Month: September 2020

Generally, parties are bound by the terms of the contract entered into and expected to perform their obligations. This is known as the principle of pacta sunt servanda, which means all promises must be kept and honoured. In a situation where there is a breach of contract, the law will avail certain remedies to a party who had suffered a certain loss due to the non-performance of the obligations by the other party.

Marriage is also a contract. Thus, an agreement to enter into a marriage should be clear, precise and should leave nobody in doubt as to the real intention of the parties to enter into a marriage. Speculations are not allowed.

Unfortunately, we have heard stories and seen people who got jilted in a relationship. This situation is always followed by intense emotional trauma. Well, we are The LegalStandpoint and not emotional therapists. Hence, we will only restrict ourselves to the standpoint of the law in this matter leaving out how to deal with the emotional consequences.

BREACH OF THE AGREEMENT TO MARRY
In the case under review, the Court per Niki Tobi JSC (as he then was) listed the two elements which are necessary to constitute a breach of an agreement to marry. These are:
1. 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, or under Islamic Law or under Customary Law, on the part of the other sex.
2. The party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage.

It is worthy to mention that the first element goes beyond a mere boyfriend and girlfriend romantic affairs. It is way beyond saving his/her name on your phone as Messiah or My Indispensable as the case may be. All these are immaterial because they do not raise a presumption of marriage. To prove the first element, the jilted party needs to plead either oral, written or electronic evidence to show that the other party reneges on his/her promise. This can be done by showing that there is an actual proposal of marriage (engagement ring) and acceptance of a marriage proposal. Also, evidence like recordings, pictures, letters, chats, etc will suffice. By extension, the court will listen to corroborative evidence from people who are aware of the proposal of marriage. See Olasore & Anor V. Ajibolade & Anor (2011) LPELR-8953 (CA) (Pp. 32-33, paras. F-C)

THE FACT OF THE CASE
The two parties met around 1993. The respondent, Alhaji Atta proposed a relationship but the appellant refused. The friendship however progressed gradually into that of boyfriend/ girlfriend. This romantic state of affairs so flourished that Alhaji Atta sent Miss Chinye Ezeanah to England to further her studies, paid all her school fees, rented an apartment, etc. Filled with this sweetness, Chinye asked to be married to him but Alhaji refused on account of his low sperm count. In fact, he promised to finance her marriage with any other man of her choice.

Subsequently, the respondent provided the money with which the appellant used to purchase the land in dispute in Abuja. However, the land was purchased in the name of the appellant but the Certificate of Occupancy was signed by the respondent. The relationship went sour and he refused to hand over the original title documents to the appellant, who in turn sued the respondent for a declaration that the she is the bonafide owner of the plot and an order directing Alhaji Atta to handover the C of O to the plot, inter alia.

The plaintiff won as the Court of first instance, lost at the Court of Appeal, and therefore appealed before the Supreme Court. One of the defences raised by the respondent particular to this issue was that he did everything for her with the notion of getting married. 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.

Commenting on the nature of gifts passed, Niki Tobi JSC (as he then was) held that: ‘It seems to me that the learned trial Judge was carried away by the quantity, quality, and magnificence of the gifts in coming to the conclusion that there was an agreement to marry. Is that the law? No. 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 parties agreed to get married hence the gifts. That is not talking law.’

In addition, Pats Acholunu JSC (as he then was) stated that: ‘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 away. 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.’

RELIEFS
If the two elements of breach of promise to marry can be successfully and satisfactorily proven, the court will award damages for the breach. This can be in form of damages for any financial loss resulting from the breach, for example, expenses already incurred towards the wedding ceremony, like, renting of the event hall, purchase of Aṣọ ẹbí, payment of event planners, printing of IVs, etc.

Also, we shouldn’t forget that marriage in Nigeria is not just about the two individuals (male and female), the families who take deep pride and fulfillment in giving out their children in marriage are also involved. Hence, the embarrassment that both the jilted party and his family will face is better imagined than experienced😪. The question is can the Courts award damages for the humiliation and disgrace like this? Yes, they can, provided it can be shown that the humiliation was a natural and probable consequence of the breach complained of. This has been given judicial encomium in the case of Prince Edison Eweka v. Midwest Newspaper Corporation n (1976) 6 ECSLR 280.

However, the Court can not grant specific performance of the contract because it would be impossible to force two people into a matrimonial union even if one of them is willing.

EXCEPTIONS
Notwithstanding the aforementioned, there are also defences available for a defaulting party. Just like every other contract, the vitiating elements of a valid contract apply in marriage agreement. They include: duress, undue influence, mistake, illegality, incapacity, misrepresentation, etc Misrepresentation, using a practical example, is that if a man represents himself as being rich, while in the real sense, he is not. If the proposed wife decided not to proceed with the wedding, she is allowed in law to do that.

However, it is pertinent to note that the knowledge of the above factors before making the promise to marry or accepting such promise may affect the validity of such defence. Hence, if a lady knows her proposed husband is poor and nevertheless accepted the proposal, then she may be bar from reneging on her promise. Others defences include: consanguine ties, blood group, family background, cheating, intolerable behavior, rape, etc

From all that has been said, this area of breach of promise to marry is one of those areas that has seen less judicial activism with few cases and authorities on it. The reason, to me, is not farfetched. Dating, courtship, and marriage are private affairs. This could explain why a jilted party will rather accept the breakup, move on with his/her life, and jettison the idea of wasting precious time to litigate the matter. In fact, it is safe to assume that had it been ownership as to the land/house in the case under review was not disputed, the plaintiff would not have brought the matter to Court.

CONCLUSION

Law regulates all humans affairs whether public or private. Also, like every other contract we engage in, marriage is a contract and it behooves each party to be clear and precise as to the nature of their relationship leaving out assumptions in order to avoid stories that touch.

Thank you for reading. See you next week😍

The crux of this publication is to discuss the 2018 novel principle of law given by the Supreme Court on the issue whether the statute of limitations will affect an action instituted in a court that lacked jurisdiction (competence) to hear the matter. Nevertheless, there is a need to give an introduction on the Statute of Limitations to aid our understanding, especially that of our non-law readers. So, enter into my Ferrari Portofino😎, let me take you on a ride.

There is a maxim called ubi jus ibi remedium meaning where there is a wrong, there is a remedy. It means that no wrong should be allowed to go without any compensation provided it can be redressed by a court of law. As such, if someone assaulted me, I can sue for damages having fulfilled all requirements.

However, there could be a wrong without a remedy. One of the factors that can cause this is the Statute of Limitations. This is a law that sets the maximum time the parties involved have to initiate legal proceedings from the date of an alleged offence, whether civil or criminal. In Mercantile Bank (Nig) Ltd v Feteco (1998) 3 NWLR (PT.540) 143,156 Tobi JCA (as he then was) held: “A statute of limitation is designed to stop or avoid situations where a Plaintiff can commence an action anytime he feels like doing so even when human memory would have normally faded and therefore failed. Putting it in another language by the statute of limitations, a Plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a Defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering Plaintiff.”

The rationale behind this law is aimed at diligent prosecution of claims so as to provide finality in legal matters and to ensure that claims will be resolved while evidence is still freshly available with parties and witnesses still alive. In addition, once this time period limited by the statute of limitations expires, a plaintiff’s right of action will be extinguished and become unenforceable against a defendant and can be referred to as having become statute-barred. A.G Adamawa & Ors v A.G Federation(2014) LPELR-23221(SC).

Generally, an action to recover land and enforce a simple contract must be instituted within 12 years and 6 years respectively. Though there are little variations in the laws of each state. For instance, S.18 of the Limitation Law of Delta State specifies a period of five years for actions founded on contract.

THE CASE AT HAND
In 2005, the 1st appellant and the respondents(Migfo and Denica services) signed an MOU to jointly bid for the concession and joint management of Terminal “C”, Tin Can Island Port, Apapa, Lagos which was being concessioned by the Federal Government through the Bureau of Public Enterprises and the Nigerian Ports Authority. Part of the MOU was that if the bid was successful, the joint partners would incorporate a joint venture company to manage the operation of the Port. The bid was successful, but the 1st, 3rd, and 4th appellants secretly incorporated the 5th Appellant to the exclusion of the respondents. When the respondents became aware of the 5th appellant, they conducted a search at the CAC and found that only the 1st and 3rd appellants were shareholders and directors of the 5th appellant.

The respondents instituted an action and judgment was given in their favour both at the Federal High Court and Court of Appeal. Dissatisfied, the Appellants further appealed to the Supreme Court. Unfortunately, the Supreme Court struck out the case because the Federal High Court does not have the jurisdiction (competence) to sit on this matter because it was a simple contract. Rather, it was the State High Court that has the jurisdiction. Hence, they had to start all over.😥

On 18 July 2012, the respondent began a new suit at the Lagos State High court. The appellant raised the doctrine of statute-barred invoking S.8(1)(a) of the Limitation Law of Lagos State which provides that claims based on simple contracts cannot be sued on after 6 years.

The High Court of Lagos State and the Court of Appeal both dismissed the appellants’ objection and held that the respondents’ claim was not time-barred, though in reaching this conclusion, the Appeal Court relied on a secondary source of Nigeria law which was a foreign textbook named Limitation Period by Andrew Mc Gee.

Dissatisfied with both decisions, the Appellants then appealed to the Supreme Court. In this case, the Supreme Court established a landmark precedent. Just like how the sun stood still during Joshua’s battle against the Canaanites, the Supreme Court, for the first time, held that the time will pause – hold still – for the entire time when an action is in court pending the determination. The Court further stated that if a litigant commences an action in the wrong court and that action is struck out after a long period of time, the period when the action was in court would not count in the computation of time for the purpose of limitation, and the litigant may still be able to refile in the appropriate court despite the time that may have passed.

In conclusion, I will say this landmark decision is quite persuasive on this recondite area of law because it shuns strict adherence to rigid procedural requirements and it is in tandem with the interest of justice and public policy.

With this, we have gotten to our destination. You can alight from my car🤗. See you next week🙏.

The Nigerian Police has the power to make an arrest. It has been clothed with the statutory provision by virtue of S.4 of the Police Act. Hence, an arrest can be made once there is a reasonable suspicion that someone is suspected to have committed an offence. Reasonable suspicion, as held in Ubochi v. Ekpo (2014) LPELR-23523(CA), ‘presupposes the existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or likely to commit the offence.’

In addition, this statutory provision of the Power to arrest offenders has received judicial blessings in a plethora of cases. In Dokubo Asari v. Federal Republic of Nigeria (2007) JELR 54962 (SC) the Supreme Court held that: The power of arrest of suspected offenders is vested in the police and no one can take it away from them. See also Isiaka Adeboye & Ors v. Saheeto International limited & Ors (2019) LPELR-46752(CA). Now, it is not in doubt, as it is clear as crystal, that the Police enjoys both statutory and judicial backing in the exercise of its power to arrest offenders and suspects.

However, it must be noted that this sword given to the Police must be wielded in accordance with the provisions of the law. The power to arrest does not give the Police carte blanche to violate the rights of citizens in the name of crime detection. When an arrest is not done lawfully, the Courts are ever readily prepared to reject it. Thus, in Igweokolo v. Akpoyibo & Ors (3),(2017) LPELR-41882(CA), the Court opined that ‘By all odds, the police have the statutory power to investigate, arrest, interrogate, search and detain any suspect. The only qualification is that the power must be exercised in accordance with the law.’

ARREST IN LIEU

Also known as substitutional arrest, this literally means the arrest of one person in place of another. It occurs when a person who has not committed or has not been alleged of committing any offence is arrested because their friend or relative who is alleged of committing an offence cannot be found by the police. The rationale behind this that once a relative, particularly a consanguine or affinal is arrested, the offender will be forced to come out from his hiding place. This reasoning is self defeating because, in situations where the alleged offender has a hardened heart and refuses to step out, the arrested person will continually be incarcerated leading to clear deprivation of his/her fundamental human rights particularly right to Personal Liberty and Freedom of Movement.

Furthermore, S.7 of the Administration of Criminal Justice Act 2015 provides that: ‘A person shall not be arrested in place of a suspect.’ Even if there is an argument that since the ACJA applies in Abuja and Federal High courts in Nigeria, substitutional arrest can be allowed in states that have not yet domesticated ACJA, the writer still submits that this argument is implausible because arrest in lieu is unconstitutional, therefore it cannot be limited to a particular jurisdiction. In fact, S.36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) states that ‘Every person who is charged with a criminal offence shall be entitled to (a) be informed promptly in the language that he understands and in detail of the nature of the offence.’ The pronoun ‘he’ in that section refers to just one person. Had it been the drafters of the Constitution had a substitutional arrest in mind, the phrase would have been extended to make provisions for that. Everyone is distinct in the eyes of the law, so it will be wrong to arrest someone merely because he is related to a suspect that cannot be found.

Importantly, the Courts in Nigeria have unequivocally and persistently frown on substitutional arrest. In Akpan v. State (2008) 14 NWLR (pt 1106) 72, the court stated that ‘There is no law that where the offender is unable to be arrested, his relative should be arrested.’ Similarly, in ACB v. Okonkwo (1997) 1 NWLR (pt 480) 194, the mother of the accused was arrested and detained by the police for the offence of her child. In delivering a judgment in that case, the late eminent jurist, Niki Tobi said: ‘I know of no law which authorizes the police to arrest a mother for an offence committed or purportedly committed by the son. Criminal responsibility is personal and cannot be transferred….a police officer who arrests ‘A’ for the offence committed by ‘B’ should realize that he acted against the law. Such a police officer should, in addition to liability in civil action be punished by the police authority.’ See also, Odogwu v. State (2013)LPELR-22039(CA).

From our analysis, let us paint a practical example to aid our understanding. If a husband committed a crime and disappeared, and there is no evidence that his wife acted as an accomplice to the crime, can she be arrested? No. However, if she was an accomplice, let us say she was aware of the offence and then provided a way for her husband to escape and evaded capture, then can she be arrested? Yes. With this, she has become an accessory. An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime.

In conclusion, it is clear that the Police cannot arrest a person in lieu of another. An attempt to do that means that they are acting ultra vires (beyond their power). Also, anyone arrested in lieu of another can sue the Police for the violations of his/her Fundamental Human Rights. Comically, such a person is allowed to ‘may I’ and ‘approach my Lord without being too forward’ at the State High Court seeking damages.