BREACH OF PROMISE TO MARRY by Ciara Prince

Marriage or, an attempt at marriage is not merely personal or exclusive. It is

much more than the sensation of two people deciding to tie the knots because
they are affectionate towards each other. It is beyond the decision that is the
sole right and exclusive to the decision making of a couple in love. The law is
interested in marriage and intentions of marriage and it is on the basis of this
interest that there is such a thing as a Breach of Promise to Marry. ‘Breach’ you
see, is a contractual word and if a promise to marry can be breached, then it
suggests one distinct thing; that marriage is a contract and of course contract is
law.

Now, a contract boasts of certain factors and characteristics. For a contract to be

a contract, there must be amongst other things; An offer, An acceptance and
Consideration

So yes, a young lady or a young man (lets exemplify with a lady for simplicity)
who has been swept off her feet, dazzled with gifts and finally honoured with an
engagement ring suddenly gets a note saying “It’s over.” The point being made
is...this young lady has a cause of action and can approach the court of Law for
redress. But of course, it is not as simple as this. Because this breach of promise
to marry is a breach of contract, for it to be actionable under the law, some is
not all of the above mentioned fillers of a contract must be present at the time of
the promise. It must be established that an offer was made. This offer can be
termed as the marriage proposal, that moment when a man gets on his knees and
with a ring asks a lady’s hand in marriage, that is an offer and when the lady in
question says ‘yes’ that is the acceptance. These two complimenting actions
together formulate a promise to marry. The offer and acceptance actions
however must be clear and definite for a breach of promise to marry to be
sustained in court when the need arises. This means that, the promise to marry
must not be merely assumptions or anticipatory. A person cannot sue for breach
of promise to marry when they have not been a promise. In other words, you
cannot sue based on a hope; that because you loved each other, spent time
together, spent resources on each other, you had hoped he would marry you and
when he did not, he broke your heart and you are aggrieved and so you want the
court to grant you remedy. No. This is not what the law intends by making
available to option. The key word is ‘promise.’ Thus, when a plaintiff comes to
court with a case of breach of promise to marry, he or she must first of all be
able to prove that there was indeed a clear derivable promise.
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Of course, your word as a plaintiff against a defendant will not suffice in court,
so you may need to avail evidence of this promise (offer and acceptance) in
some way. In section.... of the Evidence Act, 2011, it was stated thus; No
plaintiff in any action for a breach of promise to marry shall be entitled to
succeed unless his or her testimony is corroborated by some other material
evidence in support of such promise. Corroboration as defined by Black’s
Law dictionary is a confirmation or support by additional evidence or authority.

Much to the ease of the plaintiff, it has been said that a plaintiff need not bring
written proof of a promise to marry. In the case of Ezeanah v Atta, the
Supreme Court per Tobi JSC held thus “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.” In this wise,
documents or correspondences, pictures, witnesses and even the wedding ring
can come in handy to prove a breach of promise to marry.

In contrast, the mere exchange of love and affection are not enough to give rise
to a promise to marry. It will merely be considered as a love affair without more
as was further observed in the case of Ezeanah v Atta (2004) 7 NWLR (PT.
873) 468

Once a plaintiff have been able to establish that there was a promise, then he or
she can go ahead to prove that there has been a breach of that promise. This
breach can either be anticipatory, in that the defendant is carrying out actions to
show that he is not going to honour that promise, or it can be definite in that the
defendant has already dishonoured the promise or blatantly stated his intention,
in simpler terms, when he has called off the wedding.

In the first case of anticipation of breach, where a party continually postpones

the date of the marriage in such a way as to show that he or she is trying to
avoid fulfilling the promise to marry, a case can be brought for breach of
promise to marry. Note however that mere postponement would not be ipso
facto considered a breach; it will have to be consistent and suspicious to
constitute a winnable claim of a breach. Also in a case where prior to the day
fixed for the marriage, one of the parties to the agreement cancels or even
elopes with someone else, this will be breach enough to approach the court.

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The second instance of non-performance is as the name suggests, not
performed; thus when a date has been fixed for the marriage and one of the
parties fails to show up on the designated date or even decides to take someone
else to the altar on that day. It is a clear case of breach of contract to marry.

It is important to consider consideration as an element of contract in the whole

breach of promise to marry situation.

Consideration in contract is like payment. In simple terms, what did you give in
exchange for what you are claiming in court? Did you contribute anything that
would be lost if the court does not uphold your claim? Did you pay something?
Did you give consideration? In law, this consideration must not be adequate in
that, it must not equate in quality and quantity to what you are receiving in
return, it just has to be sufficient, something of value in the eyes of the law. And
as far as contracts go, a party can only enforce a contract if the party has given
consideration for it, unless the contract is under seal.

The implication of this if a man in a moment of ecstasy makes a promise to his

partner who merely says, ‘I agree to marry you’ without more may not be liable
to a breach of promise to marry. Such a lady is expected to furnish some form
of consideration to enable her lay a proper winnable claim for breach of promise
to marry if the man disappoints. Such consideration may include;

1. Following the man to the Registry to take out notice of marriage.

2. Permitting the man to come to the gathering of her people in the name of
introduction.
3. Rejecting other suitors to his knowledge due to his promise.
4. Forgoing her plan to further her studies on the clear terms that it is on the
premise of the promise.
5. Resigning from her work in order to join him in his location.
6. Getting pregnant on their joint agreement in furtherance of the promise.

In the case Ezeanah v Atta, the appellant and the respondent were in a
relationship and the respondent motivated by love funded the appellant’s further
studies to England. The respondent was in Nigeria but paid occasional visits to
London to see his woman, the appellant. It came a time when the respondent
provided some money for the appellant to buy a land in Abuja, Nigeria. The
land was of course bought in the appellant’s name but the certificate of
occupancy was signed by the respondent who was also in custody of it. When
they had a falling out, the respondent refused to hand over the certificate of
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occupancy to the appellant and this was why she sued. The respondent in reply
claimed that there was a breach of promise to marry and thus, he could no
longer let her have the property. In other words, the respondent was posing the
land as some form of consideration for the promise to marry and he felt that
since that promise had been breached, he could withdraw his consideration. The
trial court gave judgement in favour of the appellant, at the court of appeal, it
was overturned and judgement was given to the respondent. At the Supreme
court, the decision of the court of appeal was set aside and restored to the
judgement of the trial court.

The main issue at the Supreme Court 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 answer was in the negative.

Niki Tobi JSC said;

Premarital gifts in order to qualify as gifts in furtherance of an agreement to

marry, must be clearly, cleanly 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 the part parties agreed to get married, hence the gifts.
That is not talking law.

So, the respondents claim failed because even though gifts were adduced in the
relationship including the land, it was not made clear that they were given as
consideration or in furtherance of a promise to marry and so could not be
wielded in the event of a breach. There was no clear evidence of a promise.
Gifts given as a token of love in a relationship without more cannot be
constituted as a promise to marry or as consideration for a promise to marry.

Moving on, when a breach for a promise to marry is successfully established by

a party, it must be noted that the court cannot make an order for specific
performance. An order of specific performance in the law of contract is an order
compelling a party to do what he underwent to do in the first place. You would
understand why this cannot hold in the case of breach of promise to marry even
though it is also a contract; the court cannot force an unwilling part to marry

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one whom he or she no longer wants to marry. This will be tantamount to
making an order incapable of enforcement and the court does not give an order
that will be incapable of being enforced. Mrs Olawepo Sogo v Hebn
Publisher, Suit N0: NICN/IB/41/2018

But..

The law of course is trite that where there is wrong, there is remedy (Ubi jus ibi
remedium) thus, where the jilted party has sufficiently and successfully proved
the elements of contract and the breach of promise, the court will award
damages to cover the wasted years, for psychological and emotional trauma, for
financial loss resulting from the breach. These damages may cover expenses
already incurred towards wedding ceremony, compensation for injury to health
of the aggrieved party and his or her reputation e.g. when an aggrieved party
requires professional counselling to be alright, foregone alternative etc.

In the case of 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. The court held that the defendant’s act
constituted a breach for which the plaintiff was entitled to damages.

In all of these, it should be realised that a party who is being sued for breach of
promise to marry is not merely a sitting duck. He or she can rely on some
defences. Just like every other contract, the vitiating elements of a valid contract
apply in a marriage agreement as well, and they include fraud, duress, undue
influence, mistake, illegality, incapacity, unconsiconability, frustration,
misrepresentation etc. Hence, if a party can prove any of these as it relates to the
marriage agreement, he can comfortably wiggle his way out of a suit for breach
of promise to marry.

In addition to this, the provisions set out in section 3 (1) (a) to (e) of the
Matrimonial Causes Act which vitiates a marriage and the grounds for
dissolution of marriage set out in sections 15 and 16 of the Matrimonial
Causes Act can as well vitiate a promise to marry and so a defendant in a suit
of breach of promise to marry can successfully rely on these.

Other defences that can be relied upon by a defendant include;

1. Deceit/misrepresentation by any of the parties to the marriage agreement

2. Infidelity
3. Illnesses and diseases
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Conclusively, even though the remedy of breach of promise to marry is
available to litigants and potential litigants out there, there is a distinct lack of
its engagement in Nigeria. There is no doubt that a greater part of the reason for
this is the social and cultural consciousness of the people here. People have
often talked about the shamelessness that will drive a person to sue another
person for refusing to marry them. Shouldn’t your ‘being dumped’ be enough
wounds to lick? Do you really have to drag the matter to the public? Cause
yourself more hurt and shame?

Perhaps, the people that would ask these questions are less informed people
who think that suing a person for a breach of promise to marry is thesame as
trying to get the court to force a person to marry another. This will be a
misconceived notion as the Law cannot force anyone to marry anyone. It’s
simply a case of getting something back for what you have lost, your time, your
emotions, your money etc.

The aim of this article is to enlighten the laymen, members of the public, to
boldly approach the court of Law like the throne of Grace to seek the remedy
they deserve when there is an unfortunate incidence of a breach of promise ofto
marry.

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AUTHORITIES/ REFERENCES

CASES

Ezeanah v Atta (2004) 7 NWLR (PT. 873) 468

Uso v Iketubosin (1975) WRNLR 187

Mrs Olawepo Sogo v Hebn Publisher, Suit N0: NICN/IB/41/2018

STATUTES

Evidence Act, 2011

Section 3 (1) (a) to (e) of the Matrimonial Causes Act

Section 15 and 16 of the Matrimonial Causes Act

INTERNET

thenigerianlawyer.com

alliancelf.com

DICTIONARY

Blacks Law dictionary