A Comparative Analysis of the Conflict Situations and Choice of Laws in the Nigeria Legal System and Other Legal System

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.

TABLE OF CONTENTS

COVER PAGE…………………………………………………………………i
CERTIFICATION PAGE……………………………………………………ii
ABSTRACT…………………………………………………………………..iii
TABLE OF CONTENTS……………………………………………………iv
DEDICATION………………………………………………………………viii
ACKNOWLEDGMENT……………………………………………………..ix
TABLE OF CASES………………………………………………………….xi
TABLE OF STATUTES……………………………………………………xiv
LIST OF ABBREVIATIONS………………………………………………xv

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION…………………………………………….……………..1

1.1.0: BACK GROUND TO THE STUDY………………………………….2

1.2.0: OBJECTIVES OF STUDY……………………………………………4

1.3.0: FOCUS OF STUDY: …………………………………………………5

1.4.0: SCOPE OF STUDY………………………………………………… 5

1.5.0: METHODOLOGY……………………………………… 6

1.6.0: LITERATURE REVIEW……………………………………………6

1.7.0: DEFINITION OF TERMS…………………………… 9

1.8.0: CONCLUSION……………………………………… 13

CHAPTER 2

THE NIGERIAN LEGAL SYSTEM

2.0.0: INTRODUCTION……………………………………………………15

2.1.0: SOURCES OF THE NIGERIAN LEGAL SYSTEM……………..17

2.1.1.0: PRIMARY SOURCES…………………………………………….18

2.1.1.1: THE RECEIVED ENGLISH LAW……………………………….19

2.1.1.2: NIGERIAN LEGISLATION………………………………………22

2.1.1.3: CASE LAW/JUDICIAL PRECEDENT…………………………..22

2.1.1.4: DELEGATED LEGISLATION………………………………… 23

2.1.2.0: SECONDARY SOURCES…………………………………………24

2.1.2.1: THE NIGERIAN CUSTOMARY LAW…………………………24

2.2.0: THE NIGERIAN COURTS………………………………………….25

2.3.0: CONCLUSION……………………………………………………….27

CHAPTER 3

CONFLICT OF LAWS AND CHOICE SITUATIONS

3.0.0: INTRODUCTION……………………………………………………29
3.1.0: DOMICILE……………………………………………………………32
3.1.1.0: MARRIAGE AND MATRIMONIAL CAUSES…………………35
3.1.1.1: SUCCESSION………………………………………………………45
3.1.1.2: INFANTS……………………………………………………………54
3.1.1.3: RECOGNITION AND ENFORCEMENT OF

FOREIGN JUDGEMENT…………………………………………60
3.1.1.4: RENVOI…………………………………………………………….65
3.2.0: CONCLUSION……………………………………………………….70

CHAPTER 4

INTERNAL CONFLICT OF LAWS

4.0.0: INTRODUCTION…………………………………………………..71
4.1.0: CASES BETWEEN NIGERIANS…………………………………72

4.1.1.0: CASES BETWEEN NIGERIANS AND NON-NIGERIANS….75
4.1.1.1: CHOICE OF CUSTOMARY LAW………………………………76
4.2.0: LIMITATION LAWS/ STATUTES OF LIMITATION………….77
4.3.0: CONCLUSION……………………………………………………….82

CHAPTER 5

GENERAL CONCLUSION

5.0.0: CONCLUSION………………………………………………………84
5.1.0: RECOMMENDATION…………………………………………….86
BIBLIOGRAPHY………………………………………………………….92
ARTICLES ON THE INTERNET………………………………………92
BOOKS……………………………………………………………………..92

TABLE OF CASES

GHANA

· Nelson v. Nelson (1951)13 W.A.C.A. 248.

· Welbeck v. Brown (1883) Sar. F.C.L. 185.

IRELAND

· Re Rea (1902) 1 IR 451.

NIGERIA

· Adebonyan v. Adebonyan (unreported) suit No. 14 WD/86 High Court of Lagos State 1986.
· Adesubokan v. Yinusa Unreported suit No. SC 25/70 of 17/6/71.

· Fonsecca v. Passman (1958) WRNLR.

· Labinjo v. Abake (1924)5 NLR 33.

· Odubeko v. Fowler (1993) 7 N.W.L.R.[Pt. 308] 637 @ 668.

· Raymond v. Jinadu (1986)5 NWLR Pt. 39.

· Rotibi v. Savage (1944)17 NLR 77.

· Salau v. Aderibigbe [1963]WNLR 80 @86.

· Solomon v. African Steamship 9 NLR 99 at 101.

· Tapa v. Kuka (1945) 18 NLR 5.

· Zekeri v. Alhassan (2002) 52 W.R.N.119 (C.A.) at 141.

UNITED KINGDOM

· Barlow v. Regent Estate Company Limited (1949)KB 465@1945.

· Berthiaume v. Dastons (1930) AC 79.

· Boys v. Chaplin (1971) AC 356.

· Buchanan v. Rucker (1808) 9 East 192.

· Earl of Oxford (1615) 1 RE CH 1.

· Ex Parte Smith (1884) 14 Q.B.D. 394.

· Goodman’s Trust (1881) 17 Ch. 266 @ 298.

· Hooper v Hooper (1959) 2 All ER 575.

· Hyde v Hyde (1886) LR1, P&D 130@133.

· Machado v. Fontes (1897)2 QB 231 LJKB 542.

· Ogden v Ogden (1909) P. 46.

· R v. Brentwood Superintendent Registrar of Marriages Ex p. Arias (1968) 2 QB 956.

· Re Annesley (1926) 1 Ch 692.

· Re Askew (1930) 2 Ch 259.

· Re Beaumont’s case (1893) 3 Ch. 490.

· Re Low (1894)1 Ch. 147 @ 162.

· Re-Groos (1915) 1 Ch 572.

· Scrimshire v. Scrimshire (1752) 2 Hag. Con. 395.

· Taczanowska v. Taczanowski (1956) 3 All ER 457.

· Whicker v Hume (1858) 7 HLC 124 @160.

· Winkworth v. Christie Manson & Woods (1980) Ch. 496, (1980) 1 All ER 1121.

UNITED STATES OF AMERICA

· Hanger v. Habbot 73 U.S 532.

· Re Morrison 147 US 14 (1945).

· Townsend v. Jemison 50 U.S 407.

· Udny v. Udny (1969) L.R.I. ISC & Div 441 H.L.

· White v. Tennant 31 W. Va. 790 (1888).

TABLE OF STATUTES

NIGERIA

· Companies and Allied Matters Act, Cap. 59, LFN 2004.

· Constitution of the Federal Republic of Nigeria 1999, Cap. 24, LFN 2004.

· Criminal Code Act Cap. C28, LFN 2004.

· Evidence Act Cap. 112, LFN 1990.

· Infant Law (1959) Cap. 73, Laws of Eastern Nigeria.

· Limitation Edict of Kaduna State (Nigeria) Edict No. 12 of 1990.

· Limitation Edict of Lagos State (Nigeria) Cap. 33 of 1970.

· Marriage Act Cap. M6, LFN 2004.

· Matrimonial Causes Act Cap. M7, LFN 2004.

UNITED KINGDOM

· Civil Jurisdiction and Judgements Act 1982.

· Domicile and Matrimonial Proceedings Act 1973.

· Infants Relief Act 1874

LIST OF ABBREVIATIONS

· A.E.R.: All England Report
· AC: Appeal Cases
· Ch.: Chancery Division
· Hag. Con.: Haggard’s English Consistory Reports
· HLC: House of Laws Cases
· IR: Irish Rulings
· KB: King’s Bench
· LFN: Laws of the Federation of Nigeria
· LJKB: Law Journal Reports, King’s Bench
· LR1, P & D: Law Report 1, Probate and Family
· LR 1, SC & DIV: Law Report 1, South Carolina Division
· NLR: Nigerian Law Report
· NWLR: Nigerian Weekly Law Report
· QB: Queen’s Bench
· QBD: Queen’s Bench Division
· RE CH: Reformed Episcopal Church
· Sar FCL: Sarbah’s Fanti Customary Laws
· U.S.: United States
· W. Va.: Western Virginia
· W.A.C.A.: West African Court of Appeal
· WRN: Western Region of Nigeria
· WRNLR: Western Region of Nigeria Law Reports

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.

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 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.

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.

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.’

Frederic Harrison, ‘Jurisprudence and the Conflict of Laws’ (Macmillan, London 1919) p.101-102.

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.

REFERENCES

Cheshire and North, Private International Law (12th ed, Butterworths, London, 1992).

Obilade A.O, The Nigerian Legal System, (Spectrum Books Ltd, Ibadan 2003).

Raymond S, Conflict of Laws, (Cavendish Publishing Ltd, U.K, 1993).

Asein J.O, Introduction to Nigerian Legal System (Sam Bookman Pubs Ltd, Ibadan, 1998).

John O.B, Smith’s Conflict of Laws (Cavendish Publishing Ltd, UK 1999).

Supo O, Unlocking the Nigerian Legal System (Dotpon Isola & Sons, Ibadan 2009).

Thomas B, Polarized Law (Stevens & Haynes, London, 1914)

Dicey and Morris, The Conflict of Laws (9th Ed, Sweet and Maxwell, London, 1993) p.1103-4.

Frederic H, Jurisprudence and the Conflict of Laws (Macmillan, London, 1919.)

Michael F.L, Limitation Laws (Jotem Enterprises, Ibadan, 2006) p. 26-40

Ojo A, Constitutional Law and Military Rule in Nigeria (Evans, Ibadan, 1987) p.82.

Okonkwo C.O, Introduction to Nigerian Law (Sweet & Maxwell, London, 1980) p.40.