A Comparative Analysis of the Conflict Situations and Choice of Laws in the Nigerian Legal System and Other Legal Systems
CHAPTER ONE
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.
CHAPTER TWO
HISTORY CONFLICT OF LAWS AND COMPARATIVE ANALYSIS OF STATUS OF FOREIGN LAW IN VARIOUS LEGAL SYSTEMS
History Conflict of Laws
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, 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[1]) 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 Praeto r peregrini [2] 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[3].
The modern conflict of laws is generally considered to have begun in Northern Italy during the late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice[4]. The need to adjudicate issues involving commercial transactions between traders belonging to different cities led to the development of the theory of statuta[5], whereby certain city laws would be considered as statuta personalia “following” the person whereby it may act, and other city laws would be considered as statuta realia, resulting in application of the law of the city where, e.g., the res would be located (lex rei sitae).[6]
Maritime law[7] was also a great driver of international legal rules; providing for the enforcement of contracts, the protection of shipwrecked sailors and property, and the maintaining of harbours.
The modern field of conflicts emerged in the United States during the nineteenth century with the publishing of Joseph Story’s treatise on the conflict of laws in 1834. Story’s work had a great influence on the subsequent development of the field in England such as those written by A.V. Dicey. Much of the English law then became the basis for conflict of laws for most Commonwealth countries. However, in the US, Story’s work fell out of fashion in the mid-twentieth century.
Traditional conflict of law rules were widely perceived as too rigid and unresponsive to the needs of a highly mobile society undergoing the Second Industrial Revolution. They were replaced with a number of approaches, of which the most important is the governmental interests analysis pioneered by law professor Brainerd Currie in a landmark series of essays. As a result of Currie’s work, the rules for conflict of laws in the United States have diverged significantly from the rules in use at the international level.
CHAPTER THREE
THE ENFORCEMENT OF FOREIGN JUDGMENTS IN NIGERIA
It is generally accepted that the powers of the courts are limited by their territorial boundaries (i.e. territorial jurisdiction). Thus a judgment pronounced by the court of one jurisdiction may have no force or effect beyond its own territory save for situations where other jurisdictions have agreed to allow such judgment enforceability within their own territories.
Two schools of thought have emerged over the years as rationalization for the recognition and enforcement of foreign judgments[1]. These are the theories of reciprocity and obligation.
The theory of reciprocity posits that the courts of country X should recognise and enforce the judgment of country Y, if and only if, country Y is prepared to offer similar recognition and enforcement to the judgments of country X.
The doctrine of obligation, on the other hand, came into prominence in the 19th century and was put forward by Blackburn J. in Schibsby v. Westenholz[2] as follows:
“We think that … the true principles on which the judgments of foreign tribunals are enforced in England is … that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce; and anything which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action.”
Legal Regime Regulating Enforcement of Foreign Judgments in Nigeria
There are two statutes regulating enforcement of foreign judgments in Nigeria viz:
- Reciprocal Enforcement of Foreign Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958 (“the 1958 Ordinance) (this Ordinance was enacted in 1922 as L.N. 8, 1922).
- Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, Laws of the Federation of Nigeria, 1990 (“the 1990 Act’) (enacted in 1961 as L.N. 56, 1961)
There has been until recently, intense intellectual polemics amongst text writers, commentators and legal practitioners as to which of these two statutes regulates the enforcement of foreign judgments in Nigeria.
CHAPTER FOUR
COMPARATIVE STUDY OF INTERNATIONAL LAW IN THE DOMESTIC COURTS OF NIGERIA AND OTHER LEGAL SYSTEMS
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 study makes a comparative analysis of the Nigerian and Ghanaian legal system
- Nigeria and Contemporary International Law
- Membership of International Bodies
Like Ghana, Nigeria belongs to various international bodies through which it participates in international law.188 While membership of an organization confers rights and privileges, it carries with it obligations and duties. As a member state of the United Nations,[1] which is the most important and universal organization, Nigeria is expected to show commitment to the cause of the U.N. Charter. The long occupancy of the military in the corridors of power of Nigeria has in no small measure undermined Nigeria’s international commitments.[2] It was within this period more than ever that Nigeria deviated from its obligations of the various international treaties and covenants signed or acceded to. From independence, Nigeria’s human rights journey was fairly smooth until 1966 when the military promulgated the Constitution (Suspension and Modification) Decree 1 1966. This removed the supremacy of the then-in-operation 1963 Constitution and denied Nigerian courts the competence to entertain any question as to the validity of the Decree or any other Decree or Edict. Consequently, no court had the power to adjudicate over any breach of human rights done by the military.[3] The repeated abuses of human rights by the military, which contradicted Nigeria’s international obligations, continued unabated and manifested itself in the executions of Ken Saro-wiwa and eight others without affording them a right to a public trial—executions that for some years cost Nigeria its Commonwealth of Nations membership.[4] The United Nations General Assembly, in its Resolution, condemned those executions.[5] There were other human rights abuses recorded within the military era that conflicted with the international human rights obligations of Nigeria. For example, there were instances of unlawful and arbitrary detention, unfair trials without a right of appeal, torture by the military or their agencies, mass public executions, and extrajudicial executions and public killings; these actions were adjudged to be antithetical to the Universal Declaration of Human Rights, African Charter,[6] ICCPR,[7] ICESER,[8] and the Torture Convention.[9] During the military junta in Nigeria, the independence of the judiciary was threatened and in fact became extinct, thus fettering the courts’ power to apply human rights documents or the U.N. Basic Principles of the Independence of the Judiciary.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
CONCLUSION
The English Law Commission is reviewing the choice of law rules 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.
The broad effect of this dissertation would be to substitute for the existing normal rule of double actionability, subject to a proper law exception, a normal rule that the lex loci delicti alone governs, subject to such an exception. This abolition of the first branch of Phillips v Eyre (the requirement of actionability by English law) is likely to be widely welcomed. However, in the interests of certainty, a more precise threshold requirement for the displacement of the normal rule would be desirable, and if the proper law exception is to have any real content, the courts would have to develop criteria for judging connections asmore or less ‘close’ or ‘real’. As suggested above, the lex loci delicti will seldom if ever be inappropriate, whether from the aspect of justice between the parties or of the public interests of countries, unless the parties belong to the same country (not being the country where the tort was committed), or if they belong to different countries, the laws of those countries concur on the issue in question. A threshold requirement on such lines would provide greater uncertainty that the one proposed. It is really only when such a threshold requirement is satisfied that the difficult problems of choice of law in tort arise: to decide whether the lex loci delicti or the law of the parties’ law is that they will all both receive justice according to their own standards. However, in some cases, usually involving intentional conduct on the defendant’s part, justice may be thought to require that the defendant should be able to rely on a reasonable expectation of non-liability under the law of the country where he acted. For example, in a defamation case the defendant may have published his statement in reliance of the communication being privileged under the lex loci delicti. In other cases, the relevant rules of the lex loci delicti may be of fundamental public importance (for example rules relating to false imprisonment), and where that is shown to be the case it may well be appropriate for those rules to be applied rather than those of the parties’ countries. Any sort of ‘closest connection’ or other proper law formula needs such (or different) guidelines, developed by the courts if not contained in the reforming statute.
RECOMMENDATIONS
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.
The Working Paper also makes provisional recommendations as to which should be regarded as the law of the country where the tort occurred in multi-state cases: in cases of personal injury or damage to property, the country where the injury was suffered; in cases of defamation, the country of publication; in other cases, the country where the most significant elements in the train of events occurred. A possible qualification to such an approach was suggested above.
REFERENCES
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- Bogdan M (2011) Private international law as component of the law of the forum: general course on private international law. Recueil des Cours 348
- Bonomi A (1999) Mandatory rules in private international law: the quest for uniformity of decisions in a global environment. Yearb Private Int Law 1:215–247
- Borrás A (2005) Le droit international privé communautaire: realités, problèmes et perspectives d’avenir. Recueil des Cours 317:313–536
- Bucher A (1993) L’ordre public et le but social des lois en droit international privé. Recueil des Cours 239:9–116
- Bucher A (2004) Le couple en droit international prive. Helbing & Lichtenhahn, Basel
