AN APPRAISAL OF THE ASCERTAINMENT OF APPLICABLE LAW OF TORTS IN CONFLICT OF LAWS
CHAPTER ONE
GENERAL INTRODUCTIONÂ
1.1Â Â Â Â Â INTRODUCTION
In Nigeria, as well as other jurisdictions, for example, United States of America, United Kingdom, France, Germany, Ghana, South Africa, East Africa, just to mention but a few, there are many laws that are applicable to various subject matters or business. For example, we have criminal law, constitutional law, commercial law, law of evidence, company law etc. Conflict of law is one of such laws in the country that is taught just like it is taught in any of the countries we mentioned above.
Conflict of laws unlike the other kind of laws we mentioned above, is an aspect of international law. In other words, the laws we mentioned above are principally considered as municipal laws or local laws[1]. Conflict of laws is a stoke of international law. In other words, it is a subsidiary of the international law. This is why it is called private international law[2].
Conflict of laws comes into play or becomes applicable when the issue of jurisdiction is in question. For example, if Mr. Z enters into contract for hiring of Mr. Y’s Peugeot station wagon to carry persons from Zaria to Lagos, on reaching Jeba, the car tumbled and as a result three persons out of the seven persons in the car died. Four other persons sustained serious injuries and they were rushed to Jeba General Hospital and given first
aid treatment. They were later taken to Lagos their hometown. Some few days after they were taken to Lagos, their injuries worsened and consequently they died also. The driver and the hirer of the car were sued in Lagos by heirs of the deceased persons for compensation under the Fatal Accident Law of Lagos[3].
Under this circumstance, there may be two separate sets of cases. Firstly, the claim of compensation for the first three persons who died in Jebba at the sport where the accident took place, secondly, the Lagos’ case. In all the two cases, the issue of jurisdiction may be germane and need to be settled before the substantive case for claiming of compensation is heard. For the example, with respect to the case filed in Lagos, the counsel to the hirer and driver may raise the issue that though the four persons died in Lagos, the place of accident was Jebba. Or, he may argue that the correct court where the case may be instituted is the place where the contract of carriage was entered into. These and many other arguments could take place in the court until the court resolves on the issue of jurisdiction before the substantive issues is heard. For the first hypothesis, i.e. in respect of the three persons that died in the accident, though, this may be easier than the second one, it also may raise jurisdictional problem. In this regard, which court will hear and determine the issue of compensation, the court in Jebba or the court in Zaria where the contract was entered for carrying the deceased persons to Lagos? These issues may need to be determined before the substantial case is heard.
As we have already said above, one of the preliminary issues to be determined is which law to be applied in cases where there are two laws bordering different legal system, In other words, a foreign law. For example, in the hypothetical case of motor accident, if the law of one jurisdiction is not as favourable as the law in another jurisdiction, the persons claiming compensations may argue for the application of the law which is more favourable to them. The Lagos law or the Jebba law?, The Jebba law or Zaria law? All these problems need to be settled before the court goes into the substance of the case. Another issue connected with the preliminary issues is the enforcement of foreign judgment.
All these above scenarios (and many others which could not be exhausted in this thesis) constitute the statement of problem of this research which is lack of certainty of the applicability of law of tort in conflict of laws situation in Nigeria. Indeed, the feature of conflict of laws could be present in all substantive branches of law. That is to say, every substantive law has its own conflict of laws questions or jurisprudence. Thus, the laws of torts, crime, contract, family and bankruptcy, to mention but a few, have their conflict of laws.
Against this backdrop, therefore, the objective of this research identified the major aspects of torts in the conflict of laws that formed the core of choice of law, with particular reference to Nigeria and further identified challenges involved there in. However, the major finding of this research was that there are certain areas of conflict of laws where the application of the rule in Phillips vs. Ayre (as the prevailing choice of law rule in Nigeria) is unsuitable to the Nigerian circumstances. In the comparative evaluation of the rules in the commonwealth countries and in America, the writer laid more emphasis on the view point that have practical relevance to each jurisdiction in order to satisfy the yearnings of a balanced determination of conflicts emanating from frictions arising out of the natural contact between individuals and interests.
1.2Â Â Â Â Â Â STATEMENT OF THE PROBLEM
The topic of this thesis as reinstated here is an Appraisal of the Ascertainment of Applicable Laws of Tort in Conflict of Laws Situations in Nigeria. The import of this topic suggests that there is uncertainty of the applicability of laws of tort in conflict of laws situation in Nigeria. In other words, when there is a case of tort involving foreign element in Nigeria, the court in Nigeria always face the problem of which law is applicable. Furthermore, the courts are always uncertain which of the laws of conflict would apply i.e.Is it the forum law or the foreign law of torts that would apply? This uncertainty is caused by the fact that there are several factors to be considered in order to arrive at a choice of the applicable law. It is the existence or presence of various features that made the choice of applicable law ascertained. This is why this thesis is the appraisal of the ascertainment of the applicable laws of torts in conflict of laws in this country, Nigeria. The problem of ascertainment of applicable laws of tort in conflict laws situation can be grouped or classified as follows.
In conflict of laws or private international law proper, one of the problems which dominate every case with foreign element is jurisdiction. This is because in a case where there is a foreign element, it means there is more than one territorial area involved by the facts of the case. That is to say, the facts of the case took place in two or more places i.e. territorial areas or geographical areas. For example, in the hypothetical case of accident involving passengers in a station wagon, traveling from Zaria to Lagos which tumbled at Jebba where some passengers died on the spot at Jebba and some died few days later; there are two or more territorial or geographical areas involved in the facts of the case. Firstly, there is Zaria where the contract to carry the passengers to Lagos was entered into. Secondly, there is Jebba where the car was involved in an accident as a result of which three passengers died. Thirdly, Lagos, where more passengers eventually died again. If we take it that the accident took place in Nigeria, but because of the federal system of government where the country is divided into states, each of the states where the accident or the facts of the cases occurred is an independent and separate state. Therefore, the jurisdictional problem comes into play. In this case, which court is competent to hear and determine cases involving claims for damages/compensation? Is it the court situates at Zaria or Jebba or Lagos? Each of these courts would claim that one fact or another took place in its jurisdiction. This may pose a problem for a court.
One of the problems that is commonly available or faced in cases with foreign elements is the one usually relating to the Choice of applicable law. In other words, where there is more than one applicable law. If there is more than one applicable law, which law would be chosen for the purpose of application and determination of the case? In our hypothetical case above, if the applicable law in Zaria, Jebba and Lagos are different, which law would be chosen for application in order to enable the court award or disallow the payment of compensation? Is it the law of Kaduna State, Lagos State or Kwara State?
In the case of Phillips vs. Eyre[4], an action was brought in England against the governor of Jamaica for false imprisonment committed against the plaintiff in that Island. The defence was that a subsequent act of the local legislature had indemnified the defendant. Most of the argument was concerned with the competence of the Jamaican legislature to pass a retrospective legislation. The court of first instance held that the local legislature was competent and gave judgment for the defendant. This decision was affirmed on appeal to the Exchequer Chamber, Judge Willes, stated as follows:
As a general rule in order to found a suit in England for a wrong alleged to have become committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. Secondly, the act must not have been justifiable by the law of the place where it was done.
