The breach of promise to marry and its legal consequences

“Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.” – William Congreve, 1670-1729

The following, scary but true, recently reported incident is apt in introducing this piece : “Woman sent to jail for pouring hot oil on lover who refused to marry her… “. A 25-year-old woman identified as Victoria Alonge was on Monday sentenced to one-year in jail by a Karu Senior Magistrate court for pouring hot oil on her boyfriend, Roland Nna, because he refused to marry her.

Telegraphng.com reports that Victoria was sentenced to one-year imprisonment without an option of fine after the convict admitted to the court that she committed the offence. Alonge was arraigned on a one-count charge of causing grievous harm to Nna, her boyfriend, who resides in Kurudu, Abuja. The prosecutor told the court that Alonge went to Nna’s house at about 4:30 a.m. on the fateful day and poured hot oil on him while he was asleep, resulting in grievous injury… He said she was immediately arrested by the police, after which she confessed to the crime.

Njoku said that while in detention, Alonge threatened to inflict more harm on the victim. The prosecutor, however, urged the court to summarily punish the accused because she did not deny the charge brought against her.

In her defence, Alonge told the court that her estranged lover dated her for over four years and promised to marry her, only for him to change his mind after falling in love with another woman in Abuja.

“I did that to teach him a bitter lesson because he refused to marry me after dating me for over four years,’’ Alonge said. “He fooled me and my parents and ditched me after finding a new lover here in Abuja. I live in Lagos with my parents.”

In these days of failed live -in- love affairs, heartbreaks, counter heartbreaks, jilting, eloping, dumping, etc, etc, commonly characterized in love/romantic relationships between lovers of opposite sex (in Nigerian jurisdiction), it is most apposite to consider the legal implications of the above actions which bedevils the pre marital institution in our modern day societal living. An in-depth understanding of the concept of the “promise to marry” and the legal consequences of its breach thereof would most appropriately assist us in achieving this aim.

First, what is a “promise to marry”? A “promise” is defined 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 in understanding that a commitment has been made; a person’s assurance that a person will or will not do something. A promise to marry is thus defined as a “betrothal”, an “engagement to be married” also termed “agreement to marry”. The promise to marry contract comes into existence by the mutual exchange of promises by the parties to marry each other. A mere convivial or romantic relationship is not enough for a court to found an agreement to marry.

In the same vein as commercial contracts, a promise to marry can be oral, written or otherwise. As an oral contract, proof is determined by the same common law rules by which oral commercial contracts are judged. As a written contract, the evidence of personal letter indicating an agreement to marry is enough to establish proof. Promise to marry can be inferred from the action or conduct of the party making the promise. Any action or conduct which directly suggests promise would constitute evidence and therefore proof of promise to marry. (Dr Steve Ogan, 2008). In Aiyede vs Norman –William (1960) LLR 253, it was held that the promise to marry need not take the oral or written exchange of mutual promise.

A germane criteria for a promise to marry to be legally binding apart from parties possessing the requisite legal capacity is that it must have consideration for it to be legally valid and enforceable. The evidence of consideration is the basis for establishing the existence of a contract. In a promise to marry case, the reciprocal promise of a woman to marry a man who promised to marry her is usually regarded as consideration. Other instances of consideration could include where for example a woman travels to another city/state/country to meet a man who promised to marry her! Does it include where a woman gets pregnant for her man in furtherance to the promise to marry? This is mootable!

To constitute a breach of promise to marry, two elements are essential: First it must be proved to the satisfaction of the court that there was a promise to marry under the relevant law. Second, it must be shown that one party to the agreement, whether the man or the woman, has failed or refused to honour the obligation. When the above are established, the injured party may sue the other for breach of the contract and claim damages thereof, although no damages may be recovered unless his or her testimony is corroborated by some other material evidence in support of such promise in line with section 197 of the Evidence Act 2004. What constitutes material evidence is a question of law for the court to determine

The breach of promise to marry could either be in the form of non-performance or anticipatory breach. There may be non-performance where the time for performance is fixed, for example where parties agree on a particular date, the failure or refusal of one of the parties to turn up for the marriage constitutes a breach. Where no date is fixed, the law implies that the promise is one to marry within a reasonable time or at the request of one party. Where however, the promise is subject to a condition precedent, for example consent of parents, there can be no breach until the condition is satisfied or fulfilled. In Aiyede’s case (supra), the plaintiff’s case was dismissed as there was a condition precedent to the fulfilment of the defendant’s promise to marry, which in this case was obtaining the consent of the plaintiff’s father.

The breach of promise to marry takes the form of an anticipatory breach where there is outright repudiation of obligation by a party, or by such conduct on his part that’s puts it out of his power to perform his obligation. An anticipatory breach may occur where before the contractual date for performance, a party to the contract announces his intention not to perform, which announcement the other party could treat as wrongful termination of the agreement and head to court. Anticipatory breach can also occur where one party to an agreement by his own act puts it out of his power to perform his obligation. Such is the case where a party to the contract to marry elopes and marries someone else .The case of Uso v Iketubosin [1975] WRNLR 187 depict this form. In that case, 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.

Interestingly, there are defences to a claim for breach of promise to marry to justify the breach. These defences come in form of general defences, which are available to general contract law such as fraud, duress or misrepresentation which could be pleaded to justify a breach of the promise to marry. For example, where a man misrepresent to a woman that he is from a very rich home and the woman, acting on that misrepresentation, promises to marry the man, a subsequent breach by the woman (who later discovers the real situation of the man) can be availed by the defence of misrepresentation! So men, stop that big talk, be real to your intended or else you get your heart broken!

The other specie of defences are termed “special defences”. It may be pleaded that there are some actual moral, physical or mental infirmity in the plaintiff which makes him or her unfit for marriage. This defence presupposes that the plaintiff is suffering from some moral, physical or mental infirmity; the infirmity must be such as to render the plaintiff unfit for marriage; the infirmity must have been discovered after the contract to marry was made; and the defendant must show as a necessity, that some actual infirmity in the plaintiff exist as mere suspicion is not enough. A party who discovers after the contract to marry has been made that the intended spouse is a lesbian, gay, bisexual, transgender (LGBT) or a hermaphrodite could perhaps plead these facts as a special defence to a claim of breach of promise to marry.

What are the damages for breach of promise to marry? The quantum of damages is generally subject to the rules of remoteness i.e the damages should be that which flow directly from the breach or which are within the contemplation of the parties at the time of the promise. In this light, damages awarded by courts fall under the following categories: general damages e.g. compensation for the loss of consortium of the other party; injured feelings, wounded pride, etc ; special damages affecting property e.g for money spent or financial loss sustained by the plaintiff as a direct result of the defendant’s breach of the promise to marry; recovery of the engagement ring and presents. An interesting thing to note is that damages could also be claimed against a third party who induced the breach. Whatever be the damage claimed, one thing the court would not do is to grant an order of specific performance as no court would force any one to marry another.

Incidentally, though the English courts have since moved on away from actions/claims for breach of contract to marry and while serious contentions have been made for the scrapping of this claim from our jurisprudence as same is considered as an anachronism inherited from English law (E.I.Nwogugu,1974), a number of cases, having the issue of breach of promise to marry as principal or ancillary subject matters, have recently been decided by Nigerian Courts.

In Ezennah vs Atta (2004) 2 S.C.(Pt II) pg 75, the Supreme Court gave an expository on the concept of breach of promise to marry thus: “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 to marry 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…. Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology. Accordingly, an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage.”

In Mabamije vs Otto (2016) LPELR 26058(SC) the case of Ms. Mabamije was that Mr. Otto breached his promise to marry her, and for that reason she claimed a whopping N20 million as damages as well as an order to compel Mr. Otto to perfect/complete all marriage arrangements earlier made by him!

Mr. Otto in his Statement of Defence denied this allegation and stated that Ms. Mabamije had in an earlier suit, namely Suit No. W/61/2000 also filed at the High Court, Warri claimed the same reliefs against him. Mr. Otto further asserted that following the intervention of OAN Overseas Agency (Nig.) Ltd, a company in which he was managing director, the said suit was withdrawn by Ms. Mabamjje after that Company had fulfilled certain conditions laid down by her. The condition was that OAN Overseas Agency (Nig.) Ltd should furnish the apartment of Ms. Mabamije with some named amenities and on the basis of which she discontinued the earlier suit instituted against Mr. Otto. This was never denied. In fact, Ms. Mabamije did not file a Counter Affidavit to contravene the Affidavit Support of the Motion to dismiss her suit on the ground of estoppel. One of the defences of Mr. Otto was that Ms. Mabamije should have been estopped from further litigating on the subject matter having been satisfied on same in an earlier claim. The facts of estoppel were specifically pleaded by Mr. Otto in his Statement of Defence as well as the Affidavit support of the Motion dated the 7th of February 2001 in which he sought to dismiss the suit. The High Court dismissed the Motion holding among others that the principle of estoppel had not been established. Mr. Otto being dissatisfied with the said ruling of the High Court, Warri appealed to the Court of Appeal, Benin Division, which allowed the appeal on the ground that the Appellant herein was estopped from instituting the present suit. Aggrieved, Ms Mabamije appealed to Supreme Court which court affirmed the judgment of the Court of Appeal and dismissed the Appellant’s appeal

As anachronistic as the claim for breach of promise to marry may seem to be in modern day reality, in the absence of any law abhorring such claims, the law still exists and should be resorted to where there is a genuine need. So ladies, the next time your fiancé chose to move on, or elope with another woman, don’t give him the hot oil treatment, for that could easily land you in jail. Sue him instead!

Orumor is a Lagos based lawyer.