A COMPARATIVE ANALYSIS OF THE CONFLICT SITUATIONS AND CHOICE OF LAWS IN THE NIGERIAN LEGAL SYSTEM AND OTHER LEGAL SYSTEMS
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 subdivision 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. 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… (Scroll down for the link to get the Complete Project Material)
The project looks into the problems which arise when one legal system has to deal with the legal system 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… (Scroll down for the link to get the Complete Project Material)
BACKGROUND TO THE STUDY
The raison d’être of Private International Law, also known as, conflict of law in the legal system 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 that 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… (Scroll down for the link to get the Complete Project Material)
OBJECTIVES OF STUDY
The overall objective of this study is to examine the differences between 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… (Scroll down for the link to get the Complete Project Material)
The first instances of conflict of laws in the Western legal tradition can be traced to Greek law. Ancient Greeks dealt straightforwardly with multistate problems and did not create choice-of-law rules. Leading solutions varied between the creation of courts for international cases, or application of local law in the legal system, on the grounds that it was equally available to citizens of all states.
More significant developments can be traced to Roman law. Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The officers of these specialized tribunals were known as the praetor peregrini. The Praetor peregrini did not select a jurisdiction whose rules of law should apply. Instead, they “applied” the “jus gentium.”
The jus gentium was a flexible and loosely-defined body of law based on international norms. Thus the praetor peregrini essentially created new substantive law for each case. Today, this is called a “substantive” solution to the choice-of-law issue… (Scroll down for the link to get the Complete Project Material)
The Status of Foreign Law
Generally, when the court is to apply a foreign law within its legal system context, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty… (Scroll down for the link to get the Complete Project Material)
Conflicts Of Laws In Nigeria
Conflicts of Laws exist both in international law and municipal law. The existence of different forms of interaction between peoples of different nationalities, races and tribes with different ideological and legal systems gives rise to conflict of laws of multiple nature.
When there is a conflict between the legal system and laws of different nations, a branch of law known as private international law is called in to resolve the conflict. However, if the dispute is between systems of law within a particular state, the problem assumes a special character and recourse must be had to the different Court Rules and Local Statutes for the resolution of such conflicts.
This type of conflict is very pronounced in Nigeria. This is as a result of a multiplicity of reasons. First, most part of our customary law still remains un-codified with the result that obsolete laws exist side by side with new ones… (Scroll down for the link to get the Complete Project Material)
Cases between Nigerians
From the definition of ‘native’ given above, it is clear that a Nigerian is a native within the meaning of the High Court Law of Lagos and the High Court Law of the Northern States. Furthermore, Nigerians are clearly ‘persons of Nigerian descent’ within the meaning of the High Court Law of the Eastern States.
As a general rule, cases between natives or Nigerians or persons of Nigerian descent are to be decided under customary law. Thus, in Labinjo v. Abake in which a girl of seventeen or eighteen years of age was sued for certain trade debts, her defense was based on the Infant which was to make such debts unenforceable against an infant.
Both the trial Judge and the Divisional Court assumed that the Act applied, and their judgment was solely concerned with the Interpretation of the Act. The question was whether the English or the customary definitions of “infant” should be adopted… (Scroll down for the link to get the Complete Project Material)
Conflicts Between Different Systems Of Customary Law
After resolving the issue of which law will be applied by a court to resolve a given conflict, once customary law has been chosen, the next question logically will be which system of customary law is more appropriate. This question arises because Nigeria is not a single monolithic tribe country but is comprised of many tribes with different laws and customs.
Another point is that many Nigerians do not live in either their places of origin or their localities. The problem under this heading can therefore be expressed in terms of what law is to be applied when a man from a different tribe or area dies in another tribe or area or is involved in litigation or transaction in another area or tribe. Is it the local law of the place or the personal law of the man involved within a legal system?
The type of customary law that should be applied in such a situation has been provided for by the different enactments regulating the application of customary law. Section 23(1) of the Customary Law of the Eastern Nigeria, S.20 of the Native Courts Law of the then Northern Nigeria, and section 20 of the Customary Courts law of the then Western Nigeria directs the courts to apply the customary law “prevailing in the area of jurisdiction of the court or binding between the parties”… (Scroll down for the link to get the Complete Project Material)
The general rule in the jurisdictions is that in case of both testate and intestate succession, where English law or Local statutes in an existing legal system do not apply, the personal law of the deceased, that is, the customary law to which the deceased was normally subject, is the law binding between the parties and excludes, the law of the place.
What this therefore means is that in case of conflict between the personal law of the deceased and the law of the place where the deceased may have been resident, the personal law of the deceased prevails in a legal system. According to Obilade (2012) this is because “persons claiming through a deceased person should be subject to the law created by the legal system which governed the deceased.”
There are cases reflecting this situation. Thus, in Tapa v. Kuka, the deceased, a Nupe of Bida in then Nigeria Province died intestate leaving a house in Lagos. Both parties to the suit admitted, that the applicable law within the legal system in determining who was entitled to administer the estate was the deceased personal law, that is, that of Nupe, and not the law that prevailed in Lagos… (Scroll down for the link to get the Complete Project Material)
The English Law Commission is reviewing the choice of law rules of a legal system in tort and has published a working paper containing provisional proposals for the reform of the law. After considering and rejecting the desirability of adopting governmental interest analysis or some other American approach, it puts forward two alternative models as possible replacements of the present law.
The general rule would be that the law of the country where the tort occurred would govern, but this would be subject to a proper law exception: the lex loci delicti could be displaced, and the law of the country with which the occurrence and the parties had, at the time of occurrence, the closest and most real connection applied instead.
This exception would however be subject to the threshold requirement that the occurrence and the parties must have an insignificant connection with the country where the tort occurred, and a substantial connection with the other country… (Scroll down for the link to get the Complete Project Material)
Law Commission’s working paper has the proper law as the general rule: the applicable law is that of the country with which the occurrence and the parties had, at the time of the occurrence, the closest and most real connection.
But the result is not very different from Model I, because it is presumed that the country with which the occurrence and the parties had the closest and most real connection is that where the tort occurred, and the presumption can only be departed from if the same threshold requirement as in is satisfied.
As the vagueness of a proper law approach seems to a regrettable necessity for a minority of cases rather than a positive virtue, Model I would seem to be the better of the two approaches… (Scroll down for the link to get the Complete Project Material)