BREACH OF PROMISE TO MARRY; A LEGAL PERSPECTIVE.
Recently, Sahara Reporters in a publication made on the 1st day of June, 2020, alleged that Malami, the ex-lover of the new bride of Comptroller-General of Nigeria Customs Service (Col. Hameed Ibrahim Ali (Rtd)), Zainab Abdulllahi Yahaya, demanded the sum of 9,081,207.45 (nine million, eighty one thousand, two hundred and seven naira, forty five Kobo) via a letter sent in by his lawyer, Ibrahim Isah Wangida Esq, as compensation for the investment made by him during the pendency of their relationship on the promise that they will execute a contract of marriage.
However new this story may be, it is in no way distinct from that of several individuals who have in some instances, suffered irredeemable financial loss and psychological issues leading to exhibition of violence against the defaulting party and in other cases submitted the issue to the jurisdiction of the Supreme Being (God).
It is in a bid to address this perennial issue and a burning need to safe guard the lives and property of individuals, that this paper navigates the Nigerian legal space in search of a remedy.
To properly appreciate the objective of this essay, it is pertinent to define the terms therein – as Socrates puts it, the beginning of wisdom is the definition of terms.
The Black’s Law Dictionary defines promise as “the manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified that a commitment has been made; a person’s assurance that the person will or will not do something”.
It further defines marriage as “the legal union of a couple as husband and wife”.
It is then submitted that a “promise to marry” can be translated as a commitment made by parties to be joined in a legal union as husband and wife. It is an unequivocal assurance made expressly or impliedly by one party to another, depicting an intention to be joined in a legal union as husband and wife. It is an agreement to marry and as such should leave nobody in doubt as to the real intention of the parties to enter into a marriage.
In other words, for there to exist a promise to marry, there must be a reciprocal intention to enter into a contract of marriage. A mere romantic relationship without more is not enough for a court to find an agreement to marry.
A promise to marry like any other contract can be construed expressly or impliedly by the conduct of the parties. A similar burden of proof that accrues to commercial contract, which are made orally, in writing or implied by the conduct of the parties, applies to the contract of promise to marry, save for some minute distinctions.
BREACH OF PROMISE TO MARRY
A “breach” according to the Black’s Law Dictionary is a violation or infraction of a law or obligation. It then follows that a breach of promise to marry is a violation of the promise by a party to such promise.
A breach of promise to marry may take the form of an Anticipatory breach or a Non performance breach.
An Anticipatory breach according to E.I Nwogugu, indicates an event where a party to an agreement to marry puts himself/herself in a situation where he can no longer be able to fulfill his obligation in the contract. For instance; where a party marries a non privy to the agreement.
Non-performance breach connotes an event where at the scheduled time for the performance of the agreement, a privy to the promise fails to fulfill such obligation. For instance, where the parties agree to marry on a particular day and the defaulting party reneges on the promise.
The purport of the above is that a breach of promise to marry may occur where:
(i) a party puts himself in a position where it is visibly impossible to perform his obligations,
(ii) a party refuses to honour his promise at the scheduled time for the execution of such promise.
PROOF OF BREACH OF PROMISE TO MARRY
In Ezeanah V. Attah, NIKI TOBI JSC (as he then was) while affirming the elements of the breach promise to marry opined as follows;
“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 infact 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”.
When the above conditions have been met, the aggrieved party can sue, however, he/she may not recover damages unless his/her testimony is corroborated by some other material evidence in support of such promise. In affirming this position, Section 197 of the Evidence Act went further to posit that the fact that a defendant did not answer letters affirming that he had promised to marry the plaintiff is not such a corroboration.
Therefore, for an action for breach of promise to marry to succeed and damages to be awarded, the aggrieved party must prove to the satisfaction of the court that;
there was a promise to marry from both parties under the Matrimonial Causes Act 1990, Islamic Law or Customary Law;
the defendant has failed or refused to honour the agreement of marriage;
there is material evidence to corroborate the claim.
DEFENCES FOR A BREACH OF PROMISE TO MARRY
These are possible justifications for a breach of promise to marry by a defendant.
These defences can be divided into General and special defences.
It has been stated ab initio that a breach of promise to marry is similar to a breach in any ordinary contract save for some exceptions.
It then follows that a defendant in an action for breach of promise to marry qualifies for the defenses available to a defendant in a suit for breach of an ordinary contract. These include but not limited to; incapacity to contract, fraud, misrepresentation, unilateral or mutual mistake, duress and undue influence etc. For instance, there is no breach where the defendant can establish that at the material time the promise was made, he was reasonably under an impression, so that certain set of facts existed as represented by the claimant.
Special Defences: These are defences that flows personally from the claimant. It includes an actual amoral and immoral behaviour, physical and mental infirmity, etc. For instance; where a party has had an illegitimate offspring some years earlier without disclosure to the other party; where a party exhibits acts of violence or threatens to maltreat the other party, et-al.
According to Nwaogugu, the infirmity must be such as to render the plaintiff unfit for marriage and must not be of a temporary nature which can be cured by medical treatment and the defendant must have discovered the infirmity after the agreement to marry was made or where the infirmity only began to develop after the making of the contract.
DAMAGES FOR THE BREACH
The court in its discretion can award general or special damages flowing from the breach of the contract, or from the contemplation of the parties as at the time of making the promise.
General Damages: The aggrieved party may recover damages for loss of consortium of the defendant, injured feelings, wounded pride, et – al.
Special Damages: This includes but not limited to the funds expended by the aggrieved party as a direct result of the defendant’s promise of marriage.
It is however pertinent to note that the court cannot grant an order of specific performance as obtainable in commercial contract. This is premised on the fact that the courts cannot coerce individuals into an agreement which has its substratum based on the mutual consent of the parties to form a union ad infinitum or till the death of a party to the agreement.
CAN A THIRD PARTY BE LIABLE FOR INDUCEMENT OF BREACH OF PROMISE TO MARRY?
Assuming Bintu, Yahaya’s best friend and confidant who never deemed Malami as fit, counsel’s Yahaya, which occasioned a breach of the promise, will Bintu be liable?
An aggrieved party can bring an action against a party in breach and also a third party who induced the breach. Besides his contractual remedy, he is also entitled to an action in tort.
It was held in Findlay v Blaylack inter alia that ” if a person knowing that another has a contractual relation with a third party, induced that person to break that contractual relation, he may be liable to the third party whose contract in consequence of his action is thereby breached”. See also British Industrial Plastics v Ferguson (1940) 1 ALL ER 479.
Therefore it can be deciphered from the above precedent, though persuasive, that for Malami to succeed in an action against Bintu, he must prove that;
a) she had either constructive or actual knowledge between himself and Yahaya;
b) she had the intention of instigating the breach.
The question that this action poses is whether parents and relations who, out of the natural and lawful duty to protect their wards, especially when the child is a minor, will be held liable for inducing a such breach.
It was held in Findlay v Baylack inter alia that ” it is the duty of a father to consider whether a marriage which his son, and particularly a minor son, proposes to contract is one which he should encourage or discourage. If a father decides to dissuade his son from entering into a proposed marriage, it should reasonably be presumed that his dissuasion is brought to bear in the exercise of his parental duty to guide his son in a matter of such vital importance to his future happiness.”
In setting a parameter to determine whether the interference was out of mailce, it was further elucidated that ” if the dissuasion is to be said to have been inconsistent with his parental duty, and to have been actuated by motives which were oblique and not related to his son’s future welfare, or if it is to be said that the dissuasion was exercised merely in order to inflict an unwarranted wrong upon the woman to whom the son was engaged—these allegations must be supported by clear and specific averments of facts and circumstances from which the wrongful motive and malice may be inferred.”
It is the writer’s submission that it would be incongruous to hold parents and relations liable for protecting their wards. Parenting is a onerous job and as such, they should be able to execute such obligation free from any intimidation, especially where the aggrieved party is not fit for the purpose. However caution should be applied in exhibiting such interference.
THE APPLICATION OF THE LAW ON BREACH OF PROMISE TO MARRY IN NIGERIA
There is regrettably, so little or no recourse to legal remedies by aggrieved parties.
While some accord this to the fact that an action for breach of promise depicts the desperate nature of the applicant which is in direct conflict with our cultural beliefs; others argue that such matters are of a trivial and informal nature and should be settled between parties as opposed to bothering the already over burdened Judiciary.
This rationale reeks of ignorance and obsoleteism. Whether a matter is archaic, trivial or informal should be left to the determination of a court of competent jurisdiction.
It is the writer’s firm and considered view that in the absence of any rational alternative, aggrieved parties should tilt towards the courts for a legal remedy. This will curb the rise in cases of violence by such persons.
Malami may be on his way to furnish our legal realm with a more lucid precedent if his alleged ex-lover does not address the demand as contained in the letter. However, whether he will succeed or not, remains within the exclusive knowledge of the unknown.
2) Garner’s Black’s Law Dictionary ( 8th. Edition )
3) Ezeanah V. Attah (2004) LPELR-1198(SC)
4) E.I Nwaogugu; Family Law in Nigeria (Revised Edition) 1990
5) Section 197 of the Evidence Act (2011) as amended.
6) Findlay v Blaylack (1937) SC 21
7) British Industrial Plastics v Ferguson (1940) 1 ALL ER 479.
About the author
Kenechukwu Olikeze is a legal associate at Niyi Idowu’s Chambers Ikeja, Lagos State, an associate at the institute of Chartered Mediators and Conciliators, Nigeria. A legal researcher and author
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