Today, all we heard is breakfast stories from all nooks and crannies. The breakfast in this context is not the normal tea and bread or Nigerian rice that we mange to eat early in the morning to satisfy the body from getting collapse, if it had been, it would have been better but the breakfast in this context is one which tears apart two existing lovers and ends the existing happiness between two lover birds. Just like the refered judex Pats Acholonu JSC, described the issue:
“The love that once bound these two people and now got frosted can be likened to verse xxxv of Shakespeare “Sonnets” a sort of lamentation, and also verse 1 of “Passionate Pilgrim”. Thus we have in this case so much love and then so much pain. It is the way of the world”.
This being the case, the receiver of such breakfast is now left in a financial, emotional and physical dilemma. But is our law silent on such issue? What’s the legal remedial to such instance? In this article, we shall be scrutinizing the Nigerian law in respect to the issue at hand as to arrive at a meaningful conclusion.
To start with, to love and be loved is natural and every sensible and matured human being desired such even it’s Godly. But despite being natural and Godly, the Almighty desperately frowns at separation of two parties joined by marriage (this is evidential virtually in all Religion, Islam and Christianity are not left out), this being so, men and women also frown at the situation but it’s natural that it happens in some circumstances, “It’s the way of the world!”
In order to properly appreciate this topic, the topic shall be evaluated under the following headings:
Marriage as a form of contract
Remedies to “breakfast”
Defenses to *breakfast”
MARRIAGE AS A FORM OF CONTRACT
Marriage is considered imperative because it is the foundation upon which the society is founded. Although, marriage has no universally acceptable definition, but some words are key important when attempting the definition like coming together of man and woman, voluntary acceptance and status and contract.
In Amobi v. Nzegwu, the Supreme Court per Ariwoola, JSC defined marriage thus: “Marriage under the Marriage Act generally means the legal union of a couple as spouses. In other words, it is “the voluntary union for life of one man and one woman to the exclusion of all others.”
While the Black law’s dictionary defined it thus:
Marriage, as distingnished from the agreement to marry and from the act of becoming married, is the civil status ct one man and one woman united In law for life, for the discharge to each other and the community of the duties legally lncum-bent on those whose association is founded on the distinction of sex.
Marriage being defined thus, it’s pertinent to note that a mere existence of love between two people may not means marriage and a marriage has to be a contract between two people of the opposite sex in the Nigeria context.
A marriage is a contract between two opposite sex willing to become a flesh and bone. This definition will lead us to the definition of Contract.
Black’s Law Dictionary defines contract, inter alia, as “1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law…2. The Writing that sets forth such an agreement…3. A promise or set of promises by a party to a transaction, enforceable or otherwise recognizable at law”. It is a voluntary agreement between parties and willingly entered into. However, the freedom enjoyed by parties to contract carries with it the inevitable implication of sanctity of their contracts. Just like any other contract, marriage has its elements.
In Orient bank Bank (Nig) plc v. Bilante Int. ltd. Niki Tobi JCA as he then was, defined contract as an agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things. For a contract to be valid, there must be mutuality of purpose and intention.
A careful consideration of the definition of contract stated above will reveal that a contract is a promise or an agreement. What then is a promise and agreement? Promise is defined in Black’s Law Dictionary, “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.” The Supreme Court per Onu, JSC in Agoma v. Guiness (Nig) Ltd adopted the definition of promise in Osborn: The Concise Law Dictionary, Fifth Edition (1964) where it was defined as “The expression of an intention to do or forbear from some act.”.
On the other round, the black’s law dictionary defined Agreement as “a concord of understand-ing and Intention, between two or more par-ties, with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. The act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations.
It’s worth noted that not all promises or agreement are enforceable, therefore before a contract can be enforceable the following ingredients must be present, they are: Offer, Acceptance, Consideration, Intention to create legal relationship and capacity contract, see the case of Orient bank v. Bilante (supra).
In order to cut short the article, an in-depth analysis of the ingredients won’t be discussed but it won’t be totally neglected as well, a brief explanation shall suffice.
An offer in a contract is a definite undertaking or promise made by one party with the intention that it shall become binding on the party making it, as soon as it’s accepted by the party to whom it’s addressed. See Oluwole v. Olugbode (2001) 13 WRN 132
Hence, in marriage, if a man which is the most common approaches a lady and propose her, the man is directly saying if you (the lady) accepts his proposal, the contract shall be binding between them.
Acceptance on the other hand, is defined as the reciprocal act or action of the offeree to the offer in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. Putting it in another language, acceptance is the act of compliance on the part of the offeree with the terms of the offer. It’s the element of acceptance that underscores the bilateral nature of a contract. See Orient bank v. Bilante Int (supra).
If such lady who’s approached then accept the proposal, it will then be said she has agreed to the terms of the offer thereby binding on her also.
NTENTION TO ENTER INTO A LEGAL RELATION- In the case of Sonnar (Nig) Ltd & Anor. V. Partenreed M. S. Nordwind Owners of the Ship M. S. Nordwind & Anor. The Supreme Court per Eso, JSC considered how to determine the intention of parties to enter into a legal relationship and stated that, “Since the decision in the late nineteenth century in the case of Carlill v. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256, the tests applied by the courts in order to determine the intention of parties to a contract have been objective rather than subjective. Would a reasonable man have regarded the offer made to him as one which was intended to create a legal relationship?” In a case of a promise to marry, to establish that parties intended to enter into a legal relationship, in other words that they agreed to marry, it must pass the test of reasonableness. It must be such that a reasonable man would have regarded as a promise of marriage intended to create a legal marital relationship and not mere cohabitation. It must be shown that there was a mutual understanding and meeting of minds between the parties that they agreed to get married.
CAPACITY- In order to constitute a valid contractual agreement to marry, parties must both be capable of getting married. Incapacity of either party will render such agreement void. For instance, an offer or acceptance of marriage by a minor cannot be seen as valid even if ratified in adulthood. Such offer must be made or the acceptance made again when the minor attains maturity or such will not be valid. Again, a party must not suffer from mental incapacity at the time of entering into the agreement. Parties must be of full age (21 years under the Act) and sound mind. In the case of Uwah & Anor. V. Akpabio & Anor., it was held per Muhammad, JSC that “it is trite that persons of full age and sound mind are bound by the agreement lawfully entered into by them…” A mentally imbalanced person cannot make or accept an offer. However, Section 18 of the Marriage Act provides that “If either party to an intended marriage, not being a widower or widow, is under twenty – one years of age, the written consent of the father, or if he be dead or of unsound mind or absent from Nigeria, or of the mother, or if both be dead or of unsound mind or absent from Nigeria, of the guardian of such party before a license can be granted or a certificate issued.”
CONSIDERATION- The apex court defined consideration in the case of BFI Group Corporation V. B.P.E. per Adekeye, JSC. As “some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. In law, parties to a contract are free to conclude their bargain on whatever terms are deemed to be appropriate. Once the consideration is of some value in the eyes of the law, the courts have jurisdiction to determine whether it is adequate or inadequate. In principle therefore, no consideration is too small or too much or unfair in the absence of fraud, duress or misrepresentation.” From the cited case, it is very clear that consideration need not be money. Where the offeree suffers or abstains from exercising some of his/ her rights as a result of an offer to marry, such will suffice as consideration. Only that the thing/act given as consideration must be of value.
Having determine what a valid contract is, it should be noted that “breakfast” cannot be served or claimed to have been served until a contract to marry has been made. In other words, before a party can sue for a breach of promise to marry, discussion between parties must have gone beyond mere speculations, whispering of “sweet nothings” but must have become concrete as an agreement existing between parties. In other words, two elements are necessary to constitute that breakfast has been served on the other party (see Ezeanah v. Attach), they are:
a) it must be proved to the satisfaction of the court that there was promise of marriage under the Marriage Act.
(b) it must be shown that one party to the agreement has failed or refused to honour his obligation.
On the fulfillment of these criteria, the aggrieved party who may be the man or the woman may sue for breach of contract and claim damages therefrom.
Please note, no action to recovered damages will be sustained unless the testimony of the aggrieved party is corroborated by some other material evidence in support of the promise. This is the intake of section 197 of the Evidence Act, 2011 and the decided case of Olusanya v Ibadiaran (1971) 1UILR 14 and Dagab v Kefas (1979) 2 LRN 334.
If the party serving the other party breakfast has seduced the other party, it’s enough as corroborated evidence. For instance, in the case of Bassela v Stern the plaintiff in breach of promise suit alleged that the defendant had seduced her and had reportedly promised to marry her. It was reported by the plaintiff that the plaintiff would always say to the defendant, ‘you always promised to marry me, and you don’t keep your word.’ It was held by the court that this amounted to material evidence in corroboration of the promise. See also the case of Hansen v Dixon (1906) 96 LT 32.
This agreement needs not to be written or spoken; as such, it can be inferred through the conduct of the parties. In the case of Ezeanah V Atta the Supreme Court per Tobi, JSC held that “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”. Most times, before either party can allege a breach, the relationship would have passed through certain stages. Generally, with exception of few cases, relationships pass through proposal, courtship, introduction and engagement before marriage.
REMEDY FOR “BREAKFAST”
In law, for every wrong there must be a remedy. This is reiterated with the maxim Ubi jus ibi remedium (where there’s a wrong there must be a remedy). Despite that there’s no certain law that sees to the issue of breakfast in Nigeria, any party (either the man or the woman) that feel aggrieved due to been served breakfast is entitled to seek remedy in court and claim damages.
In the case of Uso v Iketubosin, 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. Suffice it to reiterate that where there is a wrong, there must be a remedy – ubi jus ibi remedium. This principle of law has been applied by our courts in deserving cases. In Bello V. AG, Oyo State , Karibi- Whyte, JSC (as he then was) stated as follows:
“… I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right. The court obviously cannot do otherwise. …. The court will give a remedy where the facts as disclosed fall within a remedy recognized by law. I think this is a correct principle deducible from Falobi V. Falobl (Supra).”
However, before the principle can be applied, there must be proof of promise to marry otherwise it will be seen as a mere love affair without more. In the case of Ezeanah V. Atta the Appellant and the Respondent were lovers. In the course of their relationship, the Respondent lavished gifts as the dominant partner on the Appellant, including sponsorship for further studies in England. What brought the parties to Court was the ownership of Plot 999 Cadastral Zone B6, Mabuchi District, Abuja, which was acquired during their relationship. the Appellant claimed before the Abuja High Court for the ownership of the property by seeking for declaratory, mandatory injunctive and damages as reliefs. The Appellant claimed that she applied for and completed the application form for the land in her own handwriting and signed it, and that she paid an application fee of ℕ300 and an additional sum of ℕ6,700.00 demanded by the Federal Capital Territory. The certificate of occupancy was issued in the name of the Appellant but the Respondent took possession thereof and refused to give her the Certificate of Occupancy and instead started developing the land. On his part, the Respondent claimed that there was a breach of promise to marry on the part of the Appellant upon which basis he could no longer oblige her the property, the subject matter of the litigation, the consideration having failed. The Trial Court gave judgment in favor of the Appellant but the Court of Appeal overturned the judgment when the Defendant Appealed. On further Appeal, the Supreme Court set aside the judgment of the Court of Appeal and restored the judgment of the Trial Court. In the wise words of Tobi, JSC “Premarital gifts in order to qualify as gifts in furtherance of an agreement to marry, must be clearly 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 parties agreed to get married hence the gifts. That is not the talking of the law.” (emphasis supplied). In his concurring judgment Pats – Acholonu, JSC stated as follows:
“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 imagined it was reciprocated), money and eventually landed property on the appellant. When the tide turned, he fell back on non-existent 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 feelings 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 lamentation, and also verse 1 of “Passionate Pilgrim”. Thus we have in this case so much love and then so much pain. It is the way of the world”.
Again, it should be noted that in a case of breakfast, the court cannot order specific performance. The court only makes an order of performance where it is possible. In the case of Help (Nig) Ltd V. Silver Anchor (Nig) Ltd Tobi, JSC held that “This Court can only decree specific performance for a purpose which can be achieved or enforced. It cannot decree specific performance in vain. In other words, this Court cannot decree specific Performance which cannot be achieved or enforced.”
DEFENCES TO BREAKFAST
Many atimes, the party that served breakfast on the other may not be totally at fault but may have some defenses. The matrimonial causes act provides instances where marriage may be void. In Oghoyone v. Oghoyone, Rhode – Vivour, JCA (as he then was) stated that “A void marriage is a marriage that produces no legal consequences. That is to say it is a marriage that never took place.” In other words, in the eyes of the law, there is no marriage ab initio. The said section provides as follows:
“3. Void marriages and prohibited degrees of consanguinity
(1) Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where‐
(a) Either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) The parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, of affinity;
(c) the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;
(d) The consent of either of the parties is not a real consent because ‐
(i) It was obtained by duress or fraud; or
(ii) that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed;
(iii) that party is mentally incapable of understanding the nature of the marriage contract;
(e) either of the parties is not of marriageable age.”
From the provisions of section 3(1)(a) – (e) of the Matrimonial Causes Act reproduced above, it is clear that under those circumstances, even where there is a marriage and not just a promise to marry, such will be rendered void. Also, the grounds for dissolution of marriage are set out in sections 15 and 16 of the Matrimonial Causes Act.
Provisions of Section 15 and 16 of the Matrimonial Causes Act are hereinafter rreproduced:
S. 15.(1) A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts
(a) That the respondent has wilfully and persistently refused to consummate the marriage;
(b) That since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
© that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
€ that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
(f) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
(g) that the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act;
(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
(3) For the purpose of subsection (2) € and (f) of this section the parties to a marriage shall be treated as living apart unless they are living with each other in the same household.
S. 16.(1) Without prejudice to the generality of section 15(2)© of this Act, the court hearing a petition for a decree to of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15(2)© of this Act if the petitioner satisfies the court that
(a) Since the marriage, the respondent has committed rape, sodomy, or bestiality; or
(b) Since the marriage, the respondent has, for a period of not less than two years
(i) Been a habitual drunkard, or
(ii) habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has, for a part or parts of such a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated; or
© since the marriage, the respondent has within a period not exceeding five years
(i) Suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years, and
(ii) habitually left the petitioner without reason able means of support; or
(d) Since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition; or
€ since the marriage and within a period of one year immediately preceding the date of the petition, the respondent has been convicted of
Having attempted to murder or unlawfully to kill the(ii) having committed an offence involving the intentional infliction of grievous harm or grievous hurt on the petitioner or the intent to inflict grievous harm or grievous hurt on the petitioner (f) or the respondent has habitually and wilfully failed, throughout the period of two years immediately preceding the date of the petition, to pay maintenance for the petitioner (i) ordered to be paid under an order of, or an order registered in, a court in the Federation, or (ii) agreed to be paid under an agreement between the parties to the marriage providing for their separation; or (g) the respondent (i) is, at the date of the petition, of unsound mind and unlikely to recover, and (ii) since the marriage and within the period of six ears immediately preceding the date of the petition, as been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution. tempteds most respectfully submitted that the grounds stated in the two sections will also avail a Defendant as defences in an action for breach of promise of marriage. Therefore, where there is a promise of marriage only to discover any of the circumstances listed sections 3, 15 and 16) of the Matrimonial Causes Act, the other party who was not aware of such at the time of agreement or promise could, actually, justifiably, renege on the promise of marriage. He/she cannot be liable for breach of promise to marry even if it was shown that he/she entered into such agreement with prior knowledge of the offending situation. Few other defenses are listed as follows:
(2) Where a petition is based on the fact mentioned in section 15(2) (h) of this Act
(a) Proof that, for a period of seven years immediately preceding the date of the petition, the other party to the marriage was continually absent from the petitioner and that the petitioner has no reason to believe that the other party was alive at any time within that period is sufficient to establish the fact in question, unless it is shown that the other party to the marriage was alive at a time within that period; and
(b) A decree made pursuant to the petition shall be in the form of a decree of dissolution of marriage by reason of presumption of death.
In conclusion, “breakfast” is enforceable in our judicial system. Party that feel aggrieved should instead of committing suicide as we see today or deploying other dangerous means be it spiritual or physical should seek redress in court. Also, we should endeavor to advice our friends who have been served breakfast to seek redress in court.
Also, we should warn our friends who are chief breakfast server to desist from such as the case is a primitive remedy capable of causing a breach of the peace … the magnitude of which no one may conjecture …” and the legal remedy is established which may also serve as breakfast on such person’s backbone.
Keulere Nabil Olarewaju
LLB 2, Faculty of Law, Ahmadu Bello University