ABSTRACT
The study provided a comparative Analysis Of The Conflict
Situations And Choice Of Laws In The Nigerian Legal System And Other Legal
Systems. The specific objectives were geared towards describing the operation
of the legal system in cases of conflicting laws and the choice of laws
considering the relevance of foreign judgement and international laws.
TABLE OF CONTENTS
CHAPTER ONE
GENERAL INTRODUCTION
1.0: Introduction
1.1: Background To The Study
1.2.0: Objectives Of Study
1.3.0: Focus Of Study
1.4.0: Scope Of Study
1.5.0: Methodology
1.6.0: Literature Review
1.7.0: Definition Of Terms
CHAPTER TWO
HISTORY
CONFLICT OF LAWS AND COMPARATIVE ANALYSIS OF
STATUS OF FOREIGN LAW IN VARIOUS LEGAL SYSTEMS
History Conflict of Laws
The Status of Foreign Law
Comparative
Analysis Of The Status Of Foreign Law In Various Legal
Systems
CHAPTER
THREE
THE ENFORCEMENT OF FOREIGN JUDGMENTS IN NIGERIA
What Judgments are Registrable?
Effect of Registration of the Foreign
Judgment
Respective Duties of the Original Court and
the Registering Court
Power of the Registering Court on Application
to Set Aside Registration
CHAPTER
FOUR
COMPARATIVE
STUDY OF INTERNATIONAL LAW IN THE
DOMESTIC
COURTS OF NIGERIA AND OTHER LEGAL SYSTEMS
Nigeria and Contemporary International Law
Nigerian
Constitution and International Law
A
Monist and a Dualist Assessment of Nigeria’s Approach to International Law
Ghana and Contemporary International Law
Membership
of International Bodies
Ghanaian
Constitution and International Law
A
Monist and a Dualist Assessment of Ghana’s Approach to International Law
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
Conclusion
Recommendations
Bibliography
CHAPTER ONE
GENERAL INTRODUCTION
1.0: 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. Kuka,
the deceased, a Nupe man died interstate in Bida, leaving a house in Lagos. The
question was whether his domestic law should apply or
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: 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
·
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.’
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:
1.
Jurisdiction
of the Nigerian court,
1.
The
choice of law,
1.
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
‘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 Law 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 BATY as
meaning The rules voluntarily chosen by a given State for the decision of cases
which have a foreign complexion.
OBILADE A.O. on
his own part believed t[i]hat
there are statutory choices of laws for determining inappropriate cases whether
it is a customary law or non-customary 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 Laws,
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
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. 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 cause: 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 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.
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.
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