AN APPRAISAL OF THE APPLICATION OF THE LAW RELATING TO DOMICILE IN NIGERIA
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Introduction
The concept of Domicile had its evolution from the 13th Century Italy as a result of the teachings and commentaries of a group of jurists known as the Post-glossators. The Post-glossators were distinguished jurists attached to the Law schools of Bologna, Padua, Peruggia and Pavia in Italy. Pre-eminent amongst these jurists was Bartolus Sassoferato, successive Professor of Law at Bologna, Pisa and Peruggia who may aptly be described as the „Father of Private International Law‟ or what is usually referred to as Conflicts of Law.1
The Post-glossators originated a theory called „Statute theory‟ and by this theory, they interpreted each statute in any local territory in order to ascertain its object and thus, its rightful sphere of application. To this end, they classified each law that concerns a person or thing, into three categories namely, real, personal or mixed law. A real statute is one whose principal object is to regulate things; a personal statute is one that chiefly concerns persons whereas a mixed statute concerns acts such as the formation of contract. According to the Post-glossators, real statutes are essentially territorial. Their application is restricted to the territory of the enacting sovereign. Personal statutes, on the otherhand, applies only to persons domiciled within the territorial jurisdiction of the enacting Sovereign, but
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1.Ehrenweiz, A. A. A (1962) Treatise on the Conflict of Laws. American Journal of Comparative Law, 2, 267
they remain so applicable even within the jurisdiction of another Sovereign‟s territory.2
The distinction drawn by the Post-glossators between real and personal statutes led to the universal recognition that question affecting the status of a person should be govern constantly by one and the same law, irrespective of where he may happen to be or where the facts giving rise to the questions affecting him may have occurred.3 This indeed set the stage for the questions affecting status of a person to be determined by the law of the domicile of the person involved.
Until the turn of the 19th Century, Domicile was universally recognized as the basis for the determination of the personal law. According to Cheshire, the principles of domicile had no rival for over five Hundred years.4 However, beginning from 1804 when the French Civil Code first adopted the test of Nationality as the basis for the determination of the personal law, the pride of place that domicile had hitherto enjoyed began to be considerably weakened. In present times, it has fallen out of favour with many legal systems.5 Despite this, in England and a great number of the commonwealth countries including Nigeria, Domicile have continued to be the basis for the determination of the personal law. For instance, in Molekwu Vs Molekwu,6the Court of Appeal defined personal law as “the law of the
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2. Cheshire, C. G., North, P. (1979) Private International Law. (10th ed.) London: Butterworths. 20
3. Rabel, E. (1958) The Conflicts of Law: A Comparative Study. (2nd ed.) Michigan:University of Michigan Law School. 109
4. Cheshire, C. G. (1970) Private International Law. (7th ed.) London: Butterworths. 180
5. Agbede, I. (1989) Essays on Conflicts of Laws. Ibadan: Shaneson C.I. Ltd. 56
6. (1997) 7 NWLR (Pt. 512) 263
deceased that was prevailing or predominant in the area or locality of the deceased.”Indeed, over the years, Domicile has become strictly a common law concept.
The concept of domicile as applicable in Nigeria is derived from many sources but principally from the Received English Law. The concept was first introduced into Nigeria by Ordinance No. 3 of 1863. In AttorneyGeneral Vs John Holt Co.,7 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 circumstances would permit.8
After the Ordinance, subsequent Nigerian Legislations also provided for the reception of English laws into Nigeria but elevated the cut-off date to 1st January, 1900.
However, the following issues which constitutes the Statement of problems of this research which generated the interest of the researcher to delve into this area of study, viz:
Within Nigerian law, where is the domicile of a child born after the death of the father? Under the traditional concept of domicile received into Nigerian law, a legitimate child not born during the life time of his father is
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7.(1910) 2 NLR 1; (1915) AC 599 8.Ibid, at p.9, 601 respectively.
deemed to have his or her domicile of origin in the country in which his or her mother was domiciled at the time of his birth. This position clearly would not go uncontested, having in mind, especially the customary laws of the people of Nigeria.
Where is a deserted or separated wife‟s domicile especially with respect to her Will and succession to such Will?
To what extent can the English doctrine of domicile be applicable under the Nigerian customary law?
By virtue of the foregoing, the objective of the research is to examine the rules of application of the concept of Domicile; to identify its weakness with particular reference to the Nigerian local circumstances, and finally to make viable suggestions on how best to adapt the concept of Domicile in Nigeria.
1.2. Statement Of The Problem
The research Project will vigorously identify and expound the following problems, thereby showing a need for readjustment in the application of the concept of domicile in Nigeria. These problems are:
i.The problem of definition and application of the concept of domicile in inter-state situations in Nigeria. Indeed, there is a gaping hole in the application of the rules of domicile of choice in inter-state situations like Nigeria. The traditional concept of the rules of domicile is to the effect that, to acquire a domicile of choice, a person must satisfy three conditions, namely
a. He must have capacity to choose a domicile by his own act;
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b. He must be physically present and resident where he seeks to
establish his domicile; and
c. He must have an intention of remaining in that country permanently
or at least, indefinitely.
This unsatisfactory rule of domicile has been adopted in Nigeria without qualification. For example, in Fonseca Vs. Passman,9 Thomas, J., held that “to establish a domicile in Nigeria, the mere datum of residence is not sufficient… There must be unequivocal evidence of animus manendi or intention to remain permanently.” The problem here is that, there has been a deep failure of Nigerian Judges to draw a strict line of distinction between international and inter-state Conflict of Laws situation. Indeed, whereas a horde of the cases in which the problem of domicile has arisen in England were cases of Conflicts of Law with international flavor, the few cases in which the cases has arisen in Nigeria were more of inter-state situations involving Conflicts of Law. Nigeria is a country made of many States with various ethnic flavors where there is a high mobility of persons as a result of inter-marriages, work and search for „greener pastures‟. To this extent, it is a misconception to think that the above rule can apply without qualification in Nigeria.
ii.The problem of change of origin under customary law. The general belief is that no Nigerian can legally change his ethnic group. The prevailing attitude is that „once an Igbo, always an Igbo; once a Yoruba,
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9.(1958) W. R. N. L. R. 41 at 42
always a Yoruba; once a Hausa, always a Hausa‟irrespective of the fact that the family of the propositus had settled amongst other ethnic groups generations previously. The fact is that this phenomenon has far reaching important legal consequences in the realm of domicile. For example, the settler continues to carry his personal law with him, which could be vastly different and indeed in contradiction to the personal laws applicable to the area in which he is now resident. Consequently, the personal rights of his descendants continue to be governed with this „transported‟ personal law eventhough they might never visit their ancestor‟s place of origin or speak the language of the people of that area.
iii. The problem of a married woman‟s domicile. The common law
position with respect to the domicile of a married woman is that a wife takes the domicile of her husband on marriage and continues to do so until the marriage is terminated by death or divorce. There is no gainsaying the fact that the Matrimonial Causes Act, 1970 has obviated to some extent the hardship on the deserted wife but the problem is that its effects can simply be described as a drop of respite in an ocean of legal problems. For instance, with respect to making a Will, a deserted wife‟s capacity to make such Will and the material or essential validity of such Will must comply in many cases with the lex domicilii of the husband, which in many cases may be unknown. Again, there is a problem of succession to the movables of an intestate deserted wife as this is governed by the husband‟s domicile at the time of her death.
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1.3 Scope Of The Research
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.
