By: Enwongo C. Cleopas
I think today is a good day to make an attempt in explaining the above as well as educating us, myself inclusive on what constitutes a breach. I have seen a lot of recent conversations on issues of engagements, proposals, marriage plans, introductions and cancellation of same. I read a post today where the writer stated clearly that there is nothing to be done if a man or woman breaks up an engagement except pray or move along.
Some of us are not aware that there are legal remedies for a called-off engagement, a broken promise to marry, an abandonment of another on the altar, etc. In the Nigerian legal system, there is a/an actionable contract called Breach of Promise to marry. This is actually derived from common law tort. Some argue it is quasi-contract, quasi-tort. But let's go ahead.
VERSE1
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First, what is 'promise to marry'? This is a betrothal or an agreement to marry. It can also be a manifestation of an intention to enter into a legal commitment of marriage to another.
Promise to marry only comes into existence when there is a 'mutual' agreement and exchange of promises by the parties to marry each other. Emphasis on mutual.
Second, what is a breach of promise to marry? There can be no breach of Promise unless a contract to marry has been made. This contract can be oral, written or otherwise. [If Bassey tells Isaac that he wants to marry Lilian and goes ahead to plan for a wedding but does not tell Lilian, there is no basis for anything]. There must be 'mutual knowledge' and 'mutual agreement'.
Example_________
Charles is madly in love and wants to marry Enwongo. After proposing to her at The Louvre, Paris, Enwongo said no to him. Charles can not come and say' there is a breach because there is no 'mutual' agreement by both parties to marry each other. For a promise to marry to suffice, Enwongo must say yes to him and give him an assurance of commitment through her actions and words.
If Enwongo says yes, and they both go ahead to plan the wedding of the century then three days before the wedding, Enwongo leaves Charles to Godswill, Charles can institute an action because there is a 'breach' of that promise.
VERSE 2
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Two elements are necessary to constitute a breach of agreement or promise of marriage. First, the party jilted or abandoned must prove to the satisfaction of the court that there was in fact, a promise to marry whether under statutory law, Islamic law inclusive, or even customary law. Second, the party reneging has really, and as a matter of fact failed or refused to keep to the agreement of marriage. These elements was further enunciated in the case of Ezeanah v. Atta (2004) 7 NWLR (Pt. 873)
A promise to marry can be oral, written or otherwise. There must be evidence indicating an agreement to marry. Interestingly, promise to marry can be inferred from the action or conduct of the party making the promise. For instance, a man who has come to meet the elders of your place and talk about marriage after asking you to marry him cannot claim that since he did not give you a ring, then it means he wasn't asking to marry you. A ring or formal proposal/engagement ceremony is just one of the many ways a promise to marry can be proved. Phone conversations, text messages, letters, oral proclamations etc are many ways to indicate a promise to marry, especially if you accepted and started acting on that promise.
Like all other contracts, there must be a consideration. Usually, the reciprocal promise of a woman to marry a man who promised to marry her is regarded as consideration. 'Yes I will marry you' is enough consideration.
Example___________
Kufre tells Anita that he will marry her if she gets pregnant for him. Anita goes ahead to get pregnant on the assurance of kufre's promise. Anita's action is sufficient reciprocity and can be considered a consideration to Kufre's promise. If Kufre changes his mind tomorrow saying 'but I did not give you a ring or go on one knee', Anita can still bring an action for a breach. She reciprocated his promise of marriage.
Note: The evidence of consideration is the basis for establishing the existence of a contract. Did she say yes? Did she agree? Did she fulfil a condition to be married? Etc...
VERSE 3
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A breach can take two forms; a non-performance form or an anticipatory form.
1. An example of non-performance.
Courage and Chidinma having agreed to marry, fix their wedding on the 23rd of September. Courage shows up in his cream suit, looking dashing and dapper. Courage is informed that the bride has not shown up yet. After an hour, he gets a text from her saying 'Go to hell'. Courage faints. When he wakes up, he can bring an action against Chidinma for non-performance. Non-performance usually occurs upon a fixed time or fixed condition.
2. An example of anticipatory breach.
Ubon and Asibong having agreed to marry, fix their wedding on the 30th of May which is also their love anniversary. Asibong goes ahead to order a cake from Seyene and contacts Esther for photography. Yesterday, Ubon called Asibong to say 'he has found his soulmate in Miriam'. He asked for a cancellation of the wedding and plans. Asibong can bring an action for anticipatory breach.
An anticipatory breach occurs when a party before the contractual date of performance, announces his intention not to perform or create circumstances where he cannot perform his obligation or where the other is hindered from fulfilling his/her obligations. A case where a party to the contract elopes and marries another is an example of this or any action that occurs before the contractual date for performance.
VERSE 4
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What happens to the reneging party who wakes up one morning to receive a court order and proceeding against him?
Gloria in Excelsis!!! such party can bring a defence to justify the breach.
We have General defences and special defences, like with every other defence in a contract agreement.
General defence will include things like;
(a) fraud
(b)misrepresentation e.g lying that he works with Chevron or Apple or with IBM or he works for Facebook when all he has is just a Facebook account.
(c) fraudulent concealment e.g. concealment of material facts of the life of that party e.g. she had three children but did not disclose it. Or not telling him she is a member of Black Bra until the members turn up on the wedding morning to show solidarity.
(d) duress e.g. (oh my God! She put a gun on my head to marry her)
(e) lack of capacity to contract e.g. she was a minor or he was already married. These two are voidable defences.
A special defence may include moral, physical or mental capacity.
(a) Disease or infirmity.
On the grounds of diseases or infirmity, except one of absolute incapacity or one that renders another totally unfit, this does not avail as a defence except such was concealed refer to (c) in general.
(b) hermaphrodite or sexual differences. A promise to marry can be breached if one discovers his or her partner to be of a different sexual orientation, e.g lesbian, transgender etc.
(c) issues of insanity especially if concealed.
VERSE 5
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What are the remedies or damages that can be awarded if you decide to pursue an action for breach of Promise to marry.
The courts award general or special damages. A general damage can be a monetary compensation for a loss of companionship of the other party, emotional issues e.g. injured feelings, wounded pride, waste of time and etc arising from the breach. These things are subjective and left to the discretion of the court (judge) to award what he deems fit.
Special damage can be money spent e.g. to organise the wedding or make plans for the marriage, recovery of properties or things by one party. Or where properties were acquired or jointly contributed for before breach, such can be retrieved.
Guess what? Damages can also be claimed against a third party who induced the breach using Courage's example. If Courage discovers that Obi is responsible for the breach through Chidinma, Courage can drag both of them to court and claim damages.
But here is what the law and the court will NEVER do, they would not grant an order of specific performance against the defaulting party. No court would force Bassey to marry Yetunde. Not even one. There is a 2016 recent case (Mabamije v. Otto 2016) LPELR 26058 (SC)) where the lady claimed 20 million Naira as damages and also an order to complete all marriage arrangements. The appeal court in one of their rulings stressed that the court cannot compel a party to marry if he or she clearly wants out.
So yes, Breach of Promise to Marry is a real thing and there are plethoras of court actions to prove reliance. Rather than expend your energy in throwing tantrums, put a call to that lawyer and get your house in order. The law has got your back for now. And yes the law is an ass.
I'll love to hear your thoughts and as well be better informed from your contributions, legal corrections and new issues raised. Thank you.
(I will include the sources of my readings and texts in the comment section)
Enwongo C. Cleopas is an Associate at Law Incorporated Chambers. You can find her on https://www.facebook.com/enwongo.cleopas.5
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