BREACH OF PROMISE TO MARRY AND
REMEDIES AVAILABLE UNDER NIGERIAN LAW: AN ANALYSIS OF THE CASE OF EZEMAH V.
ATTAH
By
Amedu
Francis Obiabo ESQ[i]
“Ubi Jus Ubi Remedium”
that is the very foundation upon which our legal system is built. Simply
put, it means where there is a right, there is a remedy. Most people
erroneously interpret it as “where
there is a wrong there is a remedy”. The distinction is fine but very important
in law as the law will only provide a remedy or relief where the person who
suffers a wrong is able to establish that he has a right, the breach of which
entitles him to the remedy available to him through the court. Hence it is not
in all cases that where there is a wrong suffered that the law will provide a
remedy.
Our law courts’ seldom interferes in the personal life of
indivuals as it not the business of the law to provide for how indivuals
conduct their private affairs or relate with one another, provided there are
not in breach of societies Civil and criminal codes of conduct. However where
two indivuals voluntarily agree to
certain arrangements , the law will avail certain remedies to a party
who has suffered certain loss due to the non performance of obligations imposed
on the other party under the agreement for
which he is in breach.
The above is true where two indivuals’ agree to marry and one
of them reneges on the promise to marry. The Institution of marriage is no
doubt sacred and is the foundation of the society. Everybody is a product of a
family and it is expected that indivuals should approach such an agreement with
great circumspection and a deep sense of responsibility, the breach of promise
to marry is an actionable wrong that entitles the jilted party to certain
reliefs.
Ingredients of Breach of Promise of Marriage
Two elements are necessary to constitute a breach of agreement
or promise of marriage, they include:
A.
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 Customary law, on the part of the other sex; and
B.
The
party reneging has really and as a matter of fact , failed or refused to keep to
the agreement of marriage
On the first ingredient mentioned above, the Plaintiff in the
civil suit will need to plead and led either oral or documentary evidence to
prove that there was indeed. Evidence
that can be tendered in proof include: engagement rings, letters that establish
the promise made by the defendant ETC With
the enactment of the Evidence Act 2011, the use of messages sent via electronic
means can be accepted as evidence in proof of the breach( S.84 of the Evidence
Act ) what that means is that chats on
social media like : Facebook , Twitter, LinkedIn, Whatsapp, etc where promise
to marry was made can also be tendered in court . This is very important as we
have so many swindlers who go online to dope desperate ladies with promise of
marriage as baits to such ladies.
However oral testimony in court may require corroboration
from other witnesses who will establish that there was indeed an agreement to
marry. The court will also take into consideration all the facts and
circumstances of the case as the mere fact that somebody referred to another as
his “WIFE TO BE” OR “HUSBAND TO BE” does
not necessarily imply a promise to marry. Depending on the type of marriage
intended (Christian, Islamic, Statutory or traditional) the parties must have
taken unequivocal steps to show that marriage was intended e.g. Introductory
rites to the families of the intended marriage. Mere of
boyfriend and girlfriend relationship does not raise a presumption that
marriage was intended by the parties. The case under review is a classic
example on the point[ii].
The fact of the case is the stuff of fairy tales, simply but
utterly interesting and intriguing. Alhaji Mahmud Atta ,The respondent who was
the defendant at the trial court
met Miss Chinye A.M Ezeanah the Appellant
who was the plaintiff at the
Trial Court in 1991 at Chinyes’ younger sister’s boyfriend’s
house where , Alhaji proposed a
relationship but she (chinye) refused. The friendship however progressed
gradually into that of boyfriend/ girl friend. This romantic state of
affairs so blossomed that Alhaji Atta
sent Miss Chinye Ezeanah to England to
Further her studies, paid all her school
fees, rented an Apartment in the High Brow Area of Nigeria’s capital city (
Maitama ) Incorporated Two Companies for Her and opened a store for her.
While the Going was sweet between Chinye and Alhaji Mahmud
Atta, Chinye asked to be married but Alhaji refused on account of his low sperm
Count, In fact Alhaji promised to finance her marriage with any other man of
her choice. Alhaji Atta would later facilitate the grant of a certificate of
occupancy in Chinyes’ and construction began on the said plot in Mabushi
(Abuja) However, Respondent however
refused to hand over the original title
documents to the Appellant , who in turn sued the respondent for a declaration
that the plaintiff is the bona fide
owner of the plot mentioned above and an order directing Alhaji Atta (
Defendant) to handover the certificate of Occupancy to the plot , inter alia .
In his Statement of defence, Alhaji Atta alleged that the plot
in Issue was a pre marital gift in lieu of an agreement to marry. The
Certificate of Occupancy being issued as a resulting trust hinged on the
condition that the plaintiff will get married to the defendant/ Respondent , defendant called three witnesses who testified that the
defendant ( Alhaji) introduced the plaintiff
to them as his fiancée .
Love Gift or Pre
Marital Gift
The central question therefore was whether the plot was the
product of a resulting trust in lieu of marriage between the parties. The court
held that from the facts of the case, there was no agreement to marry as there
was no bilateral contract since they were never ad idem on any agreement
to marry, as a result the certificate of occupancy being issued in the name of
the Appellant , the court held her to
be the owner of the land in issue.
From the Judgement above it appears that a plaintiff may be
entitled to recover pre marital gifts made in lieu of a promise to marriage, as
the extant suit was decided on the basis of the fact that the defendant could
not establish any breach of promise to marry, it can be deciphered that the
position would be different if her able to establish the said breach. The
position as in the case under review is different if it a mere love gift made
in furtherance of a mere romantic relationship.
The above was succinctly stated by PATS ACHOLUNU JSC at pages
523 Para B – E
“ 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 imagine it was reciprocated)
money and eventually landed property on the appellant. When the tide turned, he
fell back on nonexistent 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 feeling 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 lamentations and also
verse 1 of passionate Pilgrim. Thus we
have in this case so much love and so much pin. It is the way of the world”
DAMAGES (SPECIAL,
GENERAL OR PECUNIARY)
Where it is established that a wrong has been committed
against a plaintiff to wit breach of promise to marry the next salient question
is the appropriate order the court will make in the circumstance. In the
instant case the court could have upheld the defendant’s submission on a
resulting trust in lieu of marriage if the defendant had succeeded in
establishing that there was indeed a breach of promise to marry. There is no
doubt that the court can never order specific performance of the contract by the defaulting party as it would
be impossible to force two people into a matrimonial union even if one of them
is willing.
Can the court order
pecuniary damages in favour of a party who has incurred monetary loss as a
result of preparations for the wedding or promised marriage. Where a party has
incurred financial expenses in securing the services of event and wedding
planners in addition to other miscellaneous expense can such a party be put in
such a position as will mitigate his loss by the courts? It appears the jilted
party can recover the said sum under special damages if can show that such loss
was the reasonable and foreseeable [iii] consequence of the defendants breach of
promise to marry. However, special damages must be pleaded and evidence led in
proof that is the loss is itemized in such a manner that the court can access
and award special damages in deserving circumstance.
COMPENSATION FOR
EMBARRASSMENT, DISGRACE AND EMOTIONAL PAIN
Beyond any conceivable compensation that can be awarded in
favour of the jilted party the most important is whether the court will award
damages for the distress and unhappiness caused the plaintiff arising from the
breach of promise to marry. Marriages, especially in Nigeria is not only
between two indivuals but two families who take deep pride and fulfilment in
giving out their children out in marriage. The embarrassment that will be
caused both the jilted party and his family is often times unimaginable. What
would the court therefore do to assuage the pain and embarrassment? Can the courts award damages for distress,
vexation, humiliation, unhappiness etc arising from a breach of contract if it
can be shown that such embarrassment was the natural and probable consequence of the breach complained of ?
The answer from the
authorities appears to be in the positive. The principle was lucidly and
eloquently explained by Akpata j., in Prince Edison Eweka V. Midwest Newspaper
Corporation [iv]
The brief facts of the case is that , the plaintiff had paid
the defendant to publish a memoriam in honour of his late father and also
announce a dinner buffet in honour of
his departed father with members of the royal family. The defendant never published the said
memoriam and the plaintiff sued on account of same. The court while awarding
damages in favour of the plaintiff for distress and embarrassment held as
follows
“… The point is that
embarrassment, distress and unhappiness were bound to flow from the breach. The
plaintiff had been deprived of the inner satisfaction of having the in memoriam
of his father published of his late father published. It is indisputable that
the average Nigerian Places great premium on the remembrance of the dead. When
someone has paid for an in memoriam and expects the memory of his father to be recalled in the minds of several and due to no fault
of his, his expectation did not materialise, his distress arising from the
breach should be reflected in damages . it must also be recognised that mental
anguish may , in certain circumstance, be more harmful to the health of an
indivual than physical injury. In the
past such mental anguish or distress could
be damnum absque injuria.”
Flowing from the Prince Eweka case therefore, it can be
reasonably inferred that the court may
be minded to award damages on the basis of emotional pain and torture the
plaintiff must have been subjected to as a result of the breach
of the promise to marry.
CONCLUSION
[i] The Writer is engaged in the practice of law
in Abuja , Nigeria’s Federal Capital Territory
he can be contacted via the following:
amedufrancis6@gmail.com or
07063645472
[iv] (
1976) 6 ECSLR 280 ( High Court of Bendel
State ) .
Thanks for this educating piece, may your ink never run dry...
ReplyDeletenicely written.
ReplyDelete