A COMPARATIVE ANALYSIS OF THE CONFLICT SITUATIONS AND CHOICE OF LAWS IN THE NIGERIAN LEGAL SYSTEM AND OTHER LEGAL SYSTEMS.
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.
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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’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
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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.
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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.