the following words:

“A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other”

This means that a man in the mood of affection that makes a promise (with or without engagement ring) to his partner who merely says I agree to marry you too, without more may not be liable for a breach of promise to marry.

The law expects such lady to furnish consideration to support such promise for it to be binding in law. Consideration in this circumstance can come in different forms such as:

1. Following the man to the Registry to take out notice of marriage (Bann).
2. Allowing him to come and see her parents officially (maybe through or with his parents).
3. Foregoing her plan to further her studies on the clear term that it is on the premise of the promise.
4. Resigning from workplace to go over to the state or country of the other party in furtherance of the promise and with his knowledge.
5. Turning down other suitors in furtherance of the promise and to his knowledge.
6. Getting pregnant on the agreement of the parties in furtherance of the promise.

From the above, a promise to marry is breached if a party fails to carry out his or her further obligations or does an act that hinders the other party from fulfilling his or her obligations under the contract.

The breach can be express, like where the party expresses the intention not to continue with the marriage arrangement, it could be by implication, such as failure to attend the marriage ceremony, getting married to another person, as seen in USO V. IKETUBOSIN (supra), it could also be anticipatory such as avoiding further communications, etc.

Hence, the law is trite that where there is wrong; there is remedy (ubi jus ibi remedium). Where the jilted party has sufficiently and successfully proved the above elements of breach of promise to marry; the court will award damages (specific and general) for breach of promise to marry to recover for the wasted years, psychological trauma and emotional trauma, financial loss, foregone alternative, etc. The quantum of damages will flow directly from the breach.

The court cannot hold that there is a valid contract of marriage where the basic elements are lacking. No wonder PATS-ACHOLONU JSC in EZEANAH V. ATTA (supra) had this to say:

“In fact this is a case that the respondent should have spared himself the agony of going through the court processes. For him, when the going was good he lavished love (I imagined it was reciprocated), money and eventually landed property on the appellant. When the tide turned, he fell back on non-existent agreement to marry and urged the court to go the extra mile of pronouncing the existence of a resulting trust. I refuse to lend hand to assuage the feelings of a lover whose romance went away. The love that once bound these two people and now got frosted can be likened to verse xxxv of Shakespeare “Sonnets” a sort of lamentation, and also verse 1 of “Passionate Pilgrim”. Thus we have in this case so much love and then so much pain. It is the way of the world” (emphasis is mine).

It is also noteworthy that a claim could be maintained against a third party who induced the beach of the contract of marriage.

DEFENCES TO BREACH OF PROMISE TO MARRY:

Notwithstanding the above, there are defences a party can put up as justification for breaching the contract of marriage. Just like every other contract, the vitiating elements of a valid contract apply in marriage agreement. They include: fraud, duress, undue influence, mistake, illegality, incapacity, unconscionability, frustration, misrepresentation, etc.

Other factors could afford a defence in peculiar circumstances such as: HIV and AIDS status, genotype, blood group, family background, cheating, intolerable behavior, engagement in homosexuality or lesbianism, rape, frequent conviction, lack of care, assault, security threat, etc.

Whether reduction in affection could be a valid defence is a question of fact to be proved before the court.

It should be noted that the knowledge of the above factors before making the promise to marry or accepting such promise may affect the validity of such defence (volenti non fit injuria).

The burden of proving any of the above defences is on the Defendant. See section 133 of the Evidence Act, 2011.

Furthermore, it should be noted that the court will be reluctant to order for a specific performance in an action for breach of marriage. This is on the premise that the court does not give an order that will be incapable of enforcement. See MRS OLAWEPO SOGO V. HEBN PUBLISHER, SUIT NO: NICN/IB/41/2018.

CONCLUSION

In conclusion, it is advised that one should make proper enquiries and take little time to properly examine the other party before making a promise to marry or before accepting a promise to marry.

Secondly, parties are advised to clearly define and agree on the contract of marriage and should not leave everything to assumption. Thus, parties should have consensus ad idem to avoid an awkward end.

Finally, the advice of a legal practitioner should be sought for in appropriate circumstances.

WRITTEN BY: Chinedu Innocent Nwobodo, 08165191968, Chineduinnocentnwobodo@gmail.com