CAN BREACH OF PROMISE TO MARRIAGE BE ENFORCEABLE IN NIGERIA LEGAL SYSTEM
A love relationship with marriage in view, comes with lots of investment in terms of emotions, passion, time and resources. It is for these reasons that it becomes extremely painful or impossible to let go when separation is consensual, especially by a party who seemed to have invested more. This paper focuses strictly on the “breach of promise to marry” which shall be considered within the context of Nigeria.
The concept of breach of a promise to marry may be evaluated under the following headings:
· Marriage as a form of contract.
· Laws governing Marriage in Nigeria.
· Breach of promise to marry.
· Remedies for breach of promise to marry.
· Defenses to breach of promise to marry.
MARRIAGE AS FORM OF CONTRACT
Marriage is defined as “a legal Union of one man and one woman as husband and wife. Marriage as distinguished from the agreement to marry and from the act of becoming married is the legal status, condition or relation of one man and woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. A contract, according to the form prescribed by law, by which a man and a woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in a state of union which ought to exist between a husband and wife.”
In Amobi v. Nzegwu, the Supreme Court per Ariwoola, JSC defined marriage thus: “Marriage under the 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.”
In the definition above, a key feature that stands out is that marriage is a contract. Black’s Law Dictionary defines contract, inter alia, as “1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law…2. The Writing that sets forth such an agreement…3. A promise or set of promises by a party to a transaction, enforceable or otherwise recognizable at law”. It is a voluntary agreement between parties and willingly entered into. However, the freedom enjoyed by parties to contract carries with it the inevitable implication of sanctity of their contracts. Just like any other contract, marriage has its elements.
A careful consideration of the definition of contract stated above will reveal that a contract is a promise. What then is a promise? As defined in Black’s Law Dictionary, a promise is “the manifestation of an intention to act or refrain from acting in a specified manner conveyed in such a way that another is justified in understanding that a commitment has been made; a person’s assurance that a person will or will not do something.” The Supreme Court per Onu, JSC in Agoma v. Guiness (Nig) Ltd adopted the definition of promise in Osborn: The Concise Law Dictionary, Fifth Edition (1964) where it was defined as “The expression of an intention to do or forbear from some act.”.
For a better understanding of the discourse, it is necessary to define the word “Breach”. According to the Black’s Law Dictionary, a breach is “a violation or infraction of a law, obligation or agreement …whether by neglect, refusal, resistance or inaction.” Breach of promise according to Black’s Law Dictionary then is “the violation of one’s word or undertaking, especially a promise to marry. Under English common law, an engagement to marry had the nature of a commercial contract, so if one party broke the engagement without justification, the innocent party was entitled to damages.”
It should be noted that there cannot be a breach of marriage until a contract to marry has been made. In other words, before a party can sue for a breach of promise to marry, discussion between parties must have gone beyond mere speculations, whispering of “sweet nothings” but must have become concrete as an agreement existing between parties. It does not have to be written or spoken; as such, it can be inferred through the conduct of the parties. In the case of Ezeanah V Atta the Supreme Court per Tobi, JSC held 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. In this respect, the court will take into consideration the institution of marriage as a trade in the relevant society and how persons generally engage themselves in agreement of marriage”. Most times, before either party can allege a breach, the relationship would have passed through certain stages. Generally, with exception of few cases, relationships pass through proposal, courtship, introduction and engagement before marriage. As earlier said, marriage is a contract and at this juncture, we shall look into the features of contract as it relates to marriage. These features must be present in an agreement before there can be a breach of promise to marry. The following are the contractual features that define a marriage; offer, acceptance, intention to enter into legal relation, consideration, certainty and capacity.
We shall briefly look into each of these features.
OFFER- An offer is like a proposal made by an individual to another person, in this context, from a man to a woman or vice versa. This offer is not made to the whole world but to a particular person. Therefore, an advertisement on Facebook, Twitter or any other social media searching for a spouse is not an offer but a mere invitation to treat. In such a circumstance, the person that accepts such is actually the person making the offer which must be accepted by the other person. In order to constitute an offer, it must be stated in specific terms and must be direct. An offer can be revoked before acceptance should the offeror (man/woman making the proposal) change his or her mind but such revocation must be duly communicated to the other party. The offer should not be conditional or else, it won’t be valid till the fulfillment of that condition. In FGN & Ors. V. Zebra Energy Ltd. it was held per Ayoola, JSC that “Where an offer is subject to condition the formation of the contract is postponed until the happening of the event on which the offer is conditioned. If the condition of the offer is that unless something is done within a stipulated time, the offer is determined, such an offer cannot be valid until after the happening of the event.”
ACCEPTANCE- The other party to whom the offer has been made must accept it. Acceptance need not be immediate but must be within a reasonable time. For instance, if a man makes an offer of marriage to a lady in year 2018 only for the lady to communicate her acceptance in year 2020, such acceptance cannot be seen as valid as it has not been within a reasonable time. Also, the acceptance must be communicated to the offeror. A woman to whom an offer is made and accepts such in her heart without communicating same to the man cannot be seen to have accepted the offer. An acceptance must not be qualified. Where the acceptance is made on certain conditions or on certain new terms different from the terms on which the offer is made, such cannot be seen as acceptance of the offer. If Mr. X proposes to Miss B and the latter accepts only on the ground that Mr. X sends her abroad, such cannot be seen as acceptance. In the case of Bilante Int’L Ltd V. N.D.I.C the Supreme Court per Adekeye, JSC held that “An offer must be unconditionally and unqualifiedly accepted. An offer is impliedly rejected if the offeree instead of accepting the original offer makes a counter offer which varies the terms proposed by the offeror. A counter – offer is a statement by the offeree which has the legal effect of rejecting the offer and of proposing a new offer to the offeror. It puts an end to the previous offer of the initial offeror. The legal effect of a counter – offer is to terminate the original so that it cannot subsequently be accepted by the offeree.” Thus, an offer should be accepted on the very terms it has been made.
INTENTION TO ENTER INTO A LEGAL RELATION- In the case of Sonnar (Nig) Ltd & Anor. V. Partenreed M. S. Nordwind Owners of the Ship M. S. Nordwind & Anor. the Supreme Court per Eso, JSC considered how to determine the intention of parties to enter into a legal relationship and stated that, “Since the decision in the late nineteenth century in the case of Carlill v. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256, the tests applied by the courts in order to determine the intention of parties to a contract have been objective rather than subjective. Would a reasonable man have regarded the offer made to him as one which was intended to create a legal relationship?” In a case of a promise to marry, to establish that parties intended to enter into a legal relationship, in other words that they agreed to marry, it must pass the test of reasonableness. It must be such that a reasonable man would have regarded as a promise of marriage intended to create a legal marital relationship and not mere cohabitation. It must be shown that there was a mutual understanding and meeting of minds between the parties that they agreed to get married.
CAPACITY- In order to constitute a valid contractual agreement to marry, parties must both be capable of getting married. Incapacity of either party will render such agreement void. For instance, an offer or acceptance of marriage by a minor cannot be seen as valid even if ratified in adulthood. Such offer must be made or the acceptance made again when the minor attains maturity or such will not be valid. Again, a party must not suffer from mental incapacity at the time of entering into the agreement. Parties must be of full age (21 years under the Act) and sound mind. In the case of Uwah & Anor. V. Akpabio & Anor., it was held per Muhammad, JSC that “it is trite that persons of full age and sound mind are bound by the agreement lawfully entered into by them…” A mentally imbalanced person cannot make or accept an offer. However, Section 18 of the Marriage Act provides that “If either party to an intended marriage, not being a widower or widow, is under twenty – one years of age, the written consent of the father, or if he be dead or of unsound mind or absent from Nigeria, or of the mother, or if both be dead or of unsound mind or absent from Nigeria, of the guardian of such party before a license can be granted or a certificate issued.”
CERTAINTY AND POSSIBILY- The agreement will stand only if it is certain and possible. Some circumstances like place of domicile, legal documents, etc. can make it uncertain and virtually impossible for parties to marry. Where such situations are so obvious, there cannot be a valid agreement between the two parties. In the case of Alfotrin Ltd V. AG Federation & Anor. it was rightly held that “…if the terms are unsettled, uncertain or vague that they cannot be ascertained with reasonable degree of certainty, there will be no valid contract enforceable at law unless the uncertain part of the contract is unsubstantial and can be separated from the vital parts thereof”.
CONSIDERATION- The apex court defined consideration in the case of BFI Group Corporation V. B.P.E. per Adekeye, JSC. as “some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. In law, parties to a contract are free to conclude their bargain on whatever terms are deemed to be appropriate. Once the consideration is of some value in the eyes of the law, the courts have jurisdiction to determine whether it is adequate or inadequate. In principle therefore, no consideration is too small or too much or unfair in the absence of fraud, duress or misrepresentation.” From the cited case, it is very clear that consideration need not be money. Where the offeree suffers or abstains from exercising some of his/ her rights as a result of an offer to marry, such will suffice as consideration. Only that the thing/act given as consideration must be of value.
B. LAWS GOVERNING MARRIAGES IN NIGERIA.
In Nigeria, marriages are governed by legislations including the Marriage Act, the Matrimonial Causes Act, Customary Law, etc. The Marriage Act provides for the celebration of marriages while the Matrimonial Causes Act makes provisions for matrimonial causes.
C. BREACH OF PROMISE TO MARRY.
Earlier in this paper, we had stated that marriage between parties is a contract. In the case of a breach, the aggrieved party can sue for damages. It should be borne in mind that either of the parties can bring an action for breach of promise to marry. The right to sue for a breach of promise to marry is not limited to the womenfolk but can also be instituted by a male who is aggrieved.
In order to successfully bring an action for breach of promise to marry, the Plaintiff must be able to prove the following:
That the other Party made a promise of marriage. This kind of promise is different from just hopeful expectations, or casual suggestions. It must be concrete and there must be a meeting of the minds between the parties. The party making the promise must clearly show his intention (through words, actions or conducts) and the other party the promise is being made to must accept it. The promissee must understand what the promisor is saying and the former must have accepted it. Acceptance need not be instant. It may be later but must be within a reasonable time.
That the other party reneged on the promise. In order to prove a breach of promise to marry, the aggrieved party must be able to show that the other party failed to fulfil his/her promise. Where there is a stipulated time for the fulfillment of the promise to marry, it must be fulfilled within such time, and where no time is stated, it must be fulfilled within a reasonable time. Where the fulfillment of the promise is conditional, then there cannot be a breach until such condition has happened.
These two conditions precedent were clearly stated in the case of Ezeanah V. Atta (where the Supreme Court per Tobi, JSC (as he then was) held that “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 the marriage”.
There are two types of breach of promise to marry. The first one is non – performance while the second one is anticipatory breach. There is non – performance where a date has been fixed for marriage but the other party refuses to honor such or where there is a condition precedent to the marriage taking place and the party who ought to discharge such obligation refuses to. Anticipatory breach on the other hand occurs where a party prior to the date fixed for the wedding cancels it or better still decides to elope with another person leaving the jilted party alone. Such aggrieved party whether a male or female can actually sue for breach of promise to marry. In recent times there have been instances of a groom not showing up on the day of wedding, calling the wedding off after the traditional marriage and other strange occurrences. In such situations, the aggrieved party can institute an action in court and sue for damages.
In some other cases, a lady might forfeit her education or even relocate to another country because of the promise to marry. On the part of a man too, he might invest his resources in the education of a lady, train her by spending a fortune with the understanding and agreement of marriage only for the lady to suddenly realize that that the man is “too low” for her new found status. All these and more are instances of breach of promise to marry and can be taken up by the aggrieved party and an action instituted against the offending party.
D. DEFENCES TO BREACH OF PROMISE TO MARRY.
In a situation where there is a breach of promise to marry, the party in breach could have some defenses, depending on the circumstances. The Matrimonial Causes Act provides instances where a marriage will be rendered void. In Oghoyone v. Oghoyone, Rhode – Vivour, JCA (as he then was) stated that “A void marriage is a marriage that produces no legal consequences. That is to say it is a marriage that never took place.” In other words, in the eyes of the law, there is no marriage ab initio. The said section provides as follows:
“3. Void marriages and prohibited degrees of consanguinity
(1) Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where‐
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, of affinity;
(c) the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;
(d) the consent of either of the parties is not a real consent because ‐
(i) it was obtained by duress or fraud; or
(ii) that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed;
(iii) that party is mentally incapable of understanding the nature of the marriage contract;
(e) either of the parties is not of marriageable age.”
From the provisions of section 3(1)(a) – (e) of the Matrimonial Causes Act reproduced above, it is clear that under those circumstances, even where there is a marriage and not just a promise to marry, such will be rendered void. Also, the grounds for dissolution of marriage are set out in sections 15 and 16 of the Matrimonial Causes Act. It is most respectfully submitted that the grounds stated in the two sections will also avail a Defendant as defences in an action for breach of promise of marriage. Therefore, where there is a promise of marriage only to discover any of the circumstances listed sections 3, 15 and 16) of the Matrimonial Causes Act, the other party who was not aware of such at the time of agreement or promise could, actually, justifiably, renege on the promise of marriage. He/she cannot be liable for breach of promise to marry even if it was shown that he/she entered into such agreement with prior knowledge of the offending situation. Few other defenses are listed as follows:
When a party sets out with the aim of deceiving the other party into a promise to marry, and the other party reneges on this ground, the latter cannot be sued for breach of promise to marry. Nowadays, we have instances of people undergoing surgery that radically changes their appearance, use of excessive make-up to cover a badly scarred face, and lots more. In instances like these, where a promise is based on deceit as a result of which the aggrieved party goes back on his/her promise after discovery, the promisee cannot sue for breach. Again, it is common nowadays to see transgenders who have had to undergo surgeries to change from their original sexes. If the innocent party discovers for instance that the person he/she promised to marry was originally of a different sex, he/she would be justified to renege on his/her promise.
Where a party, whether a man or a woman, discovers (with proof, not mere speculations) that the other person is not faithful but is busy messing/sleeping around, such party can opt out of the agreement to marry.
III. ILLNESSES AND DISEASES:
Where a party is suffering from diseases that makes it impossible to marry e.g., mental disorder, it can be a defense to breach of promise to marry.
E. REMEDY FOR BREACH OF PROMISE TO MARRY:
In the case of Uso v Iketubosin, the defendant promised to marry the plaintiff in 1947. In 1957, the defendant married another woman in breach of his promise to the plaintiff. The Court held that the defendant’s act constituted a breach for which the plaintiff was entitled to damages. Suffice it to reiterate that where there is a wrong, there must be a remedy – ubi jus ibi remedium. This principle of law has been applied by our courts in deserving cases. In Bello V. AG, Oyo State , Karibi- Whyte, JSC (as he then was) stated as follows:
“… I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right. The court obviously cannot do otherwise. …. the court will give a remedy where the facts as disclosed fall within a remedy recognized by law. I think this is a correct principle deducible from Falobi V. Falobl (Supra).”
A wrong in form of breach of promise to marry is not just a moral wrong but also a legal wrong as it is identified under our Laws and provisions as such. Most times, awards for damages are in form of money and properties. It is very important that an award of damages in this kind of action is at the discretion of the Honorable Court which must be judiciously and judicially exercised upon proof of both promise to marry and breach of same. The Evidence Act, 2011 provides that “No Plaintiff in any action for breach of promise of marriage shall be entitled to succeed unless his or her testimony is corroborated by some other material evidence in support of such promise; and the fact that the defendant did not answer letters affirming that he had promised to marry the Plaintiff is not such corroboration.” It therefore follows that in order to prove to be entitled to damages for breach of promise to marry, the testimony of the aggrieved party must be corroborated. According to Black’s Law Dictionary, “Corroboration is a confirmation or support by additional evidence or authority” In Iko v. State, Kalgo, JSC (as he then was) adopted the statement of Lord Morris in D.P.P. v. Hester that “The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.” It is clear from the provisions of section 197 of the Evidence Act that the form of corroboration required is material evidence such as letters or other documentary evidence.
However, as already stated, there must be proof of promise to marry otherwise it will be seen as a mere love affair without more. In the case of Ezeanah V. Atta the Appellant and the Respondent were lovers. In the course of their relationship, the Respondent lavished gifts as the dominant partner on the Appellant, including sponsorship for further studies in England. What brought the parties to Court was the ownership of Plot 999 Cadastral Zone B6, Mabuchi District, Abuja, which was acquired during their relationship. The Appellant claimed before the Abuja High Court for the ownership of the property by seeking for declaratory, mandatory injunctive and damages as reliefs. The Appellant claimed that she applied for and completed the application form for the land in her own handwriting and signed it, and that she paid an application fee of ℕ300 and an additional sum of ℕ6,700.00 demanded by the Federal Capital Territory. The certificate of occupancy was issued in the name of the Appellant but the Respondent took possession thereof and refused to give her the Certificate of Occupancy and instead started developing the land. On his part, the Respondent claimed that there was a breach of promise to marry on the part of the Appellant upon which basis he could no longer oblige her the property, the subject matter of the litigation, the consideration having failed. The Trial Court gave judgment in favor of the Appellant but the Court of Appeal overturned the judgment when the Defendant Appealed. On further Appeal, the Supreme Court set aside the judgment of the Court of Appeal and restored the judgment of the Trial Court. In the words of Tobi, JSC “Premarital gifts in order to qualify as gifts in furtherance of an agreement to marry, must be clearly and unequivocally 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 parties agreed to get married hence the gifts. That is not the talking of the law.” (emphasis supplied). In his concurring judgment Pats – Acholonu, JSC stated as follows:
“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 awry. 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 supplied)
Again, it should be noted that in a case of breach of promise to marry, the court cannot order specific performance. The court only makes an order of performance where it is possible. In the case of Help (Nig) Ltd V. Silver Anchor (Nig) Ltd Tobi, JSC held that “This Court can only decree specific performance for a purpose which can be achieved or enforced. It cannot decree specific performance in vain. In other words, this Court cannot decree specific Performance which cannot be achieved or enforced.”
Marriage is not only a family, traditional, cultural, moral or religious issue. It is also a legal issue and should never be taken lightly as a breach of promise of marriage is actionable in law. When there is a breach of promise of marriage, an aggrieved party, whether male or female, may institute an action for damages. Such an aggrieved party does not have to suffer in silence, and should never resort to self – help, a remedy which has been condemned in a plethora of decided cases. In Agbai & Ors. v. Okogbue, Nwokedi, JSC stated that self – help “is a primitive remedy capable of causing a breach of the peace … the magnitude of which no one may conjecture …” Where there is a clear breach of promise of marriage, aggrieved persons should therefore avail themselves of the machinery of the law to seek redress. If in the near future, we read less stories of the sort that were told at the outset of this discourse, and a number of persons approach the courts seeking redress for breach of promise of marriage, the purpose of this article would have been well served.
 (2013) LPELR 21863 (SC) at page 61.
 Supra, note 1 att page 389- 390.
 Tenth Edition at page 1406.
 (1995) LPELR – 251 (SC) at 29, paras E – F.
 Tenth Edition at page 225.
 Tenth Edition at page 226.
 (2004) LPELR- 1198 (SC) at pages 20 – 21, paras E – C.
 (2002) LPELR-3172 (SC) at pages 42 – 43’ paras F – B.
 (2011) LPELR – 781(SC) at page 28, paras C – F.
 (1987) LPELR – 3494 (SC) at page 26, paras A – C.
 (2014) LPELR-22311(SC) at pages 25 – 26 Par E – B.
 (1996) LPELR-414(SC) at pages 29 – 30, Paras B – A.
 (2012) LPELR-9339 (SC) PP. 39-40, Paras E-C).
 (2004) LPELR – 1198 (SC) at pages 19 – 20 Paras F – B.
 Section 3(1)(a) – (e).
 (2010) LPELR – 4689 (CA) at page 11D – F.
  WRNLR 187.
 (1986) 5 NWLR (Pt. 45) 828 at 870 – 871.
 Section 197.
 Tenth Edition at page 421.
 (2001) LPELR 1480 (SC) at 13E – F.
 (1973) AC 296 at 315.
 (2004) LPELR – 1198 (SC).
 (2004) LPELR – 1198 (SC) at pages 36A – E.
 (2004) LPELR – 1198 (SC) at pages 73B – F.
 (2006) LPELR – 1361(SC) P.21, PARAS. B-C.
 (1991) LPELR – 225 (SC) at page 30C – D.
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