ABSTRACT
Private International Law is that part of a law of a country which deals with
cases having foreign element and usually comes into operation whenever
courts are seized with such cases.
The term ‘foreign element’ means any system of law prevailing outside the lex
fori, that is, the local law of the place where the court is situated. It includes
not only the law existing in a state under a foreign political sovereign but also
the law prevailing in a sub division of a political state of which the forum is
part. The law of England and any other law of a country outside Nigeria can be
treated as a foreign law. The laws of Northern Nigeria can also be treated as
foreign law in the Southern Nigeria. There is also the inter-state conflict of
laws, a situation which arises due to the divergent laws in each state.
With the increasing international relationship around the world, conflicts are
bound to arise. Municipal laws of a State, which were promulgated and
enacted into law to guide her own affairs, differ from one country to the other.
For example, the Nigerian Legal system has provisions different from English
Legal system. Therefore, whenever a course of action arises between the two
legal systems, and a decision is arrived at, such decision is referred to as the
choice situation.
For the purpose of this long essay, we shall be examining issues like in cases
of dispute involving two or more municipal laws, which law should prevail?
How will a State’s attitude to foreign law affect its recognition and
enforcement? Also, to what extent will the municipal court give effect within
the domestic rules of international law, which are contrary to domestic law, in
cases where two or more customary laws are applicable, for example, in
Nigeria, which one should prevail?
All these and more shall be discussed in this essay.
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
The project looks into the problems which arise when one legal system has to
deal with the legal rules of another in matters of private rights. More
particularly, because the ultimate test of the recognition of foreign law is what
courts do about it. This work is also concerned with how a court, sitting in one
country treats a case of private litigation in which the parties, the events or the
circumstances demonstrate connections with one or more legal systems foreign
to the court. The issue can raise in multifarious ways. An ordinary, apparently
purely domestic, case may be found to have a significant connection with a
foreign legal system. A case may be so genuinely international that it would be
a foreign case in any court.
In Tapa v. Kuka1, the deceased, a Nupe man died interstate in Bida, leaving a
house in Lagos. The question was whether his domestic law should apply or
1(1945) 18 NLR 5.
19
the law of the place where the property was located, that is, lex situs? The
deceased’s personal law was applied which is the Mohammedian law,
prevailing among the Nupe people. This shows that the forms of appearance of
a foreign element are numerous:
– The party may be foreign by nationality or may have a foreign
domicile,
– The action may concern property situated abroad,
– Or a disposition made abroad of a property situated in Nigeria.
Just as the conflict of law exists because there are differences in systems of
municipal law, so there are differences in the approaches that legal systems of
Nigeria and other countries take to solving problems in the conflict of laws.
1.1.0: BACKGROUND TO THE STUDY
The raison d’être of Private International Law, also known as, conflict of law
is the existence in the world of a number of separate municipal systems of
law–a number of separate legal units- that differ greatly from each other in the
rules by which they regulate the various legal relations arising in daily life. The
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occasions are frequent when the courts in one country must take account of
some rule of law that exists in another.
There are several possible responses which a court can make when faced with
a case having foreign contacts. Firstly, and most primitively, it can treat the
case as a purely domestic one and apply its own law to its resolution regardless
of the foreign element.
Secondly, a court could take a view that its processes are inappropriate for a
case with foreign contacts and refuse to adjudicate upon it. A court would seek
to ensure that national courts took jurisdiction only when they were, in their
own eyes, the appropriate forum or, at least, not an inappropriate one. The
remaining possibility, and the one with which this book is concerned, is that
the court recognizes that cases with foreign contacts cannot simply be turned
away, and that they are special in the sense that they pose particular problems
which demand serious treatment.
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1.2.0: OBJECTIVES OF STUDY
The overall objective of this study is to examine the differences between the
Nigerian domestic law and other legal systems and find solutions to the
conflict problems.
Specifically, the study aims at achieving the following:
· To examine and prescribe the conditions under which the court is
competent to entertain a claim.
· To examine and determine for each class of case the particular
municipal system of law by reference to which the rights of the parties
must be ascertained.
· To examine and specify the circumstances in which (a) a foreign
judgment can be recognized as decisive of the question in dispute and
(b) the right vested in the judgment creditor by a foreign judgment can
be enforced by an action in Nigeria.
· To shed light on the level of experience and the depth of knowledge of
Nigeria and some other countries in relation to private international law
and how judges apply the principles of private international law.
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1.3.0: FOCUS OF STUDY
The main focus of this study is based on cases where there are conflict between
various municipal laws, be it within of outside a sovereign State, which then
results to the choosing of a particular system to govern such. Special attention
will be given to the Nigerian legal system in comparison and contrast with
other legal systems.
1.4.0: SCOPE OF STUDY
Private international law is not a separate branch of law in the same sense, as,
say, the law of contract or of tort. It is all pervading. ‘It starts up unexpectedly
in any court and in the midst of any process. It may be sprung like a mine in a
plain common law action. In an administrative proceeding, in equity, or in a
divorce case, or a bankruptcy case, in a shipping case or a matter of criminal
procedure. The most trivial action of debt, the most complex case of equitable
claims may suddenly be interrupted by the appearance of a knot to be untied
only by a Private International Law.’2
2 Frederic Harrison, ‘Jurisprudence and the Conflict of Laws’ (Macmillan, London 1919)
p.101-102.
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Nevertheless, Private International Law is a separate and distinct unit in the
Nigerian Legal System just as much as the law of tort or of contract, but it
possesses this unity, not because it deals with one particular topic but because
it is always concerned with one or more of the three (3) questions, namely:
a. Jurisdiction of the Nigerian court,
b. The choice of law,
c. Recognition and enforcement of foreign judgments.
All branches of private law will be considered, but only in connection with
these three matters.
1.5.0: METHODOLOGY
The method to be adopted for this study will be based on primary and
secondary sources (materials.) They include statutes, local and foreign
textbooks, law journals, law dictionaries, opinions of legal writers, law reports
and reported cases from case books, available literature on internet. Also, the
historical, analytical and ethical methods are employed to dive deep into the
study and have a good understanding of it.
1.6.0: LITERATURE REVIEW
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‘Conflict of law and choice situation under which this topic is based is a wide
area of study. Reference will be made to several foreign and Nigerian texts by
distinguished authors. Various journals will also be referred to.
CHESHIRE AND NORTH’S Private International Law3 states that ‘Private
International Law, then, is that part of law which comes into play when the
issue before the court affects some fact, event or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that
system.’
It has, accordingly, been described by THOMAS BATY4 as meaning
The rules voluntarily chosen by a given State for the decision of
cases which have a foreign complexion.
JAMES, L.J.:5
Can it be possible that a Dutch father stepping on board a steamer at
Rotterdam with His dear and lawful child should on arrival at the
3 (Butterworths, 1992, 12th Ed.)
4 Polarized Law,(Stevens & Haynes, London 1914) p.148.
5 Goodman’s Trust (1881) 17 Ch. 266 @ 298.
25
port of London find that the child has become a stranger in blood
and in law and bastard fillus nullius.
OBILADE A.O.6 on his own part believed that there are statutory choices of
laws for determining inappropriate cases whether it is a customary law or noncustomary
law that governs a particular set of circumstances. He also opined
that the rule of customary law is an alternative to English law and the
customary law to be valid it must have passed the incompatibility test. He
appreciated the fact that there is conflict between the English law and the rule
of customary law and also that there may be the problem of which choice of
customary to apply when two customary laws compete on the same subject
matter.
According to RAYMOND SMITH, in his book, Conflict of Laws7, he is of the
opinion that a case with obvious contacts with one country may happen to be
litigated in another because the plaintiff finds some advantage in bringing an
action there or the defendant cannot be made subject to the jurisdiction of the
6‘The Nigerian Legal System’ ,(Spectrum Books Ltd ,Ibadan 2003).
7 Cavendish Publishing Limited, 1993.
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country with which the case is, leally, most closely connected. A case may be
so genuinely international that it would be a foreign case in any court.
ASEIN J.O.8 is of the view that there can be conflict between the rules of
customary law and English law especially on marriage and succession cases.
Therefore, if a person is subjected to two different laws at the same time, then,
the problem is which of the rules will be applicable to the person.
1.7.0: DEFINITION OF TERMS
Conflict lawyers use some Latin terms which have been adopted or derived
from continental writers.
Lex causea The law which the court has determined
as the governing law of the issue.
Lex domicile The law of the country where a person is
domiciled.
Lex fori The law of the court dealing with the
issue. Where a Nigerian court decides to
8 Introduction to Nigerian Legal System(Sam Bookman Pubs Ltd, 1998).
27
its own law regardless of the conflict
issue it applies Nigerian law as lex fori;
where, however it determines upon the
application of Nigerian law as a result of
operating its choice of law rules, it
applies English law as lex causae.
Lex loci actus The law of the place where an act was
done.
Lex loci contractus The law of the place where a contract was
made.
Lex loci delicti The law of the place where the wrongful
act (tort) was committed
Lex loci celebrationis The law of the place where a marriage
was celebrated.
Lex solutionis The law of the place where the contract is
to be performed.
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Lex patriae The law of the nationality.
Lex propria causae The proper law.
Lex propria delicti The proper law of tort.
Lex situs The law of the place where a thing is
situated, particularly but not exclusively,
a piece of land.
Locus regit actum The law of the place governs the deed.
An old maxim that finds its modern
expression in the lex loci rules listed
above.
Mobilia sequuntur personam Movables follow the person, in modern
law this is shown by the rule that
succession to movables is governed by
the personal law of the deceased.
Some other terms which are in general use among conflict lawyers should also
be noted:
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Applicable law Sometimes used generally to mean the
governing law, this term is used
specifically to mean the lex causae in the
Conventions governing contracts and
trusts.
Choice of jurisdiction The selection, often by the parties to a
contract, of the rational court before
which any dispute is to be heard.
Choice of law The process or the result of discovering
the law to apply to the cause.
Country Any area or law district which has its
own legal system, for example, Scotland,
Nigeria, Ontario. e.t.c.
Governing law Lex causae.
Jurisdiction selection The process of choice of law by reference to
the law of a country as a whole, theoretically
without regard to the content of that law.
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Proper law The law which has the closest connection
with the issues under consideration
usually on the basis of preponderant
groupings.
Rule selection The process of choice of law by reference
to the specific rules of the competing
legal systems.
State Used in this study to indicate the
international unit only. Sometimes the
terms State and country can be used
interchangeably where the State has a
unitary legal system, for example,
France, Italy, Nigeria, Japan – in other
cases they cannot, for example, U.K.,
Australia.
1.8.0: CONCLUSION.
This chapter has served as an introduction for the coming chapters. It has
examined the ways and methods through which the long essay is going to take.