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.
18
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’ĂȘtre 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.
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.’
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