An Appraisal of The Ascertainment of Applicable Law of Torts In Conflict Of Laws

An Appraisal of The Ascertainment of Applicable Law of Torts In Conflict Of Laws.

ABSTRACT

This thesis entitled, “An Appraisal of the Ascertainment of Applicable Law of Torts in Conflict of Laws” aimed at ascertaining the applicable law of torts in conflict of laws situation in Nigeria by examining various rules that have been perfected to take care of such processes based on choice of law approach, among the various rules.

Traditionally, most of the rules governing the ascertainment of applicable law of tort in conflict of laws were more theoretical in nature, based mainly on the application of the Lex Fori, Lex Loci deliciti, the proper law of the tort, characterization, and modern theories.

Thus, against this backdrop, the objective of this research is to identify the major aspects of torts in the conflict of laws that formed the core of choice of law, with particular reference to Nigeria and to further identify challenges involved there in.

However, a major finding of this research is that there are certain areas of conflict of laws where the application of the rule in Phillips vs. Eyre (as the prevailing choice of law rule in Nigeria) is unsuitable to the Nigerian circumstances.

It is noted that the rules in Phillip vs. Eyre and Boys vs Chaplin were designed or rather adopted when human interactions, productions, means of communication and science and technology were not advanced as today.

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.

Obviously, the statement of problem of this thesis therefore suggested that there is uncertainty of the applicability of law of tort in conflict of laws situation in Nigeria.

In other words, where there is a case of tort involving foreign element in Nigeria, the court in Nigeria is faced with the problem of which law is applicable? For example, is it the forum law or the foreign law of torts that will 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 of this problem that motivated this work. On this note, the researcher concluded by recommending (among others) that, the Nigerian legislatures, both the National Assembly and States Assemblies, should enact a law that will take care of jurisdiction and ascertainment of applicable law when the cause or matter has a foreign element.

The sources of information relied upon here are doctrinal method of acquiring data and information was used, thereby, combining several documents, ranging from text books, journals, statutes and other relevant treaties to accomplish this work.

TABLE OF CONTENTS

Title Page  – – – – – – – – –             i

Declaration  – – – – – – – – –          ii

Certification  – – – – – – – – –         iii

Dedication  – – – – – – – – –            iv

Acknowledgement – – – – – – – –  v

Table of Cases – – – – – – – –         vi

Table of Statutes  – – – – – – – –  viii

Abbreviation  – – – – – – – – –        ix

Table of Contents – – – – – – – – – x

Abstract – – – – – – – – –                 xiv

Chapter One General Introduction –

1.1 Introduction  – – – – – – –  –                                  1

1.2 Statement of Problem  – – – – – –  –                   4

1.3 Research Question – – – – – – –                          11

1.4 Aim and Objectives of the Research  – – – –  12

1.5 The Scope of the Research – – – – – –               12

1.6 Literature Review – — – – – – —                         13

1.7 Methodology  – – – – – –  –     –         –                  20

1.8 Justification  – –   – – – – –                                   21

1.9 Organizational Layout  – – – – – –  –                  21

Chapter Two The Nature, Sources and Application of Conflict of Laws in Nigeria– 24

2.1 Introduction – – –   24

2.2 Definition of Conflict of Laws –  -24

2.3 The Lex Fori (Law of the Place Where the Court is)  25

2.4 The Lex Loci (Law of the Place) –    25

2.5 The Lex Loci Domicili (Law of the Place Where the Party is Domicile)   26

2.6 The Lex Loci Celebrationis –   27

2.7 The General Concept of Conflict of Laws –    27

2.8 The Nature of Conflict of Laws  – –    29

2.9  The Basis for Application of Conflict of Laws –     31

2.9.1 More Just  – –  32

2.9.2 More Convenient  – –   33

2.9.3 The Transaction was not Connected with the Forum Laws –  33

2.9.4 Based on comity of Nations  – –      34

2.9.5 Public Policy Consideration  – –  35

2.9.6 Stated Applicable Law to Regulate Parties’ Transaction – –  35

2.10      Sources of Nigerian Conflict of Laws –    35

2.10.1 The Nigerian Legislation    36

2.10.2 The Received English Law  – – –  38

2.10.2(a) The Common Law – -38

2.10.2(b) The Doctrines of Equity  –    43

2.10.2(c) The Statutes of General Application  – – 45

2.10.3  Internal Conflicts: Conflicts between Customary and Islamic Law   50

2.10.4 Customary Laws  -50

2.10.5  International Law – –  53

2.10.6  Treaties  – – 53

2.6 Interstate and Interpersonal Conflicts – – 54

Chapter Three The Theories of Applicable Laws in Conflict of Laws

3.1 Introduction – – 57

3.2 Theories of Conflict of Laws – – 58

3.2.1 The Lex Fori Theory – – – 59

3.2.2 The Lex Loci Delicti, Theory – 61

3.2.3 The Proper Law Theory (Closest and Real Connection) –   63

3.2.4 Modern Approach to the Ascertainment of Applicable Law of torts in Conflicts of Laws    68

3.3 The Connecting Factors  – 69

Chapter Four Ascertainment of the Applicable Laws in Torts in Conflict of Laws Situation -71

4.1 Introduction – – 71

4.2 The lex loci Delicti (Where the Tort Occurred)-  – 71

4.3 The Law of the Place where   the Court Is :Lex Fori –    75

4.4 The Proper Law of Tort     76

4.5 Ascertainment of Applicable Tort Rules in the Nigerian Courts    78

Chapter Five

5.1 Summary and Conclusion – –  – 83

5.2 Observations-  – – – – – –          –  85

5.3 Recommendations – – –  – – – –  90

5.4  Bibliography – – – – – – – –          96

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 asmunicipal laws or local laws1. 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 law2.  Conflict of laws comes into play or becomes applicable when the issue of jurisdiction is in question.

BIBLIOGRAPHY

Abla Mayss;  Conflict of Laws; 2nd Edition, Cavendish Publishing Limited, Great Britain) (1997)

Agbede, I.O.   Themes on Conflict of Laws, Sheheson Publishers, Ibadan, (1989)

Bryan A. G.  The Black’s law Dictionary,(9th Edition) Thompson Business, United States of America, (2004)

Cheshire and North:  Private International Law, publisher, 8th edition, Butterworth London (1997)  

Cook, W. N. The Logical and Legal Bases of the Conflict of Laws, Harvard

University Press, Cambridge, 1942

Dicey and Morris;  Conflict of Laws; (13th Edition) (Lawrence Collins eds).Vol 1,

Sweet & Maxwell, London, 2000.

Ehrenweigh A. The Not So proper law of Tort: a Pandorax Box, (1968) 171 ClQ 1                       

Essien, J.O.  Introduction to Nigerian Legal System, Ababa Press Ltd., 2nd

Edition, Surulere, Lagos, Nigeria, 2005

Graveson, R.H.;  The Conflict of Laws, Sixth Edition, Sweet & Maxwell, London,(1974)

Morris, J.H.C;  The Conflict of Laws ;( 3rd edition) Stevens & Sons, London, (1984)

Rufai, A.M.;   Tort Liability in the Anglo – Nigerian and American conflict of  laws, LL.M Thesis, submitted to Board of studies, Postgraduat School, A.B.U Zaria, Nigeria, 1988.