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CONFLICT OF LAWS I

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This PDF contains succinct yet detailed Key-Points on Conflict of Laws First Semester. The contents are in line with outlines of Nigerian Universities (Faculties of Law) and recommended textbooks. This PDF note is for providing a quick grasp / understanding for Students and Practitioners.

Description

PREVIEW CONFLICT OF LAWS I

Contents

INTRODUCTION: 2

SOURCES OF NIGERIAN RULES OF CONFLICT OF LAWS. 2

DIMENSIONS OF THE SUBJECT (CONFLICT OF LAWS) IN NIGERIA. 4

WHAT IS THE RIGHT NAME FOR THIS COURSE?. 4

WHAT EXACTLY IS THE NATURE/AIM OF THIS COURSE?. 5

QUESTION OF CHOICE OF LAW. 7

PROBLEMS ASSOCIATED WITH DETERMINING APPLICABLE LAW. 9

TORT IN THE CONFLICT OF LAWS. 12

LIMIT TO THE APPLICATION OF FOREIGN LAWS. 15

NON-CHOICE AREAS. 15

EXCLUSION OF OTHERWISE APPLICABLE FOREIGN LAW. 16

PERSONAL CONNECTING FACTORS. 20

DOMICILE.. 20

NATIONALITY.. 23

MORE DISCUSSION ON MARRIAGE. 24

REFERENCES. 27

 

 

TABLE OF CONTENTS:

Conflict of Laws is a very interesting subject. Initially frustrating… but gets demystified as the exams approach. What matters most is the understanding of the course.

Pardon my informal approach, failure to reference the cases and notes, typos (where any) and grammatical inadequacies.

INTRODUCTION:

:: A conflict of laws situation arises where a civil case before the forum court has a foreign element. Maybe one of the parties is a foreigner or the facts occurred in a foreign territory. In essence, the case is amenable to more than one law.

:: Due to global interaction among peoples, (of different races, values and laws) situations arise where the parties or the transaction can be subjected to more than one law.

:: The aim of conflict of laws is to select the most applicable law and protect the reasonable expectation of parties to the transaction.

:: Historically, special foreigner’s courts (like the court of Staples and Piepowder) were established to adjudicate upon issues with foreign element(s).

:: Savigny noted that each legal relation has its connecting factors which includes; domicile (Lex domicili), location of transaction (lex situs), location of courts (lex fori), and so on. These shall be discussed later.

SOURCES OF NIGERIAN RULES OF CONFLICT OF LAWS[1].

  1. Nigerian Legislation.
  2. English Law.
  3. Local and foreign Case law (Staire Decisis).
  4. Public international law.
  5. International treaties and conventions.
  6. Opinions of scholars and text writers.

NIGERIAN LEGISLATION: (Federal and State). This is by far the most important and superior source of conflict of laws. Enactments by the local legislature can create or repeal rules. The constitution is the grand norm and by Section 1, inconsistent laws shall be void to the extent of their inconsistency.

ENGLISH LAW: With colonisation and the cession of Lagos to the British in 1861, Ordinance No 3 of 1863 extended and received some English laws. By Section 45 of the Interpretation Act[2], English common law rules, the doctrines of equity and Statutes of General Application that were in force as at first of January 1900 have been received into Nigeria. Only to the extent as the local jurisdiction and circumstances permit-Section 32 Interpretaiton Act. The various State High Court Laws adopt this incorporation. Benson V Ashiru also adopted English Common Law.

:: For a Statute of General Application to be enforceable in Nigeria:

  • It must have been in force as at 1st of Jan 1900.
  • It must apply to all parts of England only-Attorney General V John Holt and co.
  • It must apply to all classes of people in England- Labinjo V Abake.
  • It must apply to both civil and criminal courts- Young V

:: Note that the Western groups of state have repealed this provision and re-enacted the ones they deem relevant.

:: Note also that since Nigeria is a sovereign nation, its local legislature can repeal any of these English laws.

LOCAL AND FOREIGN DECISIONS: New rules and precedents are evolved to interpret the law and deal with novel circumstances and issues. Such precedents form a viable source of Nigeria’s conflict of law rules. In practice, our judges have adopted a mechanistic approach in conflict of laws situations.

:: According to the court in Young V Bristol, the Supreme Court can overrule its previous decision where it was given per incuriam.

:: In John V Lawanson, the Supreme Court held that neither the decision of the Privy Council nor of the House of Lords binds it but are of merely persuasive authority.

PUBLIC INTERNATIONAL LAW: also form a veritable source. The Nigerian Courts are cautious of the international sphere and current practices when formulating their conflict of laws rules…

INTERNATIONAL TREATIES AND CONVENTIONS: Note however that an international treaty or convention has to be domesticated to have force of law in Nigeria. Section 12 of the 1999 Constitution.

OPINION OF WRITERS, SCHOLARS AND JURISTS[3]: by formulating various theories and espousing various principles, they have contributed immensely to the development of conflict of laws through the ages.

Customary international law can also be a source. They are norms from accepted usages and practices of the whole world-Lord Denning in Trendtex V CBN. For example judicial immunity, diplomatic immunity, and so on.

DIMENSIONS OF THE SUBJECT (CONFLICT OF LAWS) IN NIGERIA.

  1. Inter-community.
  2. Inter-state.
  3. Inter temporal.

Inter-Community: where the laws of more than one community are applicable to the facts of a particular case. E.g. ECOWAS law and that of Europe.

International Dimension: here, the foreignness of the facts or parties relates to an independent sovereign nation. E.g. where the parties are resident in Nigeria, the facts occurred in Ghana and the case is instituted in Nigeria[4]. Then the laws of Ghana and Nigeria (two sovereign nations) are in question.

[1] Dicey and Morris classify the sources of conflict of laws into: statutes, decision of courts and opinion of jurists.

[2] A similar provision can be found in the Supreme Court Ordinance 1914 narcistic

[3] Like, Huber, Savingy, and so on.

[4] The question then is; should Nigerian or Ghanaian law apply? Ghana is an independent Nation, Nigeria is an independent Nation. Therefore there is a conflict between Nigerian and Ghanaian law. This is an example of the international dimension of conflict of laws.

 

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