Conflict of Laws Through Nigerian Case Law: A Researcher's Critical Comments (Part 1)
| Pages | 388-406 |
| Published date | 01 October 2012 |
| Date | 01 October 2012 |
| DOI | 10.3366/ajicl.2012.0042 |
| Author | H. A. Olaniyan |
Conflict of laws is otherwise called private international law.
The former term being the more appropriate term where the author discusses the subject in the context of the rules adopted to govern both the interstate and international dimensions of the problem in a federation.
It is concerned with every state's response to the special questions that could arise in purely private actions in its courts when there are foreign or extraterritorial elements or dimensions. Such foreign or extraterritorial elements could either relate to the factsSuch as a contract being made or breached in the territory of a state other than the forum of action, or the wrongdoing complained of occurring in whole or in part in another territory.
Such as where either the defendant or the claimant resides in, is domiciled in or is a national of a state other that in which the action was instituted.
See for example, J. H. C. Morris,
Choice of jurisdiction is concerned with the propriety or otherwise of the choice of a state's court to litigate the dispute between the parties.
Choice of law is a separate question from choice of jurisdiction and addresses the issue of which legal system or system of law should govern the dispute between the parties.
A foreign judgement will not have effect in Nigeria unless it is recognised there. If the judgement relates to status, the party in whose favour it was given will enjoy that status if the Nigerian legal system recognises it. If the foreign court ordered the judgement debtor to pay money to the judgement creditor, whose assets are in Nigeria, the foreign judgement will, in addition to being recognised, need to be enforced in Nigeria.
Now, when a state is a federation like Nigeria, the special questions could arise at two
There is an arguable third level usually discussed as internal conflicts in text books on Nigerian or African legal systems. Internal conflicts present no choice of jurisdiction or enforcement of foreign judgement problem, but present a problem of choice of law arising from the existence in the same territory of more than one ethnic customary or Islamic law.
levels of litigation, international and interstate. See Morris,
Federal states may be treated as one territory for the purpose of federal laws having nation-wide application, such as for example the Matrimonial Causes Acts of Australia and Nigeria, and the Law governing divorce in Canada. Interstate conflict of laws is significantly eroded in a federation with a strong centre like Nigeria, where many otherwise common law matters are listed in the exclusive legislative list. The mere fact that all of the constituent states of a federation have enacted uniform legislation or have adopted uniform policy does not mean that they have ceased to be separate countries for purpose of conflict of laws, although as argued by the author elsewhere, it has implications for the need to employ choice of law rules. Where there is no difference between the competing choices, should it really matter which of the competing choices is chosen?
Such as the full faith and credit clause in the US Constitution, and the placing of interstate service and enforcement of judgement on the exclusive legislative list in Nigeria with the result that the federal Sheriffs and Civil Process Act exclusively governs interstate jurisdiction and enforcement of judgement.
Research on Nigerian case law shows a demonstrable lack of versatility by the bar, the bench and even authors of case law digests and indexes. The object of this paper is to illustrate this, drawing from some recent case law reports and judicial decisions, and to point out the errors – as perceived by the writer –that have been committed.
It has been asserted that problems of private international law or conflict of laws,
may be sprung like a mine in a plain common law action, in an administrative proceedings, in equity, or in a divorce case, or a bankruptcy case, or a matter of criminal procedure … The most trivial action of debt, the most complex case of equity claims may be suddenly interrupted by the appearance of a knot to be untied only by private international law.
Harrison,
The subject has its own distinct technique and only a person who is familiar with this technique will identify when a conflict of laws issue has arisen in a civil action, whether the issue pertains to choice of law or choice of jurisdiction, and which extant rules govern or should govern the issue.
From the definition of the subject, it is clear that a conflict of laws problem strictly so called must have extraterritorial or foreign elements. If it is a question of jurisdiction, the competing courts or fora must be those of at least two different legal systems. If it is choice of laws, the choice must be between those of at least two separate legal systems, except in the area of contract, where parties are permitted to choose systems of law.
A very common error of authors of law digests and indexes in Nigeria is the incorrect categorisation of issues. For example, the issue of inconsistency, either between two legislations of the same legislature or between a federal legislation and a state legislation as it affects a case, is sometimes categorised as a conflict of laws. This is misleading. This type of conflict cannot be solved by any choice of law rule. A choice of law rule employs connecting factors to determine which of the laws of two different legal systems should be applied by the courts to resolve a dispute. Choice of law rules are formulae for choosing law and not for reconciling them.
Sometimes the failure to cite a case under the subject heading of conflict of laws arises from the manner in which the case was argued and decided. For example, most cases throwing up interstate choice of jurisdiction issues are argued and resolved on the basis of local venue rules, which are only relevant where the alternative choices are between two or more judicial divisions of the same court. Also, the conflict of laws issue in a case is not clear to a researcher when, as often happens, the author of a digest either fails to note it or notes it under the subject heading of the substantive law that was applied to the dispute. This is very common with conflict of tort law cases.
There are, of course, instances when an issue could be classified under more than one subject heading. For example, jurisdictional immunity from a Nigerian suit is as much a question of private international law as, depending on the facts, it could be a question of diplomatic and consular law. Also, some law reports choose to create separate subject heading of ‘Registration of Judgment’, which is a significant aspect of the, usually third, but distinct, question answered by conflict of laws. In the former example, jurisdictional immunity being an issue of or a limitation to jurisdiction in the ‘international’ sense should also be listed under conflict of laws. In the latter example, the general issue of enforcement or recognition of foreign judgement being a matter for the conflict of laws, there is no better subject heading under which to list cases pertaining to such matters than ‘Conflict of Laws’.
The failure to identify extant conflict rules is very common with cases requiring a choice of jurisdiction rules to be made. The choice of jurisdiction rules in Nigeria is, in the international situation, either the rules forming part of the common law in Nigeria as at 1 January 1900,
See for example, State High Court Laws: S 23 (FCT Abuja); S 29 (Northern Nigeria); S 3 Law of England (Application) Law (Western Nigeria); S 32 Interpretation Act (Federal).
or those currently in force in the UK. See for example, section 10, High Court Law, Cap B3 H Laws of Lagos State 2003; section 9, High Court Laws of Edo and Delta States; section 8, High Court Laws of Ekiti, Ogun, Ondo, Osun, and Oyo; section 13, High Court Laws of each of the states comprising former Northern Nigeria. See also
The rule that Nigeria received as the...
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