A COMPARATIVE ANALYSIS OF THE CONFLICT SITUATIONS AND CHOICE OF LAWS IN THE NIGERIAN LEGAL SYSTEM AND OTHER LEGAL SYSTEMS

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Keywords: A COMPARATIVE ANALYSIS OF THE CONFLICT SITUATIONS AND CHOICE OF LAWS IN THE NIGERIAN LEGAL SYSTEM AND OTHER LEGAL SYSTEMS

 

RESEARCH BODY

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.

22

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.

23

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

24

‘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.

26

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:

29

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.

30

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.

 

Keywords: A COMPARATIVE ANALYSIS OF THE CONFLICT SITUATIONS AND CHOICE OF LAWS IN THE NIGERIAN LEGAL SYSTEM AND OTHER LEGAL SYSTEMS

 


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Keywords: A COMPARATIVE ANALYSIS OF THE CONFLICT SITUATIONS AND CHOICE OF LAWS IN THE NIGERIAN LEGAL SYSTEM AND OTHER LEGAL SYSTEMS

 


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