An Appraisal of the Application of the Law Relating to Domicile in Nigeria
CHAPTER ONE
Objective Of Study
This research work has as its area of coverage an analytical appraisal of the concept of Domicile. Specifically, the research will consider the development of the traditional concept of Domicile and its introduction into Nigerian law. Particular attention will be paid to the various forms and rules of Domicile as well as the problems inherent in their application in Nigeria. The research will also develop the subjects of Nationality and habitual residence as alternatives to the concept of Domicile, bringing the merits and demerits of such alternatives. A concerted effort will be made to discuss present judicial and legislative approaches to the problems associated with application of the concept of domicile. Finally, the research will seek to provide recommendations and suggestions on how to best adapt the concept to suit Nigerian local circumstances.
CHAPTER TWO
CONCEPTUAL CLARIFICATION AND THE DEVELOPMENT OF DOMICILE IN NIGERIA
Introduction
This Chapter will focus on key concepts about Domicile as a connecting factor to an individual personal law. To this extent, therefore, the chapter will consider the definition, form and rules of domicile. In addition, the chapter will look at the historical development of the concept of Domicile to its introduction into Nigerian Law.
Conceptual Clarification
The attempted definitions of domicile had been so inconsistent that one can only cite a correct definition within the context of a particular legal system. To this extent, the term varies in meaning from one country to another, from one age to another and indeed from the individuals who have attempted to define it.
The meaning ascribed to the term „Domicile‟ by the layman is a place of residence or ordinary habitation; a house or home.1 However, in the Roman law from which the term was originally taken, the roman word ‘domicilium’ translated in English as „domicile‟ indicated permanent residence so as to become liable to the municipal obligation of that particular district or city.2 At Common Law, the concept is defined in terms of permanent home. Hence in Whicker Vs Hume,3 Lord Cranworth stated thus: “By domicile, we mean home, the permanent home, and if you do not understand your home, I am afraid that no illustration drawn from foreign writers of foreign languages will very much help you to it.”
There is indeed a problem with this definition. While the notion of permanent home can be explained largely in the light of common sense principles, the same is certainly not true of domicile. Domicile is “an idea of Law”4 which diverges from the notion of permanent home in two principal respects.
In the first place, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home. In order to acquire a domicile of choice in a country, a person must intend to reside in a country for a number of years. Again, a person cannot acquire a domicile of choice in a country in which he has never been physically present but a person may have a permanent home in a country if he had established his family there and yet has not acquired a domicile there.
Secondly, domicile differs from permanent home in that, the law in some cases say that a person is domiciled in a country whether or not he has abandoned one home either because he is permanently vagrant or because he has abandoned one home and has not yet acquired another, but the law nonetheless attributes a domicile to him. Again, a person may in fact have a permanent home in one country but be domiciled in another because the law deprives him or her of the capacity of acquiring domicile in the present home. Thus children under 16 years in England and mentally disordered persons may be domiciled in countries in which they do not have their permanent home.
Furthermore, according to Kolapo Omidire, the English definition of domicile has failed to take into account the fact that the concept of domicile is not uniform throughout the world. Even at the time Lord Cranworth gave his definition of domicile, what constitutes domicile of choice could not be pointed out without variation.
CHAPTER THREE
LEGAL FRAMEWORK OF THE LAW ON DOMICILE IN NIGERIA
Introduction
The concept of domicile as applicable in Nigeria is derived from many sources but principally from the Received English Law. The concept, amongst others, was first introduced into Nigeria by Ordinance No.3 of 1863.
In Attorney General Vs. John Holt Co,1 Osborne, C.J. stated: By Ordinance No. 3 of 1863, it has been enacted that all laws and statutes which were in force within the realm of England on the first day of January, 1863, not being inconsistent with any such ordinance, should be deemed and taken to be in force in the colony and should be applied in the administration of Justice so far as local circumstance would permit.
After Ordinance No. 3, subsequent Nigerian legislations also provided for the reception of English Law into Nigeria but elevated the cut-off date to 1st January 1900.2
It is instructive to note that the rules determining domicile in common law jurisdictions such as Nigeria are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. For instance, in Nigeria, the Matrimonial Causes Act of 1970 abolished the rule that a married woman had the domicile of her husband for commencement of matrimonial causes. However, the general framework of the common law rules has survived in most jurisdictions including in Nigeria. Therefore, the traditional rules of Domicile form the legal framework of the law relating to domicile in Nigeria. This chapter shall therefore critically analyse the legal framework of the law of Domicile in Nigeria, bringing out the strengths and weaknesses in the five various rules of Domicile herein outlined.
Rule 1: Nobody shall be without a domicile
This means that every person must have a permanent home. In the words of Lord Westbury in the leading case of Udny Vs Udny (Supra) “…no man shall be without a domicile, and to secure this result, the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate and the domicile of his mother if illegitimate.3 This has been called the domicile of origin and is involuntary.”
One only needs to add that in respect of a foundling the law attributes to him the law of the place where he is found.
This domicile of origin continues and prevails until a new domicile has been acquired. It is not extinguished by mere removal animo non revertendi. Itcannot be lost by mere abandonment. It endures until supplanted by a fresh domicile of choice. Even then, it is only kept in abeyance in such a case and revives to fill the gap between the abandonment of one domicile of choice and the acquisition of another.
It is important to note that the concept of illegitimacy in Nigeria is different from the concept as applied in England. Section 42 (2) of the 1999 Constitution states clearly that no citizen of Nigeria shall be subjected to any disability or deprivation by reason or circumstances of his birth‟. Furthermore, an illegitimate child in Nigeria may be legitimated by subsequent marriage of the parents or by acknowledgement by the Father.
Rule 2: The rule prohibiting two domiciles
The logic behind this rule is that since the purpose of determining a person‟s domicile is to connect him with some system of law, it follows that such a person must not have more than one such system of laws. Be that as it may, Graveson contended that although domicile is based on single system of law yet the system of a federation is subject to two legal systems, State and Federal, in both of which domicile may seem relevant‟.5 This contention is very much in which line with that of a researcher into the concept of domicile in Nigeria who aptly concluded that in Federal systems of government like Nigeria, Canada, Australia, etc., a person can have more than one domicile for different purposes.6 For instance, in each of these three countries, statutory provisions have been made for one to have a Federal domicile for Matrimonial Causes while maintaining a State for other purposes. In Nigeria, this is provided for in Section 2 (3) of the Matrimonial Causes Act, 1970 which declares that any person domiciled in any State is domiciled in Nigeria. Thus, the effect within a limited field is to create a Nigerian Domicile as distinct from a State domicile and indeed one that is different from domicile in a State for other purposes, e.g. succession. To this extent therefore, the rule – no person can have two domiciles, means in Nigeria, no person can have two domicile at the same time and for the same purpose.
CHAPTER FOUR
ALTERNATIVES TO DOMICILE AS A CONNECTING FACTOR
Introduction
According to Agbede, the adoption of domicile as the sole determinant of the personal law has been predicated on the freedom of an individual to determine for himself the specific legal system which should constitute his personal law without the necessity of changing his political alliance.1 In the same vein, according to Cheshire, the English preference for domicile is based on one main ground. According to him, domicile means the country in which a man had established his permanent home, and it would therefore be difficult that the person should be excommunicated from that law merely because technically, he is a citizen of some State that he may have abandoned years ago.2 This argument is justifiable commonsensically. To tie a person to the apron-string of any other system of law other than that of his domicile may deprive him of the freedom of choice as to which legal system shall govern his relations. Attractive though this arguments may seem, domicile as a connecting factor is beset with many difficulties.
Demerits Of Domicile As A Connecting Factor Uncertainty
One of such difficulty is uncertainty. It is not always easy to locate at any given time, a person‟s domicile. Indeed, except perhaps for the domicile of origin, it would appear that one cannot with utmost certainty locate the domicile of a person until the matter has been judicially determined. The attitude of the Courts in this respect is unpredictable. This uncertainty has become a characteristic of domicile. Courts use the same criteria to come to different conclusions. The unnecessary importance attached to the domicile of origin has often resulted in bizarre results. The requirement of intention for the acquisition of domicile of choice has often led courts to render judgments that were repugnant to common sense.
Beckett in two separate lectures delivered at Cambridge University (July 1938) and at Oxford (October 1938) observed that a critical study on the question of what law should be chosen for application in matters of personal status is desirable. As the second Legal Adviser to the Foreign Office in England, he stated that he had to consider three to four cases a day of disputed Nationality and Domicile, and that he was in doubt about one case in twenty of Nationality and one case in four of domicile.3 So inconsistent were the decisions of the courts on the ascertainment of domicile that Dr. Graveson was prompted to ask rhetorically: “Must our domicile continue to be kept a legal secret from us until we either invoke divorce jurisdiction or we die?
CHAPTER FIVE
SUMMARY, CONCLUSION AND RECOMMENDATIONS
Summary
In the course of this research, the writer has sought to appraise the application of the law relating to domicile in Nigeria. In Chapter Two, this appraisal had included the consideration of the development of the concept of domicile from its traditional root to its introduction into Nigerian law and clarifies some concept related to Domicile such as its definitions, forms and rules.
In Chapter Three, the research had examined the merits and demerits of the concepts of Nationality and habitual residence as alternatives to Domicile as a connecting factor to determining the personal law of an individual
Chapter Four considered the peculiar problems associated with the application of the concept of Domicile. The areas covered include the problem of defining Domicile in inter-state situation as occur in Nigeria, the problem of change of Domicile under Nigerian customary law and the problem of married woman‟s domicile.
Findings
At the end of the above appraisal, the following findings came to fore, thus:
- That there is a serious difficulty in applying the traditional definition of domicile as a permanent home in Nigeria. Another related problem lies in the application of the rules of acquiring domicile of choice in Nigeria. The most vexatious of the rules is the requirement of unequivocal evidence of intention to remain in a place of choice permanently or indefinitely before there could be a change of domicile in law. This rule is difficult, if not impossible to apply in inter-state situation like Nigeria where there is high mobility of people as a result of inter-marriages, work and search for „greener pastures‟. If the traditional concept of domicile of choice were to be applied in Nigeria without qualification, most Nigerians will be left without a domicile of choice.
- There is a detrimental legal effect in the unbridled application of the law of domicile of origin as the personal law of an individual even where there is copious evidence that a person may not have any link to the place of origin and may have been habitually resident in another place. For instance, the various Customary Court rules in all the States of the Federation provides for the application of customary laws of a person‟s origin in almost all the cases. This failure to explore and apply the principle of habitually residence has fostered a menacing situation of tribalism and prevents unity in nation building.
Conclusion
This research project has been a worthy attempt at an analytical explanation of the concept of domicile and its application in Nigeria. To this extent, the researcher has presented a meticulous history of the evolution of the concept from the 12th century period of the Post-glossators in the Law schools of Italy to the 19th century during which time the concept was introduced into the Nigerian Legal system.
The research work has done more than give the definition of domicile but it has analytically discussed the traditional definition of the concept bringing out its weaknesses and inappropriateness in the 21st century. The research has done a painstaking explication of the various forms of the concept and their rules as they apply in Nigeria.
REFERENCES
- AGBEDE, I.O. (1989) Essays on Conflicts of Laws. Ibadan: Shaneson C. I. Limited.
- AGBEDE, I.O. (2001) Themes on Conflicts of Laws. Ibadan: Shaneson C. I. Limited.
- BEALE, J. H. (1935) Treatise on The Conflicts of Law. London: Butterworth.
- BLACKSTONE, W. (1865-69) Commentaries on the Law of England. Vol. 1. London: Blackstone Press.
- CHESHIRE, C. G., NORTH, P. (1979) Private International Law. (10 edition) London: Butterworths.
- COLLINS, L. (1987) Dicey & Morris: The Conflict of Law. (11 edition) London: Sweet & Maxwell.
- ELIAS, T.O. (1971) Nigerian Land Law. (4th edition) London: Sweet and Maxwell.
- FENWICK, C.G. (1948) International Law. (3rd Edition). New York: Appleton, Century, Crofts Inc.
